Steve and Katie speak with two preeminent French art lawyers, Anne-Sophie Nardon and Olivier de Baecque, about disputes surrounding the authenticity of art and how French and US courts get involved in these disputes. Because many of the world’s greatest artists made their home in France, many of the experts on these artists and their work are in France, and French courts have long adjudicated disputes about the accuracy of opinions made by experts regarding authenticity.
Resources
https://borghese-associes.com/en/about-us/anne-sophie-nardon/
https://debaecque-avocats.com/en/team/olivier-de-baecque-2/
Greenberg Gallery, Inc. v. Bauman
The Mayor Gallery Ltd v. The Agnes Martin Catalogue Raisonne LLC
Thome v. Alexander And Louisa Calder Foundation
Katie and Steve discuss topics based on news and magazine articles and court filings and not based on original research unless specifically noted.
Episode Transcription
Steve Schindler: Hi, I’m Steve Schindler.
Katie Wilson-Milne: I’m Katie Wilson-Milne.
Steve Schindler: Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The Art Law Podcast is sponsored by the law firm of Schindler Cohen and Hochman LLP, a premier litigation and art law boutique in New York City.
Katie Wilson-Milne: Hi, Steve.
Steve Schindler: Hi, Katie. How are you?
Katie Wilson-Milne: I’m great, how was your summer?
Steve Schindler: Well, it was- it’s a blur at the moment, but…
Katie Wilson-Milne: Long gone.
Steve Schindler: It was wonderful. We did some traveling, we went to see some art and other things in Norway and Denmark, and then spent a little bit of time outdoors here, and now we are back.
Katie Wilson-Milne: Yeah, the best thing about- the only good thing about the summer being over is that we’re back to the podcast.
Steve Schindler: Yes.
Katie Wilson-Milne: No one of many good things.
Steve Schindler: And we’re back in our studio, we’re here with Jackie. It’s great.
Katie Wilson-Milne: So we are on season eight, which is remarkable.
Steve Schindler: It’s amazing.
Katie Wilson-Milne: And we hope it is the best season yet.
Steve Schindler: I’m sure it will be. There’s a lot of great stuff to talk about. I think now we also have seven prior seasons, and some of the topics seem to be coming up again.
Katie Wilson-Milne: Yeah, they’re evergreen.
Steve Schindler: We’re going to look at those, and then the art market is in an interesting state right now, and a lot of things will come out of that.
Katie Wilson-Milne: Yeah, I totally agree. We have a lot of old topics to revisit and expand on and many new ones. We also just wanted to say to our listeners, we really appreciate all the feedback that we get. We do look at your emails. You can send us a message on Instagram. So if you have ideas of things you want us to talk about, please let us know, and we’ll consider them.
Steve Schindler: We’d love to be responsive to our listeners’ desires and wants, and we’ll take a close look. So please contact us.
Katie Wilson-Milne: Alright. Enjoy the season.
Steve Schindler: Alright.
[Transition music by Chris Thompson.]
Steve Schindler: Hey, Katie, how are you?
Katie Wilson-Milne: I’m all right, Steve. So we’re back to Europe today, which we always like.
Steve Schindler: I know, and this is actually something that I’ve wanted to do for a long time, is to have a podcast with our two favorite French lawyers–
Katie Wilson-Milne: Yes.
Steve Schindler: –and been trying to figure out how to get them on the podcast, and what to talk about, and I think we finally did it.
Katie Wilson-Milne: I hope your other French lawyer friends aren’t listening to this.
Steve Schindler: I know, I know.
Katie Wilson-Milne: Since you have a few.
Steve Schindler: I like you too, guys, don’t worry. But we’re gonna talk today a little bit about authentication problems in France and the United States: how they differ, how they’re the same, and the relationship between the market and law in terms of authentication. We’re here today with Anne-Sophie Nardon and Olivier de Baecque. Anne-Sophie is a French attorney based in Paris and managing partner of Borghese Associates. She specializes in litigation concerning art-related disputes and represents collectors and art dealers in high profile criminal cases of theft and illicit trafficking. Her work also includes representing and advising heirs, dealers, galleries, and collectors in national and international cultural heritage property matters. She co-chairs the Art Law and Cultural Heritage Committee of the Paris Bar.
And Olivier is a member of the Paris Bar and a partner at De Baecque Bellec. He practices art law, in particular on behalf of artists or artists’ estates, art galleries, experts, and collectors. He has developed considerable expertise in complex civil and criminal law litigation relating to art law and the representation of artists’ estates. He provides both advisory and litigation services. He graduated from the Ecole du Louvre with a background in art history, and he got his LLM from Columbia University. He currently serves as co-chair of the IBA and the Paris Art and Cultural Committees. Welcome to the podcast, Anne-Sophie and Olivier.
Anne-Sophie Nardon: Thank you for having us.
Olivier de Baecque: Thank you so much for the invitation.
Steve Schindler: So, let’s start in France today. And can you just give us a sense in France if there’s a formal process for authenticating a work created by a French artist?
