Part I: Art, Authenticity and Value

In Bratsch Holding Inc. v LeBrooy, ^{Footnote 6} a Canadian court examined the authority of one brother to bind his estranged sibling to a sale of a co-owned collection that consisted of eighteen sixteenth century terracotta sculptor’s models which represented “disembodied bits of human anatomy” ^{Footnote 7} and ranged from 10 to 27 centimetres in height. It is therefore understandable why the import of this case and of the appeal that followed appear within the legal database Quicklaw under such indices as “Contracts-Parties-Capacity, Setting Aside Contract For Lack of Capacity”; “Agency-Authority of Agent-Implied Authority, Conditions Precedent,” and “Grant of Authority-Sale of Goods.” Yet, when untethered from the focal concerns of contract law, the facts that were adduced have additional utility: they document the precariousness of an artwork’s status as “authentic” and attest to the ineluctable nexus between authenticity and value in a culture of commodities. They also offer glimpses of moments in the “social lives” ^{Footnote 8} of the artistic works which constituted the “commercial goods” addressed in this civil action and, more broadly, hint at the ways in which artworks can enter and exit different values regimes.

In his written judgment, Meredith J. implicitly partitioned the history of the eighteen sculptor’s models into a “practically forgettable pre-history” and a “memorable history.” ^{Footnote 9} Thus, while a more expansive account might have begun in the Renaissance and centuries before the launch of the “crusade of authenticity” that would “expel forgery from the realm of art,” ^{Footnote 10} the trial judge began with the LeBrooy brothers’ receipt of the artworks from their father in the 1950s. As such, the history that his written judgment recounts neither disrupts the “epoché of the natural attitude” ^{Footnote 11} nor interrogates the hierarchical ordering of art that has prevailed in the West since the middle of the nineteenth century and positioned “authentic” art onto a separate, elevated plane. Given its acceptance of this division as axiomatic, it is not surprising that an anxious preoccupation with the “authenticity” of the “property” in question runs through its pages like an Ariadne’s thread. Yet, somewhat paradoxically, the facts that the judge relayed do not support the conventional understanding of “authenticity” as a static quality; instead, they suggest that authenticity is a “situated accomplishment” ^{Footnote 12} and a stage, of variable length, in an on-going process of social interaction in which claims are “asserted, negotiated, performed, or rejected.” ^{Footnote 13}

In his first statements about the sculptor’s models, Meredith J. reported that thirty-five years earlier, when one, or possibly both, of the brothers had acquired seventeen of these eighteen figures from their father, they “appeared to have little but ornamental value.” ^{Footnote 14} However, he observed that this perception changed markedly after the models were examined by “several eminent art historians” who opined that some “were fashioned by Michelangelo personally and some by Cellini personally.” His judgment records that “[t]he opinions as to the origins of the models added enormously to their potential value” ^{Footnote 15} and changed the status of the models from knickknacks to valuable objets d’art. Thus, it chronicles that after receiving the experts’ opinions, the brothers relocated the models from a china cabinet in the apartment of one brother to the security of a bank vault and augmented the collection’s size with the purchase of an additional model. His judgment also documents the enormity of time and energy that one of the brothers dedicated to securing the identities of the twelve “Michelangelo” and six “Cellini” bozzetti. For example, it reports, “Paul took up a study of the models and developed much of the literature concerning them and Michelangelo and Cellini, the persons he and Peter believed to be the creators of the models. Much of the potential value in the models resulted from the work of Paul by way of literature and lectures. In fact, Paul has devoted a substantial part of his working life to developing the theory that gives the models their value.” ^{Footnote 16} However, while the judge’s repeated use of the word “value” implies that Paul LeBrooy’s acts of “devotion” were in furtherance of a worldly goal, it is equally tenable that LeBrooy incorporated the collection into the “extended self” ^{Footnote 17} and that his labours attest to a less tangible form of investment. As Grant McCracken suggests, inasmuch as things are our anchor, reminding us of “who we are and what we aspire to,” ^{Footnote 18} the possibility that a valued possession is not what it seems may challenge or threaten its owner’s sense of self. Extrapolating, one may hypothesize that anxious owners will seek to allay such destabilizing feelings. Although the task of securing a cherished object’s status as authentic may result in brief forays into forensics or provenance studies that are quickly abandoned, some may experience an “escalation of commitment,” ^{Footnote 19} with a consciousness of one’s prior expenditures (“sunk costs”) the catalyst for continuance in a course of action.

