The Art Law Review: Assigning Burdens of Diligence in Authenticity Disputes
Fake and forged art are hardly new problems for the art market. As art has become more highly commoditised, however, particularly among wealthy collectors who have the means to litigate (in what can often be time-consuming and expensive processes), sales of fake and forged art have become higher stake problems. The problem is perhaps at its zenith when a 'sophisticated' collector buys inauthentic art from a 'reputable' seller. If litigation erupts, both sides will accuse the other of having not acted reasonably to ascertain, or to more fully disclose facts concerning, the possibility of inauthentic art. This chapter discusses an emerging trend in United States law to favour the role of the sophisticated collector over that of the reputable seller in such disputes.
II Background: the problem of determining art authenticity
An assertion or implication of an artwork's inauthenticity by a seemingly credible source can have a devastating impact on that artwork's market value. Owners may sue those who 'disparage' and devalue their art simply by stating or implying that their works are not genuine.2
Nevertheless, resolving the bottom-line question of whether an artwork is authentic is not itself a legal question. Authenticity determinations fall to experts, including most notably to connoisseurs and scholars of an artist, to provenance researchers and art historians, and to forensic scientists and materials analysts: the 'three-legged stool' of art authentication.3
The job of the courts is not proactively to assemble such evidence in search of the ultimate 'truth' about a work of art. Courts are reactive bodies, and their job is to weigh and judge the evidence that is presented by the parties through an adversarial process. Courts decide which side's particular evidence seems stronger in a given case and, thus, which side should win or lose in that case; but that does not necessarily mean that the art at issue is actually genuine. Indeed, there can be (and have been) strange and confusing decisions where artists or leading connoisseurs of artists have disavowed works as 'by the artist's hand', but courts have been impressed by 'flawless' provenance research that strongly indicates the work did leave that artist's studio.4
These decisions may produce eventual victories as between the litigating parties, but the art market can do little more than shrug its shoulders at the results (thereby leaving the 'victor' in a case with a piece of paper finding in its favour, but not necessarily with a marketable work). Some courts have openly acknowledged this problem and have declared, unabashedly, that 'the marketplace is the appropriate place to resolve authentication disputes', not courthouses.5
III The comfort zone of courts: assigning burdens and risks
Where artwork authenticity remains an elusive judicial concept, evaluating the dynamics of sales transactions is not. Courts assign burdens of diligence and risks of loss all the time. These are societal, organisational and public policy questions that turn on the following issue: was the buyer fairly equipped to fully understand the gamble it was undertaking in making its purchase? This is more familiar and comfortable ground for courts than having to 'decide' the authenticity of art, and this is where court decisions are more instructive to future buyers and sellers of art.
A seller of art may affirmatively represent and warrant a work's authenticity in a sales contract, thereby providing the buyer with some measure of insurance and comfort.6 On the other hand, a seller may expressly disclaim any such representation and warranty, thereby raising a possible red flag for the buyer from the start.7 Or the seller may say nothing on the subject of authenticity, thereby requiring statutory or common law to address the void.8
Often, a buyer of art who had the benefit of a seller's representation and warranty of authenticity may not discover that the work is inauthentic until after the contractual or statutory limitations (and refund) period has run.9 At that point, at least in the United States where the principle of caveat emptor (buyer beware) runs deep, the buyer is required to show some reason why it did not, and could not reasonably have, ascertained the work's inauthenticity sooner. Effectively, that requires a buyer to allege that it was deceived and defrauded by the seller.
Fraud and deception involve, at their core, showing that material information concerning an artwork's possible inauthenticity was deliberately misrepresented or concealed by the seller, and that the buyer was not reasonably in a position to have appreciated the problem and to have acquired more complete information for itself.10 When the buyer is wealthy and sophisticated, the questions of what it reasonably 'could' and 'should' have done to uncover evidence of fake or forged art are not necessarily black and white. When the buyer purchases from a 'reputable' seller who, moreover, is marketing on behalf of an anonymous current owner (which is an accepted art market norm), those questions become even murkier.