Anne-Sophie Nardon: First of all, authenticity is a great place, I think, to see intersections between art and law, which is the subject of your podcast. And I would say that in France, the issuance of authenticity, the certificate of authenticity, is not prerogative of a holder of moral right or copyright, or as we say in France, intellectual property rights. Anyone really can issue a certificate of authenticity of an artwork. So that’s one of the first points that is important, because in most cases, people go to artist committees, or they try to go ask the author of a catalogue raisonné, or a specialist, but really there’s no one who is legally appointed to issue certificates of authenticity. Olivier, do you see anything to add to that?
Olivier de Baecque: No, I agree. The only thing is that, for example, an auction house or an expert who’s trying to determine the authenticity or give an artwork to an artist with a committee, in his due diligence, would really have to consult the proper committee. Otherwise, if he makes a mistake on authentication, he could be held responsible for forgetting this due diligence. So there is no compulsory system to determine authenticity. But a recognized committee should be consulted.
Steve Schindler: Right. As just a legal matter, if I understand you, Anne-Sophie, if I’m a gallery, for example, and I sell on the primary market, can I just then issue a certificate of authenticity for the artist’s work?
Anne-Sophie Nardon: You can.
Katie Wilson-Milne: Or even if you sell on the secondary market, could you issue a certificate if you wanted to take on that risk?
Olivier de Baecque: Not only you can, but you must, because a French decree called Decree Marcus, which was written by a painting expert, say that a professional must issue an invoice with a proper description of the artwork he’s selling, and this is a guarantee of authenticity. So a seller, when he issues an invoice as a professional, in fact, gives a certificate on what he’s selling.
Katie Wilson-Milne: So far, Steve, this sounds very much like the US, in that there’s no legal oversight. Anyone can say something’s authentic, and it’s up to the market to decide whether that opinion’s important or not.
Steve Schindler: Right, and then at the same time, anyone who wants to issue and does this issue a certificate takes on certain responsibilities and potential liabilities as well.
Katie Wilson-Milne: And also, very similar to what you’re saying, Olivier, we have implied warranties in sales that come out of our commercial codes that say, if you’re describing an artwork as by an author, that itself is a legal representation that the work is authentic. And if that is not true, the person who relied on that, typically the buyer, can bring a lawsuit for breach of warranty within the statute of limitations against that person who made that representation.
Steve Schindler: Right. And actually, that’s a good point too, because under, and particularly in New York, where we have an even more refined set of laws relating to representations, anytime you sell, let’s say, an auction house, and you print a catalog, and you’re selling a work, and you just say, this is a work by this particular artist, that is itself considered a certificate of authenticity in the context of those kinds of representations of authenticity.
Katie Wilson-Milne: But only benefiting the person who relies on that representation. It’s not a market, it’s not a real certificate you can pass around.
Steve Schindler: That’s correct.
Katie Wilson-Milne: It’s just that the buyer can rely on it. Yeah. So that’s interesting. So given that, and given that we know that in France, as in the US, but especially in France, there are committees that are the committees, as Olivier said, to issue opinions about certain artists’ work, and they’re not necessarily related to the heirs of those artists or the rights holders to the extent that there are remaining rights. So how just in practice do those types of committees become so important?
Anne-Sophie Nardon: I think I just wanted to stress that- why it is interesting to make these detours to French law. It does make sense, because several renown artists moved to France at the end of the 19th, beginning of the 20th century. They were drawn by the art scene at the time. And so we have in Paris and in France and in south of France, many artists’ committees, because those artists who came to France such as Picasso or Brancusi or Modigliani, they had families, they had archives. And so that’s the reason we have several artists’ committees in France. And they all have their particular rules. Some of them will look at authenticity and provenance, for instance, and if they’re- the two is not to their satisfaction, they will not issue a certificate of authenticity. So really you have to know who to go to. So it’s easy, for instance, for Picasso, so you go to the Picasso administration, they have an authentication board, and you follow up their rules as to what they need you to send them in order to respond to you.
Katie Wilson-Milne: Yes, that’s very helpful, and it is important to understand that talking about the French system is critical, because so many of the world’s great artists do have authentication committees based in France. But I guess my question is, how did those committees come into existence, right? They’re not- how do they generally generate themselves if they are not an outgrowth of the heirs themselves? And we have the same issue in the United States. As you know, many of the US artist foundations, which generally do come out of the artist’s state, have stopped authenticating because of legal risk. But I’m curious in France just if you can give a general sense of the history of these.
Olivier de Baecque: Well, there is no rule to build up an artist’s committee. So it’s just practice. Most often these committees are issued from heirs of the artists, the wife, the husband, the kids. Sometimes they’re just built up by the gallery, because these people have a huge knowledge of the work. They lived with it for times, and often they have documentation. So they can use that knowledge to give authenticity. But it can also be someone who has no family or professional relationship with the artist that decide to build up a committee. And then it is respected or not by the art scene. And they can have a huge number of forms of structures. Some people just do it personally. I find it a bit, risky because you have direct liability. Other set up structures, they can be for-profit, non-for-profit. So you have a huge variety. But most of the cases, it’s people who have a strong connection with the artists.
Steve Schindler: Right. And scholars, I think, as you suggest. So obviously, we know about Daniel Wildenstein and the Wildenstein Institute and some of those catalogs that became authoritative over many years.
