“Yes, I took acid—but that is NOT my painting,” said Peter Doig during a 2016 trial in which the artist tried to “prove” a painting was not by him in order to (successfully) avoid damages for interfering with its sale.
The lawsuit, brought by the work’s owner, Robert Fletcher, and the Chicago-based Bartlow Gallery, took the art world by surprise, with many considering it to be a surreal situation.
Fast forward to last November and the authentication of an unfinished oil on canvas by the late Lucian Freud—despite the artist’s previous rejection of the work—suggests that the authority of an artist in attributing their own work can be undermined.
According to a report by the Guardian, the Swiss art collector who bought the Freud work, which is known as Standing Male Nude, in 1997 was contacted by the artist, who said if he refused to sell the work back to him, he would deny painting it. Now, a team of experts—including the private investigator Thierry Navarro, the conservator Nicholas Eastaugh and the art historian Hector Obalk—have argued that sufficient evidence exists to prove the work is in fact by Freud, despite his denial. Where that leaves the work and its owner in terms of its market and art-historical value remains to be seen.
In the recent dispute over the Freud work, evidence suggested the artist could have been “embarrassed” at its being a self-portrait
A glance at the legal situation of disputed works suggests that artists do, in fact, have a decent say when it comes to attribution. Under the moral rights system applicable in most countries, an artist has the “right to attribution”, which is linked to the right to object to derogatory treatment of their work and the right to not have copies exhibited or broadcast without their consent.
“On the flip side, you also have the right to not have a work falsely attributed to you,” says Iain Connor of the law firm Pinsent Masons. He adds that such rights end 20 years after the artist’s death, with subsequent estates or legal representatives often left to oversee matters.
Nevertheless, even when the artist is still alive, judges are known to examine the testimony of an artist as they would any other piece of evidence. “The artist’s statement would weigh quite heavily on the judge’s mind but if they do not turn up to present and argue their account, other evidence could well become more persuasive,” Connor says.
This was seemingly the case in 1995, when a New York Supreme Court ruled in favour of the seller of a work, despite its authenticity having been disputed by the artist Balthasar Klossowski de Rola (Balthus). Despite a previous ruling in the buyer’s favour and its finding that “the artist’s signature and declaration that the drawing is not authentic is the final word on the validity of the work”, the latter judge felt that testimonies by experts gave the work “a fair chance to lay a claim to full legitimacy [authenticity]”. The judge emphasised the fact that the artist’s testimony was never deposed nor cross-examined.
The motive behind an artist wanting to denounce an original work is also a consideration. In the recent dispute over the Freud work, evidence suggested the artist could have been “embarrassed” at its being a self-portrait.
Gerhard Richter is claimed to have retrospectively rejected works from his early West German period in a bid to edit his oeuvre, while other artists are known to have experimented with attribution as part of their practice—including Picasso, who famously said “I often paint fakes”, and Salvador Dali, who would sign blank sheets of paper, leaving his market vulnerable to forgeries.
Salvador Dali would sign blank sheets of paper, leaving his market vulnerable to forgeries
And in one particularly unusual case, the infamous 20th-century forger Han Van Meegeren ended up painting a work in court to convince the jury that he in fact did paint a fake Vermeer (rather than being a Nazi conspirator trading in original paintings).
Let the market decide
“To some extent, in such cases you are pitching the moral rights of an artist against market perception. Every case is nuanced and has to be considered on the merits of the art historical evidence,” says Philip Mould, the art dealer and TV presenter, who was involved in the successful authentication of another work denied by Freud in a 2016 episode of the BBC TV show Fake or Fortune. The work in question, a portrait of a man in a cravat, has since been accepted by the artist’s estate and added to his catalogue raisonné.
So, to what extent does the market listen to the artist? “The market recognises something called the ‘three-legged stool of authentication’,” says William Charron of the law firm Pryor Cashman. “Connoisseurship is one leg, provenance is another and forensic science is the third. The courts generally prefer science and provenance research as evidence because they are more verifiable and concrete. Connoisseurship is more subjective and difficult for courts to weigh; but, for the market, it remains the most valuable leg.”
If the artist is still living they may appeal to the market directly, as was the case with Banksy who, in 2008, publicly refused to authenticate five works being sold in London by Lyon & Turnbull auction house, and ordered his Pest Control company to issue a statement urging buyers to boycott the sale. It worked—none of the five works sold.
Artists and the market are also experimenting with new methods and technologies to safeguard their output. “There is an increasing shift in how artists feel and act over their moral rights and legacy,” says Mark Waugh, the director of business development at DACS, who works on the “Bronzechain” project, which creates a digital ledger of works. “Artists are seeing more and more how other people can abuse their rights and how online—with assets like NFTs—the internet can facilitate mass exploitation.”
With digital registries (such as Artory) attracting attention and inventories becoming more sophisticated, technology may well help the artist’s voice become stronger in future.