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Attribution is one of the most important, and risky, elements of the art market. As it has been described by Patty Garstenblith, "to attribute a work of art is to assign it to a particular artist, but it can also mean assigning a work of art to a particular group of people, time period, or geographic origin."[1] It is possible to identify three main methods to provide attribution: connoisseurship, scientific method, and provenance research. They are all equally relevant, but they all present flaws that make attribution not as straightforward as it should be.
Connoisseurship can be defined as the study of artworks based on their form, decorations, and other visible and invisible criteria that can determine authenticity and paternity. Traditionally, this practice, which was mostly developed in the European high societies of the 18th and 19th centuries, believed that the ability to value a work of art was determined by an inner sensibility, also known as the "good eye", and the person’s skill to "feel" the artist.[2] The connoisseurs were however what today we could call a boy’s club. The knowledge was kept among peers, and women had no role in these elitist groups. Also, the practice of connoisseurship was at the time directly related to collecting, the Grand Tour, and the notorious actions of plundering cultural objects for private display. The traditional notion of connoisseurship is therefore undoubtedly obsolete; a practice based on a feeling cannot be reliable. However, new studies are advancing the idea of a modern and more scientific version of this method.
The new connoisseurs would still value human sensibility but would be supported by the actual knowledge of the subject. Connoisseurs possess skills that are in fact extremely valuable in the art market, such as visual memory, a practiced eye, the understanding of quality, and the ability to recreate the moment of the creation of the piece.[3] Visual memory is perhaps one of the most useful tools that connoisseurs can provide in the process of attribution. This skill grants the means to “internalize comparisons, guide perception, and categorize objects to build the concrete foundation on which the conceptual structure of art history is based.”[4] Visual memory thus implies a close relationship with the pieces and the artists, and it helps connoisseurs develop their “good eye”, which has now evolved into the “practiced eye”. The inner sensibility is no longer the main element of connoisseurship, and it has been replaced by the actual educated knowledge of the history of art. Although quality can still be considered an outdated element of this equation, it must be acknowledged that art and the art market are fundamentally based on judgment, and the basic difference between good and bad. The judgment of the quality of the artwork is provided by art critics, connoisseurs, and the public, and it inevitably affects the art market and the people’s perception of an artist. Finally, connoisseurs want to overcome the distance between them and the artists by recreating the moment of the creation. Hence, they become the artists, and they try to feel and understand the experience that led to the making of an artwork. The practice of connoisseurship therefore values the human element, the idea that by creating a strong and knowledgeable relation not only with the artworks but with the artists themselves, the connoisseur will be able to recognize their style and provide correct attribution. However, the human element implies the human mistake, and consequently a necessity for a more objective and reliable approach to attribution.
The second method has science at its core. The use of advanced technology and new scientific resources have been key tools in the process of identification and attribution. For instance, sophisticated testing methods, such as infrared imaging, allow scientists to analyze the materials in a work of art. The use of incorrect supplies, such as paint pigments, canvas, or other backing materials, can indicate that a work was made more recently than its intended date. Other testing methods, such as radiocarbon dating, can be used on older works to achieve a rough estimate of the date, although such dates can easily vary by several hundred years. However, scientific analysis cannot always prove a work authentic; if the contemporary forger is sufficiently careful to use the correct techniques and materials, a new "ancient" work can be produced. For too many years now there has been a false dichotomy in the world of art authentication, a sort of battle between scientific examinations and connoisseurship. In fact, these two categories actually complete each other; science can provide correct and objective information about the artwork, while the connoisseurs represent the human element with artistic knowledge and sensibility.