Olivier de Baecque: I would say that when dealers create a committee, it also has an interest for them in gathering information to make their business more efficient and centralize the work and get other business opportunities. So sometimes there are ambiguities between being a business dealer and a neutral expert. But we have to cope with that, because what you’re looking for is knowledge on the artist. And where the committees or the experts are respected, it’s when the market believes in them.
Steve Schindler: Right. And we see that here too. And one of the cases we’ll talk about also has a strong connection between the sort of leading gallerists for an artist and the catalogue. And there are always these sort of possibilities for complex of interest and controlling the market and the relationship between that and opinion about authenticity.
Katie Wilson-Milne: Let me ask another background question. So, once these voluntary committees, authentication committees in France are formed, are there standardized procedures across all of them? I mean, I know you said they’re different submission procedures, but in terms of the issuing of the certificate- and I ask because here, you know, we have catalogue raisonné committees, which are sometimes the same as the Artist Foundation, or a group of people that will review a work. But typically now, there’s not a certificate that’s issued upon review. There’s just a statement that it will or won’t be included in the catalogue raisonné. So, what is the general process in France for these committees? I mean, it’s my assumption there’s some- what’s standardized and that there is an actual certificate. But it’s a little different than here, so it would be helpful to understand.
Anne-Sophie Nardon: We have in France the same variety of statements that you may have in the states.
Anne-Sophie Nardon: Sometimes it’s a letter. The terms of the letter may be a certificate, but it can only be just an opinion, what we would say an avis. So it’s not a proper certificate. Sometimes it’s, as you said, as you mentioned, a letter from the author of the catalogue raisonné, sometimes the person is also working with the committee or not. So we have all kinds of documents that may be issued. And also, that leads to another point is that sometimes some committees agree to give their opinion on the authenticity of the work. So they will give you a written document, written certificate or just a letter. Or sometimes when they decline, when they do not recognize the work as authentic, then they would rather not give any document in writing.
Steve Schindler: Right.
Anne-Sophie Nardon: They prefer to say, we will not issue a certificate or an opinion, and that’s it.
Steve Schindler: Right.
Anne-Sophie Nardon: And you don’t have a paper saying that it’s inauthentic. It’s quite rare, because they don’t want to be dragged into a proceedings or to have problems. And usually they start having problems when the authenticity is denied.
Steve Schindler: Yes, right. And we, I’ve seen, I’ve been on the other side of one of those letters, it said politely say, we decline to include the work in our catalogue raisonné.And that’s- we all know what that means, which is to say that they have formed an opinion that it’s not authentic.
Katie Wilson-Milne: But they’re not saying that.
Steve Schindler: They’re not saying it.
Katie Wilson-Milne: Because they have good lawyers who told them.
Steve Schindler: But everybody knows, the market knows what they’re saying. So, and maybe that leads us to sort of the next question that we have. So, in France, as we understand it, there is a formal- a legal procedure that can be followed if, for example, you make your submission and the inclusion is denied. How does the French legal system sort of deal with that? Is there a special proceeding? And how does that work?
Olivier de Baecque: Well, it’s quite straightforward. If you want to challenge a statement on authenticity or inauthenticity, you can go to court, but the judge on the merits will seek the advice of a court-appointed expert who is neutral and is chosen on a list made by the court. So, usually, you start with a summary proceeding, asking for an order to appoint a given expert. And then, when this expert is appointed by the summary proceeding judge, you have a sort of factual litigation in front of that court-appointed expert who will meet the parties, receive their evidence, ask them questions, and build up his opinion whether the work is authentic or not. It’s like being in court, so you have due process, cross-examination, obligation to provide evidence to the other parties. It’s a factual litigation, to simplify. At the end, the expert will give a report answering the issue of authentication or non-authentication. In light of his conclusions, one of the party will seize the judge on the merit. For example, if a committee refuse authentication and the court-appointed expert authenticate the work, you can sue the committee on the purpose of seeking its liability. So that’s how it works. And most of the time, only those court-appointed expert report are the evidence recognized by the courts. Difficult to work without that.
Katie Wilson-Milne: So what is the cause of action in France that allows- so in the US, as I’m sure you have too, we have these concepts of standing, and you have to have either, you know, a contract right or a tort right or, you know, a statutory right, right? There’s got to be some legal basis for you to say, “I have rights to come to court and ask for this relief.” So what is that in France with respect to this procedure? What gives way to the right of someone who’s been issued something?
Olivier de Baecque: Usually, it will be either the buyer or the seller or the owner of the work who wants to challenge the decision of the committee, because he cannot sell his authentic work if it’s not authenticated. Other buyers think the work is fake, and it has been authenticated. So he sues the other party in the sale for cancellation on the sale, and he might sue the committee or the expert for his professional liability. Depending on the matter, it can be based on contract, if you have an authentication contract, or on tort.
Steve Schindler: I know one of the remedies, as you said, Olivier, is that the court- if there’s a finding of authenticity, I assume the court can then order the author of the catalogue raisonné, or the committee to include the work. Is that one possible outcome?
