On October 30, I spoke on a panel for the New Orleans Bar Association called Show Me the Monet:  Art Authenticity and the Law (terrible pun I know!).  Two recent New York Times articles by Patricia Cohen sparked the idea for the panel.  In those articles, Ms. Cohen discussed the lawsuits against Knoedler & Company, a New York art gallery, that sold paintings by Jackson Pollock, Willem de Kooning, and Mark Rothko for millions of dollars.  The lawsuits allege that the paintings are fakes.

Being a frustrated art history major and professed IP nerd, I am fascinated by the thought that a judge and jury — most of whom generally do not have advanced degrees in fine arts or art history — are tasked with determining whether a particular piece of art is really the real thing.

Typically, authenticity of a work is left to the experts — those people who have studied a particular artist and who can cite with ease the artist’s catalogue raisonné.  In litigating the authenticity of a painting, should the determination of whether a Calder or a Warhol is authentic be left to a battle of the experts?  And what happens to the market value of a painting if, as Ms. Cohen discussed, a judge or jury finds that it is “more probable than not” that a Rothko is a Rothko?  See, e.g., Greenberg Gallery, Inc. v. Bauman, 817 F. Supp. 167 (D.D.C. 1993) (“I conclude the record and circumstantial evidence surrounding the [Calder] mobile creates a strong presumption that it is an authentic Calder and the Rio Nero”).

Does a buyer want to spend millions of dollars on the “Presumptively Authentic Calder”?

Even more interesting, many art experts are refusing to issue authenticity opinions.  A February Art News article by Eileen Kinsella discussed the trend among art-authentication boards and artists’ foundations — like the International Foundation for Art Research and the Andy Warhol Foundation for the Visual Arts — to stop issuing opinions as to whether a work is authentic because of concerns about the legal liability that can follow if the opinion is deemed incorrect.

For instance, the Knoedler & Company lawsuits were filed after a buyer of a $17 million Jackson Pollock painting tried to sell the painting to Sotheby’s and Christie’s Auction Houses.  Both auction houses rejected the painting because of questions about the authenticity and provenance of the painting.  The collector then sued the Knoedler & Company gallery.  Could either auction house be liable to the gallery — for attorneys fees and other damages — if a jury comes back with a finding the Pollock is “more likely than not” authentic?  Indeed, just recently a court dismissed a suit against Christie’s  filed by a wine collector who claimed that Christie’s deemd authentic a case of wine that allegedly belonged to Thomas Jefferson.

With art prices soaring into the millions of dollars, the availability of “authentic” works of art by living artists on websites like Ebay, you can bet that issues of art and authenticity will continue to be litigated in the courts, with judges and juries making the final determination of whether real is really real.

Art aficionados unite and tell me what you think of all of this?  With art experts demurring for fear of litigation and juries stepping into their shoes, what happens to the art world?  Leave your comments below!

Photo of Rothko by Daquella Manera via Creative Commons license.