Finally, the third method concerns provenance research, which is the history of ownership of an artwork, or the so-called chain of title. The ideal provenance would trace the work back to the hand of the artist, although this is generally unrealistic. However, in the case of archaeological objects, the ability to trace a work to its findspot is perhaps the only way of determining its authenticity. Provenance may be the best proof of an artwork’s authenticity, but the documentation and history can also be faked, as the Beltracchi case demonstrates.[5] Wolfgang Belatracchi was the notorious and successful art forger in history and tricked the international art world for years. He worked with his wife, Helene Beltracchi, and together they created paintings to sell to museums and institutions that were reassured by the presence of documents proving provenance. However, these documents also proved to be forgeries. Interestingly, Beltracchi did not provide fakes of existing artworks, but he painted in the style of a specific artist and created new “authentic” works.[6] He would often find inspiration in artworks gone missing, or in stories that would mention the existence of a said painting that nobody had found yet. The Beltracchis created actual stories and one of the most famous examples concerned a recent inheritance of a pre-WWII art collector. According to the story, Helene's grandfather, Werner Jägers, had lived in Cologne and befriended a Jewish artist, who fled the country when Hitler came to power. After that, the owner of the gallery where the artist used to display his pieces sold the entire collection to Jägers for a nominal fee. Years later, the collection came into Helene Beltracchi's possession together with the provenance of the paintings. Included in this documentation were pictures of Helene's grandmother with the artworks: it was in fact Helene herself impersonating her relative. Due to the presence of the documents providing provenance, the Beltracchis sold the pieces to prestigious collectors and galleries.
The Beltracchis were also careful in the material they used for their forgeries. They bought canvases and frames of works from specific eras and reused them. Therefore, the paintings would prove to be authentic through scientific analysis. However, in 2008, the owners of one of the paintings in the collection mentioned above, had the work authenticated by a forensic specialist, who detected a trace of a paint that included titanium white. Because that pigment was not in use in 1914, the supposed date of the painting, the Beltracchi's scheme was revealed. He admitted he forged about 300 paintings by more than 50 different artists. Beltracchi and his wife were sentenced to 6 and 4 years of jail time and a series of civil suits. However, they did not serve the full sentence. Instead, they published two books and produced a documentary. Wolfgang Beltracchi is now painting and displaying his works under his name, and the international art community is still trying to agree whether he has been a criminal mastermind or a genius who played the connoisseurs.
The issues of attributing an artwork do not only concern the actual methods: misattribution in fact comes with legal consequences. In the United Kingdom, for instance, the lawsuit would be based on a breach of warranty, negligence, professional malpractice, or even fraud.[7] In case of breach of warranty, which aims to allocate risk and liability between a buyer and a seller, the innocent party is entitled to claim damages, but not to treat to repudiate the contract. If instead a professional is accused of negligence, which must include a duty of care, breach of duty, causation, and remoteness of damages, the damages in respect of a tort aim to put the innocent party in the same position as the tort did not occur. Under the negligence accusation, we also have the tort of professional malpractice. The main difference between the two is that negligence includes the possibility of a mistake, while malpractice implies that the professionals know what they are supposed to do but they would not do it. Here again, the recovery usually happens through economic damages. In the worst scenario, an expert could be sued for fraud by false representation, which, according to the Fraud Act 2006, section 2(1) makes it an offence if a defendant:
a) dishonestly makes a false representation, and
b) intends, by making the representation –
1) to make a gain for himself or another, or
2) to cause loss to another or to expose another to a risk of loss.
Even if the damages are the same as for a breach of contract, the defendant could face up to 10 years in prison and a fine.
Because of the legal and economic risks, those providing attributions are becoming increasingly hesitant to make their opinions public, a decision that has an economic impact on the value of the artworks and that therefore causes a shift in the art market. Currently, there are three main ways to protect good-faith experts; the model provided by the International Foundation of Art Research (IFAR), the disclosures of liability by the auction houses, and the catalogue raisonné. In order to attain high quality and reliable art authentication IFAR makes its own authentication inquiries, but only if the requests are made by the owner of the work and if the owner agrees to waive the right to sue. Also, IFAR can keep the names of the professionals confidential, which allows specialists to render opinions free of the constraints of their position of employment. IFAR also reserves the right to publish the results of its research while keeping the names of the owners confidential. Finally, it reserves the right to change an authentication statement in the future if circumstances change. As a result, IFAR's determinations are more fluid.
Auction houses regularly disclaim any liability for the authenticity of a work of art. For instance, Sotheby's, in its Retail Terms of Sale, states that unless some specific Terms of Guarantee for a specific object are provided, all objects in its catalogues are sold "As Is." Thus, no warranties are given as to "fitness for a particular purpose, the correctness of the catalogue, or other description of the physical condition...”[8] Christie's Auction House provides a similar limitation in its conditions of sale stating: "Prospective buyers are strongly advised to examine personally any property in which they are interested before the auction takes place."[9] The limitation of liability continues by stating: "Neither Christie's nor the seller provides any guarantee in relation to the nature of the property apart from the Limited Warranty." Although the clauses are supposed to protect good-faith attributes, they also conveniently work for auction houses, which are often protagonists of litigations.
