Friday, July 11, 2014

Here’s A Thought: Pay The Authenticators

The issue of authenticity is again being hotly discussed because a bill is making its way through the New York State Legislature which would enhance protections against lawsuits for experts who provide authentication services.  Obviously, appraisers of all stripes should applaud and support the effort to enact this legislation.  We have been hearing a lot these days that authentication is hard to come by because of the threat of lawsuits.  I think that both the problem and the solution are overstated, especially as it relates to appraisers; the headlines and the received wisdom about the issue need to be examined more closely.  While the authentication process can be complicated by the legal system, an appraiser can work intelligently and professionally with an expert with little risk to either themselves or their client. 

The bill in question (S06794) is actually worth a read; it is short and succinct (You may see it here)  Basically, it would add a section to New York State’s  Arts & Cultural Affairs Law, allowing victorious defendants in art authentication suits to have their costs paid by plaintiffs, and requiring plaintiffs to “prove the elements [of their claim]…by clear and convincing evidence” in order to succeed in their suit.    In US law, it is extremely rare for defendants to collect from plaintiffs, so this is a rather dramatic change.  Furthermore, requiring ‘clear and convincing evidence’ is much stronger than the current ‘preponderance of evidence’ standard.   Nicholas O’Donnell, a prominent art lawyer and author of the excellent Art Law Report blog is quoted in a recent article in Gallerist by Daniel Grant:  “the claimant would need to show that “my expert is clearly right and there is no realistic possibility that the other expert is anything but wrong.” Along with the requirement that an unsuccessful claimant pay the authenticator’s legal costs, the bill “tells people not to bring a case unless they’re absolutely sure they’re right.”

It is hard to argue that this bill is anything but a positive development.  New York State, along with California, leads the country in developing art law legislation, so if it can make it here, it will probably become widely adopted throughout the US, and will likely influence other countries’ thinking about the matter as well.  (Actually, European law grants a lot of power to artists and their heirs in matters of authenticity, but that is another matter).

But a number of things surrounding the whole discussion don’t quite ring true to me.  Many observers note that authentication boards are disbanding and there is a widespread notion that authenticators are currently out of business.  The hope seems to be that they will all immediately start working again should this bill become law.  Then, there is also a sense that had the law been on the books, massive frauds such as the Knoedler debacle would have been curtailed.   I think the real problem here lies in the way in which academia and the market interact; this is not going to be solved overnight and the current bill in Albany will certainly not be the end of the discussion.

According to Ronald Spencer, a widely admired lawyer who practices art law, and who has written extensively on the subject, there are six “…common causes of action asserted against those who authenticate works of visual art”.  He lists them in his essay “The Risk of Legal Liability for Attributions of Visual Art” in the book The Expert Vs. The Object: Judging Fakes and False Attributions in Visual Arts which he edited, and which is required reading for anyone interested in the subject (bits of it are available on GoogleBooks):

1.       Failure to exercise reasonable care
2.       Product Disparagement
3.       Breach of Contract
4.       Negligent misrepresentation and Fraud
5.       False Advertising (both under state law and the Lanham Act)
6.       Defamation

Hahn v. Duveen, one of the earliest cases where authenticity and the legal system interacted, nicely encapsulates the entire issue and is thus often used to start discussions about it.  In this 1929 case, AndrĂ©e Hahn, an heiress of considerable means who owned a work attributed to Leonardo da Vinci sued the well-known art dealer Joseph Duveen.  Sir Joseph, upon being shown a photograph of the painting, had publically scoffed at the attribution of the work, and cast aspersions on the expert who had authenticated it; these comments were published in the New York World newspaper.  Hahn apparently had a deal to sell the work to the Kansas City Art Institute (which is still in existence) for $250,000 that fell through after Duveen’s published comments, and she sued Duveen for disparagement. 

Disparagement is the legal concept by which the economic rights of an individual are protected against false statements made by others.  A number of specific conditions must be proved for a suit for disparagement to succeed.  Not only does the person accused of the act have to have made a false statement, it needs to have been published, to have caused an economic loss, and to either have been known to have been false by the disparager or proved that he/she acted recklessly when making the disparaging statement (i.e. the disparager should have known).   

To avoid the issue of disparagement, when an owner or potential buyer of an object needs an expert opinion, they can simply agree not to share the opinion with any third party, except perhaps a specific appraiser, who would also be required to keep the opinion of the expert confidential.  An expert can and should go a step further and require clients to execute an agreement not to sue as a result of any opinion rendered.  While in the recent case of Simon v. Warhol Foundation, a court did allow a lawsuit to proceed despite the existence of such an agreement, this was because the plaintiff had triable allegations that the defendant had engaged in fraudulent behavior.  (Ron Spencer is my source here)  Although courts are generally reluctant to grant exculpatory language in an agreement much weight, especially when one party is an expert and the other is not, the case of Lariviere v. Thaw actually upheld just such an agreement.  Here, the plaintiff tried to sue the Pollock catalog raisonne committee despite having signed an agreement not to do just that and the court struck down his claim on summary judgment.

