Art's in the dock but market still decides
As the price of art rises, court cases to authenticate works are also on the up, writes PATRICIA COHEN, and sometimes the results are surprising
US DISTRICT Court Judge Paul G Gardephe’s resume includes many accomplishments but not an art history degree. Nonetheless, he has been asked to answer a question on which even pre-eminent art experts cannot agree: are three reputed masterworks of Modernism genuine or fake.
Gardephe’s situation is not unique. Although there are no statistics on whether such cases are increasing, lawyers agree that, as art prices rise, so does the temptation to turn to the courts to settle disputes over authenticity. One result is that judges and juries with no background in art can be asked to arbitrate among experts who have devoted their lives to parsing a brush stroke.
The three art cases on Gardephe’s docket in Manhattan were brought by patrons of the defunct Upper East Side gallery Knoedler Company, who charge that its former president Ann Freedman duped them into spending millions of dollars on forgeries.
The judge’s rulings may ultimately rely more on the intricacies of contract law than on determinations of authenticity. But the defendants and plaintiffs are busily assembling impressive rosters of artistic and forensic experts who hope to convince the judge that the works – purportedly by Jackson Pollock, Willem de Kooning and Mark Rothko – are clearly originals or obvious fakes.
Of course, judges and juries routinely decide between competing experts. As the lawyer Ronald D Spencer, an art specialist, put it, “A judge will rule on medical malpractice even if he doesn’t know how to take out a gallstone.” When it comes to questions of authenticity, however, lawyers note that the courts and the art world weigh evidence differently.
Judges and juries have been thrust into the role of courtroom connoisseur. Legal experts say that, in general, litigants seek a ruling from the bench when the arguments primarily concern matters of law; juries are more apt to be requested when facts are in dispute.
In a seminal 1929 case involving the authenticity of a painting purportedly by Leonardo da Vinci, both a judge and a jury got the chance to weigh in. The art dealer Joseph Duveen was sued by the owners of the painting La Belle Ferronnière for publicly calling it a copy. The jury included a real estate agent, a shirt manufacturer and a furniture upholsterer. Two artists were also on the panel and ended up on opposite sides of a hung jury.
