Editor’s Note
This is the first issue of Spencer’s Art Law Journal which will appear three times a year on Artnet. This issue contains four essays, which will become available, one essay each month, April through July 2010.

It’s been said that art market custom and practice remain much as they were in the 19th century. The legal structure we call art law (an amalgam of personal property law, contract, estate, tax and intellectual property law) supporting the acquisition, retention and disposition of fine art, often fits uneasily with archaic custom and practice. The result is that 21st century art market participants are frequently unsure of their legal rights and obligations.

This Journal proposes to promote discussion of art law legal issues for lawyers and nonlawyers alike, with the goal of providing greater transparency, stability and predictability.

The first four essays in our series deal with two core issues for the ownership of visual art -- authenticity and title -- who created it and who owns it? The first essay addresses a typical but often overlooked provision of an auction house consignment agreement allowing the auction house to rescind a sale over authenticity concerns. The second essay deals with ownership disputes with insurance companies over art stolen and recovered years later. A third essay raises the fraught question of changes in the attribution of visual art. The final essay of this issue of the Journal addresses the process of determining who owns art stolen between 1933 and 1945.

Three times a year future issues of the Journal will address legal issues of practical significance to collectors, dealers, scholars and the general art-minded public, such as (1) appropriate due diligence on the part of the buyer when provenance is incomplete or unclear, (2) the relevance of catalogues raisonné for due diligence, and (3) what to do if one suspects a piece in a collection of visual art is incorrectly attributed, or, indeed, an outright forgery.

WHEN EXPERTS AND ART SCHOLARS CHANGE THEIR MINDS

Ronald D. Spencer

This essay is concerned with changing attributions of visual art, over time, as a result of new opinions by experts -- usually based on art historical research having produced new factual information about the artist or the work of art. The legal effects of these changes in attribution can have important legal consequences for sellers and buyers and donors. When an art dealer sells a work of art, the dealer almost always gives the buyer a warranty of authenticity. Subsequently, if new facts emerge or experts change opinions after (perhaps long after) the sale, what does the buyer have to prove to enforce his warranty against the dealer? Stated another way, what does it mean to warrant authenticity today and into the future, when expert opinion can, and does change?

RONALD D. SPENCER is counsel to the New York law firm of Carter Ledyard & Milburn LLP, where he specializes in art law as Chairman of the Art Law Practice. He is expert in the legal aspects of art authentication issues and has written and edited The Expert Versus the Object: Judging Fakes and False Attributions in the Visual Arts (New York, Oxford University Press, 2004).

Attributions of a work of visual art to a particular artist usually result from a consensus of opinion among art scholars and experts. But it is not uncommon to encounter a work that had been attributed by consensus opinion to an artist, and then, over time, see that consensus change. While, all opinion (expert and otherwise) is subject to change over time as new facts emerge and the cast of experts alters, this is particularly so in the field of visual arts.

There are many examples of this phenomenon. The Rembrandt Research Project, begun in 1968, has reattributed Rembrandt paintings that the Project itself previously deattributed.(FN 1) In January, 2009, Madrid’s Prado Museum publicly announced its decision to remove Francisco Goya’s name from the painting, The Colossus, heretofore considered one of Goya’s most dramatic and famous pictures, and now said to be painted by one of his assistants. And Goya’s "Black Paintings," removed from the walls of his home and also displayed in the Prado museum for many years, may not have been painted by him at all, according to an art historian hired to write on a book on the paintings.(FN 2) The Metropolitan Museum of Art has owned a painting, Portrait of a Man, for sixty years. Since 1917 the painting has been attributed to Velázquez and then deattributed. But now the museum, again, considers it to be by Velázquez ("How does a picture transform itself from a dubious Van Dyck to an indubitable Velázquez, from a Velázquez to a workshop piece back to a Velázquez?") and exhibited it in 2009 as such.(FN 3) A sunflower painting attributed to Vincent van Gogh that broke auction records by selling for nearly $40 million in 1987 is now considered by some experts to be a forgery, while others are certain of its authenticity.(FN 4) These are but a few of the artworks that have fallen into a cyclical pattern of attribution, deattribution, and (sometimes) reattribution.

The oft-changing nature of attributions can have profound legal effects. A buyer may wish to rescind his purchase of artwork, or the Internal Revenue Service might want the new attribution to be reflected in altered income tax liability for the donor. In resolving these conflicts, the consensus of art scholars and experts at a specific point in time is crucial.(FN 5)

Art dealers most often warrant the authenticity of the work they sell. Both Sotheby’s and Christie’s warrant to their buyer for five years after the date of sale that the work is by the author identified in their auction catalogue. When enforcing these kinds of warranties of authenticity, a rule has developed in the field of art law that a court will look to whether the seller had a reasonable basis in fact for making such a warranty at the time the warrant was made, that is, at the date of sale.

