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The Destruction of Fakes

The destruction of fakes at the behest of artist committees is a long standing practice in France. In two recent decisions both involving artworks signed “Miro”, the Court of Appeal of Paris ordered the destruction of the artworks.

In the first case (Lotz -v- A.D.O.M., 12 June 2013), Mr Lotz, an Austrian national, bought a watercolour on paper signed “Miro” from a US dealer through Artprice. Mr Lotz submitted the watercolour to A.D.O.M., the association with moral rights over artworks by Joan Miro. In April 2009, A.D.O.M. pronounced the watercolour a forgery and, at their request, it was seized by the police. A.D.O.M. sought permission from the first court to destroy the watercolour. Permission was duly granted. Mr Lotz appealed. The Court of Appeal acknowledged A.D.O.M.’s authority to opine on the authenticity of artworks attributed to Miro. The Court noted that A.D.O.M. had explained why, in their view, the artwork was not an original work by the artist. It followed that the first Court had been right to confirm that the watercolour was a forgery, and to order its destruction. Only its destruction would remove the risk that the forgery might be offered on the open market as an authentic work by the artist, observed the Court.

Two weeks later, the same Court heard an appeal by Daniel Cohen against the first Court decision ordering the destruction of a drawing signed “Miro” (Cohen -v- A.D.O.M., 26 June 2013). Mr Cohen had received the drawing as a wedding present from his parents. They had bought it from an art gallery in Philadelphia. Mr Cohen had consigned it for sale to Aguttes, a French auction house, who in turn submitted it to A.D.O.M. for authentication. A.D.O.M. declared it a forgery, and had it seized. The first Court ordered the destruction of the drawing. Mr Cohen appealed. He claimed that the drawing was his property, and he asked for it back. The Court of Appeal refused, on the ground that only its destruction would prevent it from being bought and sold on the open market.

Both Messrs Lotz and Cohen were ordered to pay the costs of the appeal. We do not know if they were able to recover their loss from their respective sellers. One difficulty they may face is that sellers may decline to return the purchase price if the buyer is unable to return the property.

It is perhaps not surprising that collectors are upset when they are told not only that the artwork they thought genuine is not, but that it will be destroyed.

There are bold fakes. There are subtle fakes. There are artworks deemed fakes by some but not by others. Is destruction of the work always appropriate? Is it not disproportionate?

The owner may have bought the artwork in good faith for a significant price, and it may have intrinsic aesthetic value even if it is not genuine. Is its destruction compatible with the owner’s property rights in the artwork itself?

What if there is a conflict of opinion between the artist committee and other experts on the artist’s works? Opinions do change. What if an artwork is destroyed because the board of the artist committee deems it a fake, when the next incarnation of the same board would have confirmed its authenticity because new information on the artist’s work came to light in the meantime?

An EU Directive was introduced in 2004 on the enforcement of intellectual property rights. Article 10.1 sets out measures that may be taken by national courts with regard to goods that they have found to infringe intellectual property rights. One such measure is destruction of the goods. However, at Article 10.3, the Directive provides that “in considering a request for corrective measures, the need for proportionality between the seriousness of the infringement and the remedies ordered, as well as the interests of third parties, shall be taken into account”. We question whether the systematic destruction of artworks declared fakes by artist committees complies with Article 10.3.

France is by no means the only country where fake artworks are routinely confiscated, if not destroyed. Other countries include Italy and China.

In common law countries, the approach to authenticity is more nuanced. There will be cases where the evidence is strongly that an artwork is a fake, e.g. if scientific analysis shows that the paint applied to the canvas was not manufactured until many years after the artist’s death. Even so, new information may come to light later showing that the analysis was incorrectly performed or the same type of paint was in fact available in the artist’s lifetime. In other cases, authenticity is treated as a matter of opinion. In principle, the simple fact that the acknowledged experts on the artist refuse to confirm authenticity means that the artwork will not sell on the open market as a work by the artist. Some artist committees will go further than simply decline to confirm authenticity, and imprint a mark of their disapproval on the artwork itself.

In the US, the case of the Andy Warhol silkscreen self-portrait bought by Joe Simon-Whelan is well known. On two occasions, Mr Simon-Whelan submitted the silkscreen to the Andy Warhol Art Authentication Board and, on each occasion, the Board stamped “denied” on the back of the silkscreen. Mr Simon-Whelan sued the Andy Warhol Art Authentication Board but later abandoned the lawsuit when he could no longer afford legal fees. The Andy Warhol Art Authentication Board has since disbanded after declaring that they would rather spend their money on charitable goals than on legal fees, following a series of legal challenges to their authentication process. Other US authentication boards have followed suit.

The destruction of a fake is justified in certain cases. However, the determination of the authenticity of an artwork can be a difficult issue: opinions may differ and artist committees can get it wrong. The systematic destruction of artworks declared fakes can seem disproportionate and does not seem compatible with the property rights of the rightful owner who, quite often, acquired the artwork in good faith.

Pierre Valentin

Articles published on this blog reflect the opinion of the stated author of the article only. The information they contain does not constitute legal advice.