Admittedly, this postulated sequence of events is speculative. However, it is indisputable that Paul LeBrooy invested heavily in the collection and that his investment was not only financial, as evidenced by his authorship of a 160-page book, Michelangelo Models, ^{Footnote 20} and organization of a “high-profile” exhibition of the models which toured Canada, the United States, and South Africa and “showcased them as universal cultural treasures made by Michelangelo’s own hands.” ^{Footnote 21} It would also appear that these activities increased the commercial value of the collection, which had been available for sale “[a]s early as January, 1962”; on 30 December 1987, the plaintiffs offered $10 million US for “The Michelangelo and Cellini Collection” and, approximately a week later, increased their bid to $14 million US. ^{Footnote 22} The terms of an agreement dated 18 January 1988 suggest that both parties thought that the monetary value of the collection could exceed this amount: they record that should the collection be resold for a price in excess of the purchase price within a specified time period, “the net proceeds of such sale in excess of the $14 million (US funds) paid in accordance with this Agreement shall be shared between the Vendor and the Purchaser hereof on a fifty-fifty basis.” ^{Footnote 23} Nevertheless, this document also makes clear that payment of the $14 million was dependent, in part, upon the performance of a “physical inspection and valuation of the models” yielding results that were “acceptable” to the purchaser. Thus, a subject clause “for the sole benefit of the Purchaser” specified that “[t]he Purchaser and/or his representative shall review to the extent deemed appropriate by Purchaser, the assemblage of written and pictorial material relating to the subject models, contained in the vendor’s library or elsewhere in order to gain the degree of assurance acceptable to Purchaser that … the models are by the hand of Michelangelo or by the hand of Cellini.” ^{Footnote 24} Moreover, while the cheque for $100,000 (US) that the plaintiff provided to Paul LeBrooy as a deposit was marked “For 12 pieces Michelangelo, 6 pieces Cellini as represented by vendor,” Meredith J. noted as fact that “the vendors did not represent the models to be by the hand of Michelangelo or Cellini, but rather left it for Bratsch to decide whether the findings as to authenticity and thus value would be acceptable to Bratsch” ^{Footnote 25} (emphasis added). This tacit articulation of the principle of caveat emptor encases a simple formula for the determination of “value” and “authenticity,” with the latter defined as the artistic summum bonum (supreme good) and established by a direct connection between the material medium of an artwork and its purported creator (i.e., “by the hand of Michelangelo or Cellini”).

The agreement between the parties in this action eventually collapsed “amid legal wranglings over the authenticity tests.” ^{Footnote 26} The content of these “wranglings” reveals the epistemic tensions between scientific materialism and connoisseurship. For example, a letter which Paul LeBrooy sent in response to the plaintiff’s request for the performance of various scientific tests (and which the trial judge saw fit to include in its entirety within his written judgment) suggests the inchoate structure and/or possibly oxymoronic character of “scientific connoisseurship.” In this letter, which implicitly positioned connoisseurship as superior to scientism, LeBrooy belittled the validity and reliability of some of the tests requested and insisted peevishly, “When such tests have become internationally recognized and accepted, as well as conducted by experts with the highest of credentials in science and/or chemistry, perhaps then and only then will I believe in the results of such tests.” ^{Footnote 27} However, if the plaintiff’s request and LeBrooy’s response hint at the uneasy transitioning of authentication from subjective connoisseurship towards objective empiricism, they also afford glimpses into how “authenticity” as a commodity fetish is sustained by the “mutually reinforcing relationship of art-historical inquiry and the modern art market.” ^{Footnote 28} In doing so, they situate this court action in a global marketplace in which “investable art” is estimated “to be worth $10 billion annually” ^{Footnote 29} and conceived of as a very fragile “alternative asset.” They are also revealing of a broader environment in which the language and practices of actuarial science have penetrated into non-traditional areas.

The plaintiffs’ desire to secure the authenticity of the models through the application of science accords with the “second modernity’s” “grand narrative of risk management.” ^{Footnote 30} Despite evidence of a “higher tolerance of risk at high wealth levels,” ^{Footnote 31} even the most affluent may seek to reduce the riskiness of their ventures. ^{Footnote 32} Moreover, while Pierre Bourdieu contends that a denial of economic interests ranks among the foremost rules of art as a field of cultural production, ^{Footnote 33} base motives can be masked by lofty concerns. Thus, risk-averse investors who seek to minimize uncertainty can, without reproach, focus upon the “authenticity” of art with the exercise of due diligence serving to obscure the economics of aesthetic considerations. As Bennett J. wrote in R v Centre Datson Ltd, though “trite law” makes due diligence “synonymous with reasonable diligence” and employs the conduct of the hypothetical “reasonable man” as the standard for action, “the test is somewhat more than this. It is the degree of reasonable within a specialty where a special skill or knowledge or ability is involved.” ^{Footnote 34} For those enmeshed in the buying and selling of art as “specullectors” and/or known to contemplate the purchase of costly works by artists such as Michelangelo and Cellini, the demand for scientific tests can elicit admiration rather than reproach. Rather than marking the requestor as a philistine, s/he may be praised as a polymath, with the demand construed as awareness of the limits of connoisseurship.