Dawson v. Malina and the Establishment of the Timing Rule in Breach of Warranty Cases.
The rule of looking to the consensus of art scholars and experts at the time of sale, and not, for example, when an expert reattribution is made or at the time suit is brought, was first articulated in 1978 in a New York federal court case, Dawson v. Malina,(FN 6) involving Chinese ceramics and jade sculptures, sold by a New York gallery. The seller furnished descriptions of these objects in letters, invoices, and the bill of sale, unequivocally attributing each work to a specific period of Chinese antiquity, such as the Chien Lung period and the Sung Dynasty. Soon after the sale, the purchaser inquired into their authenticity with several experts, all of whom expressed doubt that these works were from the periods warranted by the seller. When the seller only agreed to accept the return of four of the works, the buyer brought suit alleging breach of warranty for the five remaining works. At trial, the experts retained by the parties expressed conflicting views as to the correct attribution of these works, but agreed that attributing a work to a particular era of Chinese antiquity is "by its very nature an inexact science."(FN 7)

Dawson Establishes Reasonable-Basis-in-Fact Standard for Warranty of Authenticity.
On the issue of whether there had then been a breach of warranty, the Dawson court held that the proper standard for determining breach of warranty should be whether representations by the seller to the buyer had "a reasonable basis in fact, at the time that these representations were made, with the question of whether there was such a reasonable basis in fact being measured by the expert testimony provided at trial."(FN 8) Thus, a plaintiff buyer must show "by a fair preponderance of the evidence that the representations made by [the seller] were without a reasonable basis in fact at the time these representations were made."(FN 9)

Turning to each piece and the representations made, the Dawson court found that for many of the works the seller had not had a reasonable basis in fact for making these warranties. Particularly troubling to the court was that the seller’s language was often "unequivocal" and "unqualified,"(FN 10) even though the nature of these artworks meant that it would be nearly impossible for any determination to be made with the level of certainty exhibited by the seller. For example, in discussing a jade peach tree carving, the court noted:

Considering the expert testimony with respect to this carving as a whole, it is clear that Malina’s unqualified attribution of this piece to the Chien Lung period is not supported by a reasonable basis in fact and that any attribution with respect to this carving should have been qualified at the very least as being ‘probably’ or ‘possibly’ Chien Lung.(FN 11)

The court found that the buyer was entitled to rescind the sale of three of the works at issue because the seller had not undertaken investigation sufficient to have had a reasonable basis in fact for the warranty.

Dawson v. Malina has been adopted as the standard for breach of warranty claims in art cases in the following four court decisions:

• Balog v. Center Art Gallery-Hawaii (1990)(FN 12) (forged Salvador Dali prints warranted as authentic).

• Levin v. Gallery 63 Antiques (2006)(FN 13) (late 19th century Italian sculptures warranted as "original", rather than workshop copies).

• Levin v. Dalva Bros. (2006)(FN 14) (vases warranted as 19th century Russian were of French origin; grandfather clock warranted as 18th century French, an amalgam of late 18th & 19th century parts and pieces; and commodes warranted as 18th century French - most probably 19th/20th century).

• Christie’s, Inc. v. SWCA (2008)(FN 15) (Picasso sculpture warranted to be Vollard edition).

Problems Arising under the "Reasonable-Basis-In-Fact" Standard.
Both Christie’s and Sotheby’s limit their warranty of authenticity if their catalogue description corresponded to the generally accepted opinion of scholars and experts at the date of sale, or fairly indicated there was a conflict of opinion among scholars and experts. The warranty is further limited if authenticity can only be demonstrated by means of, either a scientific process not generally available or accepted for use at the time of sale, or a process that was unreasonably expensive or impractical or likely to have caused damage to the art.

Clearly, under the Dawson standard, and Christie’s and Sotheby’s contractual limits on their warranties of authenticity, a change in the consensus of expert opinion after the date of sale would not allow an unhappy buyer to recover on the auction house warranty. But suppose the buyer obtained expert opinion several years after his purchase, identifying paint in the picture which would not have been available to the artist at the presumed date of creation. And assume, further, that such scientific testing for that particular paint was feasible at the date of sale but was not performed by seller, nor requested by buyer. Thus, the question for the court would be, when all the experts at the date of sale thought the art was authentic and no one had suggested paint testing, could the buyer (several years later but still within the warranty period)rely on paint testing to prove that the seller had breached his warranty. Probably, yes.

Authenticity Qualified by "Probably" or Possibly."
As we have seen, Dawson states that "Malina’s unqualified attribution of this piece to the Chien Lung periodis not supported by a reasonable basis in fact and. . . any attribution with respect to this carving should have been qualified at the very least as being "probably" or "‘possibly" Chien Lung.

