On Duty of Auction Houses to Authenticate

December 2, 2025

By Vivianne Diaz

The art market’s existence rests on authentication.^[1] “[T]he market for artworks and artifacts only functions if these objects have a proper attribution to a specific creator or location of origin, date or period, and provenance.”^[2] With so much at stake, authenticity disputes are likely to end up in court, where the evaluation of authentication tools and evidence can be problematic.^[3] While auction houses are generally not required to guarantee the authenticity of art, their legal duties to authenticate stem from contract law, tort law, and industry custom.

After a series of high-profile forgery cases (known as the Old Master cases), confidence in the art market and in auction houses was slipping.^[4] Sotheby’s acquisition of Orion Analytical in 2016 marked a change in auction house industry customs – it placed higher significance on the scientific analysis tool for authentication, and signaled that auction houses may be expected to take a more active role in the art authentication process.^[5]

What is Authentication?

Traditionally, authentication rests on three major tools: connoisseurship, provenance, and scientific analysis; and is inherently uncertain.^[6] Connoisseurship, or expert attribution judgment, is when an art expert, deeply familiar with an artist’s style and technique, uses visual evidence to authenticate an artwork.^[7] Provenance is the history of an object; researchers trace “the physical object from the artist through a chain of ownership to the present owner.”^[8] Scientific analysis tests an artwork’s material composition to ensure that it is consistent with materials “known to have been available and used during the time period in which it was supposed to have been created.”^[9] Recently AI models have been put to test and use helping with authentication of art (read our Guidelines on AI and Art Authentication).

Auction House Liabilities

Auction houses usually have their own experts and technology to authenticate work that is sold through them. However, there are no statutory or regulatory provisions requiring them conduct or complete this research, or protect buyers when these authentication tools provide erroneous results. In fact, in 2022 New York City Counsel repealed a number of regulations of the auction industry, including certain licensing and disclosure requirements.^[10] The duty of auction houses to authenticate works comes from liabilities they may face under their contracts with buyers and sellers, liabilities faced under tort law, and potential reputational or market considerations – i.e. auction houses may fear the negative public perception that comes from forgery scandals.

i. Contractual Liability – e.g. Sotheby’s v. Weiss

The main source of protection for purchasers, and for auction houses themselves, against forgeries and fraud comes from certain contracts: agreements between the buyer and the auction house, the purchase agreement, and the consignment agreement between the seller and the auction house.^[11] These contracts usually contain “warranties of authenticity of authorship,” or provisions allowing the buyer to rescind a purchase of a work later proven to be a counterfeit or misattributed.^[12]

Under contract law, a buyer who purchased a forged work may sue the seller for “breach of warranty of quality and for defects that materially or legally negate or substantially reduce the value of the object or its designated purpose.”^[13] However, for auction sales, buyer recourse for misattribution against the auction house is often more difficult^[14] and may depend on issues of agency law. The buyer may also assert that “he has been induced to enter the sale agreement after the seller or auctioneer has made a misrepresentation to him on the art object’s authenticity.”^[15] Lastly, the buyer may attempt to rescind the contract for mistake.^[16]

To combat buyer recourse, auction houses may “attempt to limit vulnerability to rescission by disclaiming or limiting implied warranties of authenticity.”^[17] Auction houses may also avoid liability for misattributions by including provisions in the consignment agreement that require the seller to return the purchase price to the buyer, if the work is determined to be a forgery, as was the case in Sotheby’s v. Weiss.^[18]

In 2015, the art world was rocked by an international Old Masters forgery scandal.^[19] Sotheby’s quickly sought to investigate the authenticity of a Frans Hals they had sold a few years prior. In 2011, Fairlight Art Ventures LLP (“Fairlight”) and Mark Weiss sold a painting by Fras Hals, through Sotheby’s, to EPC Nevada LLC (“Nevada”) for $10.75 million.^[20] Using scientific analysis, Sotheby’s “found a modern synthetic pigment throughout the paint layer, and determined that the painting was a forgery.^[21] With no statutory or regulatory protections in place, the buyer was only protected by the contracts made at the time of sale.

