The lawsuit1 recently filed by the Mayor Gallery against the authors and sponsors of the Agnes Martin catalogue raisonné illustrates the ongoing legal risks faced by scholars and other agents who volunteer to authenticate artworks.

Authenticators play a valuable role in the fine art market by providing assurance to collectors, which promotes the purchase and sale of art.  However, the growing number of lawsuits against authenticators and authentication boards, and the cost of defending such lawsuits (however meritless), has had a chilling effect on art authentication – to the detriment of the fine art market as a whole.  An authenticator’s determinations can have a tremendous impact on the value of artwork, and for this reason, these individuals and institutions wield a great deal of power in the art market.  An authenticated work by a well-known artist might have a high retail value, while a work purportedly by the same artist which a recognized authenticator declines to include in a catalogue raisonné, is rendered essentially worthless.  Yet, due to extensive and expensive litigation, authentication boards and foundations such as the Andy Warhol Foundation for the Visual Arts, the Pollock-Krasner Foundation, the Calder Foundation, the Basquiat Authentication Committee, the Dedalus Foundation (founded by Robert Motherwell) and the Roy Liechtenstein Foundation have all stopped providing authentication services, severely affecting important aspects of the market.2

In an effort to make the legal climate more hospitable to individuals and organizations providing art authentication services, since early 2015 the New York State Legislature has been considering legislation3  that would offer a degree of protection for art authentication opinions by limiting the legal liability of authenticators offering those opinions.The high costs of lawsuits coming out of these determinations have been cited by several prominent art authentication boards as the primary reason for their elimination of authentication services.  Given that the authentication of a work plays an integral role of the purchase and sale of fine art, this legislation is aimed at incentivizing art authenticators to continue their work in New York.

The proposed bill attempts to remedy the current situation by (a) heightening the pleading standard for bringing suit against authenticators, (b) precluding a successful plaintiff from receiving an award of legal costs against an authenticator, and (c) incorporating a fee-shifting component, which that a court to grant an authenticator her legal costs if she prevails.  Another feature of this proposed bill comes in the form of an amendment to the existing express warranty provision of the New York Arts and Cultural Affairs Law, which  allows purchasers to rely on a certificate of authenticity “or any similar written instrument” as a guarantee of authenticity.The existing provision has been a basis for collectors’ breach-of-warranty claims against authenticators.The proposed amendment to this section makes clear that this warranty is made only by the selling dealer, and “shall not apply to an authenticator’s opinion or information concerning a visual art multiple or work of fine art” where the authenticator has no financial interest in the work.Under this proposed revision, the bill makes clear that statements made by an authentication expert (independent of a dealer) regarding the authenticity of a work cannot serve as the basis for a warranty claim against the expert.  The ultimate effect of this amendment, while granting an additional protection for authentication experts, is to take away from private collectors an additional source of recovery in the event they find themselves having a purchased a fake.  However, the private collector still retains a large degree of protection on the basis of the description of the article and other representations made by the dealer.

In a report in support of the proposed legislation, the Art Law Committee of the New York City Bar Association recently stated that art authenticators have been forced to “practice their profession at their own risk.  They have been sued in the course of rending opinions in good faith about the authenticity, attribution or authorship of artworks. . . . Although usually, under the law, experts have prevailed, the costs of vindication have been too great:  thousands of hours and dollars spent on legal defense rather than on the practice of their profession.”8

The Mayor Gallery’s new lawsuit against the authentication board responsible for compiling the Agnes Martin catalogue raisonné and members of its authentication committee further illustrates the need for passage of the proposed New York legislation.The Mayor Gallery alleges that the Martin catalogue raisonné committee acted wrongfully when it rejected thirteen purported Martin works submitted to it by the Gallery’s clients, deeming them “fakes.”10  According to the complaint, this exclusion of the thirteen works resulted in a $7 million loss to the Mayor Gallery, as the Gallery’s clients returned the rejected works to the Gallery for refunds.

The complaint alleges, inter alia, that “Christie’s and Sotheby’s are the two dominate [sic] auction houses in the United States and the world”; that “both [Christie’s and Sotheby’s] recognize the Agnes Martin Catalogue Raisonné as the definitive compilation of authentic artworks of Agnes Martin”; that “[b]oth will not accept for auction or sale any painting or work on paper purported to be [by] Agnes Martin unless it has been or will be included in the Agnes Martin Catalogue Raisonné”; and that “[a] refusal by defendants to include an artwork in the Agnes Martin Catalogue Raisonné is therefore recognized in the worldwide marketplace as a conclusive statement that the artwork is a fake.”11  Therefore, “collectors have no choice but to submit their Agnes Martin artworks to defendants for vetting subject to non-negotiable terms dictated by defendants.”12

For each of the thirteen works at issue, the Mayor Gallery sued the committee and its authenticators for (i) product disparagement; (ii) tortious interference with contract; (iii) tortious interference with prospective business relations; and (iv) negligent misrepresentation.  Additionally, the Mayor Gallery alleges a fifth alternative cause of action for breach of the implied duty of good faith and fair dealing for the highest-priced of the thirteen rejected works, Day and Night, a painting purchased by investment banker Jack Levy (who also purchased a number of Abstract Impressionist fakes from the Knoedler Gallery).  Solely with respect to this work, the Gallery alleges the committee did not meet the “good faith” standard mandated by the Examination Agreement, which the parties executed when the Gallery submitted the work to the committee for review.13 As of now, Defendants’ time to answer the Complaint runs on January 12, 2017.