A few notable cases have recently addressed this dynamic, and buyers and sellers of art should take careful note. In particular, courts appear disinclined to credit arguments by reputable sellers that sophisticated buyers should presume that a work of art may be fake and undertake independent diligence, despite the seller's imprimatur.
i Sophisticated buyers and non-reputable sellers: ACA Galleries v. Kinney
A sales dynamic that the federal courts in New York found relatively easy to resolve involved a sophisticated art gallery buyer and a non-reputable seller of art. In ACA Galleries, Inc v. Kinney, the court unhesitatingly saddled the buyer with the risk of loss where it purchased fake art from an unknown seller, and where the buyer had apparently hoped to authenticate the art – and to substantially mark it up in price – later.11
The seller in ACA, an individual and non-dealer of art from North Carolina, contacted the buyer-gallery in New York by email with an offer to sell a purported Milton Avery oil painting.12 The seller shipped the painting to the gallery for an unfettered inspection.13 The gallery's president inspected the painting, believed it to be authentic and authorised its purchase for US$200,000, without any representations or warranties of authenticity by the seller.14 After buying the painting, the gallery then contacted the Milton Avery Foundation soliciting an authentication opinion; but the Foundation determined the work to be inauthentic.15 The gallery demanded a refund, which the seller refused to give.16 The gallery sued the seller for breach of contract/mutual mistake of fact and for fraud.17
Despite uncontested evidence that the painting was a fake, the district court awarded summary judgment dismissing the gallery's claims.18 In particular, even assuming an intent to deceive by the seller, the court found intolerable the gallery's conscious, and apparently strategic, avoidance of the Avery Foundation during its diligence efforts.19 The court dismissed the gallery's breach of contract/mutual mistake of fact claim because 'the doctrine of mutual mistake “may not be invoked by a party to avoid the consequences of its own negligence”'.20 The gallery 'was aware of [its] limited knowledge but acted anyway'.21 The court similarly dismissed the gallery's fraud claim because 'a sophisticated plaintiff cannot establish that it entered into an arm's length transaction in justifiable reliance on alleged misrepresentations if that plaintiff failed to make use of the means of verification that were available to it'.22 The court specifically found that 'ACA cannot establish justifiable reliance because it had the opportunity to fully investigate the authenticity of the painting but failed to do so'.23
The appellate court affirmed, putting a finer point on the fact that the buyer had its eyes open to the (mis)calculated gamble it was taking:
ACA was aware that an authentication by the Foundation 'would make the painting more saleable at a higher price.'. . . ACA could have accepted the higher price that accompanies certainty of authenticity, but chose instead to accept the risk that the painting was a forgery. The contract is not voidable merely because the consciously accepted risk came to pass.24
The result in ACA is a cautionary flag that buyer beware operates with full force when a sophisticated buyer acquires art from a non-merchant seller who does not warrant authenticity (the proverbial 'back of a turnip truck' transaction). But sophisticated buyers are more likely to deal with reputable, merchant art dealers. How the courts assign burdens of diligence and disclosure in those transactions are more significant issues to the market. Two post-ACA cases illustrate that the buyers appear to be receiving the benefit of the doubt in these sales settings.
ii Sophisticated buyers and reputable sellers: Hilti v. Knoedler Gallery
Shortly after ACA was decided, its limits were put to the test by a formerly reputable seller of art against claims brought by a wealthy and sophisticated collector. In Martin Hilti Family Trust v. Knoedler Gallery, LLC, the buyer of a fake Mark Rothko painting sued what had been one of the most prestigious art galleries in the United States (prior to its abrupt closure due to the revelation that it had been selling fake modern art for over a decade).25
The buyer had purchased the painting in 2002, and, while the gallery had warranted the art's authenticity, the statute of limitations on that warranty had long run.26 The question, therefore, was whether the buyer had been placed on sufficient 'inquiry notice' that its painting was a fake such that its fraud and civil racketeering claims were also time-barred.27 The court rejected the gallery's motion to dismiss these claims.28
The most relevant facts are that the gallery had provided the buyer with an invoice and fact sheet offering a purported provenance and exhibition history of the painting (while maintaining the current owner's anonymity), together with a copy of a letter from the director of the Mark Rothko Catalogue Raisonné Project indicating that the painting would be included in a potential catalogue raisonné supplement.29 The gallery additionally provided a copy of a New York Times article commending the quality of the painting.30 The gallery's president had also touted the painting as a 'fantastic Rothko' and had shipped the painting to the buyer in Europe so that it could 'live with it' before deciding whether or not to buy.31 During that time the buyer's curator examined the painting's aesthetics and condition and determined that it was appropriate for the buyer's collection.32
