The Cost of Fakes: The Aesthetic, Legal, and Economic Implications of Forgeries

June 19, 2024

By Emily Ham

Part I: Contextualization of Recent Fakes and Forgeries

25 “Basquiat” Forgeries

In the fall of 2012, an auctioneer named Michael Barzman put up paintings that were marketed as authentic Jean-Michel Basquiat works to be sold on eBay. Original works by Basquiat are in high demand and generate top prices. Jean-Michel Basquiat (1960-88) was a Neo-Expressionist artist who rose to success during the 1980s. He has an auction record of $110.5 million at Sotheby’s Postwar and Contemporary Evening Sale in May 2017.^[1]

Barzman’s group of 25 paintings were exhibited at the Orlando Museum of Art (OMA) in a February 2022 exhibition called “Heroes & Monsters,” publicized as showing never-before-seen works by Jean-Michel Basquiat. It was claimed that the 25 works were created in 1982 while Basquiat was living out of the studio space beneath art dealer Larry Gagosian’s home.^[2] In fact, created by Barzman and a co-conspirator, known as J.F., the 25 “Basquiat” works were said to have been discovered in an abandoned storage locker.

Shortly after “Heroes and Monsters” opened, however, a New York Times article cast doubt on the authenticity of the Barzman works. Sotheby’s did not weigh in on this matter, and other professionals in the art world were similarly reluctant to offer their opinions. Eventually, the supposed creation date of the works—1982—became the smoking gun. It was discovered one of the works in the 25 piece collection, “Untitled (Self-Portrait or Crown Face II),” was created on a Federal Express shipping box with some company text that was printed in a font that did not come into usage until 1994—twelve years after the works were claimed to have been created, and also six years after Basquiat died.^[3]

In June 2022, the FBI seized the collection of the Barzman/Basquiat paintings at the Orlando Museum in order to investigate whether the crimes of conspiracy and wire fraud had occurred. In the spring of 2023, Michael Barzman, an auctioneer from California admitted to creating fake Basquiat paintings and pleaded guilty to making false statements about the paintings’ provenance in an FBI interview in August 2022.^[4] In response to this scandal, the museum’s board fired its director, Aaron de Groft, and the American Alliance of Museums placed OMA on probation. In August 2023, OMA filed a fraud, breach of fiduciary duty, and conspiracy lawsuit against de Groft, claiming that De Groft sought to increase the value of the fake Basquiat paintings at the cost of the museum’s reputation.^[5]

Besides these fake Basquiats, there have been some other recent notable art forgeries. There are two paintings in particular that became an ongoing subject in the art forgery discussion when they were discovered to be fakes after having been sold at world-renowned auction house Sotheby’s.

Portrait of a Man attributed to Frans Hals and Venus attributed to Cranach

This story dates back to 2010, when Fairlight Ventures and the Mark Weiss Gallery bought a painting believed to be by Frans Hals for €3 million from Giulano Ruffini in 2010. This painting was subsequently sold at Sotheby’s for $11.75 million in a private sale to collector Richard Hedreen.^[6]

In 2016, the French authorities seized Venus by Lucas Cranach the Elder because it was suspected to be a forgery. This subsequently raised suspicions regarding the alleged Hals because the Cranach could also be traced back to Ruffini. Sotheby’s conducted a scientific investigation into Hals and the work was determined to be a forgery. The so-called 1531 oil on canvas apparently contained some synthetic, 20th-century materials. Sotheby’s rescinded the sale and reimbursed Hedreen $5.37 million.^[7] When Sotheby’s requested that Fairlight reimburse them $6 million, Fairlight and Weiss appealed, maintaining that the Hals was authentic and refused to pay.^[8] The auction house sued in 2017 and Weiss paid $4.2 million as part of an out-of-court settlement, but Fairlight argued they were not in a contractual relationship with Sotheby’s and therefore not liable. The court, however, ruled in favor of Sotheby’s, stating that “[both] were committed as principals to Sotheby’s.”^[9]

Saint Jerome not by Parmigianino

Originally, the Saint Gerome that was attributed to Parmigianino appeared on consignment at Sotheby’s by Lionel de Saint Donat-Pourrières for a 2012 sale, where it sold for $842,500.^[10] Ownership of this painting can be traced back to Ruffini, which is why the seizure of the “Cranach” raised some red flags about the authenticity of the Parmigianino. Sotheby’s also sent this painting to Orion for testing in 2016.

