Three Recent Suits Exemplify Some of the Legal Issues Surrounding Art Authentication
04/07/2014In the last few months, three different lawsuits have been filed that highlight some of the legal complications involved in seeking, offering, or relying upon authentication of works of art. We intend to follow closely each of these cases, and other important legal developments concerning art authentication.
Bilinski v. Keith Haring Foundation, Inc.
In Bilinski v. Keith Haring Foundation, Inc., plaintiffs, the collectors of works they believe to be by famed artist Keith Haring, are suing the artist’s foundation for improperly denying authentication and damaging the value of the plaintiffs’ collection. In short, the case focuses on the artist Keith Haring, who rose to fame in the 1980s for his unique style of pop artwork. Before Haring’s death in 1990, he formed the Haring Foundation, which worked toward philanthropic goals and also sought to build an understanding of his art. Upon his death, the artist bequeathed many works to the Foundation. According to the complaint, the Foundation did not publish a catalogue raisonné of the artist’s works, but the Foundation’s Authentication Committee would accept applications for review of artworks, and would issue an opinion on whether a given work was an authentic Haring. The complaint alleges that the Committee “made its decisions in secret, with little or no explanation, and often without ever physically inspecting the works.” The Haring Foundation dissolved its Authentication Committee in September 2012; the plaintiffs claim that the dissolution of the Committee was a way for the Foundation to evade liability for “improper denials of authentic Haring artworks.”
The plaintiffs in Bilinski are owners of several works that they believe to be authentic Haring works. The complaint traces the works’ provenance back to close friends of Haring’s. However, the Authentication Committee disagreed; when the plaintiffs submitted the works to the Committee in 2007, the Committee denied authentication. For several years afterward, the plaintiffs attempted to change the Committee’s mind by providing additional provenance information, but to no avail. In 2013, the works at issue were included in an art show called “Haring Miami”; this prompted the Foundation to sue for an injunction and issue a press release publicly declaring the pieces to be fakes.
The plaintiffs sued the Foundation, its members, and Haring’s estate, seeking $40 million in damages. They claim that Haring works are, as a practical matter, unsaleable at auction without the Foundation’s stamp of approval, and that the value of their works has been drastically diminished by the Foundation’s actions. They also urge that the Committee’s actions improperly inflate the market value of Haring works that have been authenticated by the Committee, including those owned by the Foundation, and that the Committee has “used its authentication powers to carefully cultivate Haring’s image and obscure important facts about his working methods (i.e., uncredited collaboration with other artists) and his personal narrative…” so as to benefit the Foundation. Claims include defamation, unjust enrichment, and tortious interference with prospective business relations, as well as claims under the federal Lanham Act (including claims related to false advertising and “trade libel”).
Basquiat Heriveaux v. Christie’s, Inc.
Like Haring, art icon Jean-Michel Basquiat rose to prominence as an artist in the 1980s. After the artist’s death in 1988, his estate established a committee to evaluate the authenticity of works believed to be by him. And just as in the Haring case, the authentication committee disbanded in 2012.
In February 2014, Christie’s published a catalogue to publicize the auction house’s planned March 2014 sale of several dozen works that Christie’s attributed to Basquiat. The catalogue depicted a collection belonging to Alexis Adler, and was allegedly made up of Basquiat works left behind by the artist in an apartment where he lived with Adler. Back in 2007, Adler had submitted seven of the works to the Estate’s Authentication Committee; the Committee had concluded that six out of the seven were authentic, but had not authenticated the rest of her collection. Likewise, Christie’s never sought authentication prior to publishing the catalogue. The Estate only learned of the planned sale when Christie’s sought permission to reproduce some of the works in the catalogue (a request that the Estate refused).
In early March 2014, Basquiat’s sisters, who administer his estate, sued Christie’s, alleging that the auction house was attempting to sell inauthentic Basquiat items in the upcoming sale. They go so far as to assert that even a “casual observer of contemporary art” would see problems with the works’ authenticity, based on the printing on several of the works. The plaintiffs also point to a notice in the catalogue stating, “All artwork by Jean-Michel Basquiat: © 2014 the Estate of Jean-Michel Basquiat/ADAGP, Paris/ARS, New York.” The sisters alleged that Christie’s included this notice in order to give potential bidders the false impression that all of the works had been authenticated, thereby increasing auction prices. They also argue that the sale would damage the Estate by putting questionable works on the market, thereby devaluing authentic Basquiat works, the artist’s legacy, and the Estate’s goodwill. The complaint seeks at least $1 million in damages and an injunction preventing Christie’s from using the Estate’s name without its consent. Plaintiffs’ claims include false endorsement and false advertising under federal trademark law, as well as state law claims for deceptive trade practices and unfair competition. Christie’s has postponed the Basquiat auction, and is expected to file a response to the suit in early June.