Olivier de Baecque: It used to be the case before with an artist called Atlan, where the heirs of the artist refused to authenticate work that were deemed authentic. So they were sentenced to publish the court decision. But there is a fairly recent case concerning a Cubist painter called Gleizes. It’s a story of a painting that the owner deemed authentic, and the expert on the painter refused to authenticate the work and include it in his catalogue raisonné. And the Cour de Cassation, the equivalent of the Supreme Court in France, held that despite the fact that the work was authentic and that the refusal of inclusion was a mistake, it could not force the author of the catalogue raisonné, to include the work in such document, because of freedom of expression. So today, it’s difficult to obtain inclusion of a work in a catalogue raisonné with a court decision.
Katie Wilson-Milne: So this seems much more American than some of the examples we were familiar with in the past. But Olivier, you said you could have a contract or a tort remedy, which is same here. Is it a business interference type of tort? Or is it a unique tort born out of the French system that allows you to ask for this relief?
Olivier de Baecque: Well, of course torts and French responsabilité civile are similar but different. So basically, you could sue a committee who make a wrongful attribution. So their wrongful attribution is a fault, and the fault leads to prejudice. I mean, you want to sell an authentic work, and you cannot do it, because of the committee’s decision. So you’re suing for financial damages.
Katie Wilson-Milne: Okay. So now you’re saying that there’s not injunctive relief as we would call it as much being issued, but there’s money damages if someone’s business interests were harmed.
Olivier de Baecque: I would tend to say it’s mainly money damages, or maybe if the work is authentic, you will get a publication in a paper or something like that.
Anne-Sophie Nardon: But since the Court of Cassation, the decision Olivier was talking about- I’m thinking about the one from 2014, where we had a judicial expert who said that the work- it a the work from the artist Metzinger- was authentic. And we had the author of the catalogue raisonné saying otherwise. In that decision, the court said, well, the author of the catalogue raisonné has freedom of expression. So as long as the work of the author of the catalogue raisonné has been done in a professional manner without malice or intention to do wrong, then the author benefits from freedom of expression and cannot be forced to include the artwork in the catalogue raisonné. So we have seen before this decision, there were some lawsuits involving owners of artwork against artists’ committees or against authors of catalogue raisonné, but now it has become very rare, because they are protected by this freedom of expression decision. And so to get back to what you were saying, Katie, in most cases where we can go before the judge of summary proceedings and ask for the designation of a judicial expert, we are dealing with a case of cancellation of sale. It’s a problem with the sale. So you have an artwork and you bought it, because it was sold as a Van Gogh, for instance. And 10 years after that, you try to sell it. And the auction house says, well, we believe it’s not authentic. So then the remedy that you have is to go against the seller who sold it to you. And for that, you have to ask the name of the seller. That’s the first thing that you have to obtain. And when you have the name of the seller, then you have to start a lawsuit against this person to cancel the sale.
But before going to the court on the merits, it’s usually better to start small, so to speak, to go before the judge of summary proceedings and to say to the judge, “well, I have good standing, I have a cause of action, which is I want to obtain the nullity of the sale, because I bought a Van Gogh and now I’m being told that it’s not. So I have a good reason to go after the seller.” And then it’s, as Olivier described, the judge of the summary proceedings appoints a judicial expert, and you go through this expertise with the judicial expert. And at the end, with the report, if the report helps you in your lawsuit, then you go with it on the merits before the court.
Steve Schindler: Interesting.
Anne-Sophie Nardon: So in most cases, it will be the action that you have is an action, because you want to obtain the cancellation of the sale.
Katie Wilson-Milne: And the seller, the original seller presumably disagrees that the work’s inauthentic, and so that’s what you’re fighting over.
Steve Schindler: We have that here, obviously, that we have a couple of different kinds of cases, that those kinds of cases, and then the lawsuits against the catalogue raisonné authors. But one of the issues that comes up, and we defended a case like this, where we had a client who sold a Bonnard, right? And then years later, the current catalogue author, when they were asked to see whether or not this work really should be in the catalogue, who is different than previous authors, said, “no, I decline to include this in the catalogue.” The problem is that, at least in our system, you don’t have that information until many years after often the original sale. And so to bring a claim for breach of the warranty of authenticity under US principles, you have to bring it within four years of the sale. So if it’s more than four years, there’s a problem. And the only way to get around that problem is to bring a lawsuit- try to bring a lawsuit for fraud, which has a potentially longer limitations period.
Katie Wilson-Milne: Much harder to prove.
Steve Schindler: Much harder to prove. So that’s one of the things.
Katie Wilson-Milne: How long is the limitation period in France for these types of claims?
Olivier de Baecque: Our statute of limitation is much longer. You have- to simplify, you have two delays. You have one delay, it’s 20 years from the sale.
Katie Wilson-Milne: Wow.
Olivier de Baecque: And then you have another delay, it’s five years from the discovery of the mistake on authentication.
Katie Wilson-Milne: Even if there’s no fraud of any kind?
Olivier de Baecque: Even if there is no fraud. It’s an action- cancellation of sale. It’s not based on fraud. It’s based on a mistake, on your consentment. You think you’re buying a Leonardo da Vinci. It’s not a Leonardo da Vinci. So your consent to the contract is not valid, because you didn’t consent to what you get. And you have five years within the 20 years from discovery of the mistake. And what we mean by discovery of mistake is just not hearsay or rumor, it’s something substantial. For example, if you go to another expert and he has a different opinion, this would be a reason to start that second delay. But if you just have someone telling you your painting is crap, that’s not sufficient.
