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| John Elderfield, a former curator at the Modern. |
John Elderfield, former chief curator of painting and sculpture at the
Museum of Modern Art, remembers the days when scholars spoke freely
about whether a particular work was genuine.
They were connoisseurs, this was their field of expertise, and a curator
like Kirk Varnedoe, Mr. Elderfield’s predecessor at the Modern, would
think nothing of offering his view of a drawing attributed to Rodin, his
specialty.
“He was qualified to do it and felt he had a moral obligation to do it,” Mr. Elderfield said.
But when the owner of a painting attributed to Henri Matisse recently
asked Mr. Elderfield for his opinion, he demurred. He worried he could
be sued if he said the painting was not a real Matisse.
Mr. Elderfield is hardly alone in feeling that art’s celebrated freedom
of expression no longer extends to expert opinions on authenticity. As
spectacular sums flow through the art market and an expert verdict can
make or destroy a fortune, several high-profile legal cases have pushed
scholars to censor themselves for fear of becoming entangled in
lawsuits.
The Andy Warhol Foundation for the Visual Arts, the Roy Lichtenstein Foundation
and the Noguchi Museum have all stopped authenticating works to avoid
litigation. In January the Courtauld Institute of Art in London cited
“the possibility of legal action” when it canceled a forum discussing a
controversial set of some 600 drawings attributed to Francis Bacon. And
the leading experts on Degas have avoided publicly saying whether 74
plasters attributed to him are a stupendous new find or an elaborate
hoax.
The anxiety has even touched the supreme arbiter of the genuine and
fake: the catalogue raisonné, the definitive, scholarly compendium of an
artist’s work. Inclusion has been called the difference between “great
wealth and the gutter,” and auction houses sometimes refuse to handle
unlisted works. As a result catalogue raisonné authors have been the
targets of lawsuits, not to mention bribes and even death threats.
“Legal cage rattling was always part of the process,” said Nancy Mowll Mathews, president of the Catalogue Raisonné Scholars Association.
But the staggering rise in art prices has transformed the cost-benefit
analysis of suing at the same time that fraud has become more
profitable, she said.
Some of the 74 plasters attributed to Edgar Degas:
fearing lawsuits, scholars are afraid to declare them genuine or not.
While some argue the fear is overblown, others warn the growing
reluctance to speak publicly about authenticity could keep forgeries and
misattributed works in circulation while permitting newly discovered
works to go unrecognized.
The perceived crisis has prompted a pointed ethical debate: Do you speak
out if you spot a suspicious work or keep quiet as lawyers recommend?
Art experts have been getting sued over their opinions since at least the days of Joseph Duveen, the flamboyant dealer who found himself in court
in the 1920s after declaring “La Belle Ferronnière,” a supposed
Leonardo painting for sale, to be a fake. Duveen’s judgment caused the
Kansas City Art Institute to withdraw its offer of $250,000, and in the
end Duveen settled by agreeing to pay the owner $60,000. (The painting
is now considered to be by a follower of Leonardo.)
As prices have risen, so have risks. In 2005, after watching other
organizations fend off lawsuits, the Lichtenstein foundation bought $5
million worth of liability insurance and made its authentication process
more rigorous and transparent, its executive director, Jack Cowart,
said. Then in 2011 the Warhol foundation
revealed it had spent $7 million defending itself against a lawsuit
involving a silk-screen it had rejected for the catalogue raisonné. Mr.
Cowart called his insurance company to find out if the Lichtenstein
foundation would be protected if faced with a similar suit. The agent
said it was impossible to predict. “That was a very sobering moment,”
Mr. Cowart said.
The board had always felt an obligation to guard Lichtenstein’s legacy
in this way, he explained. But now, figuring it was only a matter of
time before the law of averages would throw a lawsuit their way, board
members decided the benefits of authenticating did not outweigh the
risks.
“Why should we go stand in front of a speeding car?” Mr. Cowart said.
“We decided it’s not the role of the Roy Lichtenstein Foundation to deal
with the art market’s authenticity issues.”
That view disturbs Jack Flam, president of the Dedalus Foundation, which
is publishing Robert Motherwell’s catalogue raisonné and was sued last
year for changing its opinion about a painting’s authenticity. “If
experts stop speaking up, you’re going to get more fakes surfacing,” he
said.
Mr. Cowart counters that the authentication committee’s pronouncements
were not driving fakes out of the market. The majority of works
inspected during the panel’s six years, he said, were third-rate fakes
that would reappear as soon as the owners sold them to other
unsuspecting dupes.
So what would the Lichtenstein foundation do if it became aware that a
major forgery was being auctioned for millions of dollars?
“We don’t know what we would say if we were asked formally or
informally,” Mr. Cowart said. “We don’t deal in hypotheticals.”
Sharon Flescher, executive director of the International Foundation for
Art Research, said she doubts the number of lawsuits challenging expert
opinions has gone up. Nonetheless she conceded that the perception is
having “a chilling effect.” Even though few plaintiffs win, experts are
deterred by the time and legal expense. That’s why the College Art Association recently began offering affordable liability insurance to its members who authenticate art, she noted.
Peter R. Stern, an art lawyer in New York, tells clients never to
volunteer an opinion unless formally asked by the owners, and even then
to make sure the owners sign a waiver promising not to sue. If they don’t ask, don’t tell. “Art scholarship is fighting a losing battle against commerce,” he said.
Fears of being sued may even lead to changes in the nature of catalogues
raisonnés, Ms. Flescher added. She pointed to recent decisions by the
Calder and Lichtenstein foundations and the Noguchi Museum to move their cataloging efforts online and label them as “works in progress.”
“What we are presenting is a combination of completed research and
research pending,” said Shaina D. Larrivee, project manager of the Isamu
Noguchi catalogue raisonné. “We are very clear that ‘research pending’
does not guarantee inclusion in the final catalogue raisonné, and that
we have the ability to remove artworks if new information comes to
light.”
Alexander Rower, Alexander Calder’s grandson and the chairman of the Calder Foundation,
said he decided to forgo a catalogue raisonné in favor of an online
guide to Calder’s development and history. “You determine if your work
is fake or not with the data we present,” he said.
The Web site, scheduled to begin operation this summer, will feature
4,000 to 6,000 works, roughly one-quarter of Calder’s total output.
Although the foundation does not authenticate, Mr. Rower said, it will
register and examine a supposed Calder at an owner’s request and release
any information it has about the piece. The foundation does, however,
keep a watchful eye on the market. Mr. Rower traveled to the Basel art
fair in Switzerland last week to photograph every Calder for further
research, he said.
And if he were to find a forgery? “You can’t just go out there in the
world and say, ‘That’s fake,’ “ Mr. Rower said. “But it is a fair thing
for me to say to an art dealer, ‘Have your presented this work to the
Calder Foundation?’ And if he says no, I say, ‘You really should.’ “
As for scholars who are dragged into court, they do occasionally come out ahead. The art expert Steve Seltzer
was sued after declaring that a watercolor of cowboys was not painted
by the revered Western artist Charles M. Russell but by his own
grandfather the artist O. C. Seltzer. After the suit was thrown out, Mr.
Seltzer turned around and countersued the painting’s owner, Steve
Morton, and his lawyers. In 2007 the Montana Supreme Court awarded Mr.
Seltzer $11 million in damages. As the judges put it, using a lawsuit to
coerce an expert to give a particular opinion is “legal thuggery.”
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