London Decision on Authenticity of a Russian Painting
August 2, 2012
Lessons learned from London in July include:
1. A politician, when asked whether a city is ready to host Olympic games two days before the opening ceremony, should just say “yes.”
2. A judge, when asked if a multi-million dollar painting is authentic, should balance probabilities (which is effectively tossing a coin).
“We are holding an Olympic Games in one of the busiest, most active, bustling cities anywhere in the world. Of course it’s easier if you hold an Olympic games in the middle of nowhere,” responded the British Prime Minister, David Cameron to Mitt Romney’s “disconcerting” observation regarding London’s readiness to host the 30th Olympic games. Perhaps selling works of art is as hard as hosting Olympic games.
Professional event planners and art experts spend hundreds of hours in order to do their work right. Art historians examine works before sale, study the provenance, pore over catalogs and in the end take risks by stating their educated opinions about the objects offered for sale. More than 100 years ago, Justice Holmes stated in his Bleistein v. Donaldson Lithographing Co. opinion that courts are not the right venue to decide whether something is art or not, specifically “it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations…some works of genius would be sure to miss appreciation… .” In the 21st century it seems that courts are not the right venue to decide authenticity either. See Jo Backer Laird and Caroline W. Trowbridge, discussing Thome v The Alexander & Louisa Calder Foundation, 890 N.Y.S.2d 16 (First Dept. 2009) (in response to the Plaintiff’s request for a declaratory judgment that the works in question were authentic, the court ruled that it would be inappropriate as a legal matter, and ineffective as a practical matter, … because “art authentication involves the exercise of [an] expert’s informed judgment, … is highly subjective, and even highly regarded and knowledgeable experts may disagree on questions of authentication”.)
Now comes the decision in the case surrounding a canvas attributed to a Russian painter, Kustodiev. Various articles have called the British judge’s decision to award Russian billionaire Viktor Vekselberg a refund from Christie’s for a disputed painting “diplomatic.” Here, the High Court judge ruled that Christie’s neither was negligent nor misrepresented the painting in the 2005 sale, and said “I do not think certainty on the point is possible but my task is to determine authenticity on the balance of probabilities and the likelihood, in my view, is that Odalisque is the work of someone other than Kustodiev… “it follows that Aurora [owned and/or operated by Vekselberg] is entitled to cancel its purchase and to recover the money paid for it.”
While Christie’s “maintains their belief in the attribution to Kustodiev and are considering their options” and Aurora is celebrates “the ruling, which confirmed that the experts from Russian Museums were correct in asserting that the painting is not the work of Kustodiev,” only time and additional scholarship will tell whether the work is actually by Kustodiev or not.
And as for the 2012 Olympic Games, from what we can see, London is a well-prepared host for the competitors.