I. CONNOISSEURS AND EXPERT AUTHORITIES

In order to authenticate artworks and antiques, experts generally refer to three main attribution tools: connoisseurship or judgment by eye, historical documentation or provenance, and scientific analysis.^{Footnote 1} Since an expert’s ability to perceive the rightness of an attribution usually precedes the need for the lab or the archive, connoisseurship or judgment by eye is crucial to authentication.^{Footnote 2} None of these tools is sufficient in and of itself. Instead, they complement each other. Hence, a connoisseur’s opinion-based result should be supported by archival evidence or scientific reports.

When assessing an art object’s authenticity, art historians generally strive to undertake exhaustive research to establish whether the art object is by a specific artist or not. The expert’s statement is commonly straightforward in the sense that the expert does not relativize his statement with probability values.^{Footnote 3} In order to nuance the attribution to a given artist, and to acknowledge the involvement of third party artists, an expert may use formulations such as “by,” “studio of,” “circle of,” “after,” “attributed to,” “signed,” or “follower of.”^{Footnote 4} In offering a conclusive statement of authenticity, experts meet the market’s need to trade art with a clear and definite attribution. Therefore, the art market depends on the experts’ authenticity opinion. In practice, experts often refer to existing certificates, expertise reports, or catalogues. For example, a catalogue raisonné records all works its author, based on his connoisseurship, believes to be by a specific creator.

While the title of “art expert” is not legally regulated, the art market has established its own rules to recognize only the opinion of certain individuals or expert groups.^{Footnote 5} Accordingly, the art market differentiates with regard to the person who made or supports the attribution. Only professionally acclaimed experts for specific creators may provide a definite and globally recognized answer as to an art object’s attribution. In the art market, the works of certain creators must have that expert authority’s endorsement in order to be regarded as an authentic work.^{Footnote 6} As a result, an expert authority prevails over any other expert’s opinion.^{Footnote 7} Likewise, a catalogue raisonné receives great consideration on the market when its author is considered to be the authority for the given artist. The art market’s system of a dominating expert authority creates a seeming universal consensus over the attribution of a given work, even though it overrides any other expert’s dissenting opinion.^{Footnote 8}

The system of a single expert authority accommodates art dealers, as it clearly establishes a unique reference in the art market for the validation of a work’s authenticity. Instead of referring to several scholars, dealers must consult with the prevailing authority only. However, the system comes with considerable drawbacks.

To begin with, the reliance on a single expert gives expert authorities enormous power as they decide works that are of cultural significance and those that are not.^{Footnote 9} Their decision on an art object’s authenticity enormously impacts the work’s aura and economic value on the market. If a reputable expert expresses any doubts on an art object’s authenticity, the market price for the work is very likely to fall considerably.^{Footnote 10} Collectors criticize authorities for abusing their power, and have brought legal action against these experts.^{Footnote 11} An authority’s dominant position is particularly subject to discontent when the expert renders an opinion with a poor or no justification for the reached conclusion. In fact, if an authority’s opinion lacks a recitation of the facts upon which it is based, owners and sellers are likely to consider the opinion arbitrary and unfounded.

Moreover, potential conflicts of interest exist when the expert has a financial interest in the art object being authenticated or in any transaction concerning the work other than to be compensated for the rendering of authentication services.^{Footnote 12} In such event, authenticators may give an opinion influenced by their financial interest in the work’s authenticity. In the opaque art market, an expert’s underlying interests in a specific attribution are difficult to establish. Several codes of ethics draw the attention of authenticators to potential conflicts of interest and encourage them to desist from providing an opinion should they have any financial interest in the work or its authenticity.^{Footnote 13}

Finally, the art market’s reliance on a single authority undermines any critical assessment of an art object’s attribution. The discouragement of a scholarly debate is particularly worrying in the event an authority enjoys such a position despite lacking superior expertise and experience in the specific creator’s oeuvre and in its authentication.