Relying heavily on the decision in ACA, the gallery in Hilti argued that the buyer had been put on inquiry notice of inauthenticity through several purported red flags, including: (1) the buyer's curator should have ascertained that the painting was a fake during his examination; (2) the New York Times article's report that the painting had been exhibited at a particular fair, which was not included in the gallery's fact sheet, should have alerted the buyer that the gallery's purported background for the painting was false; and (3) a later essay by an art historian, which mentioned the painting and described a different provenance than that represented by the gallery, should have put the buyer on notice that the gallery's background information about the painting had been false.33
The court in Hilti declined to extend the principle of caveat emptor to the buyer on the bases of these facts. Underlying its decision, the court found that 'Hilti purchased the purported Rothko from Knoedler – at that time, one of the most established and reputable art galleries in the world'.34 The gallery's reputation, its warranty, its offering of purported facts about the painting (within the accepted norm of not disclosing the current owner's identity), and its president's, as well as the New York Times', proclamations of the painting's excellence, were all hallmarks of a bona fide transaction and painting that did not give any reason, 'as a matter of law', to impose a heightened duty of diligence on the buyer.35 At one point the court labelled the gallery's position as 'frivolous'.36 Relying on an earlier, pre-ACA decision against the same gallery by another, similarly situated victim of this scandal, the court found that the buyer in Hilti had 'no reason to suspect the authenticity of their painting' at the time of purchase, and thus had no reason to conduct independent diligence into the painting.37
The decision in Hilti reflects an important boundary on the principle of buyer beware in the high-stakes art market. The gallery in that case and in related cases repeatedly contended that society should not tolerate a world where wealthy buyers may spend more time test driving a new car than testing the authenticity of a multimillion dollar painting for sale. While this argument may have sound bite appeal, it is overly facile.
For one thing, the argument disregards the fact that new cars, unlike paintings (and purported masterworks in particular), are fungible products. A potential buyer of a car can take considerable time deliberating with the comfort of knowing that there are multiple versions of the same car available to be sold. The same is not true of original art. The urgency to buy and the 'heat' that is brought to bear on a potential buyer of original art is qualitatively different from the 'new car' scenario.
Second, the diligence that must be conducted into an artwork's authenticity (the 'three-legged stool' factors of connoisseurship, provenance and forensic science) is considerably more than a 'test drive.' It seems unreasonable to impose the duty to conduct such extensive (and, with respect to scientific analysis, invasive) examinations on potential buyers of even high-value art; and it seems equally unrealistic to expect that sellers of such art would agree to hold or surrender the art for such presale examinations.
Third, the role of a reputable seller in an art transaction is key. A buyer of a purported Rolls Royce from a Rolls Royce dealer is unlikely to have the car's engine tested to ensure that it actually originated from a Rolls Royce factory; some facts seem worthy of being accepted as true at face value. The decision in Hilti proves that the same should be true for art, particularly where a reputable dealer commands behind-the-scenes knowledge about the art's background that will not be revealed to the buyer as a matter of market customs and norms.38
iii Somewhere between ACA and Hilti: Greenway II v. Wildenstein & Co
The reasoning of Hilti was embraced in the case of Greenway II, LLC v. Wildenstein & Co at the motion to dismiss stage, although with a potentially important qualification that may eventually lead this case to follow the reasoning of ACA.39
The wealthy buyer in Greenway (a trust) had purchased a painting in 1985 purportedly by Pierre Bonnard from a dealer with 'an established reputation as an expert in French Impressionist art, and particularly in the work of Bonnard'.40 Following revelation that the painting was a forgery, the buyer's successor-in-interest sued the dealer for fraud, alleging that the dealer had expressly represented the painting's authenticity to the buyer at the time of sale, while failing to disclose that the work was not included in the Bonnard catalogue raisonné.41
The dealer moved to dismiss upon the argument that the buyer 'was a sophisticated collector and that he had an obligation to conduct his own due diligence' rather than rely solely on the dealer's representation.42 In particular, the dealer argued that the buyer should have consulted the Bonnard catalogue raisonné for itself.43 That fact, according to the dealer, should have caused the buyer to doubt the dealer's representation of the painting's authenticity.44
The court rejected the dealer's argument as 'obviously meritless', at least at the pleadings stage.45 Relying on the dealer's reputation and the decision in Hilti, the Greenway court found that the buyer of the painting 'did not have a duty to look behind Wildenstein's representations'.46 This is one of the most significant takeaways from Greenway: the dealer had basically advocated for a ruling, as a matter of law and at the pleadings stage, that sophisticated buyers of art should presumptively suspect that the art may be inauthentic and conduct independent diligence, despite a reputable seller's approbation and even guaranty of the art's authenticity. The Greenway court refused to go that far, explaining:
