With the rise in authenticity disputes, judges will necessarily play a prominent role in authenticating fine art. In doing so, they face the challenge of deciding authenticity disputes against a backdrop of an art market not bound by their decisions and heavily reliant on industry experts.
One example of how this has played out in the United States is the case of Greenberg Gallery, Inc. v. Bauman, 817 F. Supp. 167 (D.D.C. 1993), aff’d without opinion, 36 F.3d 127 (D.C. Cir. 1994). In this case between buyer and seller art dealers, a federal court decided the issue of whether a mobile thought to be by the artist Alexander Calder was authentic. At trial, “the parties presented competing expert testimony regarding the mobile’s authenticity.” Id. at 170. The plaintiff introduced the testimony of, Klaus Perls, a preeminent expert on Calder, who determined that the mobile was not authentic. Id. The court, disregarded this opinion, however, because Perls had not seen the mobile for over two decades. Instead, the court credited the opinion of the defendant’s expert, who was less qualified, but who had examined the work more recently. The court acknowledged “that authenticating a complex, three-dimensional, moving sculpture is a difficult and somewhat subjective process,” id. at 173, but nevertheless held that the mobile was authentic.
In a more recent case exploring the interplay between the law and the art market, a New York State appellate court noted the law is ill-equipped to determine authenticity due to the expertise required, and that a court’s pronouncement on authenticity verged on being “advisory” – the type of general opinions courts are reluctant to give. Thome v ., 70 A.D.3d 88, 100 (1st Dep’t 2009) (involving the authenticity of two theatrical stage sets thought to be by Calder). The Thome court acknowledged that the law was not capable of rectifying the plaintiff’s injury (not being able to sell the work) because it is the art marketplace, not the law, that values authentication boards and artist foundations and places monetary value on these organizations’ opinions.
These American examples are informed by the role of common law. In civil law countries, by contrast, judges not litigants control the more limited discovery process and appoint experts.1 The civil law approach is exemplified by France where courts regularly adjudicate art authenticity. French courts are beholden to the strict statutory law that an artist and an artist’s direct decedents have an exclusive authentication right and, thus, are not typically left with the task of weighing the testimony of competing experts and facts to determine authenticity. They are, nevertheless, involved in lawsuits brought by owners challenging an expert’s refusal to authenticate a work and call upon court appointed experts to investigate authenticity and navigate the droit moral regime. French courts have overruled the opinions of leading experts in the field, and ordered damages against outside experts for negligently stating a contrary opinion.
In a case brought by the owners of a Kees van Dongen painting against an art authentication association for refusing, without explanation, to include the painting in the forthcoming Kees van Dongen catalogue raisonné the courts relied on the findings of a court-appointed expert with respect to authenticity and ordered monetary damages against the defendant authenticator based on the impact of its action on the marketability of the work – a judicial intervention in the art market highly unlikely in the limited moral rights system of the United States. In a case extreme even for France, the highest appellate court ordered the author of artist Jean-Michel Atlan’s catalogue raisonné to include a work he previously rejected in the next edition of the catalogue annotated as “judicially authenticated.”2 These cases present a sharp contrast to the more typically American logic that it is not the place of judges to declare by law what the market independently values or what stance artist foundations and experts must assume with respect to authenticity.
Please note that this article presents general information and is not intended as legal advice. Please send comments to firstname.lastname@example.org.
Steven Schindler is a founding partner of Schindler Cohen & Hochman LLP. He represents clients in state and federal courts and arbitrations throughout the nation, and works closely with foreign law firms in complex transnational litigation. Steve’s cases have involved diverse areas of law, including: art law, banking, bankruptcy, commercial fraud, corporate governance, executive employment, intellectual property, insurance coverage, investment banking, real estate, securities fraud, and suretyship. Steve serves on the Committees on International Litigation, Arbitration and ADR of the International Bar Association and belongs to the Litigation Section of the American Bar Association. Steve has been named a New York Super Lawyer by Law & Politics Magazine.
Katherine Wilson-Milne is an associate at Schindler Cohen & Hochman LLP. She practices in the areas of art law, not for profit organizations, intellectual property and commercial litigation and provide transactional, governance and litigation services to clients in the art, cultural and creative communities, including for profit and not for profit entities. Her litigation practice includes substantial trial and appellate level experience, including before the federal district court, federal appellate court, Supreme Court of the United States and federal bankruptcy court.
1Linda S. Mullenix, Lessons from Abroad: Complexity and Convergence, 46 Vill. L. Rev. 1, 8 (2001) (describing the contrasting roles of judges in common law versus civil law jurisdictions); Robert S. Thompson, Decision, Disciplined Inferences and the Adversary Process, 13 Cardozo L. Rev. 725, 736-37 (1991) (the “civil law adjudication places an emphasis on processing information for a disciplined decision by the court, with the advocates for the parties participating in the processing of information but as subordinates to the court. Adversarial adjudication, while also a species of information processing, places an emphasis on participation of the parties through their advocates affording the opportunity to persuade to an impressionistic individualized decision.”).
2 Michael Petrides, Expert Opinion: A U-Turn By The French Supreme Court, Art @ Law (June 11, 2014), http://www.artatlaw.com/latest-articles/expert-opinion-u-turn-french-supreme-court; Daniel Costello and Ken Bensinger, Art-Reference Works Turn Judgments of Experts Into Harsh Financial Facts, The Wall Street Journal (Nov. 12, 1999, 11:59 p.m. EST), http://online.wsj.com/news/articles/SB943484210181684360.