In a “risk society,” ^{Footnote 35} Paul LeBrooy’s response may be discomfiting because it explicitly questions a trust structure and hints at the fragility of science as an ontologically secure entity. Although his reservations might be dismissed as the petulance of a seller who, for self-interested reasons, is loathe to subject his goods to the scrutiny of science, they also echo the cautious claims of various scientists. For example, while Jehane Ragai emphasizes the import of science in both the determination of authenticity and the detection of fraudulence, she identifies the scientist’s role as “more one of falsification as opposed to authentication.” ^{Footnote 36} Nevertheless, in situations in which the authenticity of art is suspect, Georges Braque’s contention that art “disturbs” and “science reassures” ^{Footnote 37} may be especially true. As Anthony Giddens has argued, the perception of ontological security may depend upon the suspension of disbelief in “social tokens” and confidence in the abilities of those who guard them. ^{Footnote 38}

The question of the artworks’ authenticity continued to loom large in the events that followed the British Columbia Court of Appeal ruling that Paul had lacked implied authority when he signed the agreement on behalf of his brother and that the agreement for the sale of the co-owned models was therefore void ab initio. ^{Footnote 39} In its aftermath, the relationship between the LeBrooy brothers became additionally acrimonious and, in 1994, the models were divided evenly between them. However, the history of the collection in the years that followed was also shaped by amendments to the Income Tax Act ^{Footnote 40} that had accompanied the 1977 Cultural Property Export and Import Act ^{Footnote 41} and were intended to bolster its goals. The latter seeks to preserve the cultural heritage of Canada and other nations through a series of restrictions on the importation and exportation of cultural property, and the former complements these efforts by offering substantial tax incentives to ensure that “cultural property of outstanding significance and national importance is preserved in Canadian organizations and made accessible to the public.” ^{Footnote 42}

In 1996, a consortium of sixty-six investors who were brought together by Corporate House, a private investment bank, purchased Paul LeBrooy’s half of the collection. This group agreed to donate the nine models to the Museum of Vancouver with the understanding that the museum would, in turn, apply to have the models certified for income tax purposes as culturally significant. ^{Footnote 43} To this end, the models were appraised by two experts, who certified them as Renaissance-era models (but not works by Michelangelo) and determined their fair market value to be more than $17-million (Canadian). ^{Footnote 44} With their successful navigation through certification’s ritual rites of passage, the terracotta figures became, by definition, “national treasures.” In 2003, a Corporate-House brokered consortium of investors purchased the remaining sculptures from Peter LeBrooy’s widow and, in 2006, this tax-effective strategy of charitable gifting was duplicated, with the Museum of Vancouver once again the designated recipient. The Canadian Cultural Property Review Board valued the total collection at about $31 million, with the Museum of Vancouver issuing tax receipts for this amount and “approximately $13 million…[flowing] into the pockets of the investor-donors, courtesy of Canadian taxpayers.” ^{Footnote 45} However, if the process of certification had previously adjudged that the absence of the collection from Canada “would significantly diminish the national heritage,” later events suggest that the impact of this loss was reassessed and downgraded. After the Museum of Vancouver elected to refashion itself from an institution that was “known for the eclecticism of its contents” to one which told and celebrated Vancouver’s cultural history, it decided that the collection ill-fit its mandate and consigned the earliest-donated half of the collection to Sotheby’s for sale at auction; the second half of the collection was not consigned at that time in order to avoid the imposition of “significant tax penalties under federal rules” that are triggered when objects that have been tagged as “certified Canadian cultural property” are deaccessioned for cash before the expiration of the minimum ten-year period. ^{Footnote 46} Yet, if the museum had reason to expect a financial windfall, Sotheby’s appraisers did not concur with the judgments of the two experts who had earlier evaluated the collection for the purposes of tax certification; rather, they attributed the nine figures to Johan Gregor van der Schardt, a student and close follower of Michelangelo, and estimated their value to be in the range of $200,000 to $300,000 (USD), with the lower figure set as the reserve.

The catalogue for Sotheby’s 31 January 2013–1 February 2013 “Old Master Paintings and Sculptures” sale noted that “[t]he von Praun terracottas” had commanded the interest of “ambitious scholars in the nineteenth and twentieth centuries” with “[t]heir undisputable association with famous works by Michelangelo…. the source of historical confusion.” ^{Footnote 47} In an apparent attempt to dissipate this haze, the catalogue entry for Lot 354 was entitled “Nine rare terracotta sculptor’s models, attributed to Johan Gregor van der Schardt (1530– circa 1580) and workshop, late 16th or 17th century.” The description emphasized that “the unsustainable notion that these were in fact preparatory studies by Michelangelo himself has been proposed and disproven” (emphasis added). However, while touted as “rare examples of study-models of Michelangelo’s work by a talented younger artist working within the master’s lifetime or shortly after his death,” Lot 354 failed to attract any bids during the auction, and what followed is consistent with the “burning effect” ^{Footnote 48} (i.e., the devaluation of an artwork following its public rejection at auction). Thus, when the Museum of Vancouver sold the nine terracottas in 2013 to the Rijksmuseum, it was for a price that was substantially less than the lower pre-sale estimate that Sotheby’s had assigned and only a small fraction of what Bratsch Holding Inc. had offered to pay the LeBrooys in the ill-fated agreement. The contents of Canadian newspaper reports also suggest that the models were tainted by these events and became a subtype of “stigmatized property,” ^{Footnote 49} with their status changing from national “treasure” to “embarrassment.” Their headlines fumed indignantly, “‘Michelangelo Models’ Cost Canada Millions in Tax Credits” ^{Footnote 50} and sneered, “Blockbuster donation of ‘Michelangelo’ sculptures turns into multi-million-dollar bust.” ^{Footnote 51}