In short, the perilous phenomenon of expert authorities affords the advantage of creating some structure in a market that otherwise tends to lack thereof. Sellers and collectors know who to refer to for a recognized statement on a work’s authenticity. At the same time, the phenomenon places a lot of pressure on the single authority, and gives a single expert enormous power regardless of any potential conflicts of interest that an authority may have in providing an authenticity opinion. Instead of sustaining the power of expert authorities, the art market would gain in quality from a critical debate among multiple experts and a real consensus on attributions. Hence, scholarly debate needs to be promoted as much as an exchange of expert knowledge on creators and objects.^{Footnote 14}

II. ATTRIBUTIONS IN AUCTION SALE CATALOGUES

Before each sale, auction houses compile a sale catalogue which lists all objects offered for sale including their specific attribution to a creator or location of origin, date or period, and provenance. Mostly, auction house catalogue attributions are based on judgment by eye and art historical documentation. Auction houses conduct technical analysis to assess a lot’s attribution only occasionally.

Since auction houses are art market actors, they play along with the market’s rules of authentication. Hence, auction houses generally go along with the expert authority system by consulting the authority for the specific creator on a consigned work’s authenticity before offering the work for sale. Most major auction houses formulate this approach in their conditions of sale. More specifically, auction houses arrange an authenticity guarantee for purchasers that corresponds to the “generally accepted opinion of scholars or experts.”^{Footnote 15} When auction houses refer to outside experts to assess consigned property, the sale catalogue sometimes mentions the expert’s endorsement of the stipulated attribution. Experts’ identities are not systematically revealed in the sale catalogue or to clients. Instead, an auction house may wish to protect the expert from a potential lawsuit by keeping his or her name confidential.^{Footnote 16}

In the absence of an expert authority for the consigned property, an auction house’s own expert usually verifies the property’s attribution. When attributing art, auction houses rely on information the consignor can provide, such as authenticity certificates, expertise reports, and provenance supporting documents.

Moreover, auction houses usually stipulate in their conditions of sale that the established attributions are only an expression of their opinion. They do not conduct exhaustive research on the consigned property, but encourage consignors and purchasers to seek their own advice. The information auction houses publish is intended to promote the lots and their sale. The terms used to describe the consigned property are carefully selected for strategic and marketing purposes and to limit the risks of liability.^{Footnote 17}

Within certain limits and to purchasers only, major auction houses guarantee the property’s authenticity. According to such guarantees, authenticity is only warranted to the extent that the established attribution “corresponded to the generally accepted opinion of scholars or experts at the date of the sale or fairly indicated that there was a conflict of opinions.”^{Footnote 18} Furthermore, authenticity is confined to the results generally accepted means of authentication may bring, as well as to authentication processes that are reasonably affordable and practical and do not cause any damage to the property.^{Footnote 19} Therefore, when auction houses authenticate art, they do so to the extent of their authenticity guarantee’s scope. In this respect, their practice of authenticating consigned property is limited. Unlike art historians, auction houses do not seek to establish absolute and definite attributions.

Auction houses authenticate art for the purpose of their sales and to the extent of their authenticity guarantees for buyers. In doing so, they adopt art market standards, despite the drawbacks of the prevailing expert authority phenomenon. Overall, auction houses adopt a practical approach in authentication which is conducted on a daily basis as part of its business. The law takes into account the practical reality in establishing an auction house’s liability for misattribution. However, the legal standard in authentication differs from the practice of auction houses and the market.

III. AUTHENTICATION AT COURT

IV. A DISCONNECT BETWEEN THE CULTURE OF COMMERCE AND THE COURTS?

When it comes to determining an art object’s authenticity, there is an obvious gap between the judicial and the academic sphere, as J Morison expressed in De Balkany v. Christie, Manson & Woods Ltd: “I shall return to the issues which arise for determination later in this Judgment. But it will be seen that one of the issues I must rule upon is whether the painting may properly be attributed to Schiele. That is a matter which has given rise to considerable dispute in the art world. I do not pretend that what I have to say will impress the scholars who take a different view. I remind myself, and them, that this is a judicial decision based upon the evidence and it is not, and it does not purport to be, a contribution to the academic debate, in which I am not qualified to participate.”^{Footnote 77}

The authentication gap between art scholars and court judges extends further to the art market, since the scholars’ opinion is transcribed into commerce by the labeling of art offered for sale. The art market trades with artworks and antiques that are authenticated by specific experts. The divergence in authentication between the market and the courts exists on several levels, in particular having regard to applied methods and rules, language, and outcome of the authenticating process.