Fertitta v. Knoedler Gallery, LLC
Finally, as the New York Times recently reported, a suit was filed in early April that implicates an expert involved in the Knoedler scandal (which this blog has previously covered on several occasions). The plaintiff, Fertitta, purchased, through the now-defunct Knoedler Gallery, a painting purported to be by legendary artist Mark Rothko; the work has since been shown to be one of the many forgeries painted by an immigrant in Queens and supplied to Knoedler by Glafira Rosales, an art dealer who has since pleaded guilty on charges related to the scam.
The lawsuit names many of the same defendants (including the gallery’s owner as well as its former president) who have been the targets of other lawsuits by swindled Knoedler customers. But this suit adds a new name: Oliver Wick, an expert on Rothko and curator of a Swiss museum. The complaint alleges that Wick had a relationship with Knoedler and exhibited two fake Rothkos at exhibits in Switzerland. The complaint also asserts that Wick accepted Knoedler’s version of the works’ provenance without doing any investigation of his own, and even published an article repeating (and thereby lending the weight of his reputation to) Knoedler’s story of how the works had come into the hands of Rosales’s (nonexistent) anonymous collector. The complaint further alleges that the Knoedler defendants marketed the purported Rothko to the plaintiff through Wick, who offered the painting on behalf of Knoedler to the Eykyn Maclean gallery, which then contacted Fertitta. According to the complaint, Wick emailed Eykyn Maclean, describing the work’s purported provenance, stating that the work was being considered for inclusion in the Rothko catalogue raisonne, reporting that Rothko’s son was “enthusiastic” about the work, and concluding: “I confirm that this work has been submitted to the team, all is perfectly fine, otherwise I would not want to be involved with it. For this I stand with my name as a Rothko scholar.” Fertitta and his co-plaintiff Eykyn Maclean assert that many of Wick’s statements were inaccurate and that he made these misrepresentations “either intentionally or with willful blindness or reckless disregard for the truth,” while omitting facts that might have allowed the plaintiffs to identify possible “red flags” regarding the work; the plaintiffs also did not know that Knoedler was paying Wick a $300,000 “consulting fee” for his role in selling the painting. The plaintiffs say they relied on Wick’s statements in large part due to his reputation as a Rothko expert. Claims against Wick include a claim for rescission due to unilateral mistake, breach of express warranty, breach of implied warranty of merchantability, fraud, fraudulent concealment, aiding and abetting fraud, conspiracy to commit fraud, and claims under the federal RICO laws.
The Larger Debate About the Role of Authentication
Taken together, these three cases crystallize some of the complex legal issues involved in authentication of fine art. The Haring case shows that those who authenticate works may be vulnerable to claims by those who believe a work has been wrongly denied authentication, while the Fertitta case shows that experts who stand behind the authenticity of a work may also face claims if they endorse a work that turns out to be inauthentic. The case involving the Christie’s auction of Basquiat works is a reminder that an artist’s estate or foundation may also become a plaintiff, wielding its authority and stamp of approval as a sword to try to protect the market for an artist’s works from possible fakes. All three cases demonstrate how a work’s value and marketability can be impacted by the existence or lack of authentication by a respected authority. Moreover, these cases remind us that those who opine on the authenticity of works may sometimes have their own motivations and interests in such situations, whether that means a “consulting fee” as in the Knoedler-Wick matter, or the fact that an entity such as the Haring Foundation or the Basquiat Estate may have its own reasons for seeking to control the public perception of an artist’s oeuvre.
These cases come at a time when several prominent artists’ foundations have disbanded their authentication boards, perhaps as a result of the expensive litigation that sometimes follows their decisions. Recognizing that there is an important function and value to such authentication, but that experts may fear the prospective liability, the New York legislature has considered various legislative solutions that would provide authenticators with some protections; a recent proposal would require plaintiffs to meet a heightened pleading standard for authentication-based claims, impose a heightened standard of proof by clear and convincing evidence, and introduce a fee-shifting mechanism by which an authenticator can recover his or her attorney’s fees and other costs if he or she is sued and ultimately prevails. The discussion continues among the art law community as to how best balance the complex and at times competing considerations involved in authentication of art. In the meantime, these cases underscore the importance of pre-purchase diligence, while collectors, dealers, experts, and institutions alike can benefit from legal advice about how to protect themselves in high-stakes art transactions.
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