Law Alleviates Authentication Liability

New York -- Over the 15 years that the Andy Warhol Art Authentication Board was in operation, it was sued 10 or more times, by disgruntled owners of paintings that they hoped had been created by the Pop artist.

The Warhol Foundation won every single lawsuit, but the process was expensive, costing several million dollars overall to defend.

The Foundation was forced to cancel its authentication board in 2012, as explored in today's Featured Art Video.

Art collectors of Art Kabinett social media network, wishing to authenticate their Warhol works, are presently out of luck.

Similarly, the Keith Haring Foundation, the Pollock-Krasner Foundation, and the estates of Pablo Picasso and Jean-Michel Basquiat have also disbanded their authentication boards.

To solve this problem, a new bill has been introduced into the New York State legislature to make lawsuits against art authenticators more difficult to win and to punish “nuisance” lawsuits.

The legislation would amend the state’s Arts and Cultural Affairs Law by raising the standard of proof brought by a claimant that an art authenticator had acted negligently or fraudulently in rendering an opinion and by requiring the claimant to pay the authenticator’s legal fees if the claimant does not prevail in court.

Liability Feared

“The fear of liability and the threat of costly litigation is deterring specialists from providing opinions that are essential in determining authenticity, value and historical significance of artwork,” said Senator Little, who chairs the New York Senate Cultural Affairs, Tourism, Parks and Recreation Committee.

She added that the bill would “protect authenticators from frivolous legal action while still holding them accountable for wrongful actions. It strikes a balance that’s clearly needed.”

Many individual art authenticators and authentication boards have been challenged in their decisions, since these opinions concerning what is or isn’t genuine are taken as the final word by reputable art dealers and auctioneers.

A refusal by an authenticator to attribute a work of art to a particular artist may mean the loss of millions of dollars to a wealthy collector, who often has the resources to litigate.

"Clear and Convincing" Evidence

The legislation would require anyone bringing a lawsuit against an authenticator to present “clear and convincing” evidence that the art expert acted in bad faith when rendering an opinion.

That is a higher standard of proof than “preponderance of evidence,” which is often used in civil courts, but not at the same level as “beyond a reasonable doubt,” as is required in many criminal cases.

Under the new bill proposed, on the other hand, the claimant would need to show that “my expert is clearly right and there is no realistic possibility that the other expert is anything but wrong.”

The Calder Foundation, for instance, was sued in 2007 for declining to render an opinion on the authenticity of a stage set that sculptor Alexander Calder had designed back in the 1930s, while the Andy Warhol Foundation was sued in 2007 for “restraint of trade” for refusing to accept as genuine a work brought to its authentication board by a collector.

Both of these lawsuits were dismissed by New York courts, and almost every claim against art authenticators has resulted in a victory by these art experts.