Firstly, scholars and the market have developed authentication standards and practices that are different from those prevailing in a courtroom. As articulated above, judicial proceedings are governed by procedural and evidence rules which also apply to art authenticity issues.^{Footnote 78} Rules on the admissibility and presentation of evidence, the qualification of expert witnesses and the burden of proof are peculiar to legal proceedings. Moreover, courts refer to a preponderance standard when deciding whether a presented fact is true or not. Instead of these rules, the market resorts to the expert authority for the specific artist, provided that such an authority exists.

While a court may decide on a merchant’s or expert’s diligence in taking into account the market’s practices, the court is not bound by such practices and may instead depart from them. In Trasteco, the Regional Court of Cologne made it clear that the standard of due diligence was higher than the one actually performed by the auction house.^{Footnote 79} The auction house’s argument that it desisted from conducting scientific analysis because doing so was not a common auction practice did not convince the court. Instead, the court focused on what the purchaser in question was reasonably entitled to expect from an auction house of the given standard. As a result, the court differentiated between the authentication practices auction houses customarily adopt and the legally required standard in holding that the art historical assessment by the auction house’s expert was insufficient.

Secondly, art scholars and lawyers use different language and verbal strategies in making a statement on a work’s authenticity. The vocabulary specific to art historians and the art industry may be “as alien to the lawyer as the formal procedures and jargon of the legal profession to the painter. The lexicon and techniques of art are exclusory in the same manner that the language of law is guarded and controlled by a professional class.”^{Footnote 80} The divergence in communication and reasoning challenges both lawyers and scholars and can lead to confusion and misunderstandings.

Furthermore, a lawyer’s argumentation at court is usually led by rhetoric and strategy. Lawyers attempt to convince the judge that the opposite party’s case is not strong enough. Judges also employ specific legal method, formula, and reasoning to arrive at correct decisions. The legal and rhetoric language contrasts the reports of connoisseurs and experts which are articulated honestly and directly about an art object’s attribution.^{Footnote 81} A trial encompasses both artistic and legal judgment when expert witnesses are asked to write an authenticity report or are called to give oral evidence. The use of expert reports and witnesses in civil proceedings makes the divergence in the lawyers’ and the art scholars’ language most apparent.

Thirdly, the authentication process in commerce and in legal proceedings differs with respect to its outcome. When courts decide on an art object’s authenticity, their assessment is limited by the case’s circumstances, the parties’ claims, and civil procedure and evidence rules. Such barriers are particular to court proceedings and do not concern authentication in the art market.

Also, courts establish authenticity with a predominant degree of probability, whereas auction catalogues and experts’ authentication reports usually make a clear statement on the art object’s authenticity—or lack thereof. In Greenberg, the judge expressly ruled on the art object’s “more likely” attribution, based on a preponderance of evidence and not on the opinion of the expert authority for Alexander Calder works. The judge underlined the dichotomy in stipulating that “[t]his is not the market, however, but a court of law, in which the trier of fact must make a decision based upon a preponderance of the evidence […] I conclude that it is more likely than not that the mobile is not a forgery but the original Rio Nero which has been misassembled and abused […].”^{Footnote 82} However, an attribution made with a “predominant degree of probability” is generally insufficient for the art object to be traded on the market. It is not surprising that after the court’s ruling, the Calder mobile did not find a buyer on the market.^{Footnote 83}

Also, a connoisseur’s authentication is different from a court decision on authenticity, because of the momentariness in scholarship. An artwork’s attribution by art experts is subject to the circularity and contingency of scholarship, whereas court decisions are generally final. The momentariness in scholarship is due to the fact that except for scientific analysis, an art expert’s authenticity statement cannot be attained with exact knowledge: “the question of authenticity or attribution of a work of art cannot be known, but only opined. The judgment of the expert is, in essence, a matter of persuasion, not proof, and is always subject to change and contradiction by other experts.”^{Footnote 84} Courts halt the circularity in attribution when making a decision on an artwork’s likely authenticity.