After the results of Orion’s report showed that there was a phthalocyanine green pigment in the painting—first used in paints nearly four centuries after Parmiginiano died, Sotheby’s also rescinded this sale and refunded the buyer.^[11] Sotheby’s then asked Donat-Pourrières to reimburse them for the profit that he made off of the sale, which was $672,000. When Donat-Pourrières denied that the Parmigianino was a forgery and refused to return the money, Sotheby’s also sued Donat-Pourrières in 2017.

A New York federal court found Donat-Pourrières liable for breach of contract and ordered him to pay $1.2 million, which included the amount Sotheby’s returned to the buyer for the price of the work as well as interest, Orion’s forensic testing costs, and the legal fees Sotheby’s incurred.^[12]

These recent forgery scandals cast doubt on the efficacy of connoisseurship because prior to a scientific analysis of the works the Hals was authenticated by France’s Center for Research and Restoration, and the Saint Jerome was authenticated by art historian Mario di Giampaolo and Sylvie Béguin, an honorary art curator of the Louvre.^[13] Saint Jerome was shown as a Parmigianino original at the Kunsthistorisches Museum in Vienna and the Metropolitan Museum of Art in New York before it was revealed to be a fake.^[14]

Some other major forgery scandals include the Wolfgang Beltracchi and the Knoedler Gallery case.

The Process of Authentication

There are three main types of procedures when it comes to art authentication: provenance, connoisseurship, and forensics.

• Provenance is a documented ownership history of an object from when its creation to its most recent sale. Forms of provenance include sale receipts between owners and galleries, auction and dealer catalogues, museum records, and catalogue raisonnés.^[15]
• Connoisseurship is a form of stylistic, or subjective authentication. It relies on the eye and intuition of art experts, which will develop as they analyze and evaluate hundreds, or even thousands, of works over the course of their career. Art experts will focus on the artist’s style, carefully observing brushstroke, composition, color, iconography—among other details.^[16]
• Forensics is a form of scientific, or objective authentication. Scientific testing consists of methods such as radiocarbon dating, X-ray imaging, and infrared analysis. Methods like these date the materials existent in both the external and internal structure of the works.

Challenges

There are a number of issues associated with the authentication process that make it challenging to confirm whether a work is authentic. In some cases, new evidence may come to light that proves a previously authenticated work is actually a forgery.

It has become increasingly difficult to obtain expert opinions. Generally, curators who are embedded in an organization such as an art museum are often prohibited from providing advice to outsiders such as potential buyers in the market.^[17] Experts are typically unwilling to offer opinions on the authenticity of a work for fear of litigation or compromising their reputation. Similarly, artist foundations—such as the Andy Warhol Foundation, the Calder Foundation, and the Keith Haring Foundation—have disbanded their authentication boards.^[18] This can have a considerable impact on the art market, as this deprives the market of another highly reliable authentication source,^[19] and the silence of art experts and artist foundations has allowed for forgeries to enter and circulate on the market.^[20]

Documents such as certificates of authenticity are increasingly becoming better quality, making it hard to blindly trust provenance as proof of an authentic work.^[21]

Although objective, scientific methods can mainly date the artworks and cannot necessarily attribute the artwork being tested to a specific artist. In other words, while it can identify whether a work is a forgery, scientific methods cannot determine whether a work is authentic.

Because it is the case that there are clear limitations with each of the three parts of the authentication process, reliance on only one of these approaches is not sufficient enough to authenticate a work. This is why the authentication process is often likened to a three-legged stool. In order for the argument of authenticity to stand on its own, the three parts of the process must work in conjunction with one another to point to the same conclusion.

