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Anonymity and the Art Market: Balancing Privacy and Transparency

October 16, 2023

What Are You Looking at? (2004), by Bansky. Marble Arch Street, London, GB

By Esther Neville

Art offers profound lessons about history and serves as a mirror of our society over time. Nevertheless, its purpose extends beyond these realms. It also acts as a means of adornment, rendering artworks a symbol of luxury. This association has made the art market a prominent conduit for substantial financial transactions. A notable example is the sale of Salvator Mundi by Leonardo da Vinci, sold by Christie’s for 475 million dollars, setting a record as the most expensive artwork ever sold to an individual.[1] One aspect that often raises eyebrows and sparks curiosity in the art market is the concept of anonymity. This article delves into the enigmatic world of anonymous collectors, and buyers, exploring the reasons behind their decision to remain hidden and the risks of the lack of transparency. Anonymity may lead to a potential debate concerning buyers/sellers’ right to remain anonymous and the lack of transparency in the art world.

Importance of Anonymity

Anonymity plays a crucial role in the art world. One of the most important reasons for its use is to safeguard one’s privacy and security. Artists, collectors, and dealers sometimes keep their names hidden to avoid biases, prejudices, or unwelcome attention. Anonymity helps artists to concentrate on their creative expression without interference from others, promoting artistic freedom and a fair playing field. Bansky is the ideal example of the anonymity of an artist, he has made excellent use of his secrecy, making it a key to his success with a net worth of 50 million pounds.[2] Furthermore, when collectors are concerned, they may buy artworks quietly without worrying about a third party misusing their personal information or drawing unwanted notice. Indeed, remaining anonymous can be critical in protecting important assets since it reduces the danger of theft or targeted assaults; it allows individuals to participate in the art market while maintaining their privacy. [3]Anonymity has also been favored in the art market by sellers or buyers to avoid prejudice in the bidding process.[4]

Risks of Lack of Transparency

However, while anonymity has its merits in artistic expression, its prevalence in art transactions raises concerns about transparency and accountability. The art market’s penchant for anonymity has created an environment where transactions occur behind closed doors, shielded from public scrutiny. Determining the actual ownership, origin, and authenticity of artworks is difficult due to this lack of transparency. Additionally, it provides a pathway for potential illegal activities including tax avoidance, money laundering, and the sale of stolen or looted art.[5] Anonymity’s impact on transparency extends beyond the buyers and sellers. It affects the overall market dynamics, distorting valuations and compromising the integrity of the art world. The lack of verifiable ownership records and anonymous transactions makes it difficult for collectors, investors, and even institutions to make informed decisions, resulting in a less reliable and trustworthy market.[6]

The 2016 Hoffman v L&M Arts Dispute

It is essential to note that not all transactions conducted by anonymous individuals indicate involvement in illegal activities or money laundering. Some individuals choose to remain anonymous for personal or professional reasons, without any illicit motives behind their actions. The 2016 Hoffman v L&M Arts case is a notable example of the delicate balance between personal privacy and the required transparency in the art market. [7] The main focal point of the case is the well-known Mark Rothko painting, called “Red Rothko” formerly owned by Marguerite Hoffman, the plaintiff. Hoffman arranged to sell the work in 2007 through a private sale and wished to keep this transaction private. When the painting was offered for sale later on, the cat was out of the bag, and Hoffman claimed that she was fraudulently persuaded into making the sale of the artwork on false pretenses of confidentiality. The subsequent public resale of the piece of art violated the confidentiality clause in her contract with the original buyer, David Martinez, a Mexican-born billionaire art collector, who paid $17.6 for the piece. Hoffman insisted on keeping her name a secret so as not to worry about possible ramifications within the art community.[8] The case raised pertinent questions about the rights of collectors to remain anonymous and the potential effects that such privacy may have on the broader openness and accountability of the art market. The court found that Hoffman could not expect confidentiality to last. The case ultimately demonstrated the complex interplay between privacy issues and the demand for transparency, leading to further discussions on finding the ideal compromise between these seemingly opposing forces.

What should be valued higher?

In the art market, there is a constant balancing act between transparency and the right to privacy. While transparency is often seen as beneficial and legally required, there are instances where confidentiality remains a valid choice and even a legal obligation. For dealers and auctioneers, maintaining confidentiality or discretion allows them to protect their clients and their business from competitors; it also enables dealers to profit from their research and expertise by creating a margin between acquisition and sale prices.[9] Therefore, confidentiality is crucial for the survival and functioning of the art market, despite potentially conflicting with dealers’ own need for research and due diligence.

However, legal requirements sometimes seem contradictory to the push for transparency. Art market participants often act as agents for others. While agents are expected to disclose their dealings to their principals, they are also bound to respect the principal’s desire for non-disclosure of their identity and business.[10] The right to privacy plays a significant role in maintaining confidentiality in the art market, although it has been a subject of debate. Privacy rights are protected by various legal frameworks, including statutory and common law privacy rights and data protection regulations. Therefore, even though transparency may suggest revealing a client’s identity when offering artwork for sale, dealers and auction houses may be commercially hesitant to do so, and the law may restrict them. As a result, the art market finds itself navigating between the advantages of transparency and the pressures of agency, personal privacy, and business confidentiality.