At present, the correctness of the models’ attribution to van der Schardt remains uncertain, as indicated by Sotheby’s use of the cautious descriptor “attributed to” within its catalogue; as a disclaimer of certainty, the use of this phrase lessens the risks that art merchants confront from breach of warranty and common law fraud claims and reduce their otherwise indefinite liability for ensuring the authenticity of the works they sell. ^{Footnote 52} However, Brian Tobin emphasizes that “the speculative nature of authentication [in art] is distinguishable from most other warranties” inasmuch as “[a]uthentication can fail simply due to changes in expert opinion resulting from new information.” ^{Footnote 53} Indeed, while the Rijksmuseum may have purchased the models for their intrinsic value and/or as a complement to the self-portrait bust of van der Schardt that resides in its permanent collection, there is some evidence that its experts disagree with those employed by Sotheby’s. Thus, a March 2016 search of the Rijksmuseum’s online catalogue revealed that five of the nine models which appeared under the heading “Nine models of parts of the body attributed to Johan Gregor van der Schardt, c. 1560–c. 1570” were simultaneously captioned “Nine models of parts of the body, Michelangelo, c. 1560–c.1570.” ^{Footnote 54} Although the latter construction is dismissed in Sotheby’s catalogue as “unsustainable” and “disproven,” every pronouncement on authenticity or non-authenticity in art is an exercise in rhetoric, with an “authentic artwork” a thing of words and argument.

In an influential essay on the aesthetic relevance of authenticity, ^{Footnote 55} Nelson Goodman tasked his readers with imagining two paintings: an authentic Rembrandt painting and its perfect forgery. Yet, this exercise is more onerous than Goodman acknowledged because “authenticity” is a social construction and a cultural artefact. Thus, while the definition of an “Authentic A” privileged by the Rembrandt Research Project demands an unalloyed connection between an artwork and its purported creator, Sándor Radnόti emphasizes that historically, “by the artist’s hand was often meant to be understood not literally but symbolically. Total autography was a later myth, part of the mysticism of the artistic individual, and resulted from the backward projection of the norms of later generations.” ^{Footnote 56} Moreover, while Svetlana Alpers queries, “What can one make of the disturbing fact that some of the works of the very artist whose paintings have been seen as paradigmatic of individuality are painted by other hands?” ^{Footnote 57} the interpretation of this fact as “disturbing” is not ineluctable. Rather, it derives from a conception of “authentic” art as an organic emanation from a solitary, unworldly artist-genius and favours a Eurocentric aesthetic ideal.

The concept and/or “cult” of the (male) artistic genius accords with Platonic accounts of the source of artistic creation and envisionings of God-like beings whose masterpieces emerge creatio ex nihilo. However, it conflicts with those that derive from the Aristotelian tradition and stress the intelligibility of techne and the artist-as-maker. The “story of art” that is told from a Panofskian/Gombrichian perspective, for example, is a crescive poetic/plastic process of “problem-solving” in which the artist is aided by technological inventions and psychological discoveries. ^{Footnote 58} Moreover, in savaging the construct of the artistic genius as pure bourgeois ideology, Theodor Adorno thundered that “if anything is to be salvaged of this concept it must be stripped away from its crude equation with the creative subject, who, through vain exuberance, bewitches the artwork into a document of its maker and thus diminishes it.” ^{Footnote 59}

Part II: Enchanted Boundaries and Colonized Spaces

While Jessica Silbey’s The Eureka Myth ^{Footnote 60} discounts the explanatory power of the romantic genius construct in contemporary times, it may have been equally limited in times past. For example, in observing that this construct “was mobilized between the end of the eighteenth century and the middle of the nineteenth century to conceptualize a new kind of property authors could claim in their texts and other works deemed expressive,” Mario Biagnioli maintains that this “remarkably effective legal fiction” was never “an accurate description of the process of literary or artistic production.” ^{Footnote 61} Similarly, Patty Gerstenblith asserts that the conception of the artist “as the primary, if not sole, creator of a work of art” must be recognized as a “relatively recent phenomenon in the long history of the development of artistic and cultural creations” ^{Footnote 62} and stresses that this construct was neither readily nor easily embraced. The immersion of many artists within a guild-workshop system complicated the identification of each artist’s contribution to an artwork and there remained a lingering perception that an artist’s royal, noble or ecclesiastical patron merited a level of credit that was equal or superior to that of the artist.