Why Authenticity Matters

In the art market, there is a premium on authentic works. Even if a high-quality forgery might be aesthetically on par with the original, once it is discovered to be inauthentic, it will be significantly devalued. The relevant difference between a forgery and an original in the context of valuation in the art market, then, must not be a formalistic one because the value of the work also lies in elements of the work that are extra-aesthetic. The work is valuable because of the historical and personal circumstances in which it was created, which has come to be known as a work’s “aura”, according to art philosopher Walter Benjamin (1935).^[22]

Economic Implications in the Art Market

A buyer would suffer financial harm if they bought an artwork that was subsequently found to be a forgery because the buyer will have purchased the work at an inflated price. Forgeries can adversely affect valuations of other authentic artworks by that artist if fake artworks by a certain artist begin to saturate the market.^[23] Buyers in the market then may become more wary of buying from said artist’s oeuvre moving forward.

The Impact of Being Misinformed by Forgeries in the Museum

Museums are recognized as trustworthy sources of historical information, and visitors and communities rely on them as repositories of knowledge and a source of cultural identity. So what becomes of that if the works in a museum are fake? It could impact the understanding that art students, art historians, or even the general public have of the art in question.

Interestingly, in 2023, the Courtauld Gallery presented an exhibition, Art and Artifice: Fakes from the Collection, which displayed 30 works from their collection with disputed origins. Although forgery has been taboo, especially in the institutional setting, that Courtauld decided to broach the subject so openly brought up some questions regarding the true distinction between a forgery and an authentic work and what contributes to the value of an artwork. The curators ask: “If you find a piece of art beautiful, or moving, or thought-provoking, does it matter the name of the artist,” and “If a fake is good enough to fool all of the experts, does that mean its aesthetic quality is undisputed?”^[24] This exhibition considers the historical and aesthetic value of fakes and explores how studying them can still be a teaching tool for students and researchers by closely examining the draughtsmanship of both the original artist and the forger, especially as the Courtauld is an institution that is dedicated to teaching art history and conservation.^[25]

Lessons to be Learned & Prevention Strategies

In light of the aforementioned forgery cases, there are some ways in which parties involved in an art transaction can be better protected in the event that a work is discovered to be a forgery.

Clear Contractual Language

It is advisable to have strong contractual warranties in place. Bigger galleries and auction houses may have practices in place in the case of forgeries, but it is worth thinking about the protections or compensatory measures that are offered to the buyer or seller or consignor. Art transactions are more complex than simply thinking about it as a buyer versus seller relationship. There can often be a group of disparate parties that makes up the buyer-end and seller-end of the transaction.

In the case of the Hals, Weiss Gallery is technically the entity that signed the contract within Sotheby’s, so Fairlight’s argument was that they were not bound to the contract in the same way that Weiss was. So in order to avoid a disagreement over who is liable, not only should there be clear contractual language detailing the terms and responsibilities one side has agreed to with the other side, there should also be clarification as to the nature of the relationship between parties like Weiss Gallery and Fairlight Ventures that lie on the same side of the transaction so as to avoid any complications in case of unexpected events. Is it a partnership, where two parties on the same side are sharing liability,^[26] or is it more like an agency relationship—where a principal like Fairlight will hire an agent like Weiss because it has more expertise in this realm of transactions—and liability will usually fall on the principal and not the agent?

Due Diligence

It is critical for buyers to conduct proper due diligence prior to purchasing art. This involves sufficiently looking into who one is entering into a transaction with, whether as a buyer, dealer, or seller. Beyond background research, it is advisable to go through the authentication process with a third-party.^[27] As can be seen with the Hals and Parmigianino forgeries, even major auction houses such as Sotheby’s may not be able to successfully detect all forgeries.

Artificial Intelligence

The use of artificial intelligence (AI) or technology in art forensics can help detect authentic works from even the most impressive forgeries, which may elude human art experts and even more traditional scientific methods. Machine learning algorithms based on a database of artworks, for example, could help with forgery detection, as a machine is able to identify whether a work might be an authentic work if it has been trained by images of all the known works of the artist in question. Because AI has the ability to analyze down to individual strokes, color palettes, and compositional elements, it has an advantage over the human eye in that it can detect even subtle patterns and nuances of the artist’s style.^[28] As new data continues to be added and the algorithm continues to be refined, the accuracy of this approach will continue to increase, and eventually, it is a tool that art museums, auction houses, and the like can benefit greatly from, especially when used in conjunction with connoisseurial insights.