Had the proposed amendments been incorporated into the New York Arts and Cultural Affairs Law, the Mayor Gallery may not have sued the “Members of the authentication committee of the Agnes Martin Catalog Raisonné.”  Under the pending bill, the Gallery would not only have had to consider the heightened pleading standard applied to its allegations, but it would also have to seriously contemplate the implications of the fee-shifting provision, which would allow the authentication board and it members, if successful, to recover their legal fees from the Mayor Gallery.

Perhaps the most prominent case against authenticators in recent years is Simon-Whelan v. Andy Warhol Foundation for the Visual Arts, Inc., which was at the center of the Andy Warhol Foundation’s decision to stop authenticating his works.  Simon-Whelan, a collector and friend of Warhol, sued the Foundation after it deemed a silk-screened self-portrait a fake, despite the owner’s insistence on its good provenance.14  The case survived a motion to dismiss but ultimately settled; however, the litigation cost the defendants nearly $7,000,000 in legal fees, a likely reason for the decision to cease to authenticate works shortly after the suit.15  Similar cases brought against the Haring Foundation in February 2014 and against the Calder Foundation in March 2014 each also cost those Foundations millions of dollars to defend.16  It is easy to imagine that fee-shifting provision of the proposed New York legislation could have led to a very different course for these litigations – including an outcome that involves either no lawsuit at all, or at the very least an early and inexpensive settlement.

Although some observers argue New York’s proposed legislation does not go far enough in protecting authenticators, the bill is undoubtedly a step in the right direction.  Art lawyers have noted that, because the amendment defines the authentication expert as one with no financial interest in the artwork, it is fair to make clear that an authentication decision is not backed by that person’s bank account.17  However, these same commentators note that the proposed amendments do not prohibit other, non-warranty-based claims, such as negligence or claims under the Uniform Commercial Code.18  A potential limitation of the legislation is that the proposed amendments do not add any new defenses for experts or the burden of proof for the plaintiffs.

However, others argue that, although protecting authenticators is important to safeguarding the sustainability of the art market, providing sweeping protection for authenticators that would entirely defeat all claims against them – even legitimate claims based on gross negligence, fraud or corruption – would create a perverse situation in which an essential function of the art market rests with these individuals, without any recourse.

If the New York Legislature eventually passes the proposed amendments in their current form, some authenticators may be encouraged to resume their work.  Unfortunately, the threat of litigation will still be an important consideration for those deciding whether to render authentication opinions.

