While away at the ISA conference I missed a good Wall Street Journal article on the complicated issues of art authentication and the legal issues arising for those who authenticate. Fellow appraiser Xilliary Twill, ASA also forwarded a post from another blog on the topic.
This AW Post post is a bit longer than most, as I decided to include the WSJ article, as well as a context quote from art attorney Judith Bressler and the actual bill in the NY State legislature.
I think art authentication is a very important topic, and the complications now arising are quickly attracting the attention of the appraisal community. Realizing there is a problem is only the first step, but finding solutions is critical to our profession. These authentication issues of course have multiple implications for personal property appraisers for both fine and decorative arts and should therefore be taken very seriously by our profession. As a matter of fact the AW blog has posted a good number of articles on authentication issues and lawsuits over the past several months and perhaps years. It now seems as there is some actual legislation being proposed.
Additionally, last week while at the International Society of Appraisers conference I was among a group of appraisers speaking with one of the presenters on issues in fine art. Someone within the group asked this high ranking museum official and art expert if he authenticated art. He said he did, but now there was "no upside" in authenticating fine art and rarely does. I took this to mean, for the time, effort and limited fees involved in good faith art authentication it was not worth the risk of possible litigation in defending an authentication opinion and report. The impact of art authentication and connecting litigation is now starting to hit close to home and involve people I come into contact with.
In the case of art authentication we are now witnessing how our legal system is being misused to intimidate art authenticators through the threat of lawsuits against good faith authentication opinions. These threats of legal action are now negatively effecting the legitimate authentication process of art throughout the art marketplace. The Wall Street Journal article is block quoted below and contains some current examples and mentions a proposed NY legislature bill to offer limited protection to autenticators.
For many appraisers, a lack of authentication resources could be critical in developing credible assignment results, and with fewer authenicators we have fewer choices and potentially a lack of certainty/confidence in our reports. For example, I am now appraising a rare Louis XV bureau plat with a possible connection to Versailles (not the King's, but perhaps a Minister or other official). What happens if I cant find a willing expert to validate and authenticate the piece based upon marks, style, construction, maker as well as documents from Versailles. I certainly cant rely on "readily apparent identity". I am working on another assignment connected to our Colonial era government and cabinetmaker Thomas Affleck. I need the input of experts and autenticators for credible results on this assignment as well.
Authentication is of vital importance to the art world as a whole and directly impacts the ability of appraisers to properly value works. For appraisers, having fewer authentication boards authenticating while museum experts are worried about offering good faith opinions due to the threat of potential litigation both of which can cause a multitude of problems for appraisers. Clients and intended users of appraisals (such as the IRS) for rare and valuable items of both fine and decorative arts expect more than "readily apparent identity" in an appraisal report. This potential lack of authentication and the connected lawsuits can quickly become the proverbial "slippery slope" for appraisers. Therefore, it is in the best interest of the personal property appraisal profession to support this legislation. Take a moment and forward this post to a fellow appraiser.
The WSJ article refers to the bill in the New York legislature and is known as the Art Authentication Protection Bill. It was designed to curtail the frivolous suits against good faith art authenticators. It is a simple bill, just over a page in length, it is posted in a block quote at the end of this post. Take a moment to read it.
Judith Bressler, author of Art Law
Source: Center for Art Lawaddressed the context for the proposed addition of § 13.04 to New York’s Art and Cultural Affairs Law, explaining that an increasingly litigious environment has a chilling effect on art experts and authenticators. Further, when these individuals are afraid to render their opinions of authenticity, it has a chilling effect on transactions and the marketplace, inviting fakes and forgeries to enter into the stream of commerce. The proposed legislation, designed to provide greater protections for authenticators, was approved by the City Association of the Bar in January 2014, and introduced as a Bill on 11 March 2014. (Text of the proposed Bill is available online). The Bill defines an “authenticator” as a person who is recognized as having expertise regarding the artwork in question, who has rendered an opinion of authenticity in good faith, and who does not not have a personal financial interest in the artwork itself or in the underlying transaction (other than being paid for his/her services in rendering the opinion). If enacted, § 13.04 would add three forms of protection for authenticators: 1) a plaintiff suing an authenticator would be required to specify the facts supporting each part of each claim (exposing frivolous claims for their lack of merit), 2) the plaintiff would be required to prove his/her claim by clear and convincing evidence (a higher burden than preponderance), and 3) the authenticator could recover legal fees if successful in defending the claim.
In doing a little research I found the College Art Association supports the bill and is encouraging members to contact the NY legislature in support of the bill. Click HERE for the CAA support post. I am also told that both Appraisers Association of America (AAA) support the bill and American Society of Appraisers (ASA) also support the bill.