Artist foundations may sometimes authenticate a work of art on an individual basis, or will produce a more comprehensive catalogue raisonné, which is the definitive compilation of the works of a particular artist. However, disputes can still arise. This occurred when an art dealer in Arizona purchased a work of art for $15,000, which, as he alleged in his suit, would be worth closer to $10 million if it were authenticated as a Jackson Pollock.[10] The Pollock-Krasner Foundation, responsible for authenticating works of art for the artist, refused to authenticate the work, and subsequently the work was not included in the catalogue raisonné of Pollock. As a result, both Christies and Sotheby's refused to auction the work. Kramer, in his suit, alleged antitrust violations, claiming that the Foundation conspired to create a monopoly, and alleged common law unjust enrichment, among other causes of action.
It is evident the current measures to protect experts have several flaws, which are increasing the number of issues in an already problematic field. Following the theory proposed by Derek Fincham, the authentication process should perhaps be considered a scholarly enquiry.[11] The law should not allow fraudulent actions to undermine the work of museums, art historians, collectors, and scientists in trying to correctly attribute an artwork. Therefore, the only way to assure protection to the good-faith experts is to legally shield them so that they can honestly express their opinions. However, since his strict view would raise questions regarding bad-faith professionals, a more balanced solution would be to apply the legal shield only to those who are found, after an appropriate investigation, to be in good faith.
The question of attribution is therefore problematic, and it does not follow a straightforward path. Differences in opinions, beliefs, and prejudices are in direct opposition with the joint use of the three methods analyzed above. However, only their combination and the acceptance that attribution will never be completely sure will grant more reliable outcomes. Science should not undermine the importance of human sensibility, and connoisseurs must recognize the need for scientific evidence to prove their theories. At the same time, the relevance of provenance research must be first acknowledged by museums and auction houses. It is in fact their responsibility to refuse artworks with a shady ownership history to maintain the art market legitimate and free of forgeries. The threat of a lawsuit again increases the experts’ fear of expressing an official opinion. Although the application of the law cannot and should not be avoided, a legal shield for good-faith professionals could create a healthier and safer environment in this already problematic field. The practice of attribution cannot be prevented. It is one of the leading elements of the art market, and the most fundamental component of the history of art. Although it might never be fully sure, the best we can do is to provide the best conditions and tools to achieve the closest amount of certainty and fair legal protections.
[1] Gerstenblith, Patty. "Getting Real: Cultural, Aesthetic and Legal Perspectives on the Meaning on Authenticity of Art Works." Colum. JL & Arts 35 (2011): 321. [2] Scholz, Janos "Connoisseurship and the Training of the Eye." College Art Journal 19.3 (1960): 226-230. [3] Ebitz, David. "Connoisseurship as practice." Artibus et Historiae (1988): 207-212. [4] Ibid [5] Chappell, Duncan, and Saskia Hufnagel. "The Beltracchi affair: A comment on the most spectacular German art forgery case in recent times." J. Art Crime 7 (2012): 38. [6] Beltracchi - Die Kunst Der Fälschung. Directed by Arne Birkenstock, Fruitmarket Kultur und Medien, Tradewind Pictures, Telepool, 2014. [7] Palmer, Norman. "Misattribution and the Meaning of Forgery: The De Balkany Litigation." Art Antiquity & L. 1 (1996): 49. [8] Sotheby’s “Retail Terms of Sale”, https://www.sothebys.com/en/retail-terms-conditions [9] Christie’s Auction House “Condition of Sale: Buying at Christie’s”, https://onlineonly.christies.com/terms-and- conditions/393 [10] Kramer v. Pollock-Krasner Foundation, 890 F. Supp. 250 (S.D.N.Y. 1995):: Justia. https://law.justia.com/cases/federal/district-courts/FSupp/890/250/1410901/. [11] Fincham, Derek. "Authenticating art by valuing art experts." Miss. LJ 86 (2017): 567.
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