Katie Wilson-Milne: That’s a major, major difference in why we would see many more cases.
Olivier de Baecque: But it seems long. But in practice, when you buy a painting, you just put it on your wall, and the time goes by. And the five years, 20 years arrive pretty fast.
Anne-Sophie Nardon: The time limitation for auction houses is five years.
Steve Schindler: Right, and we have that here, too. Actually, it’s normally four, but the auction houses essentially give their purchasers an additional year.
Katie Wilson-Milne: But you’re saying in France, the law is limited to five years for auction houses?
Anne-Sophie Nardon: Yes.
Katie Wilson-Milne: So the 20 years would not apply. So for us, it’s generous for them. Right.
Steve Schindler: For us, it’s a generous gift of a year. But for you, I guess it’s a limitation.
Katie Wilson-Milne: We have many sale rescission-type cases, too, where then as a factual matter, questions of authenticity do come up for courts. But we have this other category of cases that for the most part, are pretty frivolous, where there’s an opinion issued by someone or not issued, but the market implication of it is clear. And then the recipient of that opinion, typically the owner of the work, will sue for the potential market damage. They’re not suing the seller. They’re suing the person, because they believe it’s authentic, so they don’t want to sue the seller, because then it would look like they’re agreeing it’s not authentic. They want to go to the person, foundation, board, committee, whatever, that has issued a market-relevant opinion about authenticity or the catalogue raisonné, and sue them directly, because they want the market to accept that it is authentic. And that type of case doesn’t go very far in the US, because opinions are allowed, right? And so they don’t get very far, but there are a series of tort claims that some of these parties try to bring. And it sounds like that is not as common in France, or do you also see that type of lawsuit?
Olivier de Baecque: Well, there is a full bench of case law that is very protective of the committees or families who give authentication. So in order to be liable for a mistake in their attribution, they really have to make a clear fault. And these types, there are several cases, but these type of faults are an intent to harm. So your intent should only give a wrong attribution. It happens sometimes. You’re in bad faith or you made a gross error. You didn’t do basic verification. So the standard to get liability of those committee is very high. And there are a few cases where their liability has been recognized. So I know quite well the litigation you had in the US where the committees stopped giving authentication because of attorney’s fees in France. I don’t say we don’t have such type of litigation. But these people are well protected, because the courts feel that their work is useful and that they are not professional. So they give better protection to an expert who is not a professional than to a professional.
Katie Wilson-Milne: And you have fee-shifting, correct?
Olivier de Baecque: Well, our fees are less expensive, but usually the losers of the case pays the fees.
Katie Wilson-Milne: Right. So that’s a major disincentive to bring these lawsuits, which we don’t have here.
Steve Schindler: We don’t have it. Some of the notorious cases, Simon-Whelan versus the Andy Warhol Foundation, end favorably toward the authenticating body, toward the Foundation, because the law is very favorable for some of the same reasons that you’ve suggested, Olivier. But we don’t normally have fee-shifting here. And so the good news is you win the lawsuit. The bad news is you’ve spent several million dollars and years, maybe, to defend it. And particularly for a nonprofit organization, that’s pretty difficult. And for some time, I think as you know, we tried here in New York, people in the art community, to try to introduce a law in New York that would allow for fee-shifting in those situations, but for various reasons, including the power in New York of the trial lawyers associations, we were unable to achieve that.
Katie Wilson-Milne: Yeah. So should we talk about some of the interesting French cases?
Anne-Sophie Nardon: I think one of the latest cases that can be mentioned was the case involving a painting from Picasso, a portrait of a lady with a hat. In that case, Claude Picasso, he had said that the artwork was not authentic. So he had issued a negative opinion on the authenticity of the work. And he was sued by the owner of the painting. And in that decision, the appeal court said that anyone can give an opinion on the authenticity of an artwork, provided that they have the skills and that the skills are recognized. So that was a good reminder of the rules that apply to this. And they also said that the Picasso administration had no exclusivity on the art market. And that collectors were always free to turn to whoever they wanted to give an opinion. So the owner lost the case, because the court said, well, you know, you cannot reproach a person to give an opinion as to the authenticity of an artwork. The authentication is free. And as long as the person has done a good work, then there is no liability. And that was a good reminder of the basic principles of authenticity, certificates in how it works in French law.
Katie Wilson-Milne: Well, maybe the one difference is this idea that the court gets to investigate whether the authenticator did a good job or was qualified, versus just anyone can give an opinion. It can be bad or good. But, you know, if you’re just someone else out there in the world, you don’t get to bring a cause of action about that unless there’s some other liability or duty. So, in that case or maybe in another case, could you give an example of what that inquiry looks like in terms of whether the authenticator, you know, did a basically good job?
