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.
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.
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?
Art experts have been getting sued over their opinions since at least the days of Joseph Duveen, the flamboyant dealer who found himself in court in the 1920s after declaring “La Belle Ferronnière,” a supposed Leonardo painting for sale, to be a fake. Duveen’s judgment caused the Kansas City Art Institute to withdraw its offer of $250,000, and in the end Duveen settled by agreeing to pay the owner $60,000. (The painting is now considered to be by a follower of Leonardo.)
As prices have risen, so have risks. In 2005, after watching other organizations fend off lawsuits, the Lichtenstein foundation bought $5 million worth of liability insurance and made its authentication process more rigorous and transparent, its executive director, Jack Cowart, said. Then in 2011 the Warhol foundation revealed it had spent $7 million defending itself against a lawsuit involving a silk-screen it had rejected for the catalogue raisonné. Mr. Cowart called his insurance company to find out if the Lichtenstein foundation would be protected if faced with a similar suit. The agent said it was impossible to predict. “That was a very sobering moment,” Mr. Cowart said.
The board had always felt an obligation to guard Lichtenstein’s legacy in this way, he explained. But now, figuring it was only a matter of time before the law of averages would throw a lawsuit their way, board members decided the benefits of authenticating did not outweigh the risks.
“Why should we go stand in front of a speeding car?” Mr. Cowart said. “We decided it’s not the role of the Roy Lichtenstein Foundation to deal with the art market’s authenticity issues.”
That view disturbs Jack Flam, president of the Dedalus Foundation, which is publishing Robert Motherwell’s catalogue raisonné and was sued last year for changing its opinion about a painting’s authenticity. “If experts stop speaking up, you’re going to get more fakes surfacing,” he said.
Mr. Cowart counters that the authentication committee’s pronouncements were not driving fakes out of the market. The majority of works inspected during the panel’s six years, he said, were third-rate fakes that would reappear as soon as the owners sold them to other unsuspecting dupes.
So what would the Lichtenstein foundation do if it became aware that a major forgery was being auctioned for millions of dollars?
“We don’t know what we would say if we were asked formally or informally,” Mr. Cowart said. “We don’t deal in hypotheticals.”
Sharon Flescher, president of the International Foundation for Art Research, said she doubts the number of lawsuits challenging expert opinions has gone up. Nonetheless she conceded that the perception is having “a chilling effect.” Even though few plaintiffs win, experts are deterred by the time and legal expense. That’s why the College Art Association recently began offering affordable liability insurance to its members who authenticate art, she noted.
Peter R. Stern, an art lawyer in New York, tells clients never to volunteer an opinion unless formally asked by the owners, and even then to make sure the owners sign a waiver promising not to sue. If they don’t ask, don’t tell. “Art scholarship is fighting a losing battle against commerce,” he said.
Fears of being sued may even lead to changes in the nature of catalogues raisonnés, Ms. Flescher added. She pointed to recent decisions by the Calder and Lichtenstein foundations and the Noguchi Museum to move their cataloging efforts online and label them as “works in progress.”
“What we are presenting is a combination of completed research and research pending,” said Shaina D. Larrivee, project manager of the Isamu Noguchi catalogue raisonné. “We are very clear that ‘research pending’ does not guarantee inclusion in the final catalogue raisonné, and that we have the ability to remove artworks if new information comes to light.”
Alexander Rower, Alexander Calder’s grandson and the chairman of the Calder Foundation, said he decided to forgo a catalogue raisonné in favor of an online guide to Calder’s development and history. “You determine if your work is fake or not with the data we present,” he said.
The Web site, scheduled to begin operation this summer, will feature 4,000 to 6,000 works, roughly one-quarter of Calder’s total output. Although the foundation does not authenticate, Mr. Rower said, it will register and examine a supposed Calder at an owner’s request and release any information it has about the piece. The foundation does, however, keep a watchful eye on the market. Mr. Rower traveled to the Basel art fair in Switzerland last week to photograph every Calder for further research, he said.
And if he were to find a forgery? “You can’t just go out there in the world and say, ‘That’s fake,’ “ Mr. Rower said. “But it is a fair thing for me to say to an art dealer, ‘Have your presented this work to the Calder Foundation?’ And if he says no, I say, ‘You really should.’ “
As for scholars who are dragged into court, they do occasionally come out ahead. The art expert Steve Seltzer was sued after declaring that a watercolor of cowboys was not painted by the revered Western artist Charles M. Russell but by his own grandfather the artist O. C. Seltzer. After the suit was thrown out, Mr. Seltzer turned around and countersued the painting’s owner, Steve Morton, and his lawyers. In 2007 the Montana Supreme Court awarded Mr. Seltzer $11 million in damages. As the judges put it, using a lawsuit to coerce an expert to give a particular opinion is “legal thuggery.”