[T]he usual rule is that there is ordinarily no duty for a party to a transaction to exercise due diligence in the absence of an obvious fraud . . . No fact alleged in the complaint tends to show that [the buyer] was or should have been on notice that Wildenstein was lying to him about the Painting's authenticity – which is the only thing that might have triggered any duty by the [buyer] to investigate the matter further.47
Nevertheless, the court noted the possibility that discovery might show 'the pleaded facts are wrong', and that the buyer 'was in fact a sophisticated collector in 1985 who knew about the Bonnard catalogue raisonné, or at least that he had the means available to learn on his own that the Painting was not included in the catalogue'.48 Were that to be the case, then the court left room for a possible summary judgment dismissal based upon the buyer's inability to establish justifiable reliance because, as in ACA, the buyer may have consciously disregarded reasonably available information.49
The results in Greenway and Hilti should give comfort to sophisticated buyers that, at least at the pleadings stage, reliance on a reputable seller's representation of authenticity is per se 'justifiable', provided there are no other pleaded facts that indicate the representation was false. The risk of caveat emptor seems allayed by a reputable seller's guaranty.
If facts later come to light showing that the buyer had reasonable cause to doubt the seller's guaranty, however, then the principle of buyer beware may resurge. Just what cause may be 'reasonable' will be case-specific. Moreover, whereas the courts in ACA were particularly troubled by the gallery buyer's intent to flip the art in that case after authenticating it, the court in Greenway might ultimately find that a collector-buyer who was not looking for an immediate and profitable resale may have more legitimately relied on the dealer's representation of authenticity without doing anything further, despite information from the relevant catalogue raisonné suggesting a possible problem with the work.
iv Buyer always beware?: Meyer v. Seidel
A federal court in New York recently decided that the emergence of subsequent red flags about the sale of a fake Mark Rothko painting in 2001 had put the buyer on sufficient inquiry notice of fraud to render his claim time-barred.
In Meyer v. Seidel, a wealthy buyer sued two art dealers nearly 20 years after they sold him the allegedly fake painting.50 The buyer alleged that the immediate seller was 'a reliable and expert art dealer' who had represented the work to be a genuine Rothko that had been signed by, and acquired from, the artist.51 Nearly 20 years later, the buyer ascertained that the work was allegedly fake and he sued the dealers for 'fraud, breach of warranty, negligent misrepresentation, and rescission'.52 The defendants moved to dismiss, arguing that the buyer's claims were time-barred because he had inquiry notice that the work was a fake years earlier.53 The court agreed.54
In particular, the court found that a phone call from the seller to the buyer in 2011, informing him that the federal criminal authorities might contact him regarding possible fake Rothko art and whether 'there was an issue with [his] painting', gave the buyer inquiry notice and reason to conduct further diligence nearly 10 years earlier, notwithstanding that the authorities never actually called him.55 The court found that inquiry notice:
does not require Plaintiff to have decisive or actual knowledge of the full extent of the fraud. Rather, Plaintiff must merely have 'enough information to warrant an investigation' . . . ; indeed, Plaintiff needed to have only 'the probability that he has been defrauded' . . . to meet this standard for inquiry notice.56
The court additionally took judicial notice of widespread publicity about the Knoedler Gallery art scandal between 2011 and 2015, which included allegations of fake Rothko art (such as in the Hilti case noted above), and found that this publicity gave the buyer further inquiry notice years earlier.57 The court explained that news reports are 'particularly likely to “trigger inquiry notice” when the reports, as here, “appeared prominently in popular and widely read publications such as” the New York Times and Vanity Fair'.58 The court also found that the buyer had a duty to investigate the authenticity of his painting earlier because of the numerous factual similarities between the details that had been reported about the Knoedler cases and the buyer's situation, including the involvement of fake Rothko art, similar kinds of misrepresentations that had been made, and the fact that one of the art dealer defendants had been mentioned in a news article about the Knoedler scandal.59
The result in Meyer may have been justified by the fact of the seller's phone call to the buyer in 2011 alone. That call was person-to-person and directly about the buyer's painting. The court's additional imputation of constructive notice to the buyer through news reporting about another fraud has potentially wider ranging implications. The court seemed to accept that a wealthy buyer 'should' be aware of news reports in outlets such as the New York Times and Vanity Fair, and 'should' extrapolate such news to his or her own situation. Such a finding expands the doctrine of buyer beware to 'buyer-be-constantly-on-guard'. Other courts may find this doctrine to be stretched too far.