Olivier de Baecque: I mean, we can read a sentence from that decision, because it’s crystal clear the court almost gave away of doing authentication. So, I will read it if you want. So, Claude Picasso only expressed an opinion and did not refuse to issue a certificate of authenticity. So, he was prudent in his expression. It will be added, and I’m quoting the court, “that the terms in which this opinion was expressed in view of the document in the file are always measured. The interest party indicating that this opinion is issued in the state of his knowledge and in consideration of the information which has been given to him, transmitted, and the research he was able to conduct.” And then the court says that the standard of responsibility is lower, because it’s free. So basically the court verify that both Picasso had done the proper verification in his documentation with his knowledge and gives a position. The way he drafted his position is very wise. He just said, given the information I have and the verification I have done, I am of the opinion that the work is not authentic. So basically, to summarize, in order to be protected from a liability, you do have to do proper research, explain your decision and the limit of your analysis.
So very often, what I recommend to committees when they refuse authentication is to specify that this is given the information they have. Because this way, you shift the burden of information to the person seeking authentication. Because often, they have some information that they don’t give. Basically, it’s do your due diligence and be prudent. It’s, I mean, common sense.
Steve Schindler: You know, one of the things that we struggle with here is this divergence between, you know, what the legal framework can achieve versus what the market dictates. And I think it’s very, very difficult in the world that we live in now, where the marketplace places so much importance on the opinion of, say, one body or one person. And it didn’t always used to be that way. Even in the Bonnard case that we worked on, we learned that, you know, 20, 30 years ago, the major auction houses sold works regularly that were not in the catalogue. It was just not a requirement. You know, you could look at the catalogue. It was an indicator. But now, of course, you couldn’t do it. And I think because of that, courts feel, you know, hamstrung, really, in what they can offer litigants.
And we had one case that is now a number of years older, but I think a good illustration, which is this Greenberg vs. Bauman case. And that was a case between a buyer and a seller, a purchaser of a Calder Mobile, which was first sold in 1962 by Calder’s main dealer at the time, by the name of Klaus Perls. It went through a couple of ownerships and then ultimately was purchased by the Greenberg Gallery, who determined after they bought it, that the work they thought was not authentic. And so they brought a lawsuit against the seller. And each buyer and seller brought in experts. And in that case, the plaintiff, the gallery, brought in the absolute leading expert on Calder at the time. It was really the Calder Foundation was just getting underway, but Klaus Perls was considered the leading expert on Calder. And he came to testify. He was a little elderly at the time, and he maybe didn’t examine it in a very complete way, but he gave an opinion that the work in question was not an authentic Calder. And the defendant in that case brought in a younger expert, someone without the same kind of industry reputation, who examined the work maybe a little bit more carefully and said, no, this work is authentic. And so ultimately, the court weighed the two expert opinions, because our courts don’t get to appoint their own expert, and basically sided with the defendant’s expert and said, no, in the court’s opinion, the plaintiff did not meet its burden of proving that the work was not authentic and therefore would not order a rescission of the sale. Okay, so that sounds fine. The court says essentially the work is seemingly authentic, and the sale can stay as is. But of course, what then happens is the owner of the work goes to the marketplace, and the marketplace could care less what some district court judge determined, and they look at what Klaus Perls said, and since Klaus Perls said in the case the work was not authentic, essentially the work was worthless. So it was kind of a pyrrhic victory in a way for the seller of the work, but the buyer of the work ended up with something that the court said was authentic, that the market said was not. And so that is kind of like the foundational problem that we have in trying to have the courts intercede in these kinds of disputes.
Katie Wilson-Milne: Yeah, and in that case, I mean, US courts will generally not give a declaratory judgment that something is authentic or not. It’s an incidental finding to another cause of action, in this case, rescission of sale. So, you know, as Steve will talk about in other cases where it’s not precisely only about rescission, where there is some request of the court to make a declaration about authenticity generally, you know, courts find no legal basis to do that, but it comes up in these rescission cases because, like any factual finding, you’ve got to decide whether someone can rescind the sale. You know, the Bauman case, if you read that case and some of the evidence, you know, you might be left with wondering if Pearls was a little lazy, right? Like, there is this, and this is a theme we, you know, Steve and I have seen in some other cases where, especially when they’re dealers, and I think both of you alluded to this, dealers, art dealers who are, have become the market makers in terms of what’s authentic and what can be sold, you know, there are problems with one person deciding, you know, one person’s opinion being all that matters, and nobody’s infallible. So, you know, it’s not that these, at least in the US and I’m sure in France, that there aren’t mistakes that are made. There are mistakes, and it can be very unfair that one gallery gets to decide the market for an entire body of work, especially when they’re self-interested. But it doesn’t mean there’s legal recourse, it’s just unfair.
Anne-Sophie Nardon: We have the same situation in France. I mean, we encounter the same situations where you have the judicial expert who says, it’s authentic, and the expert says it’s not, or the other way around. And in most cases, the market will decide. And usually, they tend to follow what the artist committee or author of catalogue raisonné has said, in most cases. And another aspect is that artist committees are usually small, and people change. So new people come up, and they take the lead in the artist committee, and sometimes they change their view on certain paintings. So I think that the situation is pretty similar as the one you have in the US in that respect. And it’s true that it gives the artist committee a great power on the market. And it’s true that sometimes it’s just one person-
Katie Wilson-Milne: Right.
Steve Schindler: Right.
