By Eve Gatenby.

Most Frans Hals portraits have a kind of swagger to them that suggests that they are enjoying a good joke at the viewer’s expense, from the smirk of “The Laughing Cavalier” (1624), to the full-blown hilarity of “Malle Babbe” (1633-35).

The portrait “Unknown Gentleman” purchased by Richard Hedreen’s company EPC Nevada in June 2011, turned out to be more than just an artistic joke (“the Portrait” or “the Painting”).[1] Hedreen, a Seattle-based art collector, notably bestowed a series of high-profile and high-quality works to art galleries around the world.[2] These gifts included household-names such as Anselm Kiefer (Royal Academy of Art), Bartolomé Esteban Murillo (Seattle Art Museum) and Bill Viola (National Gallery of Art).[3]

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The Portrait in question had previously been co-owned by two companies: Fairlight Art Trust and Mark Weiss Ltd, a London-based fine art dealership specialized in Tudor, Stuart, and Northern European Old Master paintings, co-owned the Painting prior to Hedreen’s acquisition.[4] Italian art dealer Guiliano Ruffini originally sold the Painting to Fairlight, acting on behalf of Fairlight and Weiss.[5] Weiss then proceeded to sell it through Sotheby’s on his and Fairlight’s behalf, with Hedreen’s EPC Nevada submitting the winning bid, purchasing “Unknown Gentleman” for $10.75 million.[6] Hedreen acquired a gem of the Dutch Golden Age, or so he thought.

Only four years later, this all looked set to change when French authorities seized a Lucas Cranach painting of Venus from an exhibition of the Prince of Lichtenstein’s private collection.[7] After extensive testing of the thought-to-be Cranach painting, chemicals embedded in its paint revealed that it was a modern fake – but why were the French authorities testing the painting in the first place?[8] In an unexpected twist, the Prince’s attorney revealed that an anonymous tip to the French police raised concerns over the painting’s authenticity.[9] The question is, how is this “Cranach” painting connected to Hedreen’s Frans Hals? Both the fraudulent Cranach and Frans Hals originated from one owner, Giuliano Ruffini,[10] a French art dealer known for his large collection of Old Master paintings.[11]

Ultimately linked to a series of forged artworks, Ruffini maintains his own innocence. Stating that although he sold many of these paintings, he never attributed them to “Old Masters.” He maintains that academic study and identification from dealers led to their attribution as the works of “Old Masters.”[12] New York’s Metropolitan Museum of Art and the National Gallery in London previously displayed artworks originating from Ruffini’s collections.[13] By the Spring of 2019, authorities had issued a Europe-wide arrest warrant for the arrests of Ruffini and Lino Frongia, the suspected artist behind Old Master works. The Italian courts, however, refused to transfer Frongia from northern Italy to France for his trial.[14]

As the scandal of the forged Cranach rocked the art world, Sotheby’s quickly sought to investigate the Frans Hals they had sold a few years earlier, suddenly doubting the painting’s authenticity.[15] In April 2016, Sotheby’s invited Hedreen’s EPC Nevada to provide the painting for forensic testing.[16] Orion Analytical (“Orion”), a Massachusetts-based painting conservation firm known for assisting the Federal Bureau of Investigation in many art forgery cases, performing forensic analysis.[17] Orion’s lead scientist, James Martin, examined both the Frans Hals and a painting of St. Jerome attributed to Parmigianino, which Sotheby’s sold in 2012 and which also originated in Ruffini’s collection.[18] Martin found that both paintings were forgeries. Only a few months later, Sotheby’s bought Orion; no doubt the Ruffini problem raised the specter of further forgery investigations.[19]

