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Law change could protect authenticators in New York

12 May 2014Written by Alex Capon

Legislation designed to protect art authenticators from lengthy and expensive legal claims has been proposed in New York.

The bill, which seeks to amend the state's art and cultural affairs law, is designed to discourage lawsuits against those who authenticate works of art in good faith and enable them to recover their expenses in the event of an unsuccessful claim.

According to The Association of the Bar of the City of New York, who have recommended the proposed legislation, the changes would "address certain deficiencies" in the current framework and would protect "authenticators in rendering independent, good-faith opinions about the authenticity, attribution and authorship of works of fine art".

Earlier this month the bill was unanimously endorsed by The New York Senate Standing Committee on Cultural Affairs and it will now move forward for consideration by the full senate.

The legislation comes at a time when the role of authenticators and authenticating bodies has been brought into focus following the demise of several artists' authenticating boards over the last few years.

These include, most prominently, the Andy Warhol Foundation in 2011, as well as the Keith Haring Foundation and Jean-Michel Basquiat authentication committee, both in 2012.

The ongoing fallout from the closure of the long-standing New York gallery Knoedler & Company amid an FBI investigation into an alleged fakes scandal has also added attention to the matter.

Lawsuit Fears

While both the Warhol and Basquiat boards took major financial hits and were forced to close following legal challenges to their rulings (most notably the former spending $7m fighting a lawsuit brought by Joe Simon-Whelan, owner of the 'double-denied' Warhol self-portrait), it has also emerged that some expert appraisers, art historians and curators have often felt unable to air their opinions due to fears of being sued.

According to an article in the New York Times, a leading expert on Jackson Pollock said he had doubted the authenticity of two works that Knoedler were selling as early as 2005 but, although he privately shared his suspicions with others, he had earlier decided against giving formal opinions in the wake of several lawsuits.

On the other side of the coin however, there are critics of the system where 'official' arbiters are able to assert their moral rights over and above those of owners.

In Europe, for example, where bodies representing an artist's legacy often have more power than in New York, such authenticating boards are even known to order the destruction of works they deem to be inauthentic - such as the case which emerged earlier this year where the Chagall Committee in Paris told a British businessman that a work for which he paid £100,000 would be burned after it was ruled to be a fake.

Claim Standards

The New York legislation is aiming to create a fairer and more workable balance than currently exists.

In effect, it is designed to raise the standard of proof for a claimant when pleading their case.

Currently a claimant need only show that their complaint is more likely to be true (in theory anything greater than a 50% chance).

The new bill proposes to change this significantly so that a claim would only succeed if the complaint specifies "facts sufficient to support each element of the claim" and can prove these elements with "clear and convincing evidence" - in practice a much harder task.

It will also shift the current position with regard to legal costs. Presently litigants in the US cases normally have to bear their own legal fees, but this bill would provide measures for reimbursing a defendant their full legal costs should they prevail.

As well as redressing the balance in terms of the burden of proof, The Association of the Bar of the City of New York believes this will also discourage frivolous lawsuits.

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