Sophisticated buyers of art should, in the first instance, know their sellers. If the seller is reputable, then even a wealthy and sophisticated buyer should be entitled to rely on the seller's warranty of authenticity, without presuming the warranty to be false and without conducting independent diligence. If it can be shown that the buyer appreciated a potential problem with the art's authenticity and turned a blind eye to other reasonably available sources of information concerning the art, then that buyer stands a greater risk of loss. In the absence of such facts, however, reputable sellers seem unlikely to shift the loss based upon hindsight arguments that their buyers should have viewed the sale dynamics with automatic suspicion from the start.
That said, the result in Meyer suggests that sophisticated buyers of art should be mindful – perhaps to the point of being a little bit paranoid – about the implications of later reported news and information that could be extrapolated to constitute a red flag that an earlier sale was 'wrong'.
1 William L Charron is a partner at Pryor Cashman LLP. The author was assisted in updating this chapter by Susannah Grace Price, an associate at Pryor Cashman LLP.
2 Compare Gerald Peters Gallery, Inc. v. Stremmel, 815 F. App'x 138, 139–140 (9th Cir. 2020) (reversing summary judgment dismissal of a defamation/business disparagement claim brought by the gallery against an art dealer who criticised the painting's authenticity) with Mayor Gallery Ltd. v. Agnes Martin Catalogue Raisonne LLC, No. 655489/2016, 2019 N.Y. Slip Op 32089(U), at *14 (N.Y. Sup. Ct. 2019) (dismissing product disparagement and similar claims against the catalogue raisonné committee for declining to include works in the catalogue raisonné because the plaintiff signed a submission agreement providing for the committee to exercise sole decision-making discretion, without 'explanatory reasons for its decisions to include or not include works').
3 Leila A Amineddolah, 'Are You Faux Real? An Examination Of Art Forgery And The Legal Tools Protecting Art Collectors', Cardozo Arts & Entm't L.J., Vol. 34:59 (April 2016), at 72–73 (citation omitted).
4 See Arnold Herstand & Co. v. Gallery: Gertrude Stein, Inc., 211 A.D.2d 77, 79–83 (N.Y. App. Div. 1995) (rejecting three untested 'certifications of falsity' by the artist, Balthazar Klossowski de Rola, and reversing summary judgment determination of inauthenticity and remanding the issue for trial because the 'provenance here points only in the direction of authenticity'); Greenberg Gallery, Inc. v. Bauman, 817 F. Supp. 167, 174–175 (D.D.C. 1993) (finding that, 'more likely than not', a mobile attributed to Alexander Calder was authentic based upon its 'impeccable provenance', notwithstanding 'the great weight that must be accorded . . .' to a leading connoisseur who rejected the work's authenticity, and explaining that '[t]his is not the market, however, but a court of law, in which the trier of fact must make a decision based upon a preponderance of the evidence'), aff'd w'out op., 36 F.3d 127 (D.C. Cir. 1994). For a case where a court seemingly over-deferred to a putative expert over the word of the artist, and allowed a case to go to trial on that basis, see Fletcher v. Doig, 196 F. Supp. 3d 817, 821–823 (N.D. Ill. 2016) (declining to exclude purportedly 'expert' evidence by an individual who had no familiarity with the artist's works and who had a direct financial stake in the outcome of case because his 'education and experience g[a]ve him the foundation necessary to opine on the provenance of a work of modern art based on his analysis of the piece and a comparison with the artist's other acknowledged work').
