NEW YORK - On March 6, 2014, New York Assemblymember Linda B. Rosenthal introduced a Bill in the New York State Legislature designed to encourage art experts to render good-faith opinions about the authenticity of works of fine art. New York State Senator Betty Little introduced an identical Bill in the New York Senate.
In recent years, the fear of incurring enormous legal costs in defending lawsuits has caused many authenticators to cease offering authenticity opinions. The overwhelming majority of these lawsuits have been unsuccessful. Some have argued that many suits were an attempt to silence authenticators who believed works were not authentic. Even though the lawsuits were unsuccessful, the authenticators incurred unaffordable costs in responding to the claims, and the continuing threat of legal defense costs is taking its toll. For example, The Andy Warhol Foundation for the Visual Arts, The Pollock-Krasner Foundation, the Roy Lichtenstein Foundation and the Estate of Jean-Michel Basquiat have ceased their authenticating activities. When authenticators are silent, the risk of forgeries increases.
The Bill now before the New York State Legislature protects authenticators, such as authors of catalogues raisonné, art foundations, scholars and others recognized in the visual arts community as having expertise regarding an artist or work of fine art for which the authenticator renders an authenticity opinion. “Authenticator,” as defined in the Bill, also includes people and entities recognized in the visual arts or scientific community who have expertise in uncovering evidence (such as forensic scientists) that serves as a direct basis for an authenticity opinion. The definition of “authenticator” in the Bill expressly excludes anyone with a financial interest in the work of fine art being evaluated, other than being compensated for rendering the opinion.
The Bill contains three provisions intended to deter frivolous civil lawsuits against authenticators who render authenticity opinions in good faith. These provisions: (1) require the party bringing the lawsuit against the authenticator to specify facts that support each element of each claim; (2) require the party bringing the lawsuit to prove the elements of each claim by “clear and convincing evidence;” and (3) entitle an authenticator to recover reasonable attorneys’ fees and expenses if and to the extent the authenticator prevails in the lawsuit.
The proposed legislation initially was drafted by the Art Law Committee of the New York City Bar Association. It was created with the intent to incentivize scholars, foundations and other authenticators to get back into the business of authenticating art, and thereby thwart sales of fakes and forgeries. The extent to which it can protect the integrity of the art market will be enhanced significantly if other states follow New York with similar legislation.
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The author is a partner at the law firm Withers Bergman LLP in New York. He also is the current Chair of the Art Law Committee of the Association of the Bar of the City of New York. He, together with Judith Bresler, Esq. of Withers Bergman LLP, co-chaired a subcommittee that created the initial draft of the legislation that is now the Bill before the New York State Legislature.