The problem of forgeries and forgeries is as old as the art market itself. With potential pitfalls at every turn, museums must remain mindful of the risks when acquiring new works for their collections.
From Caravaggio to Albrecht Dürer to contemporary artists like Peter Doig, the art world is littered with erroneous attribution claims of one form or another. Many collectors, dealers, gallery owners and museum directors have been duped by the lure of an illustrious attribution that ultimately turns out to be too good to be true.
For museums considering what to acquire for their collections, it is essential to understand the law on this issue. Much can be learned from the (rare) court cases in this area, where judges have grappled with delicate questions of authenticity. In these cases, the evidence generally falls into three categories: art historical material, provenance documentation, and technical or scientific data.
Most cases of authenticity are in the fine arts, where “connoisseurship” has been very persuasive. In a 2002 High Court case Regarding a fake painting by Anthony Van Dyck sold to a Texas collector named Richard Drake, the judge referred to the ability of an expert to recognize the “handwriting” of an artist, who has a significant weight in decision-making.
For antiquities, the emphasis may be different and other factors carry more weight, including the archaeological record and the historical or religious background of the object in question.
Provenance, appearance and condition are obviously crucial in any due diligence exercise. For any museum employee involved in the acquisition of a work, it is essential to request the provenance documents usually provided, if they are not offered voluntarily, to examine and corroborate them to the extent possible. If any unusual features in appearance or condition raise red flags, they should be investigated. The pristine condition – and mere survival – of some objects should sound alarm bells. This is particularly the case in a particular market which is widely considered to be flooded with counterfeits such as, for example, collectors’ markets who are looking for certain specific types of antiques. Examples like this show how crucial it is for museums to understand market issues.
Amanda Feilding, Countess of Wemyss, sold her Chardin through dealer Simon Dickinson for £1.15 million in 2014; months later it was resold for £6.9million
Photo: Luke MacGregor/Bloomberg via Getty Images
Conduct of dealerships under scrutiny
Despite the paucity of court decisions in this area, at the end of 2022 two English High Court decisions on authenticity were delivered in the space of days. Qatar Investment & Projects Development Holding Co v Eskenazi Ltd related to the purchase of objects described (in most cases) as circa first to seventh century antiquities from the Gandharan and Bactria regions of present-day Pakistan and Afghanistan, while Feilding v Dickinson Ltd concerned the sale of a painting by Jean-Baptiste-Siméon Chardin, Grace.
Both cases focused on the standards expected of dealers with a professional reputation and a long history of dealing in art. Courts have considered the level of information shared with clients and the need for expert advice. In the latter case, the dealer met the required standards, but in the first case, the dealer’s conduct was found to be deficient. Both verdicts provide guidance to museums considering acquiring an antiquity or work of art.
The main issues in Qatar Investment Co v Eskenazi centered on lack of provenance and insufficient background investigation of the disputed items. In Feilding v. Dickinson, the issue was attribution to Chardin, and the exact nature of an autograph work versus one that could not be fully attributed to the artist. The painting was described in the catalog raisonné as a retouched copy— a sentence for which the court acknowledged that there was “no consensus as to meaning or meaning” (but indicated that it could be a copy that Chardin had authorized to be made and had then “retouched” himself). This rather nebulous description, coupled with the known artistic practices of the time, led to many uncertainties at the heart of the matter.
The precise wording of an attribution and any related scholarly commentary requires the utmost attention of a museum’s acquisitions team. A brief look at auction house terms and conditions will reveal a plethora of attribution descriptions from a single named artist, to terms such as “circle of” or “manner of” with accompanying definitions. Much depends on these descriptions, including the scope of any guarantees of authenticity. Understanding exactly what they mean and how far they extend, especially for institutional buyers, is crucial.
The bottom line is that there is no substitute for systematic, diligent and thorough research when considering acquisitions. It pays to read the fine print and challenge opaque assurances or evasive answers. Relying on material taken at face value, supposed expertise and unsubstantiated provenance is risky business. For public institutions, these obligations are more relevant, given the high ethical standards to which they are held. The lessons of these recent cases remind us that vigilance is required.
• The Institute of Art & Law, in partnership with Stephenson Harwood LLP, will hold a seminar, Authenticity, Attribution and the Law, in London on March 28.