Despite the possessive individualism of modern copyright law and its construction of the author as the first owner/proprietor of a commodity, vestiges of this earlier view are discernible in American copyright law, with “authorship” of a “work-made-for-hire” ^{Footnote 63} attributed to a creator’s employer or the commissioner of the copyrightable work. Additional glimpses of the past are provided by Section 13(3) of Canada’s Copyright Act, ^{Footnote 64} which directs that “[w]here the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright.” The court’s decision in Hawley v Canada, ^{Footnote 65} a “high-water mark for the application of Crown copyright in works prepared by employees of the government,” ^{Footnote 66} is also suggestive of the benefits of power. Thus, in addressing the ownership of a painting which the plaintiff had created while incarcerated in Frontenac Institution, the Federal Court found that inasmuch as the prison authorities had provided the materials for the painting and it had been commissioned and created as part of the plaintiff’s required engagement in gainful employment, it “did not belong to him” even though it was “his own personal art to which he has indirectly expended his talent, his skills and his artistic ardor.” ^{Footnote 67} The Court held that Subsection 13(3) of the Copyright Act was applicable and therefore ownership of both the painting and its copyright belonged to the Crown.

The Romantic concept of the author as an individual creative genius has forestalled recognition of how power imbalances, such as those found in the asymmetrical patron-artist relationship, have long impacted the labours of even the most revered of artists. It may have also wetnursed the decline in the appreciation of copies and their characterization as the “first degree of fakes” ^{Footnote 68} or simply a variant form of forgeries produced “dolo malo—fraudulently, animo decipiendi—with malice aforethought, in sordidam mercedem—for filthy lucre.” ^{Footnote 69} Although the Status of the Artist Act ^{Footnote 70} does not enumerate subcategories of artists or otherwise attempt to distinguish between the “artist” and the “copyist,” the devaluation of the copy in Canadian law is implicit in its delineation of legitimate/illegitimate forms of cultural production and the art that is worthy of protection. Ostensibly recalling Kant’s insistence that “originality” “must be” the “first property” of “genius,” ^{Footnote 71} the Supreme Court ruled in CCH Canadian Ltd v Law Society of Upper Canada that while “creativity is not required to make a work ‘original,’” “creative works will by definition be ‘original’ and covered by copyright.” ^{Footnote 72} Its ruling that copyright subsists only in original works which evince the exercise of non-“trivial” skill and judgment ^{Footnote 73} also suggests that a “perfect fake” would not be copyrightable. However, if the desideratum of copyright legislation is harmonious with the modernist mantra to “MAKE IT NEW,” ^{Footnote 74} the operationalization of the Act’s test for originality may be no less “culture-free” or “cultural-fair” than intelligence tests that deploy questions that are most easily answered by those who possess the social and cultural capital of the highest socio-economic strata. ^{Footnote 75} For example, it is evident that in settler societies, the legacy of colonialism endures in socio-legal constructions of “authentic” and “inauthentic” “Indigenous art,” with colonialism’s zeitgeist infusing definitions of an “Indian artist” and “Indian art.”

Marie Hadley’s analysis of Australia’s Copyright Act 1968 (Cth) ^{Footnote 76} emphasizes how the Act’s insistence upon originality resulted in the denial of copyright protection to Indigenous art until the late 1980s, with “Indigenous art … excluded from the scope of the Copyright Act on grounds on non-originality.” ^{Footnote 77} The assumption that “works with folkloric themes” are “repetitive,” “reliant upon tradition” and largely devoid of originality, she reports, led to the disparagement of Indigenous art as the non-artistic crafts of a “‘primitive’ society” and additionally “authorised the development of the Aboriginal-style art industry between the 1920s and 1960s which reproduced Indigenous artworks without permission or sanctions in fine art paintings and a wide range of textiles, home wares and souvenirs.” ^{Footnote 78} The situation that she describes is not anomalous; in general, Western intellectual property (IP) laws have offered little protection for the traditional cultural expressions (TCEs) of Indigenous peoples. Although the Ontario High Court of Justice ruled in Snow v Eaton Centre Ltd that “any distortion, mutilation or other modification” of an artist’s work that would be “prejudicial” to “his” “honour or reputation” ^{Footnote 79} contravenes s. 28.2 of Canada’s Copyright Act, this affirmation of the moral rights of artists (of “original” works protected by copyright) has not aided Indigenous peoples in their attempts to quell the appropriation of their TCEs. For example, Mark Denhez grimly notes that after a group of Inuit threatened to boycott merchants who appropriated Inuit design concepts in their wares, the then-federal government of Canada threatened the former “with prosecution for conspiracy in restraint of trade” since no individual member of the group possessed “a legal right of action to protect the ‘illicit exploitation’ of the product of the group.” ^{Footnote 80}

Various scholars have charged that the proprietary view of ownership that is enshrined in Western laws on “intellectual property” (IP) and animates their protection of “original” works “rips asunder what First Nations peoples view as integrally related, freezing into categories what Native people find flowing in relationships that do not separate texts from ongoing creative production, or ongoing creativity from social relationships, or social relationships from people’s relationship to an ecological landscape that binds past and future generations in relations of spiritual significance.” ^{Footnote 81} For Robert Paterson and Dennis Karjala, western intellectual property regimes represent a coercive “Catch 22” situation for Indigenous peoples, requiring that they either “commodify their own cultural property and thereby perhaps appropriate its position in the indigenous community or renounce commodification, thus allowing other non-indigenous people to appropriate indigenous cultural traditions.” ^{Footnote 82} Unfortunately, Indigenous peoples may also confront other difficulties in safeguarding their art.