Anne-Sophie Nardon: -deciding for everybody. But no one has found another way of doing it, really.
Steve Schindler: I think it’s interesting. I was just having a conversation the other day with someone who was on one of the vetting committees for the TEFAF Art Fair here in New York. And she was saying, essentially, that it is not a disqualification in vetting works for the show that a work is not in an official catalogue raisonné. So in some circumstances, maybe there’s some pushback to the notion that if you’re taking it to auction, the auction houses will definitely not sell it if it’s not in a catalogue, but maybe the market is moving a little bit in that.
Katie Wilson-Milne: Like maybe there’s a difference too between it not being in the catalogue and getting a letter saying, I will not include it in the catalogue.
Steve Schindler: Right, but of course, if you took it to an auction house and it wasn’t in an authoritative catalogue, they would go ask.
Katie Wilson-Milne: They would go ask.
Steve Schindler: They would go ask, and they would get the letter. Right.
Katie Wilson-Milne: Yeah.
Olivier de Baecque: I would say that, I mean, the big auction houses and the big players must have the courage not just to say, to seek a visa stamp. But they should refuse and avoid using authors of catalogue raisonnés or certificators who are not reliable. And they do it from time to time, because the credibility of the authenticators comes from the market. So if the market decide that one person is not reliable, they should have the courage not to use it, because if they use it, they build its credibility. Some auction houses start to do it with some artists now, and I think it’s good, because the market does its own police. And that’s, in my view, the only way to do it efficiently, because the better judge you have, you will never be able to decide whether someone does good authentication on a regular basis.
Katie Wilson-Milne: Yeah, I mean, it does seem like there has been some breakdown in the market policing itself, because we’ve seen in several occasions, you know, either an auction house or another potential buyer say, if this person says, “don’t sell it, I cannot sell it, even if I agree with you.” And I think that is often the case, and that is very frustrating, because then no one gets to evaluate the facts, right? The facts are irrelevant. It’s just whatever this person says, and everyone agrees that the facts are irrelevant, and it’s just what this person says. But in that way, the market sort of fails to police itself, I guess, until there’s been such a large breakdown of trust that that person’s credibility, or that the committee’s credibility is destroyed.
Steve Schindler: Right. So, one of the things we have seen here recently, too, which I think is, I’m curious whether you have that in France, is, you know, there are these several lawsuits that have been brought against catalogue raisonné authors.I mentioned the Simon-Whalen versus the Warhol Foundation. We had Thome versus the Alexander Louisa Calder Foundation, essentially, which was a lawsuit brought by an owner of a Calder theatrical set that had been originally designed by Calder in the 1930s and then resurrected in the 1970s. He had the set and then years later decided to sell it. But the Calder Foundation would not include it in the catalogue. He sued the Calder Foundation, a number of theories that we’ve seen in other cases, whether it’s breach of contract tort, product disparagement, all kinds of theories. And ultimately, the appellate court here sided with the Foundation and sort of following the sort of Greenberg rationale said, look, we can’t declare, we can’t make declarations here about whether something’s authentic or not authentic. It’s too complicated. And basically, the court is not in the position here to be sort of a market maker. But on the other hand, we know that it cost the foundation a lot of money to defend that lawsuit. So how foundations deal with this now here is illustrated by the Agnes Martin case, right? Where you had, now you have foundations and authenticating committees who are well advised have in their submission agreements clear language that says that they can accept or reject the submission in their sole discretion. And if they’re sued, the winner of the lawsuit gets to collect their attorney’s fees. And we had that more recently in the Mayor Gallery versus the Agnes Martin case, where again, there are a lot of sort of complicated standing issues in that lawsuit. But ultimately, the catalogue raisonné committee won. And because of the submission agreement, had their attorney’s fees awarded. And that seemed to us, I think, a very clear illustration of how catalog committees can protect themselves against lawsuits.
Katie Wilson-Milne: Yeah, and you’d think it would discourage these lawsuits. And to a large extent, it does. I think the Tome case is so useful, because in that decision, the judge really goes through what the law is not suited to do, right? It’s just a great recitation, you know, from a, it’s a New York appellate court that says, you know, this is not a case for rescission. You’re just coming to us because you want us to say this is an authentic work so that you can sell it. But like, that’s not what we do. And this, there’s no American legal right to have someone’s opinion be in your favor. That that idea doesn’t find itself a home in any cause of action, because there was no contractual right in that case. So I thought that was useful. And then it leaves these claims for things like product disparagement and interference with business relationships which in the tortious interference cases require things sometimes like malice or intent, which are very difficult to prove and are not likely to succeed.
Steve Schindler: And the court said, hey, we’re sorry the market place is like this, but there’s not much we can do.
Katie Wilson-Milne: And we’re not going to issue an advisory opinion about, you know, what’s a factual advisory opinion when our job really is to issue legal opinions. So I thought that case was useful. And yet, as you said, Steve, ten years later, we’re still having these kind of litigations which are still losing. I think one important point, at least where things are now in the US, and then I’m curious if this is the practice in France, is that while many foundations, artist foundations or committees have stopped doing this work, they just won’t do it at all. There are no catalogues raisonnés. There are no authentication committees. Some still do. I mean, some we work with. And they have a very, they have different ways of doing it. Sometimes it’s, you know, they’ll put a tag on a work or they’ll say, we’ll include it in our internal catalogue. And it’s just a question of, yes, it’s in our internal catalogue or not, or yes, we’ll issue a tag or we won’t, or, you know, or it’s a catalogue raisonné review committee, and they’re reviewing submissions for new inclusions. And so they’ll say yes or no.