Moreover, when determining an expert’s diligence in authenticating a work, court judges turn back the clock in order to establish the scholars’ generally accepted opinion that prevailed at the date of the attribution. The legal standard of due diligence seeks to establish the degree of care and skill that an art expert should have applied when authenticating the art object. It does not seek to establish the object’s accurate attribution.

Despite the many contrasts in authentication between the scholars’ and the lawyers’ sphere, art and law converge in that neither can produce absolute truth outside the realm of scientific analysis.^{Footnote 85} Moreover, both spheres correlate with each other insofar as lawyers and judges limit their competence in judging art and appoint experts in order to assist in the making of authenticity decisions. In this respect, “[t]he law retains the authority of final judgment but delegates the finding of facts and evidence to a society of art experts during the trial.”^{Footnote 86}

Not only courts but also legislators refer to art market standards in authentication irrespective of the risks that are associated with these standards. For example, a new bill was introduced in the New York State Assembly to amend the New York Arts and Cultural Affairs Law. The amendment seeks “to protect art authenticators from frivolous or malicious suits brought by art owners” in response to negative authenticity opinions.^{Footnote 87} The pending law expressly refers to the market’s authentication system of expert authorities, by offering protection to individuals and committees “recognized in the visual arts community as having expertise regarding the artist” in respect to whose works the authority is rendering an opinion. Thereby, the new law encourages the monopolistic position in the market of expert authorities.^{Footnote 88} Except where an authority has a financial interest in the transaction for which he is providing an authenticity report in good faith, the authority is protected from frivolous legal action. For example, if the authority has a financial interest in the sale of an authenticated work, the authority’s authenticity opinion is much likely to be biased. However, conflicts of interest may also arise when an authority has a financial interest not directly in the transaction, but in works by the same artist. The proposed law does not specifically address and prevent such conflicts of interest, which generally exist where the expert or committee owns a considerable number of works by the same artist.^{Footnote 89}

The interplay between the culture of commerce and the courts is complex and can be detrimental to the parties, experts, and art objects involved in the dispute, as much as to the art market’s health. On the one hand, if a court decides a work’s authenticity in disobedience of art market standards, the market is very unlikely to accept that authenticity ruling. On the other hand, if a court adheres to art market practices, it may interpret and apply them wrongly, and validate those practices that are detrimental to a healthy market.

CONCLUSIVE REMARKS

The disadvantages and detrimental impact of judicial authentication for the parties and the market speaks against the courts’ authority of final judgment. Law and courts should not regulate art authentication standards, as they are ill equipped to decide such disputes.^{Footnote 90} Instead, the current situation advocates for a change that comes from within the market: scholars and art market actors should standardize due diligence in authentication by strictly adhering to reasonable ethical and practice guidelines.^{Footnote 91} These guidelines should encourage a scholarly discourse and exchange of information on an art object’s attribution, and undermine the expert authorities’ imposing power. Through the education and promotion of alternative scholars and enhanced access to their expertise and knowledge, the quality in authentication is likely to increase and conflicts of interest avoided.

If disputes over an art object’s authenticity nonetheless arise, the parties should refer to mechanisms of dispute resolution that are alternative to court proceedings, such as mediation and arbitration. In alternative dispute resolution, the parties may choose an expert to act as intermediary or arbiter who is acquainted with art historical methodology and the market’s dynamics, and not lead by procedural court rules.^{Footnote 92} Thereby, the parties may avoid the risks court litigation entail and overcome the disconnect between the cultures of commerce and the courts.