Burning Fake Chagall’s, Market Integrity versus Ownership Rights – A Zero Sum Game

By Hanoch Sheps, Esq.

Authenticity: a trait that seems increasingly hard to establish. Some entities are even burning fake artworks to ensure lasting integrity in the art market. Does the presence of ‘fakes’ warrant such drastic action, and is it legal to seize and destroy someone’s property? Picture this – a collector purchases a particular artwork that is represented as a work by Marc Chagall. A red-letter day, right? Seeking to authenticate the work, the collector submits it to an expert committee or board specializing in the artist's work. To the collector’s chagrin, not only does the committee deem the work to be a fake, but intends to burn it instead of returning it. This is a story British collector Martin Lang would say is all too familiar, "[I]t's basically my property. I just couldn't understand why the committee would be so draconian," he told the BBC. "Lang bought what he thought, and was represented to him as a 1909 Chagall watercolor for £100,000 (US$170,000) in 1992. He then submitted the work to the Chagall Committee, an entity in France known for authenticating works by the artist, but was told that the work was a fake. As a matter of course, contracts with authenticating entities often include provisions that permit them to destroy the work if deemed a forgery (making it unlikely for him to recoup his expenses).

According to a London-based art lawyer, Pierre Valentin, however, Lang’s contract was rather opaque on this point, "[s]ome contracts are more explicit. I haven't seen this contract, but the paragraph was read to me and it's not at all explicit… It should be absolutely clear." (The Destruction Of Fakes, Pierre Valentin). What is clear is that France is a staunch enforcer of artists’ rights and its courts have upheld decisions to destroy works deemed fakes in the past.