French Court supports freedom to deny authenticity: a win for art experts

Recently, the High Court of Appeals in Paris upheld an art expert's right to refuse to authenticate a work of art based on the freedom of thought and expression. Such decision is very relevant in the art law field, since it validates the art expert's right to make an authenticity determination, free from the pressure of legal liability for such a decision.

Authentication is often very critical for the completion of fine art sales since buyers look for authentication as an express warranty that the works is attributable to a certain artist. The refusal to authenticate is often one of the main reasons for lawsuits filed against art experts or artists' authentication committees.

This dispute in Paris involved on one side the owner of a painting, Laurent Alexandre - who believed the painting was authored by the French painter Jean Metzinger - and, on the other side, Bozena Nikiel, a well-known expert in Metzinger’s body of works as well as the author of an upcoming Metzinger's catalogue raisonné. The art expert holds the moral rights for Metzinger’s work, giving her the ability to attribute works of art to Metzinger. 

In order to sell the painting, the owner needed a certificate of authenticity from Nikiel and an assurance that the painting would be included in her catalogue raisonné. Therefore, in 2005 Nikiel made a first evaluation of the painting and affirmed that she could not authenticate the painting as one by Metzinger, claiming the painting did not meet the level of sophistication exhibited by Metzinger’s works.  

When the owner’s art dealer approached Nikiel again two years later, she maintained that she could not authenticate the work and returned  back her consultation fee.  

Even when the owner commenced legal action in 2009, Nikiel claimed again the painting was not by Metzinger and that she could not authenticate it. The French lower court appointed an expert who found that the painting was worthy of authentication even though the expert did not specialize in Metzinger’s work and Nikiel disagreed with him on several points.Thus, the lower court ordered Nikiel to pay damages to the owner of the painting and additional fines of € 30,000 due to the court’s determination that she had wrongfully refused to authenticate the work.  

But in January 2014, the high court in Paris, Cour de Cassation, overturned the lower court’s determination that the work was authentic on the grounds that the ruling violated Articles 9 and 10 of the European Convention on Human Rights that guarantees freedom of thought and expression. Nikiel, as art expert, is free to decide not to authenticate a work based on her own expertise and opinions without worrying that a court could find her liable for such a determination.

This decision is a victory for art experts who are in the business of authentication. Though the decision is confined to France, it will likely have a positive influence on similar disputes being challenged under the European Convention on Human Rights in other European jurisdictions. The ruling may also have a persuasive effect on American courts that are dealing with authentication disputes, expecially in light of the recent dissolution of some fine art authentication committees concerned with liability issues as we reported in our previous posts here.

You can read the decision of the Cour de Cassation here.