In 2005 the English Court of Appeal in Taylor Thomson v. Christie Manson & Woods had before it the question of whether Christie’s "should have qualified their catalog entry" about a pair of Louis XV vases which had been bought by Thomson for nearly £2 million, by stating that the urns were "probably" 18th century (as opposed to 19th century, much less valuable, imitations).(FN 16) Christie’s had accepted that, if there were "material doubts" as to the description or dating in its auction catalogue description, that doubt should have been articulated in terms of "probably Louis XV."(FN 17) Thomson’s contention was that the well-known existence of 19th century imitations should have caused Christie’s to doubt its "certain and definite opinion" expressed in its catalogue, which opinion was based (only) on careful visual inspection by experts.(FN 18) The English court was of the opinion that the evidence at trial established the 18th century date with at least a "70% probability and perhaps higher."(FN 19) The Court held that Christie’s was "entitled to hold the certain and
definite opinion that the Houghten vases were 18th century …" and, if it had no "real, rather than fanciful doubts", it did not have to qualify its opinion, by stating in its auction catalogue, "probably" 18th century.(FN 20)

Timing of the Attribution for Charitable Contributions.
Issues of how to value artwork when the consensus of art scholars and experts on the piece changes also arise when the owner of a work makes a charitable contribution. In order to determine the value which may reduce the donor’s income tax liability, the Internal Revenue Service measures the fair market value of the artwork on the date of contribution.(FN 21) The IRS explicitly disallows looking to future events when making this valuation, advising the taxpayer that:

You may not consider unexpected events happening after your donation of property in making the valuation. You may consider only the facts known at the time of the gift, and those that could be reasonably expected at the time of the gift.(FN 22)

This issue was highlighted in the recent controversy around art dealer Gerald Peters’ donation of several works from the so-called "Canyon Suite" to the Kemper Museum of Contemporary Art in Kansas City. "Canyon Suite" was comprised of 28 paintings that, at the time of donation, had been attributed by art scholars and the expert community to Georgia O’Keeffe, and for which Peters had claimed a $1.1 million tax deduction. Three years later, when the O’Keefe catalogue raisonné was published, the works were deemed by experts to be inauthentic and the IRS thereupon disallowed the deduction. Peters brought suit, demanding a refund of taxes and penalties he paid to the IRS, arguing that "his deductions were reasonable at the time of the donations, three years before the experts concluded they were forgeries. The case was settled in 2006, without a court opinion, presumably because Peters’ position seemed to be expressly supported by the IRS’s stated methodology for determining charitable deductions, i.e. value at the time of donation, could not consider unexpected future events.

New York, New York
January 2010

Ronald D. Spencer
Carter Ledyard & Milburn LLP
Two Wall Street
New York, NY 10005
email: spencer@clm.com
website: www.clm.com

NOTES
(1) See Ronald Spencer, THE EXPERT VERSUS THE OBJECT: JUDGING FAKES AND FALSE ATTRIBUTIONS IN THE VISUAL ARTS (New York, Oxford University Press, 2004) p. xi; See also John Gash, Rembrandt or Not? Rembrandt Research Project Attempts to Authenticate Certain Works, ART IN AMERICA (Jan. 1993).

(2) Arthur Lubow, The Secret of the Black Paintings, N.Y. TIMES, July 23, 2003.

(3) Keith Christiansen, Introduction, Velázquez Rediscovered, Metropolitan Museum of Art (New York, 2009) p.6; Karen Rosenberg, Revealing the Hand of Velázquez, N.Y. TIMES, December 2, 2009.

(4) Sylvia Hochfield, Timothy Ryback Made Sense of the Heated Debates Over van Gogh Forgeries, ARTNEWS, Nov. 2007.

(5) Indeed, both Christie’s and Sotheby’s limit their warranties of authenticity, stating that they do not apply if the catalogue description was in accordance with the opinions of art scholars and experts at the date of the sale, or if the catalogue noted that there was a conflict of opinions among art experts.

(6) Dawson v. Malina, 463 F.Supp. 461 (S.D.N.Y. 1978).

(7) Dawson, 463 F.Supp. at 467. The court continued, "As the testimony of all of the experts makes clear, a determination as to the proper attribution for any of these pieces is to a substantial extent a subjective judgment based upon whether an expert finds a given piece to be aesthetically consistent with the other works of the period on the basis of such elusive characteristics as the quality, character, for or ‘feel’ of the piece."

(8) Id. at 467.

(9) Id. at 467.

(10) Id. at 468.

(11) Id. at 469.

(12) Balog v. Center Art Gallery-Hawaii, 745 F.Supp. 1556 (D.Haw. 1990).

(13) Levin v. Gallery 63 Assoc., Docket No. 04-CV-1504, 2006 U.S. Dist. LEXIS 70184 (S.D.N.Y. Sept. 28, 2006).

(14) Levin v. Dalva Bros., 459 F.3d 68 (1st Cir. 2006).

(15) Christie’s Inc. v. SWCA, 867 N.Y.S.2d 650 (N.Y. Sup. Ct. N.Y. County 2008).

(16) Thomson v. Christie Manson & Woods Ltd [2005], EWCA Civ. 555, Court of Appeal (Civil Division), Case No. A2/2004/146 & 1470 (appeal taken from Q.B.), at ¶ 7.

(17) Thomson at ¶ 78-99.

(18) Id. at ¶ 84.

(19) Id. at ¶122, 152.

(20) Id. at ¶157.

(21) 26 U.S.C. § 170 (2008)(Charitable, Etc., Contributions and Gifts).

(22) Internal Revenue Service, Publication 561 ("Determining the Value of Donated Property")(Apr. 2007).

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