What about the other items on Spencer’s list?  Like disparagement, defamation would be rendered moot by a confidentiality agreement, as would false advertising.  Regarding the “failure to exercise reasonable care”, I think we can all agree that no professional should be immune from such a requirement.  If you screw up your work, there could be consequences.  The same goes for breach of contract or fraud. But in regards to risk created through good work, a very straightforward confidentiality agreement would go a long way in solving this issue.

Even without such an agreement, in almost every case an expert, having done thorough research and written a proper report, would be immune from such a high burden of proof.  But, as noted by many writers on the subject, it is not the outcome of such a lawsuit, it is the expense of paying to defend oneself that is the problem.   Interestingly, the very subjectivity that makes it difficult to win an authentication case also means that expensive litigation can start almost immediately in such cases, as a plaintiff can reasonably begin to challenge the expert’s credentials, methodology and motives.

Like many subsequent disputes, the Duveen trial was a “battle of the experts”, where each side presented Leonard scholars who disagreed.  The law then, as now, with the ‘preponderance of evidence’ standard commonly used in civil matters, allows the plaintiff to hire their own expert, who can then attack the opinions of the defendant’s expert.    (And, as noted above, the new NY law seeks to up the bar in this regard.)

After a long, inconclusive legal struggle, and facing a very wealthy adversary, Lord Duveen eventually settled the case against him by paying $60,000 rather than continuing to defend himself.  This echoes down to the current discussion, where the legal costs, actual or threatened, are said to drown out the honest opinions of experts.   Indeed, Duveen appears to have been right—the “Leonardo” in question has long been considered to be by another hand.  

So Duveen got screwed, right?  He told the truth and had to pay?  It should be noted that he did act recklessly in making such inflammatory comments to a reporter.  Duveen seems to have been the kind of dealer in the art world whose business plan included attracting attention to himself (another aspect of the case which echoes down to the present day).  Had he simply refrained from promulgating his opinion, he’d have been in better shape, but maybe the $60 grand was a reasonable price to pay for all of the publicity the case generated.  But yes, it would appear that Duveen had to fork over $60,000 in a situation where he correctly outed a Leonardo copy being passed off as original.

This brings up another common refrain in the discussion around this issue: that honest public debate has been stifled by the threat of lawsuits to the detriment of the art world in general.  If only (the sentiment seems to be) there had been a modern-day Duveen strolling the aisles of the ADAA fair telling everyone that the Pollock in the Knoedler booth was a fake, we would all have been spared the awful fallout of that mess.  There were, allegedly, whispers, but nobody said anything out loud.  According to Patricia Cohen in the New York Times, several other scholars and foundations did not share their deeply held suspicions about a number of the Knoedler fakes on advice of their lawyers. 

I certainly believe that this is true.  And I am not sure that it could be any different.  The Constitution grants all of us the freedom of speech.  But lawmakers have constrained this right when it intersects with economic activity.  While I can say pretty much whatever I like about a public figure running for office, this is not the case when business is being done.   The reason disparagement is illegal stems from Congress’ desire to make sure that sellers can market their goods without competitors or anyone else wrongly slighting their wares.

From what I have read, none of the Knoedler buyers seem to have engaged an independent expert to provide them with their opinion.  There were consultants, advisors and intermediaries galore, but, at least from what I can tell, none of the victims hired an authenticator prior to purchase.  The buyers could have retained an expert (or experts), agreeing that the expert’s opinion would remain confidential.  If the expert found the work to be problematic, the client could simply have declined to make the purchase.  End of story.  Knoedler would have had no grounds for a lawsuit for disparagement or any other theory, if the expert’s opinion was kept confidential.

In fact, this sort of set-up, whereby client and expert work together and do not share the results, works every time.   The issue which really is of concern is the demise of free and open discussions where groups of scholars can present their methodologies and findings and reach consensus about authenticity of specific works.  And that is a shame, because consensus is a powerful way to search for the truth, but the law is very clear that not all types of speech are protected. 

The way this all used to work is that every major artist had a few experts (usually academics or museum curators) who devoted their lives to studying the work and who assembled a catalog raisonne.  Dealers and collectors would turn to them in matters of authenticity and once they gave their opinion, that was pretty much that. 

Now, however, there is very little incentive for such an expert to express their learned opinions and the current bill under consideration is unlikely to tip the balance.  After all, why would a scholar stick their neck out, even if they might be able to collect legal fees from their adversary.  They will still have to spend some time if they are sued and they will still have to pay their lawyers upfront.  And, as Donn Zaretsky points out in his Art Law blog, if their adversary turns out to be judgment-proof, they will be stuck.  And of course, they might lose, or even worse, be shown publicly to have made a mistake.  Nobody would welcome having a hostile lawyer review their work no matter what legal protections they might have.

Everything I have read blames this state of affairs on the amount of money now in play in the art world.  This makes sense.  If you own an asset that is potentially worth $10,000, you are not going to call up your lawyer if someone says it is a fake.  But if it’s worth $10 Million, you very well might. 

