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
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
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
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.
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.
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
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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