The International Society of Appraisers should consider joining the appraisal community in support of this bill. The legislation as written is pretty straight forward, would assist both fine and decorative arts appraisers and the users of appraisers by giving limited protection to an arms length, ethically prepared, good faith authentication report. I think ISA would be conspicuous in its absence.
Read the bill below the Wall Street Journal block quote, it is pretty simple, it offers limited protection for those who render good faith opinions.
The Wall Street Journal reports
Source: The Wall Street JournalAs contemporary-art prices soar, collectors want assurances that works are authentic. But it is becoming increasingly difficult to get an answer.
A series of high-profile authentication disputes have made art historians reluctant to offer opinions, and prompted several artist estates and foundations to disband their authentication boards.
The authentication deep freeze means uncertainty for artworks that haven't previously been authenticated or included in an artist's catalogue raisonné, or scholarly inventory. Such works may end up occupying a murky middle ground and sell for less than authenticated works, experts say. "There are people who are willing to take educated gambles," said Peter Stern, an attorney who specializes in the art world. Others can't be sold at all.
In 2007, Joe Simon, a London-based filmmaker, sued the Andy Warhol Foundation for the Visual Arts after the board ruled inauthentic a silk-screen featured during the artist's lifetime on the cover of his catalogue raisonné. The foundation announced in 2011 it was disbanding its authentication board after it says it spent more than $6 million fighting the suit. Mr. Simon said he dropped it because he couldn't afford to continue.
"Protecting collectors, it's not our job," said Michael Straus, chairman of the Warhol foundation. "I don't think putting the burden of that due diligence on an artist estate, especially in the absence of sufficient legal protections, is appropriate."
In February, a group of collectors sued the Keith Haring Foundation, saying the organization had cost them at least $40 million by publicly declaring their paintings "counterfeit" and declining to consider information that could establish their provenance. The foundation's authentication board was dissolved in 2012.
The case with the greatest chilling effect for scholars was one that led to the closure of Manhattan's Knoedler & Co. gallery. Last year, Long Island art dealer Glafira Rosales pleaded guilty to conspiring to pass off a Queens artist's paintings as works by Jackson Pollock, Mark Rothko and others. Former Knoedler President Ann Freedman named a long list of experts who she claimed had seen and endorsed the paintings before they were revealed as knockoffs. The reputations of several art experts were tarnished and at least one has been sued by a collector who bought a fake.
A bill introduced in the New York legislature in March could offer some relief to New York-based art experts. The bill aims to make it more difficult for collectors and dealers to bring lawsuits against art historians whose opinions they contest. Lawsuits have been brought against experts both for finding works inauthentic and for wrongly authenticating works that turned out to be fakes.
Even as many artists' heirs decline to perform official authentications, some continue to hold considerable influence in the marketplace.
In a recent deposition, Mark Rothko's son, Christopher Rothko, said he has twice been invited by an auction house to view Rothko paintings discovered since the publication of the Rothko catalogue raisonné. One of those paintings —which was authenticated by David Anfam, the author of the Rothko catalog—sold at Christie's for $33.7 million, Christie's said.
Last month, Christie's postponed a sale after the sisters of Jean-Michel Basquiat alleged in a federal suit that some works in the collection of Basquiat's onetime lover, Alexis Adler, were of "questionable authenticity." Six of the works had been approved by the estate's now-defunct authentication committee. Many others hadn't been evaluated.
"Now without the authentication boards, it's a real tricky situation for everybody," Ms. Adler said.
------------------------
This legislation has been introduced to offer protections to art historians, art curators, independent art scholars, conservators, and other qualified experts who submit good faith opinions on the authenticity, attribution, or authorship of works of art from unsubstantiated law suits.
The proposed legislation from the NY Senate and Assembly on authentication protection in the NY Courts follows:
Source: NY State Assembly, NY SenateILL NUMBER:S6794
TITLE OF BILL: An act to amend the arts and cultural affairs law, in relation to opinions concerning authenticity, attribution and authorship of works of fine art
PURPOSE: To enhance protections under the law for individuals who are employed as art authenticator in the visual arts community.
SUMMARY OF PROVISIONS:
Section one adds a new section 13.04 to the arts and cultural affairs law.
Section two sets forth the effective date.
JUSTIFICATION: In general, artwork is authenticated by a trained person through documentation, stylistic inquiry, and/or scientific verification. No one method is perfect as oftentimes authenticity is difficult to determine. While each authentication method has its own drawbacks, the role of authenticators as drivers of the art market cannot be overstated. Art authenticators reduce the risk of counterfeits and imitation flooding the art market that could potentially devalue the work of millions of artists.
In recent years, the work of authenticators has come under pressure from meritless lawsuits against those who render opinions in good faith. Such defense of expensive and frivolous lawsuits have left many in the industry reluctant to lend their expertise in authenticating art works.
