The circulation of forgeries under the cloth of celebrated masterpieces is no new -it is an issue that lies at the heart of the (international) art market. The problem is fundamentally crucial as there have been many instances where works purchased for thousands, even millions, turned out to be forgeries that were deliberately commissioned. This article will attempt to provide some introductory remarks on this form of art crime, delineating its impact under the width of art and cultural property law, whilst revolving around some high-profile cases that, at times, have shocked the world.
The problem with forgeries and the issues at stake
Art, besides its aesthetic and historical appeal to the public, has long been regarded by economists and financial advisers as an evolving area for investment due to the alleged at a time minimised risk involved. The rise in art investment was advocated by many experts who, in the second half of the 20th century saw that the monetary value in artworks was not affected by negative inflation and constituted an ideal that has, since, attracted high market value. The increasing value of art, however, had a counter effect in the market. As the demand for artefacts increased, this encouraged many to meet the market’s demand for more works, with ‘exquisite,’ never seen before masterpieces that hid their deceptive nature under the veil of their misattribution – indicating origin from a named famous artist (usually an old master) when in fact they were fakes. The existence of forgeries in the art market has significant consequences for the public as the amount of such ‘fraud victims’ (private collectors, museums, etc.) increases.
The question why forgeries are problematic lies at the heart of the intent to deceive-misdirect the public or targeted groups of art admirers/investors about the true identity of the creator of an alleged masterpiece. Deception on the part of the forger merely stems from the incentives to receive revenues by exploiting the excellent reputation of another artist’s name, while introducing inauthentic works as originals that can easily attract public attention and be sold at high prices. This primarily occurs due to the existence of a gap that needs to be filled within the core of the art market, caused by the increasing interest in artefacts, which find their homes in museums, personal collections etc. Admittedly, today when people are buying valuable art, they do so primarily because they admire an artist and the distinctive attributes of his/her work. It is important to note, that usually, art admirers tend to purchase works that are followed with warranties issued by the seller (e.g. the art dealer or the auction house, the gallery, etc.). Warranties are the signalling that the work is original in the sense that it is the creation of the named artist’s own input.
However, as far as forgeries are present in the market and forged warranties can indeed be issued, the danger that more people will be defrauded increases. In contrast, headlines about forgeries can fuel public hesitation towards art transactions, henceforth affecting the value of the art market’s originals. As an artwork’s monetary value is linked with its originality, the discovery of a forgery ‘harms’ the owner, as the artwork becomes worthless in comparison to what it was when it was treated as an original when bought, causing a significant loss to the disadvantaged owner. The increasing circulation of forgeries is mainly owed to the hesitation of many art experts to express their honest opinion that a work might or might not have been authentic, as this could, inevitably, affect the credibility of their individual expertise or the gallery/auction house in which they were employed if the opposite could be, later discovered. Nevertheless, as today forgeries are more of a cognisant threat than they were the past, the prevalent impression is that art experts, with the aid of technology, are now better equipped to prove if a work is an original or a forgery.
The varying conceptions and forms of forgery
There are different types of forgeries. The most characteristic type of forgery is that of ‘exact replication’ where the forger copies the original work ‘absolutely’, thus, creating a fraudulent imitation. A way in which many forgers used to make their works more persuasive to deceive even the expert eye, was by creating their forgeries on the surfaces of other artists’ dated artworks (to create an illusion about the work’s age to look dated and infer originality). Forgeries, however, are not limited to identical copies. In many cases, they purport to ‘make noise’ as newly discovered masterpieces which exhibit the key features and characteristics usually met on artworks created by targeted well-known (typically deceased) artists to whom the forger purports to attribute their artwork.
The main attempt of these techniques is to ‘transform’ the forgery into a convincing 'original' work and persuade both the public and the art experts that the artwork is genuine, originating by a famous artist. A characteristic example is the instance of Han van Meegeren, a famous Dutch forger who successfully attributed his forgeries to the renowned Renaissance artist Vermeer. Meegeren’s forgeries were so convincing that they were recognised and applauded as genuine Vermeer works defrauding leading art experts and the museums that purchased them. The truth was revealed by Meegeren himself when he confessed in a trial where he was accused of treason, for selling Dutch cultural property to the Nazis, that the works he sold to the enemy were, at the end of the day, forgeries.