When Hedreen bought the Frans Hals, the purchase contract between EPC Nevada and Sotheby’s contained a counterfeit clause.[20] The clause stated that Sotheby’s guarantees the buyer that the Painting is not counterfeit – meaning that the Painting was not an imitation specifically intended to deceive.[21] If the Painting was found to be counterfeit within five years from the time of purchase, Sotheby’s would rescind the sale, refund EPC Nevada for its purchase after which Sotheby’s would receive the counterfeit Painting in return.[22] Sotheby’s contract with Fairlight and Weiss similarly detailed that if the Painting was found to be counterfeit, Fairlight and Weiss would refund the purchase to Sotheby’s, and Sotheby’s would return the Portrait, effectively negating the sale.[23] The contract between Fairlight and Weiss and Sotheby’s, however, also contained another element which was not in Sotheby’s contract with Hedreen – the Generally Accepted View Proviso (“GAV Proviso”). This proviso laid down an interesting benchmark; the offer to rescind did not apply if, at the date of the agreement, scholars and experts generally accepted the Painting’s description.[24] Unsurprisingly, a legal case ensued starting in 2017.

Legal Action

EPC Nevada sought to rescind the sale after Orion’s counterfeit determination.[25] Sotheby’s, performing in accordance with the purchase contract’s counterfeit clause, returned the purchase price to EPC Nevada, and took back the Painting.[26] Sotheby’s then turned to the contract with the sellers, Fairlight and Weiss, and pointed to the equivalent clause, requesting that Weiss and Fairlight return the purchase price.[27] Weiss paid Sotheby’s its half of the Painting’s price; Fairlight Art Ventures, on the other hand, refused to do so.[28]

During an eight-day trial in April 2019, the Queen’s Bench Division heard the case between Fairlight and Sotheby’s (with Weiss as an interested party).[29] The judgment rendered on December 11, 2019 favored Sotheby’s, opining that Fairlight fulfill its contractual obligation by repaying Fairlight’s portion of the Painting’s price to Sotheby’s.[30]

Fairlight appealed the case in early November 2020, and on November 23, 2020, the UK Court of Appeal, Civil Division upheld the 2019 decision, dismissing all of Fairlight’s claims.[31]

  • First, Fairlight argued that it was not in direct contractual relations with Sotheby’s but instead, were a sub-agent of Weiss.[32] Fairlight argued Weiss and Sotheby’s contracted for the Painting’s sale, and thus the contractual terms do not bind Fairlight.
  • Second, Fairlight argued that it was not partners with Weiss, who, as a result, did not have authorization to enter into a contract with Sotheby’s on behalf of its partners.[33]
  • The third ground of appeal focused on the GAV Proviso.[34] Fairlight argued that a common consensus from six or seven experts attributed the Painting to Frans Hals, and this, in turn, means that Sotheby’s recission of the sale did not apply.[35]
  • The fourth and final grounds of appeal centered on the facts of the case. EPC Nevada (Hedreen’s company) bought the Painting in July 2011, before transferring it to Hedreen in December 2011, making the Painting privately owned.[36] After the forgery determination, Hedreen transferred the Painting back to EPC Nevada.[37] The contractual terms clearly stated that the offer to rescind only applies to the Painting’s original owner. [38]Fairlight argued that EPC Nevada was not the original owner, as the Portrait was previously transferred.[39]

The Court of Appeal dismissed all four of Fairlight’s claims,[40] describing the company as trying to “have their cake and eat it.”[41] On the first grounds, the Court found that as co-owners of the Painting, Weiss was not merely Fairlight’s agent.[42] The second ground was struck out as irrelevant to the case.[43] The third ground, which centered around

“generally accepted views of scholars and experts” relating to the GAV Proviso was subject to a greater amount of more convoluted reasoning in the judgment.[44] The Court held that there was insufficient time for a generally accepted view to form on the alleged Hals Painting.[45] This aspect of the Court’s decision is more debatable, particularly since the Painting’s attribution to Hals appeared to be so concrete at the time. Interpreting the GAV Proviso in this way sets a high bar for future interpretations of similar contractual clauses. Finally, the Court found that EPC Nevada was and remained the original buyer, holding that “there is no suggestion that the original buyer only has that status for so long as it remains the owner.”[46]

“A Fine Painting”