So, what we are talking when we talk about authentications and the jeopardy that authenticators face is when the art in question is expensive.  No client is going to pay an expert to authenticate an object that is worth $10,000 and then sue them if the expert says it is worthless.  After all, the plaintiff has to pay their lawyer upfront as well.  I am not saying here that the expert (or the appraiser) only has to worry if the art is worth a lot.  (I actually think $10,000 is a lot of money).  If you screw up, you are on the hook.  What I am saying is that you aren't going to be sued for disparagement.  So, when we hear about authentication committees being disbanded, it only affects a small number of objects that we might encounter.  The everyday business of appraising and authenticating continues.  And, I, for one, am happy that a lot of money has flowed into the art world; I am not sure why we should decry this fact.

Of course, appraisers like to point out that they are not authenticators, and our reports are full of disclaimers to that effect.  In any instance where there is a question about authenticity, we are only required to take into account how such questions impact the value of the appraised work.  So, like the rest of the art world, we rely on experts but do not share much of the risk.

Regarding the big ticket items, the real problem is that professional ethics constrain academics and other authenticators from earning a proper sum of money to render opinions.  Much like NCAA athletes, these knowledgeable people create gobs of money for others which they themselves are not allowed to taste.  (Full disclosure: I serve on the Norman Bluhm Catalog Raisonne Committee and am not paid for my work).   I did not do a ton of research here, but checking around a bit I found that, by way of example, the Francis Bacon catalog raisonne committee requires a 500 GBP payment for their services, the Sam Francis Foundation will supply owners with documentation of works from their archives ‘for a nominal fee’ and IFAR charges $3,000, plus expenses for scientific testing and so forth when they undertake research into authenticity.  (It should be noted that IFAR requires owners to allow them to publish their conclusions—an extremely positive requirement).  But the sense seems to be that no entity or person with an academic or museum background should charge a lot for authentications. 

The College Art Association has this to say in their “Standards and Guidelines: Authentications and Attributions” 

In rendering an opinion, it is recommended not to charge a fee, unless circumstances would not be compromised by doing so. One exception to this recommendation would be if the artwork is authentic, published in a catalogue raisonnĂ©, and has never been questioned, and if the request is clearly for an affirmation of authentication. Other exceptions would be fees paid to technical experts such as conservators, who are part of a consensus issuing an opinion, and fees paid to authentication committees constituted by artists’ foundations or similar institutions.

But how does it make sense that someone who has deep knowledge and has spent their life becoming an expert on an artist is constrained when it comes to charging what the market will bear?  Obviously, I am not suggesting that experts be incentivized in any way to sway their opinion about the objects they examine.  And the CAA is really trying to protect their members as much as impart an ethical judgment. But why not allow experts to charge enough to cover the expense of an insurance policy that would pay their legal expenses if they got sued?  Why not compensate these individuals in such a way as to make it worth their while to express their opinions publically?  And why is there this sense that artist’s foundations should only collect a modest fee?   If we are worried that the money might corrupt academia, might a transparent market not be a suitable way to weed out incompetent or corrupt experts? 

Looking again at the Knoedler case, there are hints, glimpses and innuendo that some scholar-experts might well have been tempted to cross the line and get paid a bit extra for the services they were providing.  I don’t wish to substantiate them here and these allegations can be accessed elsewhere.  I am bringing it up to ask, if this was the case, who can blame them?  Huge amounts of money were trading hands, why should the expert be underpaid?  If they were paid a proper fee, which was disclosed openly, might that not have been better?  Might that not have fostered the open debate and discussion that we all would like to have seen?

It is often said that the art market is one of the last bastions of a truly free market, which operates without much governmental oversight.  Why are we looking to the government to rectify a problem that has arisen because a lot more money has flowed into this market?  Rather than keep the price of authentication artificially low and pretend that nothing has changed, we should accept that a new way of doing things is in order.  So, while I certainly support the passage of law 6794, I think a much more substantial reboot is in order.

I have tried to acknowledge all of the sources I consulted in preparing this post within the text itself.  A complete list is below. 

Patricia Cohen, “Selling A Fake Painting Takes More Than A Good Artist”  The New York Times, May 2, 2014. link  

Daniel Grant, “New Legislation Would Protect Art Authenticators…” June 4, 2014 post  link 

Nicholas O’Donnell, “Analysis and Views Develop on New York Art Authentication Protection Bill”,  link   

Ronald Spencer, "Protection from Legal Claims for Opinions About the Authenticity of Art", Spencer's Law Journal, Winter 2012/13 (Volume 3, Number 3)  link  

Ronald Spencer, editor, The Expert Vs. The Art Object: Judging Fakes and False Attributions in Visual Arts
(Oxford University Press, 2004) You can buy the book here:  link 

Tracy Zwick, “Good News for People Who Bear Bad News: Legislators Seek to Shield Art Authenticators” Art in America (online), June 5, 2014  link  

Donn Zaretsky, "Authoritative Authentication is Essential to a Well-Functioning Art Market"  The Art Law Blog, June 6, 2014 post.  link