In DRG Inc. v. Datafile Ltd, Reed J. noted that the statutory definition of an “artistic work” that is provided by the Canadian Copyright Act “deems paintings, drawings, sculptures, engravings and photographs to be artistic, but requires that proof be given as to the ‘artistic’-ness of other types of works.” ^{Footnote 83} “Requiring courts to determine what is ‘artistic,’ she observed dourly, “be it with respect only to works of craftsmanship, architecture and unenumerated works, or with respect to the broader category of all ‘artistic work,’ is not a happy situation.” ^{Footnote 84} However, this lack of felicity may be especially acute in relation to the court’s evaluation of both the “originality” and artistry of Indigenous art; as Gerard McMaster emphasizes, “[t]hrough a great deal of art history,” Indigenous art has either been annihilated symbolically as “not art” or banished into such “marginal discursive categories” as “‘primitive art’… ‘tribal art’… or ‘craft,’” with these classifications revealing the “underlying hegemony of the colonialist agenda.” ^{Footnote 85}

Although the equation of Indigenous art with both primitivism and an absence of originality is increasingly recognized as false, this construction is nevertheless tenacious. For example, it provides a possible explanation of why a sculpture by Nigerian artist Edward Chukwuweike Madukaego was initially classified upon its entry into Canada as a fungible item of “household furniture” (tariff item 51901-1) rather than positioned under tariff item 69515-1 (“original sculpture and statuary”) of the Customs Act ^{Footnote 86} and why, when this categorization was challenged, the Deputy Minister of National Revenue for Customs and Excise insisted that this placement was appropriate. ^{Footnote 87} Consider the irony in this situation: a primary goal of the educational organization that imported the sculpture into Canada is to enhance Canadian understanding of the art of Third World Cultures, and it had planned to include the sculpture in a university exhibition of African art. In this case, the Tariff Board allowed an appeal of the defendant’s decision and ruled that Madukaego’s sculpture was an original sculpture and should be reclassified accordingly. The Board observed that the classification of a work brought into Canada “for our artistic and cultural edification as a piece of house furniture strains tariff item 51901-1 beyond credulity.” ^{Footnote 88} Yet, in arriving at this decision, it is notable that they ostensibly perceived a need to distinguish Madukaego’s sculpture from “airport art” and, in doing so, emphasized its size with a report that it was “much too large for ‘airport art,’ weighing 40 lbs.” ^{Footnote 89} While the language of this judgment makes clear that the court regarded souvenir art as risible ethnokitsch produced for profit, the divide between “art” and “non-art” must be regarded as a problematic; the possession of macropower includes the power to define and to impose one’s preferred definitions upon others. In exercising this power upon a colonized peoples and their material culture, colonialism has left its indelible imprimatur on what is valorized as “authentic” Indigenous art or derided as inauthentic non-art devoid of artistic value.

In illustration, one may consider the “Igloo tag” and what it certifies. The introduction of the Igloo Trade Mark as an indicium of “authentic Inuit art” originated in an attempt to combat the problem of pastiche or fakelore (i.e., reproductions of the styles or motifs of traditional cultural expressions [TCEs]). To this end, the Department of Northern Affairs and Natural Resources registered the Igloo symbol as a trademark under the National Trade Mark and True Labelling Act ^{Footnote 90} on September 5, 1958, with ownership vested in the Canadian government. ^{Footnote 91} It is now generally understood in Canada that this tag “can only be attached to original Inuit sculptures and art from northern Canada.” ^{Footnote 92} However, while Inuit carvings that bear the Igloo tag are certified as “authentic,” Richard Crandell emphasizes that “the tag only… [certifies] that a work was handmade by an Inuk” and does not “certify that the object is ‘a work of art.’” ^{Footnote 93} It has also been argued that Inuit art as a commercial art form is “inauthentic” and that artworks that bear the Igloo tag are especially so inasmuch as this certification is delimited to specific forms that satisfy criteria established by a non-Inuit authority. For example, in directing attention to the tag program’s allochronic discourse of authenticity and its denial of coevalness, Guy Brett reports that from its inception, “everything produced had to meet a definite requirement which was somehow neither traditional nor modern, but “primitive.” ^{Footnote 94} Given that the discourse that informs it denies “the capacity of ‘tribal’ peoples to live in history, and to creatively interpret and expressively confront the historical circumstances in which they live, using their cultural traditions to do so,” ^{Footnote 95} it is understandable why the program’s early gatekeepers adjudged a soapstone carving of Elvis Presley to be without merit and to command the blows of a sledgehammer rather than the affixment of the Igloo tag. ^{Footnote 96}