Overall, it is not the court case, but rather Ruffini, who has been the center of reports concerning this counterfeit Hals. One of the presiding judges for the case stated that “the law had to fall on someone…obviously, it did not fall on the forger,” and, indeed, one cannot help but feel oddly about how this case progressed through the UK’s appeal courts while Ruffini is yet to stand trial.[47] Justice Robin Knowles concluded his judgment for the Queen’s Bench Division with an intriguing comment on the nature of art forgery:

This judgment does not determine whether the Painting is by Frans Hals. Whether by Frans Hals or not, it is to be hoped that its intrinsic qualities will not be ignored, and that it may be enjoyed for what it is, which is a fine painting.[48]

The final sentences of the judgment cut through to the very heart of this case: that as we tangle with the complex contractual arrangements between buyer and seller, those contractual arrangements rarely leave room to debate about what a “true” artwork really is.[49]


Endnotes:

  1. See Sotheby’s v Mark Weiss Ltd [2020] EWCA (Civ) 1570, 3]; see generally Sotheby’s v. Mark Weiss Ltd. [2019] EWHC (Comm) 3416.
  2. Tom Jeffreys, Anselm Kiefer: A Beginner’s Guide, Royal Academy (Sept. 25, 2014); New This Month in U.S. Museums, Artnet News (May 1, 2007); The Quintet of the Astonished, National Gallery of Art.
  3. See Jeffreys, supra note 2; Artnet, supra note 2; National Gallery of Art, supra note 2.
  4. Mark Weiss Ltd. [2020] EWCA [3].
  5. Id. [3].
  6. Id. [23]
  7. Lorena Munoz-Alonso, Paris Judge Seizes Cranach ‘Venus’ from Major Exhibition of Prince of Liechtenstein’s Art Collection, Artnet News (Mar. 4, 2016).
  8. Id.
  9. Id.
  10. Mark Weiss Ltd. [2020] EWCA [14], [32].
  11. Vincent Noce, Old Master Fakes Scandal: Warrant Issued for Dealer Giuliano Ruffini as Painter Lino Frongia Arrested, The Art Newspaper (Sept. 13, 2019).
  12. Id.
  13. Id.
  14. Vincent Noce, Old Master Scandal: Italy Rejects European Arrest Warrant for Painter Connected to Forgery Case, The Art Newspaper (Mar. 3, 2020).
  15. Mark Weiss Ltd. [2020] EWCA [33], [34].
  16. Id.
  17. Samanth Subramanian, How to Spot a Perfect Fake: The World’s Top Art Forgery Detective, The Guardian (June 15, 2018).
  18. Mark Weiss Ltd. [2020] EWCA [34].
  19. Subramanian, supra note 17.
  20. Mark Weiss Ltd. [2020] EWCA [28-29].
  21. Id.
  22. Id.
  23. Id.
  24. Id. [24-25].
  25. Id. [3], [36].
  26. Id.
  27. Id. [4].
  28. Id. [5].
  29. Id. [1].
  30. Id.
  31. See generally Mark Weiss Ltd. [2020] EWCA (Civ) 1570.
  32. Mark Weiss Ltd. [2020] EWCA [45-53].
  33. Id. [54-56].
  34. Id. [57-63].
  35. Id.
  36. Id. [64-66].
  37. Id. [64-66], [114].
  38. Id. [64-66].
  39. Id.
  40. Id. [80], [93-94], [109], [115]
  41. Id. [75], [80].
  42. Id. [79].
  43. Id. [93].
  44. Id. [99].
  45. Id. [99], [108-109].
  46. Id. [114].
  47. Katherine Keener, London Court Upholds Ruling Concerning Forged Frans Hals Painting, Art Critique (Nov. 27, 2020). 
  48. Sotheby’s v. Mark Weiss Ltd. [2019] EWHC (Comm) 3416, [100].
  49. See id.

About the Author: Eve Gatenby is a current law student at City, University of London. She graduated from the Courtauld last year with a Master’s in History of Art, focused on Circum-Atlantic Visual Culture, c. 1760-1830. Her undergraduate degree was in English Literature at Trinity College, University of Cambridge.