1. See Complaint, Mayor Gallery Ltd. v. Agnes Martin Catalogue Raisonné LLC, et al., Index No. 655489 (New York Co. Sup. Ct. Oct. 2016).
2. ART LAW COMM. OF THE N.Y.C. BAR ASS’N, REPORT ON LEGISLATION BY THE ART LAW COMMITTEE, (N.Y.C. Bar Ass’n Feb. 2016).
3. The bill was delivered to the Assembly in June 2015; it died there in January 2016 and was returned to the Senate. The Senate passed the bill for the second time in April 2016, when it was once again delivered to the Assembly, where it again died. The bill will likely again be delivered to the Senate during its next session in 2017.
4. Assem. B. A1018A; S. B. S1129A, 2016 Leg. Sess. (N.Y. 2016).
5. Judith Wallace, Art Law on Protecting Expert Opinion, Spencer’s Art Law Journal, Feb. 14, 2016, at https://news.artnet.com/market/art-law-on-protecting-experts-opinion-419132.
6. UCC § 2-313 also provides a basis for suit by collectors under a breach of warranty claim. See UCC § 2-313 at https://www.law.cornell.edu/ucc/2/2-313.
7. Assem. B. A1018A; S. B. S1129A, 2016 Leg. Sess. (N.Y. 2016). The proposed amendments would add the following text to the express warranty in Section 15.11: “[t]his section shall not apply to an authenticator’s opinion or information concerning a visual art multiple or work of fine art, as set forth in subdivision 23 of Section 11.01 of this Chapter, Section 15.12 of this Article, and Subdivision 4 of Section 15.15 of this Article.” The proposed amendment also defines “authenticator” as a person or entity that does not have “a financial interest in the work of fine art or visual art multiple for which such opinion is rendered or in any transaction concerning such work of fine art or visual art multiple for which the opinion is rendered, other than to be compensated for services such person or entity engaged in to provide an opinion as to the authenticity, attribution or authorship of such work of fine art or visual art multiple or to provide information on which such an opinion is based on whole or in part.”
8. ART LAW COMM. OF THE N.Y.C. BAR ASS’N, REPORT ON LEGISLATION BY THE ART LAW COMMITTEE, (N.Y.C. Bar Ass’n Feb. 2016).
9. The suit also named (1) Arnold Glimcher, managing editor of the AM Catalogue Raisonné LLC and CEO of the Pace Gallery, which represents Martin’s estate; (2) Tiffany Bell, editor of the Agnes Martin Catalogue Raisonné; and (3) “Members of the authentication committee of the Agnes Martin Catalog Raisonné, i.e., John Doe or Jane Doe ##1-6.” In compiling the Catalogue Raisonné, the authentication board did not reveal the names of the authenticators, which is why they are named as “John Doe or Jane Doe ##1-6” in the complaint.
0. See complaint, pg. 1.
11. See id., pg. 7 ¶17.
12. See id., pg. 7, ¶ 19.
13. Collectors are required to submit an Examination Agreement, which was initially submitted by the purchaser of Day and Night. Because the Mayor Gallery believed that the rejection of Day and Night may have been due to various errors in the Examination Agreement, James Mayor – on becoming the owner of the painting – submitted and prepared his own Examination Agreement and hand-delivered it to defendant Tiffany Bell in connection with the work. See Cmplt., paragraph 28.
14. Simon-Whelan v. Andy Warhol Foundation for the Visual Arts, Inc., No. 07 Civ. 6423 (LTS) (S.D.N.Y. May 26, 2009). This case was the first time that an antitrust claim based on art authentication practices survived a motion to dismiss. Id. In practice, antitrust claims have the practical advantage of superseding contractual commitments not to sue.
15. See Wallace, supra note 5.
16. ART LAW COMM. OF THE N.Y.C. BAR ASS’N, REPORT ON LEGISLATION BY THE ART LAW COMMITTEE (N.Y.C. Bar Ass’n Feb. 2016).
17. See Wallace, supra note 5.
18. Id.

Anna Schuler assisted with drafting this post.

On August 23, 2016, Judge Gary Feinerman of the Northern District of Illinois ruled in Fletcher v. Doig in favor of artist Peter Marryat Doig, finding that Doig did not create a painting owned by plaintiff Robert Fletcher.1

Plaintiffs, Fletcher and his gallerist Peter Bartlow, filed suit against Doig in 2013, claiming that Doig tortiously interfered with their attempted sale of an abstract desert landscape painting (“Desert Landscape”) and seeking $7.9 million damages, plus costs and a declaratory judgment that Doig created Desert Landscape. Doig maintained that he was not the creator of Desert Landscape. Doig had to expend significant resources defending himself against Plaintiffs’ claims, and ultimately uncovered the actual creator of Desert Landscape. Before the seven-day bench trial, Judge Feinerman denied Doig’s motion to dismiss for lack of personal jurisdiction and for forum non conveniens, denied Doig’s summary judgment motion, and denied Doig’s motion in limine to exclude plaintiffs’ expert witnesses. After the bench trial, Judge Feinerman orally delivered his decision, in which he concluded that any similarities between Desert Landscape and Doig’s authentic paintings were “purely coincidental.”

The case raises the obvious question: why isn’t an artist’s assertion that he has not created a work enough?

Creator: Doige vs. Doig

Plaintiff Fletcher, a former corrections officer at Thunder Bay Correctional Center in Thunder Bay, Ontario, bought Desert Landscape in 1976 for $100. Plaintiffs claimed that Fletcher met Peter Doig in the 1970s, first at Lakehead University in Ontario and subsequently at Thunder Bay. Plaintiffs asserted that Fletcher was friendly with Doig while Doig spent five months at Thunder Bay for LSD possession, and that they remained in contact while Doig was on parole. During this time, plaintiffs claimed, Fletcher encouraged Doig’s art career and bought Desert Landscape. When Fletcher and Bartlow attempted to sell that work more than thirty-five years later, however, Doig, whose Swamped (1990) sold for $25.9 million at Christie’s New York in May 2015, denied that the painting was his creation. Doig asserted that he was never at Thunder Bay, he never met Fletcher, and he did not paint Desert Landscape.

Plaintiffs argued that Doig was either confused or lying. They pointed to supposedly uncanny similarities between Desert Landscape and other paintings from Doig’s oeuvre, the fact that Doig was in Canada in the 1970s, and Doig’s public admissions that he took LSD.