5 Thompson v. Andy Warhol Found. for the Visual Arts, Inc., 103 A.D.3d 528, 529 (N.Y. App. Div. 2013) (citing Thome v. Alexander & Louisa Calder Found., 70 A.D.3d 88, 103 (N.Y. App. Div. 2009) ('The point is that a declaration of authenticity would not resolve plaintiff's situation, because his inability to sell the sets is a function of the marketplace. If buyers will not buy works without the Foundation's listing them in its catalogue raisonné, then the problem lies in the art world's voluntary surrender of that ultimate authority to a single entity. If it is immaterial to the art world that plaintiff has proof that the sets were built to Calder's specifications, and that Calder approved of their construction, then it will be immaterial to the art world that a court has pronounced the work “authentic”.')); see also Mayor Gallery, 2019 N.Y. Slip Op 32089(U), at *9 (finding that decisions not to include works in an artist's catalogue raisonné were not 'statements that a work is inauthentic' but were merely decisions of non-inclusion in that catalogue raisonné). A recently launched, specialised arbitration and mediation tribunal based in The Hague in the Netherlands, called the Court of Arbitration for Art, promotes itself as being better able to achieve the twin goals of decisional accuracy and market legitimacy in resolving art disputes by offering specialised expert pools and international art lawyers as neutrals who are more familiar with the legal and evidentiary issues attendant to these disputes. See www.cafa.world.
6 See, e.g., Fertitta, III v. Knoedler Gallery, LLC, No. 1:2014cv02259 (JPO), 2015 WL 374968, at *8–9 (S.D.N.Y. 29 January 2015) (denying a motion to dismiss a breach of warranty claim by the seller's alleged agent who helped to sell fake art).
7 See, e.g., Overton v. Art Fin. Partners LLC, 166 F. Supp. 3d 388, 401 (S.D.N.Y. 2016) (discussing how 'red flags' or 'warning signs' in art deals may create heightened duties of diligence).
8 In New York, for example, there is a statutorily imposed presumption that an artwork's authenticity is part of the 'basis of the bargain' and, therefore, is warranted as a matter of law by a seller who is an art 'merchant' selling to a non-merchant. N.Y. Arts & Cult. Aff. Law § 13.01.
9 e.g., Fertitta, 2015 WL 374968, at *8–9.
10 e.g., id.; Greenway II, LLC v. Wildenstein & Co., No. 19 Civ. 4093 (JCM)(RWL), 2019 U.S. Dist. LEXIS 175822, at *10 (S.D.N.Y. 8 October 2019).
11 ACA Galleries, Inc. v. Kinney, 928 F. Supp. 2d 699 (S.D.N.Y. 2013), aff'd, 552 F. App'x 24 (2d Cir. 2014).
12 928 F. Supp. 2d at 700.
15 id. at 701.
18 id. at 701–704.
19 id. at 702.
20 id. at 701 (citation omitted).
21 id. at 702.
22 id. at 703 (citation omitted).
24 552 F. App'x at 25.
25 Martin Hilti Family Tr. v. Knoedler Gallery, LLC, 137 F. Supp. 3d 430 (S.D.N.Y. 2015). The author of this chapter represented the plaintiff in the case.
26 id. at 465–466.
27 id. at 461–462.
34 id. at 461.
35 id. at 461–462.
36 id. at 462.
37 id. (citing De Sole v. Knoedler Gallery, LLC, 974 F. Supp. 2d 274, 298 (S.D.N.Y. 2013)).
38 See id. at 446 ('Purchasers of Rosales Paintings were never told that Knoedler had repeatedly changed its account of the provenance of the Rosales Paintings.').
39 2019 U.S. Dist. LEXIS 175822.
40 id. at *4.
41 id. at *10.
46 id. at *12.
47 id. at *12–13 (citation omitted).
48 id. at *11.
49 id. at *10–12.
50 Meyer v. Seidel, No. 20-CV-3536 (VSB), 2021 U.S. Dist. LEXIS 153919, at *2–3 (S.D.N.Y. 16 August 2021).
51 id. at *2–3.
54 id. at *20.
55 id. at *20–21.
57 id. at *23.
59 id. at *26.