In this case, as in many, there were two contracts. The first contract, the consignment agreement between the sellers and Sotheby’s, contained an authenticity guarantee providing that “should Sotheby’s determine that the painting was a ‘counterfeit’ . . . the seller agreed to rescind . . . the sale and return the purchase price to the buyer.”^[22] The second contract, the purchase agreement between Sotheby’s and the buyer, Nevada, contained a similar authenticity guarantee from Sotheby’s in favor of Nevada.^[23] After experts confirmed that the painting was inauthentic, Sotheby’s returned the purchase price to Nevada.^[24]

Sotheby’s then commenced an action against Fairlight and Weiss for reimbursement. Sotheby’s and Weiss settled. The issues on appeal turned to agency law – whether Sotheby’s had been properly delegated as an agent, making the contract binding on Fairlight. The court held that Sotheby’s and Fairlight “engaged in an agency relationship, so there was privity of contract binding Fairlight to Sotheby’s contract with Nevada.”^[25] Fairlight was required to reimburse Sotheby’s for the purchase price.^[26]

ii. Tort Liabilities – e.g. Thwaytes v. Sotheby’s

Aggrieved parties, buyers and sellers alike, may try to bring claims against auction houses for misattributions and authentication failures under tort law. Buyers may bring actions for negligent and/or fraudulent misrepresentation. Buyers may also claim that the auction house was negligent in providing its expert opinion on the authenticity of a work that is later found to be forged.^[27] On the other side, a seller may bring a negligence claim for a work that the auction house fails to attribute a high value to, as was the case in Thwaytes v. Sotheby’s.^[28] However, “[t]he success of a negligence claim is contingent upon the proof of a misattribution and resulting loss.”^[29]

In 2015, Sotheby’s was sued for breach of its contractual and tortious duties. The Plaintiff, in Thwaytes v. Sotheby’s, had sold, through Sotheby’s, a painting at £42,000 under the advice of Sotheby’s. However, the painting was later valued at £10 million after the buyer attributed the painting to Caravaggio. The Plaintiff claimed, among other things, that Sotheby’s was negligent in its assessment of the painting and in failing to inform the Plaintiff of certain important facts relating to the painting. The court ruled in favor of Sotheby’s, noting the inherent subjectivity of art attribution and authentication.^[30]

The Forensic Shift

After the Old Master’s scandal in 2016, Sotheby’s acquired Orion Analytical.^[31] Orion Analytical is a “specialist, high-tech scientific research firm with extensive expertise in provenance research and investigating high-level forgeries.”^[32] The firm’s founder, James Martin, helped Sotheby’s in identifying the forged Frans Hall from the Weiss and Fairlight case, and was hired by Sotheby’s as a part of the acquisition in 2016.^[33] Orion provides the forensic analysis tool for authentication, employing “a range of scientific tests in its work, including technical imaging, magnified visual inspection, elemental analysis, and molecular analysis.”^[34]

The acquisition by Sotheby’s signaled a major change in auction house practices and industry standards. It signaled the increasing value given to forensic analysis in authentication – considering that numerous “authentication boards [have] shut down, art historians [are becoming] reluctant to offer opinions, and technology” is improving.^[35] Additionally, investing in forensic analysis prior to a work being put on auction could save auction houses millions, not only in refunding the buyer of a misattributed work, but also in attorney’s fees.^[36] Further, having science backed evidence of a work’s forgery, if litigation were to arise, can make a significant difference.^[37]

Sotheby’s acquisition of Orion may have raised the bar for what is expected of auction houses during the authentication process and consequently demands improvement in industry standards. This acquisition signals that auction houses are expected to do more to ensure that works sold on consignment are authentic. It may also give buyers, who purchase a work that is not forensically tested through an auction house, stronger grounds to bring negligence claims if the work turns out to be a forgery. Buyers could argue that it is a reasonable duty for auction houses to forensically test works now that it is a standard for an industry giant like Sotheby’s, and an auction house’s failure to do so amounts to negligence.

Conclusion

With authentication being such an integral part of the art trade, auction houses are finding themselves in need of more stringent authentication procedures. After the Old Masters forgery scandal in 2015, Sotheby’s signaled its intent to provide buyers more confidence with its acquisition of Orion Analytics. So far, no other auction house has followed Sotheby’s lead and acquired a full in-house forensic science laboratory equivalent to Orion. It will be interesting to see if Sotheby’s acquisition truly reduces litigation and costs arising from misattributed and forged works.

About the Author:

Vivianne Diaz is a 2L at Brooklyn Law School, where she serves as the Vice President of the Art Law Association. Her research interests include artists moral rights and the Visual Artists Rights Act of 1990, copyright and fair use, and public art commissions.

