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"The Economist" on Collectors, Artists and Lawyers

Art foundations and authentication commissions are spooked by the increasingly litigious art collectors. Last month The Economist ran a piece entitled “Fear of litigation is hobbling the art market” pertaining to threat of litigation which looms over authentication scholarship. According to the article, the Richard Diebenkorn Foundation in California received at least three threatening letters from art collectors who’s pictures attributed to Diebenkorn either were denied authentication or were found inauthentic. After tens of dozens of works attributed to Diebenkorn have been denied certificates of authenticity, Richard Grant, the director of the Foundation, decided to increase the Foundation’s liability insurance to protect its authentication board in case of suit. These experts are working on a comprehensive list of Diebenkorn’s works to be published in a catalogue raisonne around 2015.

To-date there are at least five dissolved authentication committees on record, victims to expensive lawsuits or to fear of legal actions. These include authentication services that were offered by the Pollock-Krasner Foundation (stopped in 1996), the Roy Lichtenstein Foundation (stopped in 2011), the Andy Warhol Foundation (stopped in 2011), the Estate of Jean-Michel Basquiat (stopped in 2012), the Keith Haring Foundation (stopped in 2012).

The article warns that “All this is bound to hurt sales.” Well, everything is bound to hurt sales — provenance, resale royalties, economy, changes in tastes, weather. If sellers and their agents are unsure that a work is by a certain artist, they could acknowledge their doubts and list a work offered as “attributed to” or “thought to be by” a particular artist, instead of bemoaning a lack of a party to transfer liability in case there are questions about authenticity.

Increased liability insurance seems to be a sound solution to the threat of litigation that authentication boards for different artists are facing once they voice their opinions. Another solution is to cease publishing catalogues raisonne or produce digital catalogues which can be easily corrected by including or omitting a work. This is the solution adopted by historians working on a catalogue of Isamu Noguchi’s sculptures, who are planning to publish “an online-only, ever-modifiable work-in-progress.” Another alternative still is to buy works by living artists who would personally attest to their connection or lack thereof with a work of art for sale.

The Economist article ends with a curious anecdote. Apparently, the Courtauld Institute of Art in London canceled an academic debate about the authentication of Francis Bacon’s works due to the “possibility of legal action.” Art market aside, fear of litigation is hobbling art history, and that is a dangerous precedent indeed.

Source: The Economist.
Image: Modified cover of Ronald Spencer’s, The Expert versus the Object: Judging Fakes and False Attributions in the Visual Arts (2004)