Skilled in the art: legal answers to questions of authenticity

An interesting issue which has been flagged by the press recently is whether the courts are qualified to make judgments as to the authenticity of artworks.

Reports the New York Times:

Federal District Court Judge Paul G. Gardephe’s résumé includes many impressive 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.

Judge 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 frequently be asked to arbitrate among experts who have devoted their lives to parsing a brush stroke.

The three art cases on Judge Gardephe’s docket in Manhattan were brought by patrons of the now-defunct Knoedler & Company who charge that the Upper East Side gallery and 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 Ronald D. Spencer, an art law 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.

 The problem is that ultimately it may not matter what the judge or jury decides. In reality, if the art experts declare that a work is fake, a legal pronouncement is likely to have little effect – the market will heed the experts.


One of the paintings, attibuted to Jackson Pollock,
 in respect of which Judge Gardephe will be required to rule



Source: New York Times, 5 August 2012