For Leanne Pupchek, the “Inuit art ‘tradition’” is best understood as an “imaginary tradition” which “developed in the 1950s” and was cultivated by nationalists who sought a synecdoche of Canadian identity and found in Inuit art a “particularly effective expression of national identity.” ^{Footnote 97} Although she concedes that the Igloo Tag Program provided Inuit people with a much-needed source of income, Pupchek insists that the “Inuit art tradition” that it cultivated discouraged originality by insisting that this art have a “nationalist orientation” and by “[r]estricting [its] themes to what the government deemed appropriate” (i.e., the “original nomadic Inuit traditions, [as] interpreted through an essentializing ‘Folk-ness.’” ^{Footnote 98} Given these imposed constraints, it could be argued that the “Igloo tag” is less a signifier of “authentic Inuit art” than it is a “taxidermic sign” ^{Footnote 99} of what the colonial imagination created. As William Kingfisher observes, “for Aboriginal art to be considered ‘authentic’ it has to be recognizably ‘tribal.’ If it is not, then the artist is thought to have been assimilated, rendering the art object ‘inauthentic.’” ^{Footnote 100}

Part III: The Snark Is…A Boojum

In arguing that “authenticity” is less dependent upon facts than on interpretations, Lionel Trilling observed decades ago that “[a]uthenticity is implicitly a polemical concept, fulfilling its nature by dealing aggressively with received and habitual opinion, aesthetic opinions in the first instance and social and political opinion in the next.” ^{Footnote 101} In response, one might consider the divide between folklore and “fakelore” and profitably ponder what constitutes the misappropriation of another population’s cultural heritage and style of cultural production. In preparing for this task, it is noteworthy that in its 1996 report, the Royal Commission on Aboriginal Peoples urged protective measures that would guard against “the indiscriminate replication of Aboriginal artifacts” that “offend cultural propriety,” “violates the accuracy of reproduction or interpretation” and “ignores the legitimate interest of Aboriginal people in sharing the economic benefits from the sale of reproductions of historical items.” ^{Footnote 102} Although “fakelore” was reportedly removed from the shelves of the parliamentary gift store in the year that followed, ^{Footnote 103} the facts recounted in Mooney v National Museums of Canada ^{Footnote 104} reveal that a scant decade earlier, the Canadian government and its museums were actively supporting the industrial (re)production of what the artistry of Indigenous peoples had created in times past, with a privately-owned commercial enterprise receiving a federal grant in order to pursue this objective. Yet, if the Canadian government’s willingness to subsidize the production of “inauthentic” Indigenous art is disconcerting, the methods that settler governments can employ in their promotion of “authentic” Indigenous art may be even more jarring.

For example, while the US Indian Arts and Crafts Act of 1935 ^{Footnote 105} was designed to safeguard “authentic” Indigenous art ^{Footnote 106} and discourage “non-Native people from claiming Indian descent and exploiting the high market value of Indian art,” ^{Footnote 107} it was less than effective in doing so and had far greater success in entrenching “an onerous definition of ‘Indianness’” ^{Footnote 108} that emphasized the import of blood quantum. This is equally true of the Indian Arts and Crafts Act of 1990 (“IACA”) ^{Footnote 109} , as amended by the American Indian Arts and Crafts Enforcement Act of 2000 ^{Footnote 110} and the Indian Arts and Crafts Amendments Act of 2010. ^{Footnote 111} Like its precursor, the IACA is “essentially a truth-in-marketing law designed to prevent, through both civil and criminal sanctions, marketing of products in a manner that falsely suggests such products are produced by Indians when the products are not, in fact, made by an Indian as defined by the 1990 Act.” ^{Footnote 112} However, its critics deride it as “an ill-conceived law which fails to acknowledge the historical development of both Indian tribes and Indian arts and crafts and to appreciate fully the dialogical ways that contemporary Indian identity is constructed” ^{Footnote 113} and protest against the “arbitrary limits” that the Act imposes, stressing that they “drastically limit the size and makeup of the group of indigenous artists that may unqualifiedly represent their artistic creations to be Indian products” ^{Footnote 114} and subject others to criminal sanction. Thus, Joanne Barker argues that the “IACA’s Indian” is “fundamentally (in)formed by a discursive matrix of race that reproduces questions of authenticity and legitimacy that affirm the power of the US to recognize and identify the Indian. This Indian serves the political and economic agendas of the global trade in the ‘Indian product’ and thereby undercuts the rights of Indian people to full self-determination.” ^{Footnote 115}

