Authenticity in Art and Law: A Question of Attribution or Authorization?

1. The Falsely Described Artwork

The art system is haunted by the possibility that an artwork may not actually be as it is described. The two principal enemies of the original are the fake and the misattributed artwork.

Fakes are produced and distributed with the fraudulent intention of deceiving as to the authorship, date, period, or school of the artwork. The fake may be a replica of an existing work, a pastiche in the style of a certain artist, or even a deceptive addition to an authentic artwork (fake initials inscribed on a painting, for instance). The history of art is replete with fakes, many of which have deceived even reputable art experts. One of the most notorious practitioners was Hans Van Meegeren (1889–1947), renowned for his forgeries of Vermeer (12). He was most famously forced to establish his innocence when accused of collaborating with the Nazis in Holland after the end of World War II by painting a “fake” Vermeer while in prison.

In contrast, misattributions are artworks that are not created with the intention to deceive but have induced error over time; for example, the copy of an original painting that is confused for the original. Misattributions can create errors both ways, causing an expert to wrongly attribute originality to a work and conversely failing to spot an original by attributing it to another, usually lesser known artist, a phenomenon known as the “sleeper.”

The law deals with false descriptions of artworks in different ways. At one end of the spectrum, the maker may be punished by the state through criminal sanctions for selling a forgery, if it can be proved that this has been done with the fraudulent intent to deceive (13). At the other end, in many countries artists are granted moral rights of authorship that enables them to publicly be acknowledged as authors of artworks and to correct false attributions of authorship as well as to object to derogatory treatments that impact upon the artwork itself (14). Artists can also control unauthorized reproduction through copyright law. This is not an important mechanism for artists when dealing with fakes, although copyright helps artists regulate how their works are reproduced in culture, particularly in commercial contexts.

The most important legal remedy available to buyers of artworks, and in some instances to sellers, lies in the contract. In theory a disappointed buyer can claim damages from a seller for a wrongly described artwork as a breach of contract, providing the claim is brought within a specific period of time as defined by the law. Yet in practice the legal viability of such claims is uncertain. Much depends on how both parties have understood the description to apply to the artwork at the time of sale; in other words, whether the seller’s description amounts to a promise or a “warranty” that the artist of the work is as it is described, or whether the seller’s description was merely an expression of opinion without legally binding force. The case law of different jurisdictions (including common and civil law) reflects how the courts, depending on the facts of the underlying sale, can reach either conclusion.

In England the common law courts have traditionally regarded attributions made by sellers as being expressions of opinion rather than as legally binding terms of description: “The court ought to be exceedingly wary of giving any attribution contractual effect,” in the words of one famous judge (15). The rationale for this is that attributions of artworks, particularly old master paintings, are inherently uncertain and open to divergence, and that parties in an art transaction must accept, unless it is expressly provided otherwise, that descriptions of artworks are not like those applying to other normal types of goods. Accordingly buyers should to differing degrees conduct their own investigations into an artwork’s authorship and provenance.

This principle known as “let the buyer beware” (caveat emptor) is reflected in the case of Drake v.. Agnews (2004) (16). Here a disappointed American collector sued the London-based old master gallery Agnews. The plaintiff had acquired a painting from the gallery for £1 million that was attributed to Van Dyck. This later turned out to be an unlikely attribution, yet Drake was unsuccessful with his claim. The painting had been bought through an agent who was deemed by the court to have greater expertise in the field than a normal collector, such as Drake, and therefore should have undertaken his own enquiries. The agent had also withheld from the collector crucial information supplied by Agnews suggesting that some important experts viewed the painting as not being by Van Dyck. This aided the gallery’s claim that it had offered an “opinion” at the time of sale rather than a warranty that the goods were as they were described.

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