Conclusion

With the recent and perennial forgery scandals and the intricate processes of art authentication unraveling before the art market, it is evident that there are significant consequences not only in aesthetics but also in the legal and economic spheres. The Basquiat forgeries, along with the Hals and Parmigianino incidents, serve as cautionary tales, revealing some of the complications within the art world. They underscore the importance of provenance, connoisseurship, and forensics in determining whether an artwork is an original. Despite some of the challenges that may come up during the process, strong contractual language, rigorous due diligence, and the incorporation of AI technologies are promising forms of assurance that can mitigate associated risks as well as enhance and facilitate art transactions. In continuing to reevaluate and refine approaches to authentication and work with emerging technologies, it is possible to uphold integrity in the art market. Distinguishing genuine works of art from forgeries safeguards the value of artistic treasures of the past, present, and future.

About the Author

Emily Ham is an arts consultant based in Williamstown and New York. She holds a Bachelor’s degree in Art History and Economics from Williams College. During her time at Williams, she has worked at the Clark Art Institute and the Williams College Museum of Art. Her main areas of research include art law, art market, and museum administration and business practices, particularly pertaining to acquisitions and deaccessioning. She can be reached at ejh2@williams.edu.

Sources:

1. Nate Freeman, Record-Breaking $110.5 M. Basquiat Shocks Attendees at Sotheby’s $319.2 M. Postwar and Contemporary Evening Sale, ARTnews (May 18, 2017) ↑
2. Brett Sokol, In Orlando, 25 Mysterious Basquiats Come Under the Magnifying Glass, N.Y. Times (February 16, 2022) ↑
3. Ibid. ↑
4. NoHo Man Admits Lying to FBI about His Role in Creating Fake Basquiat Paintings Seized Last Summer from Florida Museum, U.S. Attorney’s Office, Central District of California (April 11, 2023) ↑
5. Claire Voon, Orlando Museum of Art sues its former director over Basquiat forgery scandal, The Art Newspaper (August 16, 2023) ↑
6. Sarah Cascone, A Hedge-Fund Manager Whose Company Sold a Fake Frans Hals at Auction Is Appealing a Court Order to Return $6 Million to Sotheby’s, ArtNet News (November 16, 2020) ↑
7. Tessa Solomon, Seller of Alleged Frans Hals Forgery Must Still Pay Sotheby’s, British Court Rules, ARTnews (November 24, 2020) ↑
8. Ibid. ↑
9. Ibid. ↑
10. Sarah Cascone, Sotheby’s Claims Parmigianino Painting Is a Forgery, ArtNet News (January 17, 2017) ↑
11. Ibid. ↑
12. Vincent Noce, US court orders collector to repay Sotheby’s $1.2m for Parmigianino fake, The Art Newspaper (November 7, 2018) ↑
13. Ibid. ↑
14. Cascone, Sotheby’s Claims Parmigianino Painting Is a Forgery. ↑
15. Leila Amineddoleh, Purchasing Art in a Market Full of Forgeries: Risks and Legal Remedies for Buyers, (International Journal of Cultural Property, 2015), 419-435. ↑
16. Ibid. ↑
17. Leonard D. DuBoff, Art Law in a Nutshell, 6th ed. (West Academic Publishing, 2021) ↑
18. Amineddoleh, Purchasing Art in a Market Full of Forgeries, 419-435. ↑
19. Interview with Kate Lucas, Grossman LLP, April 3, 2024. ↑
20. Amineddoleh, Purchasing Art in a Market Full of Forgeries, 419-435. ↑
21. Jane Kallir, Art authentication is not an exact science, The Art Newspaper (November 23, 2018) ↑
22. Walter Benjamin, “The Work of Art in the Age of Mechanical Reproduction” (1935). ↑
23. DuBoff, Art Law in a Nutshell. ↑
24. Min Chen, A New Show in London Is Exploring the Art of Forgery by Presenting Works That Are—You Guessed It—All Fake, ArtNet News, (May 24, 2023) ↑
25. Ibid. ↑
26. Kate Lucas, Appeal Filed In Ongoing Legal Dispute Over A Fake Old Master Painting, Grossman LLP Art Law Blog (November 18, 2020) ↑
27. Amineddoleh, Purchasing Art in a Market Full of Forgeries, 419-435. ↑
28. Megasis Network, AI and Art Authentication: Detecting Forgeries with Algorithms, Medium (March 3, 2024) ↑