A visitor looks at the artwork Tomato Head (Green) (1994) by US artist Paul McCarthy on display at Art Basel, in Basel, Switzerland. Photograph: Georgios Kefalas/EPA
Back in February, jurors heard how the gallery one of the most prestigious had passed off literally dozens of fakes said to be by abstract expressionist masters including Mark Rothko and Jackson Pollock to unwitting collectors. The case was settled before Knoedlers directors, Anne Kennedy and Michael Hammer, were called to testify but not before the court heard how collectors Domenico and Eleanore De Sole had been swindled.
In total, the gallery sold upwards of 70 fakes to collectors who were readily and understandably willing to trust the provenance of the works offered by the gallery. A case like this tends to wake people up, Jason Hernandez, the lead prosecutor in the criminal investigation, told Artnet. It touched such a well-known gallery in addition to how much money was involved.
But the case also hinted at another issue: just how few artists estates now have functioning authentication boards. In 2011, following a lawsuit brought by the British collector Joe Simon-Whelan against the Andy Warhol Art Authentication Board over its refusal to authenticate a self-portrait of the artist that Simon-Whelan had purchased for less than $200,000 in 1989, the Warhol Foundation closed down the service.
But that was not the Warhol Foundations only problem with provenance. Dozens of Brillo boxes it had authenticated over the years had to be reclassified as posthumous works.
Other authentication boards soon closed up: Keith Haring, Roy Lichtenstein, Jean-Michel Basquiat. The cost of defending cases (the Simon-Whelan case had cost the Warhol estate $7m) and the threat of further lawsuits over issues of liability had made such services too risky to maintain, each said.
One of those to benefit is Richard Polsky, an art dealer, author and Warhol expert who is now running an authentication service, Richard Polsky Art Authentication. He told the Guardian recently that the Knoedler fraud trial had no effect because it was an isolated incident in terms of the scale of what happened. There were so many red flags. It was unbelieveable. Thats why it had no effect. It gave dealers something to talk about, and it was a lot of fun, but I dont know anyone who thought it made any sense on any level.
Thats not to say that things dont happen on a daily basis that arent always kosher, but that was one of the most unusual cases I or anyone has seen.
It was unusual, he says, because the intent to pass the fakes off was so clearly fraudulent. Sixty percent of the art that Polsky is asked to authenticate is fake. But they are fakes without fraudulent intent. Theres a huge difference between fraud with the intent to make money and, Oh, I love Basquiat. Im going to make my own, and somehow that reaches the market.
The motivation for faking art is sometimes hard to figure out, Polsky says.
Someone called me from North Carolina saying theyd found a carving of a cat with Warhol written on the bottom of it. Then they said they found a Picasso in the same market. I laughed, of course, but the point is, what was the intent? Maybe the guy that made the cat was doing it for fun, got bored, and put it in a market.
Part of the reason that the Warhol Foundation was so detested by collectors was that it didnt just refuse to authenticate certain works, it refused to authenticate, then stamped denied on the back, and refused to offer any explanation for their decision.
The Warhol people had you sign a disclaimer stating that if they found the work to be inauthentic they were allowed to stamp the work on the back. Obviously, if they did that youd be bummed out. But if you asked them why, they wouldnt give you a reason. Theyd say something like, We dont want to aid counterfeiters. So now youd not only be bummed out but mad!
His policy, he says, is complete transparency. The service costs $2,500 for a painting, $1,500 for a drawing and $1,000 for a print. You get a letter explaining why, or why not, I think its authentic or inauthentic. Theres a legal disclaimer, of course, but at least unlike a multimillion-dollar art estate, hes not worth suing.
For the most part, the business of authentication is determining what makes sense. Warhol, clearly, directed his studio to make works for him and he was, to some degree, almost cavalier over what he chose to sign. Provenance, as the plaintiffs in the Knoedler scandal found out to their cost and embarrassment, is key.
If someone comes to me saying they inherited a Warhol from their mother whod bought it from a gallery in Cleveland in the 60s its fairly easy to determine that there were no galleries in Cleveland in the 60s that showed Warhol. But its a great feeling when something checks out.
But thats not to say that frauds are not taking place daily. A scandal over faked 18th-century French furniture, with two specialists under investigation for the alleged making and sale of counterfeit chairs for as much as $1m each, some of which were bought by Versailles, is currently making headlines in France.
Polsky says that though this art market has been in a boom far longer than anyone anticipated, that does not necessarily translate into a greater opportunity for fakery. In part, thats because the manufacturing involved in many artists work is simply too difficult, and too expensive, to duplicate. You cant fake a Jeff Koons it would cost too much to manufacture. The temptation to fake may be greater, but the more valuable art becomes, the more scrupulous usually people become about buying it, he says. As the saying goes, if its too good to be true it probably is. If youve got a Damien Hirst butterfly painting show me something. A letter from White Cube or Gagosian. Or where did the butterflies come from?
In those types of cases, authentication is relatively straightforward. But things can always get complicated. Polsky recalls a case in which Keith Harings estate refused to approve graffiti the artist had made in the New York subway. The work was real but the estate claimed the artist had not intended the work to reach the market.
So its all about intent. Did Haring intend these things to be works of art? The answer is yes, he did. Whether he intended them to enter the market is not my concern. My concern is: are these real, did Haring intend for them to be real?
The opposite is true in the case of Willem de Koonings toilet seat. The artist was living in the Hamptons when he took some paints to the outhouse and painted the toilet seat. Years later, someone tried to sell it. I would turn that down, says Polsky. Did De Kooning paint it? Yes. Did he intend it to be a work of art? No. Thats how the authentication works what was the artists intent?