So this is happening. And I think, especially for nonprofits, they feel like it is part of their charitable mission to be doing this work. And they don’t want to give up on it because it’s part of perpetuating the artist’s legacy. And so, as Steve said, the middle ground is they build these contracts that we work on and we put in every protection we can think about, indemnification, waiving rights of action, shifting of attorneys’ fees. We get reps from the person making the request that they’re the sole owner. There’s no one else who has an economic interest in the work. We do all these things to make sure that the person signing the contract is the only person who would have an interest in the outcome of any opinion. And I think to a large extent, that’s successful. There’s still some risk, but I think everyone’s wiser that you need those types of contracts signed and that it’s less of a, oh, I’ll give you this opinion off the cuff that it used to be. I mean, are you seeing that in France too, that there’s a sort of a papering of these types of relationships in a way that there wasn’t before?
Olivier de Baecque: Yes, it’s getting much more formal. So some committees, not all of them, start to have authentication contracts with protection provisions. And when they issue, or more often, when they refuse a certificate, they will be more nuanced, explain their position to cover their situation. So it’s more legalized than before, where you would just have a surviving heir, without signing a piece of paper, without any verifications.
Katie Wilson-Milne: Yeah, I mean, for example, in the US, you know, if an auction house came to a committee or an artist foundation and said, we’re about to sell this work, would you give us an opinion? I mean, my hope, and certainly anyone who asks our advice, would not respond to that, substantively to the auction house. They would say, if the owner wants us to respond, the owner will make a request and sign our agreement, and we will respond only to the owner, right? And that creates this legal privity only between two parties where you can contract around the risk. And that is different than, you know, I think before a dealer might, or an auction house might go to a committee and say, what do you think? And they might, you know, in the background exchange information. And that, I think, is less common.
Anne-Sophie Nardon: Yeah. Well, I just wanted to say that we haven’t experienced in France the same situation as you have in the US, I guess, where you have artist committees refusing to issue certificate because of the legal risk. We haven’t faced that situation. So it’s still possible to call an artist committee probably for auction houses and have a reaction. But when there is anything in writing, then usually, and now more than before, the artist committee will rely on their lawyers to draft the proper letter, to use the proper terms and include some protection in the letter they are going to issue. But just another point that I wanted to touch is that in many cases now in France, and especially for the past two, three years, we have a general movement towards mediation. So we start a litigation or we start a proceeding before the summary proceedings judge, and then the judge asks the parties to go to a mediation, and they have the power to give an injunction to the parties to at least meet a mediator. And we have had a lot of cases going through mediation, and in most cases, I must say, reaching an agreement and therefore without litigation afterwards. So that’s a very big trend in France and probably in Europe, because there’s a general European will to have more mediation in the justice system. So I guess it’s also- it has to be taken into account, when the decision is taken to go for a litigation or not, because in most cases, it will end before a mediator.
Steve Schindler: Right.
Katie Wilson-Milne: So what do you think Steve? Do you think in the US that there’s a movement away from, you know, self-appointed market experts dictating everything about a work’s saleable future? Or is it still as strong as ever, this deference to these experts?
Steve Schindler: I think there’s still a lot of deference. You know, I think, to Olivier’s point, you know, there are committees and then there are committees, you know, there are some committees or authentication bodies that are less respected. And I think maybe that’s evident. But I still think, you know, given the sort of the risk, particularly with expensive art, right, the risk that people take, it’s just easier to, you know, to rely on another body than to sort of, as you said, Olivier, just sort of, you know, take a stand on your own, I think. But I think that the TEFAF thing is kind of interesting. I wasn’t aware of it.
Katie Wilson-Milne: Yeah, it’ll be interesting if art fairs take a different view. I agree with you, though. I think in the general market for expensive art, there’s still kind of a blind deference, even if you know, when you looked at the facts, you might have questions.
Steve Schindler: Right. Thank you both for joining us today. It was an interesting and enjoyable conversation and we look forward to having more.
Olivier de Baecque: We enjoyed our time. Thank you.
Steve Schindler: Good.
Anne-Sophie Nardon: Thank you very much.
Steve Schindler: And that’s it for today’s podcast. Please subscribe to us wherever you get your podcasts and send us feedback at podcast@schlaw.com. And if you like what you hear, give us a five star rating. We are also featuring the original music of Chris Thompson. And finally, we want to thank our fabulous producer, Jackie Santos, for making us sound so good.
Katie Wilson-Milne: Until next time, I’m Katie Wilson-Milne.
Steve Schindler: And I’m Steve Schindler, bringing you the Art Law Podcast, a podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney-client relationship. You should not rely on the information as legal advice for any purpose and should always seek the legal advice of competent counsel in the relevant jurisdiction.
Music by Chris Thompson. Produced by Jackie Santos.