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The De Sole Rothko, left, and Ann Freedman at the Frick in 2007 (photo by Patrick McMullan)
The De Sole Rothko, left, and Ann Freedman at the Frick in 2007
(photo by Patrick McMullan)

Art Law


by Daniel Grant

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Two days ago, Artnet Magazine reviewed the charges and countercharges in the case of the purported Abstract-Expressionist forgeries -- by such artists as Willem de Kooning, Franz Kline, Robert Motherwell, Barnett Newman, Jackson Pollock, Mark Rothko and Clyfford Still -- that passed through the hands of the now-closed Knoedler & Company gallery and its former director and president Ann Freedman. Now, more details have become available with the release of some documents by Freedman’s lawyer, Nicholas Gravante, Jr., of Boies, Schiller & Flexner.

Lawsuits by buyers of some of these artworks, alleging fraud and breach of warranty, have been filed, and more may be coming. Last month, for instance, Domenico and Eleanore De Sole sued Knoedler and Freedman over an untitled Rothko that they had purchased in 2004 for $8.3 million, which they claim to be counterfeit.

Freedman plans to fight these charges vigorously, according to her lawyer. “Nobody is stockpiling assets in preparation for settlements with any of these collectors,” Gravante said, in a reference to a speculation by other legal observers. “We plan to demonstrate in court that, a) each work is authentic and, b) even if they are not authentic, Ann at all times acted in good faith and believed them to be authentic.”

The Knoedler Gallery acquired these paintings from a small-time Long Island art dealer, Glafira Rosales, who claimed to have gotten them from a collector she refused to identify. “It does not happen that often, but it is not uncommon for collections to just appear,” the lawyer said, adding that it would be far more suspicious if a group of previously unknown paintings by a single artist, such as Pollock, suddenly turned up.

Rosales is currently the subject of an FBI investigation for trafficking in forgeries. Gravante stated that “Ann is not a target of the government’s investigation and is cooperating with them as a witness. I believe she has already convinced the government that she at all times acted in good faith”

He said that Freedman “had no reason to doubt Rosales’ integrity.” However, Freedman “did show the works to experts, who stated that they are genuine works” by the artists. One of those experts was Ernst Beyeler, the celebrated Swiss art dealer who created the Fondation Beyeler outside Basel, and who died in 2010 at age 88. Gravante released a one-page letter from Beyeler to Freedman, dated April 14, 2005, in which the Swiss dealer asked permission to borrow the De Soles’ Rothko for an exhibition that the museum planned for May 25-July 17, 2005. “I am wondering if the present owner of this sublime unknown masterwork would be inclined to lend it for this prestigious occasion,” Beyeler wrote.

That same purported Rothko was also shown to Laili Nasr, a curator at the National Gallery of Art in Washington, D.C., who had been working for over a decade on a Rothko catalogue raisonne. A letter from Nasr to Freedman, dated Nov. 3, 2003, referred to a recent visit by the curator to Knoedler, where she “especially enjoyed seeing” the Rothko. “It was a real treat.” Nasr noted that “we intend to include a supplementary section to introduce new works on canvas that were discovered since the 1998 publication of the first volume of the catalogue.” She added that if this supplement is published, “we intend to include” the Rosales-sourced Rothko.

Letting knowledgeable people view an artwork is not the same as launching a full-scale authentication process, however. When the International Foundation for Art Research examined an untitled Jackson Pollock that was purchased in 2002 for $2 million by Goldman Sachs co-chairman Jack Levy, its experts would not authenticate the work. (Levy’s money was refunded.) In 2009, after a forensic analysis, the Dedalus Foundation, which represents the Robert Motherwell estate, concluded that a purported Motherwell “Elegy” was not a work by the artist. (A lawsuit naming Rosales and another dealer followed and was resolved by the repayment of the buyer’s $650,000 and another $200,000 to the Dedalus Foundation.) The lawsuit by the De Soles alleged that “Freedman exaggerated certain experts’ informal impressions to make fraudulent assertions bolstering the impression the work was authentic.”

Amid the charges and counterclaims, these lawsuits reveal that establishing authenticity is no easy thing. The International Foundation for Art Research didn’t prove that the Pollock was a forgery; instead, its experts could not reach an opinion one way or another, and so announced that it could not make a definitive attribution to the artist. The Dedalus Foundation’s 2009 conclusion about the “Elegy” overturned the organization’s initial finding a few years earlier that the work was authentic. If the experts aren’t certain, art dealers such as Ann Freedman cannot be held to a higher standard. She was, and is, according to her lawyer, “an honest broker.”

DANIEL GRANT is a contributing editor of American Artist magazine and the author of The Business of Being an Artist and several other books.