A recent decision in New York’s Supreme Court could cause chaos in art forgery cases. The ruling places a freeh burden on collectors seeking to challenge the authenticity of works. It suggests that, even if a work is obviously fake, a case could be thrown out unless the claimant produces an ‘expert’ who examined the work before its sale and after the dispute, and who can testify that it is the same work as the one sold. This potentially adds another layer of complication to an already tricky process and could result in fewer forgery cases coming to light or being resolved.
Dealers who are sued over authenticity could use this precedent in their defence and say: ‘The work might be fake, but I didn’t sell it to you. This is not the one’. It is certainly a strategy that a good defence attorney would employ. If an expert testifies only after the transaction, there’s really no way to prove that what they examined afterwards is the same work of art initially shown.
But there are several issues. One of the difficulties would lie in having a work examined by the same specialist if a long period of time has elapsed, since people become ill, retire and die. Besides, the decision does not specify what or whom is meant by ‘forgery expert’. This is not a minor thing because in today’s art legal climate, expert refuse to voice their opinions for fear to be sued as is the case of the Warhol or the Keith Haring Foundation that decided to stop authenticating for that same reason.
Even though this decision could be seen as a mistake, the US judges seem to have a point at subtly transferring the responsibilities to the buyers. Las year a NY court ruling on a forgery claim by ACA Galleries against Joseph Kinney for his sale of an allegedly fake painting by Milton Avery decided that even if Kinney knew the work in question was fake and so committed fraud, the case should be dismissed because the gallery should have done more research into the work. One has the impression that the courts do not want to be dragged into these kinds of disputes and that the message to the art world is that they don’t want to deal with rich people’s problem. I think they have a point but the, in my opinion, the problem of forgeries is going to surge in the next few years when all that money that tried to avoid taxes and was laundered through art tries to re-emerge. Just a thought.