In Art, Freedom of Expression Doesn’t Extend to ‘Is It Real?’

Today’s front-page story is about how art experts are increasingly anxious about saying if a work of art is real or fake because of fears of being sued. Actually several art world denizens doubt that the actual risk of being sued is any greater now than in the past 20 or 30 years, but because of some high-profile suits, particularly involving the Warhol Foundation, the perception of higher risk is nonetheless having an effect.

By
Published: June 19, 2012

John Elderfield, former chief curator of painting and sculpture at the Museum of Modern Art, remembers the days when scholars spoke freely about whether a particular work was genuine.

Walter Maibaum/The Degas Sculpture Project

They were connoisseurs, this was their field of expertise, and a curator like Kirk Varnedoe, Mr. Elderfield’s predecessor at the Modern, would think nothing of offering his view of a drawing attributed to Rodin, his specialty.

“He was qualified to do it and felt he had a moral obligation to do it,” Mr. Elderfield said.

But when the owner of a painting attributed to Henri Matisse recently asked Mr. Elderfield for his opinion, he demurred. He worries he could be sued if he says the painting is not a real Matisse.

Mr. Elderfield is hardly alone in feeling that art’s celebrated freedom of expression no longer extends to expert opinions on authenticity. As spectacular sums flow through the art market and an expert verdict can make or destroy a fortune, several high-profile legal cases have pushed scholars to censor themselves for fear of becoming entangled in lawsuits.

The Andy Warhol Foundation for the Visual Arts, the Roy Lichtenstein Foundation and the Noguchi Museum have all stopped authenticating works to avoid litigation. In January the Courtauld Institute of Art in London cited “the possibility of legal action” when it canceled a forum discussing a controversial set of some 600 drawings attributed to Francis Bacon. And the leading experts on Degas have avoided publicly saying whether 74 plasters attributed to him are a stupendous new find or an elaborate hoax.

The anxiety has even touched the supreme arbiter of the genuine and fake: the catalogue raisonné, the definitive, scholarly compendium of an artist’s work. Inclusion has been called the difference between “great wealth and the gutter,” and auction houses sometimes refuse to handle unlisted works. As a result catalogue raisonné authors have been the targets of lawsuits, not to mention bribes and even death threats.

“Legal cage rattling was always part of the process,” said Nancy Mowll Mathews, president of the Catalogue Raisonné Scholars Association. But the staggering rise in art prices has transformed the cost-benefit analysis of suing at the same time that fraud has become more profitable, she said.

While some argue the fear is overblown, others warn the growing reluctance to speak publicly about authenticity could keep forgeries and misattributed works in circulation while permitting newly discovered works to go unrecognized.

The perceived crisis has prompted a pointed ethical debate: Do you speak out if you spot a suspicious work or keep quiet as lawyers recommend?

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