This bill would clarify the role of art authenticators to ensure that those who practice their profession, in good faith, would be afforded protections under the law to ensure that only valid, verifiable claims against authenticators are allowed to proceed in civil court.
LEGISLATIVE HISTORY: New bill.
FISCAL IMPLICATIONS: None
EFFECTIVE DATE: This act shall take effect on the sixtieth day after it shall have become a law and shall apply to all opinions as to the authenticity, attribution or authorship of a work of fine art provided to someone other than the authenticator after such effective date.
Text
STATE OF NEW YORK
_____________________________________________________________________
6794 IN SENATE
March 11, 2014
___________
Introduced by Sen. LITTLE -- read twice and ordered printed, and when
printed to be committed to the Committee on Cultural Affairs, Tourism,
Parks and Recreation
AN ACT to amend the arts and cultural affairs law, in relation to opinions concerning authenticity, attribution and authorship of works of fine art
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. The arts and cultural affairs law is amended by adding a
new section 13.04 to read as follows:
S 13.04. OPINIONS AS TO THE AUTHENTICITY, ATTRIBUTION OR AUTHORSHIP OF WORKS OF FINE ART. 1. IN ANY CIVIL ACTION BROUGHT AGAINST AN AUTHENTICATOR THAT ARISES FROM OR RELATES TO THE AUTHENTICATOR'S OPINION OR INFORMATION CONCERNING A WORK OF FINE ART, THE CLAIMANT SHALL:
(A) SPECIFY WITH PARTICULARITY IN THE COMPLAINT FACTS SUFFICIENT TO SUPPORT EACH ELEMENT OF THE CLAIM OR CLAIMS ASSERTED; AND
(B) PROVE THE ELEMENTS OF SUCH CLAIM OR CLAIMS BY CLEAR AND CONVINCING EVIDENCE.
2. IN ANY ACTION DESCRIBED IN SUBDIVISION ONE OF THIS SECTION, THE AUTHENTICATOR SHALL BE ENTITLED TO RECOVER HIS, HER OR ITS REASONABLE ATTORNEYS' FEES, COSTS AND EXPENSES IF AND TO THE EXTENT THAT THE AUTHENTICATOR PREVAILS IN SUCH ACTION.
3. "AUTHENTICATOR" AS USED IN THIS SECTION SHALL MEAN, SUBJECT TO THE LIMITATIONS IN THE FINAL SENTENCE OF THIS PARAGRAPH, A PERSON OR ENTITY RECOGNIZED IN THE VISUAL ARTS COMMUNITY AS HAVING EXPERTISE REGARDING THE ARTIST OR WORK OF FINE ART WITH RESPECT TO WHOM SUCH PERSON OR ENTITY RENDERS AN OPINION IN GOOD FAITH AS TO THE AUTHENTICITY, ATTRIBUTION OR AUTHORSHIP OF A WORK OF FINE ART, OR A PERSON OR ENTITY RECOGNIZED IN THE VISUAL ARTS OR SCIENTIFIC COMMUNITY AS HAVING EXPERTISE IN UNCOVERING FACTS THAT SERVE AS A DIRECT BASIS, IN WHOLE OR IN PART, FOR AN OPINION AS TO THE AUTHENTICITY, ATTRIBUTION OR AUTHORSHIP OF A WORK OF FINE ART. "AUTHENTICATOR" SHALL INCLUDE, BUT NOT BE LIMITED TO, AUTHORS OF CATALOGUES RAISONNE OR OTHER SCHOLARLY TEXTS IN WHICH AN OPINION AS TO THE AUTHENTICITY, ATTRIBUTION OR AUTHORSHIP OF A WORK OF ART IS EXPRESSED OR IMPLIED. "AUTHENTICATOR" SHALL NOT INCLUDE A PERSON OR ENTITY THAT HAS A FINANCIAL INTEREST IN THE WORK OF FINE ART FOR WHICH SUCH OPINION IS RENDERED OR IN ANY TRANSACTION CONCERNING SUCH WORK OF FINE ART FOR WHICH THE OPINION IS RENDERED, OTHER THAN TO BE COMPENSATED FOR SERVICES SUCH PERSON OR ENTITY ENGAGED IN TO PROVIDE AN OPINION AS TO THE AUTHENTICITY, ATTRIBUTION OR AUTHORSHIP OF SUCH WORK OF FINE ART OR TO PROVIDE INFORMATION ON WHICH SUCH AN OPINION IS BASED IN WHOLE OR IN PART.
S 2. This act shall take effect on the sixtieth day after it shall have become a law and shall apply to all opinions as to the authenticity, attribution or authorship of a work of fine art provided to someone other than the authenticator after such effective date.
 |
No comments:
Post a Comment