Art's in the dock but market still decides

As the price of art rises, court cases to authenticate works are also on the up, writes PATRICIA COHEN, and sometimes the results are surprising

US DISTRICT Court Judge Paul G Gardephe’s resume includes many accomplishments but not an art history degree. Nonetheless, he has been asked to answer a question on which even pre-eminent art experts cannot agree: are three reputed masterworks of Modernism genuine or fake.

Gardephe’s situation is not unique. Although there are no statistics on whether such cases are increasing, lawyers agree that, as art prices rise, so does the temptation to turn to the courts to settle disputes over authenticity. One result is that judges and juries with no background in art can be asked to arbitrate among experts who have devoted their lives to parsing a brush stroke.

The three art cases on Gardephe’s docket in Manhattan were brought by patrons of the defunct Upper East Side gallery Knoedler Company, who charge that its former president Ann Freedman duped them into spending millions of dollars on forgeries.

The judge’s rulings may ultimately rely more on the intricacies of contract law than on determinations of authenticity. But the defendants and plaintiffs are busily assembling impressive rosters of artistic and forensic experts who hope to convince the judge that the works – purportedly by Jackson Pollock, Willem de Kooning and Mark Rothko – are clearly originals or obvious fakes.

Of course, judges and juries routinely decide between competing experts. As the lawyer Ronald D Spencer, an art specialist, put it, “A judge will rule on medical malpractice even if he doesn’t know how to take out a gallstone.” When it comes to questions of authenticity, however, lawyers note that the courts and the art world weigh evidence differently.

Judges and juries have been thrust into the role of courtroom connoisseur. Legal experts say that, in general, litigants seek a ruling from the bench when the arguments primarily concern matters of law; juries are more apt to be requested when facts are in dispute.

In a seminal 1929 case involving the authenticity of a painting purportedly by Leonardo da Vinci, both a judge and a jury got the chance to weigh in. The art dealer Joseph Duveen was sued by the owners of the painting La Belle Ferronnière for publicly calling it a copy. The jury included a real estate agent, a shirt manufacturer and a furniture upholsterer. Two artists were also on the panel and ended up on opposite sides of a hung jury.

With a deadlock on his hands, the New York state Supreme Court judge took the case back. He rejected Duveen’s argument that artistic attribution was not a question of fact that could be decided in a court of law but purely a matter of opinion, and ordered a second trial. Duveen ultimately settled with the owner.

Legal thinking on questions of authenticity has evolved since. Judges now recognise that, while their word is law in the courtroom, in the art world their verdicts can be overturned by a higher authority: the market. “A decision by a court in the United States that a work is authentic may or may not have any value,” said the art lawyer Peter R Stern. “It’s totally up to the market”. The court settlement in the Duveen case did little to alter the market’s opinion of La Belle Ferronnière, which remained unsold until 2010, when Sotheby’s attributed the painting to a follower of da Vinci’s and auctioned it for $1.5 million. (The New York Evening Post understood the court’s limitations. A 1929 editorial in the paper on the Duveen case stated: “How can anyone outside of a comic opera expect the authenticity of an old painting to be settled by a lawsuit?”)

Spencer, who edited the book The Expert Versus the Object: Judging Fakes and False Attributions in the Visual Arts, explained the disconnect between the culture of commerce and the courts. “In civil litigation the standard of proof is ‘more likely than not’. Now picture yourself walking into a gallery and seeing a Picasso. You ask, ‘Did Picasso paint that?’ and the dealer says, ‘Yes, more likely than not’. You wouldn’t buy that.”

Just as a woman can’t be a little bit pregnant, a work of art can’t be a little bit real. The classic example is a 1993 ruling by a federal judge that Rio Nero, a mobile ostensibly by Alexander Calder, was the real thing. Despite the decision, the owners of this “genuine” Calder could not sell it because the recognised expert, Klaus Perls, had declared it a copy. Nineteen years later it remains unsold.

The judge recognised the problem at the time, noting that Perls’ pronouncement would make Rio Nero unsellable, but concluded: “This is not the market, however, but a court of law, in which the trier of fact must make a decision based upon a preponderance of the evidence”, or what is known as the 51 per cent standard. A 2009 opinion also involving a Calder stated the divide between the court and the market more bluntly. At issue were a couple of stage sets that Calder had designed but did not live to see completed. When the owner, Joel Thome, tried to get the Calder Foundation to authenticate the works so he could sell them, it refused. Thome sued and lost. The Appellate Division of the New York Supreme Court explained its rejection of Thome’s appeal by referring to Rio Nero. The fate of that artwork, Justice David B Saxe wrote in his opinion, illustrated “the inability of our legal system to provide a definitive determination of authenticity such as is sought by plaintiff”. Having the court declare the sets to be authentic would be meaningless, he told Thome, “because his inability to sell the sets is a function of the marketplace”.

Neither Saxe nor Gardephe would discuss their cases or the issue. What previous rulings show, however, is that while judges and experts consider the same evidence – provenance, connoisseurship and forensic analyses – they value it differently. For example, judges tend to give added weight to the signature of an artist on the work, Spencer said, whereas experts rely more on the connoisseur’s eye.

Juries have also gone their own way. In deciding the Duveen case in 1929, the New York Times reported, jurors reacted to the expert testimony by concluding that “the connoisseurs had given them little but an exotic vocabulary and a distrust for connoisseurs”.

Even an artist’s own word can be overruled by the court. In a case involving a painting by the French painter Balthus, he denied that he created a work sold by a former wife. The case made its way up to the Appellate Division of the New York Supreme Court, and in 1995 the judges ruled that despite Balthus’ fervent disavowals, the painting, Colette in Profile, was authentic. In its opinion the court cited testimony that Balthus had previously repudiated some of his works “to punish former lovers or dealers with which he has had disagreements”. It concluded that the artist seemed to be “acting from personal animus against his former wife”. In the court’s view both the painting and the desire for revenge were authentic.

– New York Times service