In Daniels v Canada (Minister of Indian Affairs and Northern Development), Phelan J. wrote that “Racial or blood purity laws have a discordance in Canada” and emphasized that Canadian law “does not emphasize … [the] blood/racial purity concept.” ^{Footnote 116} Nevertheless, it would be mistaken to suppose that Canadian legislatures have not participated fully in the colonial project of defining “Indians” in heavy-handed and exclusionary ways. Indeed, the question of who is an “Indian” artist under Canadian law is difficult to answer inasmuch as “a number of Acts provide different definitions of the Indigenous peoples” ^{Footnote 117} and these definitions are unstable. Moreover, even though Justice Phelan identified the “blood/racial purity concept” to be anathematic to Canadians, there is evidence that at least some find its tenets compelling and, in evaluating Indigenous art, subscribe to an “essential theory of authenticity.” ^{Footnote 118} In illustration, one may consider the arguments of those who dispute Bill Reid’s identification as a “Haida artist” and insist that he is more fittingly described as an “artistic Grey Owl.” ^{Footnote 119} In noting that Reid’s mother was from the Kaadaas gaah Kiiguwaay, Raven/Wolf Clan of T’anuu (Haida) and his father an American of Scottish-German descent, his detractors apparently prefer the patrilineality that was imposed upon “Indians” by the 1876 Indian Act to the changes that were ushered in more recently by both Bill C-31 ^{Footnote 120} and Bill C-3. ^{Footnote 121} Thus, Reid’s mixed “race” looms large in Maria Tippett’s biography of the artist and fuels her claim that Reid was “a white man’s Indian” who “reinvented” himself as Haida in order to sell his works to non-Aboriginal peoples. ^{Footnote 122} In pointedly noting that Reid referred to the Indigenous-style pieces he produced in the early 1970s as “artefakes” and that he acquired his knowledge of Native art and culture through “white salvage operations,” Tibbett declares didactically: “Creator Reid was not. Salvager, romanticizer, student, and popularizer of traditional West Coast Native culture he clearly was.” ^{Footnote 123} The question of whether or not Reid was a “Haida artist” has also prompted debates on whether or not Reid is “the latest instance of the settler appropriation of the Aboriginal image to signal the identity of a new colonial state” and a “decoy … that hides the ongoing expropriation of and disregard for Canada’s First Nations.” ^{Footnote 124} It has additionally led to protests against the inclusion of Reid’s art on the $20 banknote of the 2004–2012 “Canadian Journeys” currency series. For example, following an article which suggested that Reid’s perpetration of “art fraud” extended to his reliance upon “apprentices and lowly paid helpers to produce his pieces, even some of the most famous and costly,” ^{Footnote 125} a headline in a Canadian news magazine blared, “Funny Money: The Inclusion of Bill Reid’s Controversial Art on Canada’s Newest Banknote Has Some Wondering How Much Confidence The World Will Have In Our Currency.” ^{Footnote 126}

For some, the question of an artist’s “race” is salient in determining the authenticity of Indigenous artworks. ^{Footnote 127} They warn that any severing of the indexical connection between a style of art and an identifiable people will lead to the crass commodification of the former and the possible extinction of the latter. The grim spectre envisaged is that of cultural genocide, with non-Indigenous artists churning out “Indigenous art” or its simulacra in Fordist fashion. However, others are equally adamant that defining an “Aboriginal artist” by blood quantum is even more troubling and they hypothesize that doing so will endorse the practice and reinvigorate the racialized and imperialistic categorization of people that prevailed in times past. As such, Fred Myers asks plaintively, “why can’t white artists paint ‘Aboriginal’ art?” ^{Footnote 128} Others caution that measures which are designed to forestall “appropriation of voice” and/or “theft of culture” may lead to “aesthetic apartheid” ^{Footnote 129} and racialized edicts of a kind that would prohibit all but African American musicians from playing jazz or the blues. ^{Footnote 130}

For Rosemary Coombe, “the claim that ‘the appropriation of voice’ will destroy Indigenous culture is a form of essentialism in the sense that the voice which is appropriated is understood as unified and singular, and a form of Orientalism in the sense that the group is conceived of as homogenous, timeless, and defined by unchanging traditions.” ^{Footnote 131} With even greater vehemence, Elizabeth Burns Coleman emphasizes that “race” is “an artificial construct without foundation in science” and she declares that “if [I]ndigenous and other people’s claims over art forms are to be taken seriously, they need to be articulated in a way that does not involve race as a significant element of its argument.” ^{Footnote 132} However, battles over authenticity should not be dismissed as intellectual parlour games; they have material effects. ^{Footnote 133} As Jennifer Kramer’s anthropological research among the Nuxalk of Bella Coola, British Columbia, makes pellucid, authenticity is the substance of diurnal struggles for those who “wish to be full participating members in a thriving art and souvenir market, [and] recognized as possessors and creators of ‘authentic’ First Nations art.” ^{Footnote 134} For the Nuxalk, definitions of art as authentic/inauthentic are not “mere words,” and Kramer’s ethnography reveals the tensions that are involved in the Nuxalk’s commodification of their art and their attempts to forge a viable contemporary Nuxalk identity.