The problem with forgers is not just the imitation in the reproduction itself, or the use of a famous artist’s painting techniques in their works as a form of expression. Instead, it is the hidden intent of dishonesty that is painted in every inch of the work itself. Forgers fake even the signature of the artist under whose name they make their work more convincing. The facts from Lagrange v Knoedler Gallery are a characteristic example of that intent. More specifically, the lawsuit that a multimillion Jackson Pollock painting was a forgery led to the discovery that the Gallery had sold multiple paintings (more than forty artworks) for millions when in fact they were forgeries supplied by a named individual who confessed her cooperation with the forger who commissioned the works. These forgers are, of course, to be contrasted with ‘reproductionists’ who may recreate art, but they do not purport to deceive and may indeed limit it for personal-educational use acknowledging the ‘honesty’ of their imitating skill.
It must be noted that not only works by old/deceased artists/masters are subjected to the art of forgery. Works allegedly originating from famous contemporary artists have from time to time been circulated in all layers of the art market purporting to deceive the prospective buyer. A characteristic example has been the appearance of forged artworks on e-bay, with falsely attributed signatures that the works originated from the well-known ‘graffiti artist Bansky’. Undoubtedly, original works from established artists always attract wealthy collectors’ attention and money, as art continues to be a profitable investment. The problem, however, still endures. In many cases, potential buyers are not aware of the danger that the work might be a fake/forgery, or in many instances are even reckless about it, especially, when the purchase is made through the ‘auspices of the black market,’ which has an illicit character. The issue of illicit trade in art is another huge topic that taunts the global art market, it has created a considerable body of legal literature, and is undoubtedly one that I will return to in the future.
In conclusion...
Forgeries undoubtedly form an area that lies within the core of art and cultural property law that is intriguing for the (legal) scholar and the researcher. In contrast, it can be a massive loss for the art admirer, the historian, and most importantly, the forgery's buyer. Prospective buyers need to pursue 'due diligence'. This translates to a duty on the buyer to check the work's provenance: ask for warranties, check the soundness of the work's chain of origin and subsequent owners, the status of the source from whom they are buying the work, etc. A buyer needs to show that they procured all reasonable checks to ensure the authenticity of the work they purchased. This is pivotal to secure the right to be compensated where the work tuns out to be a forgery/fake. Being reckless about it in some jurisdictions (e.g UK) triggers the principle of caveat emptor (buyers beware!) which comes with the most unfavourable consequences - no right to sue and subsequently no compensation.
Bibliography:
UK Legilsation
Cultural Property (Armed Conflicts) Act 2017
Cases
Lagrange v. Knoedler Gallery, No. 11-cv-8757 (S.D.N.Y. 2011)
Books
Merryman J. H, Elsen A. E and Urice S. K Law, Ethics and the Visual Arts (5th edn, Kluwer Law International 2007) 1055
Journal Articles
Amineddoleh L, ‘Purchasing Art in a Market Full of Forgeries: Risks and Legal Remedies for Buyers’ (2015) International Journal of Cultural Property 22 Nelson J M, 'Art Forgery and Copyright Law: Modifying the Originality Requirement to Prevent the Forging of Artworks' (1990) 8 Cardozo Arts & Ent LJ 694
Elsen A. E. and Urice S. K, 'Law, Ethics and the Visual Arts' (5th edn, Kluwer Law International 2007) 1055 Gerstenblith P, 'Getting Real: Cultural, Aesthetic and Legal Perspectives on the Meaning on Authenticity of Art Works' (2012) 35 Colum JL & Arts 321 Stadler S. K, 'Forging a Truly Utilitarian Copyright' (2006) 91 Iowa L Rev 609,614
Other materials
Parkhouse and Carleton ‘England and Wales’ In Boesch B and Sterpi M, O’Sullivan M
(ed) 'The Art Collecting Legal Handbook’ [2016] Thomson Reuters (Professional) UK
limited 107 <https://www.farrer.co.uk/globalassets/news-articles/downloads/artcollecting-legal-handbook-england-and-wales-chapter.pdf> accessed 9 July 2020
‘The counterfeiters: Inside the world of art forgery’, Independent (10 December 2007) < https://www.independent.co.uk/arts-entertainment/art/features/the-counterfeiters-inside-the-world-of-art-forgery-764032.html> accessed 25 April 2020.