Increased transparency has undeniably opened the market to a broader range of participants, benefiting both the market and its stakeholders. However, the need to maintain discretion and privacy rights remains valid and influential. This requires practitioners to carefully balance disclosure and discretion while staying well-informed about relevant legal requirements in their jurisdiction and internationally. [11]

Conclusion

Overall, the anonymity and lack of transparency in the arts industry have made it a haven for secrecy as well as money laundering and other illegal activities and complicit acts from creditors; more involvement is needed to address this widespread problem.[12] For the art market to be more transparent, governments worldwide need to be stronger and coordinate internationally, while members of the art trade, such as galleries, and auction houses, need to apply ethical practices and appropriate research to combat illicit activities. Governments need to require tougher Know Your Customer (KYC) procedures, mandating verifiable ownership records and in the case of digital artworks encourage the adoption of blockchain technologies for those transactions.[13] By encouraging and raising the cloak of anonymity, public awareness and education are needed to recognize the warning signs of money laundering in the art market.[14]

While requiring openness and support for ethical values, art funders, collectors and art lovers should support causes that will create a more accountable and regulated art market. By erasing the shadow of anonymity and building transparency, we can maintain the integrity of the art market, protect the legacy of artists, and protect them from the currencies of the global financial system negatively. [15] It is through this collaborative effort that art can unlock its full potential as a vehicle for expression, inspiration, and cultural enrichment.

While the anonymity and lack of transparency inside the artwork market have raised worries about illicit activities, it is critical to acknowledge that anonymity would not always have to be perceived negatively.[16] The decision of buyers and dealers to stay anonymous is a legitimate choice that needs to be respected. It is vital to conduct similar studies and explorations to discover a delicate balance between privacy rights and the need for transparency. Striking this stability requires nuanced know-how of the complexities and implications. By delving deeper into this subject matter, policymakers, regulators, and market contributors can work in the direction of growing frameworks that recognize privateness while also addressing the worries surrounding the lack of transparency. A properly-knowledgeable technique will help ensure that privacy rights are upheld while maintaining a fair, responsible, and sustainable art market environment.

Disclaimer: This and all articles are intended as general information, not legal advice, and offer no substitution for seeking representation.

About the author

Esther Neville is finishing her European Law Bachelor at Maastricht University, with a minor in Art, Law and Policy Making. She wishes to combine her academics with her passion for the arts. She is very eager to participate in the Anti-Money Laundering Study Project this summer. Esther is very excited to start her role as a legal intern at the Center for Art Law and to have the opportunity to immerse herself in the art law field.

Further Reading

A report of Art & Finance, Deloitte

Transparency

  1. Artincontext, Most expensive paintings – a look at the Wold’s most valuable paintings, artincontext.org. (2023), https://artincontext.org/most-expensive-paintings/. ↑
  2. Dawsons, How much is an original banksy worth?, Dawsons Auctioneeers & Valuers (2022), https://www.dawsonsauctions.co.uk/news-item/how-much-is-an-original-banksy-worth/.

    ↑

  3. Maithreyi Soorej, The A to Z of the Art of Keeping an Anonymous Identity as a Collector, Indulge Express (2022), https://m.indulgexpress.com/culture/art/2022/jul/03/the-a-to-z-of-the-art-of-keeping-an-anonymous-identity-as-a-collector-41999.amp. ↑
  4. Sarah Cameron, How does Art Money laundering work? Comply Advantage (2023), https://complyadvantage.com/insights/art-money-laundering/. ↑
  5. Anderson et al., Money Laundering Issues in the Art Market, White & Case LLP (2023), https://www.whitecase.com/insight-alert/money-laundering-issues-art-market. ↑
  6. FATF, Money Laundering and Terrorist Financing in the Art and Antiquities Market, FATF, Paris, France, (2023), https://www.fatf-gafi.org/publications/Methodsandtrends/Money-Laundering-Terrorist-Financing-ArtAntiquities-Market.html ↑
  7. Hoffman v. L & M Arts, 838 F.3d 568 (5th Cir. 2016) ↑
  8. Hoffman v. L & M Arts, 838 F.3d 568 (5th Cir. 2016) ↑
  9. Christopherson, T. Art law and the art market: Disclosure or discretion?, Sotheby’s Institute of Art. (2017) https://www.sothebysinstitute.com/news-and-events/news/art-law-and-the-art-market-disclosure-or-discretion. ↑
  10. Ibid. ↑
  11. Ibid. ↑
  12. Cameron, S. (2023) How does art money laundering work?, ComplyAdvantage. Available at: https://complyadvantage.com/insights/art-money-laundering/. ↑
  13. Thorsten J Gorny, Anti-Money Laundering Guide for the art market Sanctions lists & PEP Screening for AML Compliance, (2022), https://www.sanctions.io/blog/anti-money-laundering-guide-for-the-art-market. ↑
  14. Barbereau, T., Sedlmeir, J., Smethurst, R., Fridgen, G., & Rieger, A. (2022). Tokenization and regulatory compliance for art and collectibles markets: from regulators’ demands for transparency to investors’ demands for privacy. In Blockchains and the Token Economy: Theory and Practice (pp. 213-236). Cham: Springer International Publishing. ↑
  15. Andrey V, Is There Transparency in the Art Market? Widewalls (2017), https://www.widewalls.ch/magazine/art-market-transparency. ↑
  16. The Art Market is increasing in transparency, Deloitte (2017), https://www2.deloitte.com/lt/en/pages/finance/articles/art-market-increasing-transparency.html. ↑

 

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. For legal advice, readers should seek a consultation with an attorney.

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