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Term of Art: Authenticity

By Irina Tarsis. This story was originally published in The Cardozo Jurist:

“Double Denied” is not a story of a prospective student failing to get admission to a prestigious law school: it is an art market nickname describing a cautionary tale about the legacy of Andy Warhol, the most controversial, influential, and prolific artist of the 20th century. The message of “Double Denied” is clear: authentication boards wield great power over art collectors and the art market.
In 2007, Joe Simon-Whelan, a film writer and producer, filed a class action complaint against The Andy Warhol Foundation for the Visual Arts, a not-for- profit corporation established in 1987 (the year of Warhol’s death), claiming that the Foundation was engaged in a scheme of fraud, collusion and manipulation to control the market of Warhol’s works…”

“In his complaint, Simon-Whelan alleged that the submission process was a sham designed to remove his “competing Warhol from the market-place.” This was made possible by the organization requiring clients to sign a non-negotiable submission agreement. This agreement contains a broad immunity clause protecting the Board and the Foundation from any and all liability associated with the Board’s ruling. Furthermore, the agreement gives the Board the right to deface the artwork by stamping “DENIED” somewhere on the surface. The agreement also allows the Board discretion to reverse its opinion at any time.

On November 15, 2010, by order of the S.D.N.Y Court, all claims by Simon-Whelan against the Foundation were dismissed. According to the statement issued by the Foundation, the end of the suit was a “complete vindication of both the Foundation and the Authentication Board.” The Foundation admitted to spending about $7million defending what was “nothing more than a . . . shake down.” Simon-Whelan too issued a statement saying “It is with great regret that I have had to end my lawsuit against the Andy Warhol Foundation. I simply do not have the funds or resources available to fight an organization,. . . spending up to $450,000 per month to defend the case. I have now spent eight and a half years fastidiously gathering scholarly evidence to support my painting, and still firmly stand by all the facts regarding the red self-portraits.”