Doig argued that the dispute was a matter of mistaken identity. In moving for summary judgment, he pointed out that Desert Landscape was signed “’76, Pete Doige” – not his name – with a signature different from his own. He also presented evidence of the deceased amateur painter Peter Edward Doige, who lived in Ontario in the 1970s, was enrolled at Lakehead University (at the same time as Doig), spent time at Thunder Bay Correctional Center, and took art classes while serving his sentence. Additionally, Doig’s legal team provided school records, yearbook photos and a list of thirty witnesses who could attest to the fact that Doig was not at Thunder Bay in 1976. Despite this evidence, Judge Feinerman denied summary judgment.

Expert: Bartlow vs. Schiff

At trial, plaintiff Bartlow’s expert testimony was the primary evidence introduced by plaintiffs to establish a link between Desert Landscape and Doig’s style. Bartlow was not familiar with Doig’s artwork before Fletcher contacted him to sell Desert Landscape, but he subsequently devised a method for comparing that painting to Doig’s acknowledged paintings (which Doig’s counsel dubbed the “Bartlow Method”), concluding that Desert Landscape contains patterns that Doig repeatedly uses. At trial, Bartlow superimposed a transparency of known Doig paintings over an image of Desert Landscape and then rotated the transparency to reveal shapes or lines with approximately matching form and placement. During cross-examination, however, Doig’s counsel demonstrated that this method could also be used to match Desert Landscape to paintings by Leonardo da Vinci and René Magritte.

Richard Shiff, an art historian at the University of Texas, provided expert testimony on behalf of Doig. Shiff, who presented himself as a connoisseur of Doig’s work, said that the Bartlow Method was “entirely unreliable” and questioned Bartlow’s objectivity in light of his economic interest in the sale of Desert Landscape.”2 Shiff based his opinion that Doige (not Doig) painted Desert Landscape on a conversation with Doige’s sister and on his examination of other paintings by Doige.

Questioning the Court’s Qualifications as Authenticator

Generally, artwork authentication is clear-cut if the artist is alive, because the artist’s statement is sufficient. Most authentication disputes arise because the artist is deceased, or because a living artist disclaims the work as his or her own due to deterioration or damage. This case was different because the court took into its own hands the question of whether a living artist who disclaimed a work had created that work in the first place. The University of Glasgow’s Donna Yates discusses this “uncharted territory” of authentication for Apollo Magazine here. Yates, like many others, expressed shock that this lawsuit wasn’t “instantly dismissed as frivolous,” called the case “absurd” and was “relieved” that Doig won. Doig stated that this case could set a “dangerous precedent” where “[t]he final authority for authentication of a work of art would no longer be the surviving artist himself, but a judge or jurors who are at best nominally familiar with the classification of works of art or artistic practice.”

Artists have a right to disclaim authorship of “any work of visual art which he or she did not create” under the federal Visual Artists Rights Act (“VARA”), called their right of attribution. VARA also gives artists a right of integrity, i.e., the ability to disclaim authorship of a work of visual art if that work has been distorted, mutilated or otherwise modified in a way that is prejudicial to his or her honor or reputation.

Yet there is a rationale that could justify a trial under some circumstances, despite a living artist’s disavowal of a work. In New York, the Appellate Division, First Department, looked to the possible bad-faith motivations of an artist for disclaiming a work in finding that the artist could have been its creator, despite his claim otherwise. In a case involving the Polish-French artist Balthus, the New York court found it possible that apparent “personal animus against his former wife” could explain the artist’s false disavowal, and reversed and remanded a trial court’s ruling that both a preparatory sketch and a well-known oil painting were not by the artist.3 The First Department noted that defendant’s expert had suggested that Balthus had repudiated other works in the past “to punish former lovers or dealers with which he has had disagreements.”4

Here, there was no basis to question the artist’s good faith: Doig had no relationship with plaintiffs and did not stand to gain in any way by rejecting the work.

While the Doig case may be an outlier, it also may affect the ability of other living artists to authenticate their own work definitively, without risk of liability and not subject to the second-guessing by judges and juries. In addition, it may indirectly strengthen the hand of art authenticators – who have been subject to legal threats and claims in recent years to such an extent that several foundations have ceased offering authentication services altogether. The travesty that unfolded before Judge Feinerman could be the catalyst needed to push through a bill introduced in the New York State Legislature to protect art experts from frivolous lawsuits by permitting a court to shift onto a losing plaintiff the attorney’s fees incurred by the art authenticator in defending his or her opinion. (That bill was blocked in the last session of the New York State Assembly because of general opposition to fee-shifting provisions.)

Katharine Haydock assisted with drafting this post.

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1. 13-cv-03270 (N.D. Ill.).
2. Bartlow was to receive a 25% commission on that sale.
3. Arnold Herstand & Co. v. Gallery: Gertrude Stein, Inc., 211 A.D.2d 77, 83 (1995).
4. Id.