Select References:

1. Anne Laure Bandle, Fake or Fortune? Art Authentication Rules in the Art Market and at Court, 22 Int. J of Cultural Prop. 379, 380 (2025). ↑
2. Id. ↑
3. Ronald D. Spencer, The Expert versus the Object: Judging Fakes and False Attributions in the Visual Arts (1st ed. 2004) ↑
4. Ermanno Rivetti, Sotheby’s buys Orion Analytical lab in fight against art fraud, The Art Newspaper (Dec. 6, 2016) https://www.theartnewspaper.com/2016/12/06/sothebys-buys-orion-analytical-lab-in-fight-against-art-fraud. ↑
5. Id. ↑
6. Bandle, supra note 1. ↑
7. Connoisseurship, Scientific Analysis, and Provenance, Art Crime MTS 460, https://ac.nau.edu/artcrime/connoisseurship-scientific-analysis-and-provenance/ ↑
8. Spencer, supra note 3. ↑
9. Andrea Ouyang, The Science of Art: How scientists unmask fakes and forgeries, Yale Science (May 21, 2016) https://www.yalescientific.org/2016/05/the-science-of-art-how-scientists-unmask-fakes-and-forgeries/#:~:text=Time%20and%20Technology,of%20art%20has%20been%20forged. ↑
10. Daniel Grant, What does New York’s abrupt winding back of auction house regulations mean for the art market?, The Art Newspaper (May 31, 2022) https://www.theartnewspaper.com/2022/05/31/what-does-new-yorks-sudden-winding-back-of-auction-house-regulations-mean-for-the-art-market ↑
11. Bandle, supra note 1. ↑
12. William W. Stuart, Authenticity of Authorship and the Auction Market, 54 Me. L. Rev. 71 (2002). ↑
13. Bandle, supra note 1. ↑
14. Auction house contracts with buyers tend not to include warranties for misattribution. ↑
15. Bandle, supra note 1. ↑
16. Id. ↑
17. Stuart, supra note 12. ↑
18. Sotheby’s v Mark Weiss Ltd [2020] EWCA (Civ) 1570, 3] ↑
19. The scandal consisted of a “series of allegedly forged Old Master paintings sold over recent decades for tens of millions of euros” by “French art dealer and collector, Giuliano Ruffini.” Vincent Noce, ‘Suspected Old Master forger Giuliano Ruffini—wanted by French police—cannot be found, The Art Newspaper (Nov. 16, 2022) https://www.theartnewspaper.com/2022/11/16/suspected-mastermind-behind-old-master-fake-scandal-giuliano-ruffini-is-on-the-run-from-police-sources-say ↑
20. Eve Gatenby, A Last Laugh from Frans Hals, Center for Art Law (February 26, 2021) https://itsartlaw.org/case-review/case-review-a-last-laugh-from-frans-hals-uk/ ↑
21. Nina Siegal, Sotheby’s Files Second Lawsuit Over Works It Calls Fake, The New York Times (Feb. 7, 2017) https://www.nytimes.com/2017/02/07/arts/design/sothebys-forgery-lawsuits.html ↑
22. Emily Gould, Lights out for Fairlight – Court of Appeal upholds High Court decision in dispute over alleged Frans Hals painting, Institute of Art Law (Dec. 14, 2020) https://ial.uk.com/lights-out-for-fairlight-court-of-appeal-upholds-high-court-decision-in-dispute-over-alleged-frans-hals-painting/ ↑
23. Id. ↑
24. Id. ↑
25. Gatenby, supra note 21. ↑
26. Sotheby’s v. Mark Weiss Case Summary, Casemine https://www.casemine.com/judgement/uk/5fc48a212c94e0481f26a9cd ↑
27. Bandle, supra note 1. ↑
28. See Thwaytes v Sotheby’s [2015] EWHC 36. ↑
29. Bandle, supra note 1. ↑
30. Thwaytes v. Sotheby’s Case Summary, Casemine https://www.casemine.com/judgement/uk/5a8ff7e360d03e7f57eb2a1c ↑
31. Sarah Cascone, Expert Forgery-Spotter James Martin to Head Sotheby’s Scientific Research Department, Artnet (Dec. 5, 2016) https://news.artnet.com/market/james-martin-sothebys-scientific-research-771905 ↑
32. Ermanno Rivetti, Sotheby’s buys Orion Analytical lab in fight against art fraud, The Art Newspaper (Dec. 6, 2016) https://www.theartnewspaper.com/2016/12/06/sothebys-buys-orion-analytical-lab-in-fight-against-art-fraud ↑
33. Cascone, supra note 29. ↑
34. Id. ↑
35. Melanie Gerlis & Julia Halperin, Why auctioneers are buying into forensics, The Art Newspaper (Feb 13, 2017) https://www.theartnewspaper.com/2017/02/13/why-auctioneers-are-buying-into-forensics ↑
36. Id. ↑
37. Id. ↑