BY BAYLEE SHIENBAUM — On March 6, 2015, the United States District Court for the Southern District of New York dismissed the most recent case in a stream of high profile disputes over authentication of contemporary art. In Bilinski v. Keith Haring Found., Inc., Elizabeth Bilinski and nineteen other art collectors sued the Keith Haring Foundation (“Foundation”) and its Director after the paintings they owned were deemed not to be the work of Keith Haring. Without authentication documents from the Haring Foundation, auction houses would not sell the paintings, rejecting them as “‘not authentic.'” When the collectors mounted their own exhibition, the Foundation demanded that they stop marketing the paintings as Haring’s. The unauthenticated work is, thus, essentially worthless. Because of this case and litigation like it, the art industry’s authentication practices likely stand to experience fundamental changes in light of increasing costs of litigation of cases like Bilinski.
Authentication is a vital component, because a work of art’s authenticity is a crucial determinant of its marketability and general value. In cases dealing with authentication, collectors generally bring two types of suits: (1) a suit in response to the denial of a work’s authenticity; or (2) a suit regarding authenticated works that are later found to be fake. Authenticity can be shown through provenance, inclusion in an artist’s catalogue raisonné, or certification from a “qualified authority.” Scholars, dealers, and other experts in the work and techniques of a particular artist are generally considered to be authorities, however, they are often unable to come to a consensus about the authenticity of a particular art. As a result, an artist’s foundation plays the role of gatekeeper and ultimate authority as the designated representatives of that artist’s legacy. The Haring case demonstrated that the determination of authenticity by an artist’s foundation can destroy any potential value or ability to sell a work of art. This confers the foundations with significant power and significant risk, particularly as the prices of art, and therefore the stakes, increase.
Ironically, the most recent suit against the Haring Foundation was filed several years after the Foundation disbanded its authentication committee, in 2012. Regarding their authentication practices, the Haring Foundation stated that “the Foundation’s charitable mission would be better served if the resources presently required for the operation of the authentication committee were redirected to purposes more directly related to the charitable goals.” In recent years, the Andy Warhol Foundation for the Visual Arts, the Roy Lichtenstein Foundation, the Noguchi Museum, and the Estate of Jean-Michel Basquiat have also ceased their authentication practices because of the increasing costs of litigation in authentication disputes. The Andy Warhol Foundation’s decision to cease authentication efforts came after being forced to settle a lawsuit, which had cost them over $7 million in legal fees, due to lack of funds to continue litigation.
As Patricia Cohen pointed out in her 2012 article, In Art, Freedom of Expression Doesn’t Extend to ‘Is It Real?’, the chilling effect of litigation has also extended to scholars who have resorted to censoring themselves to avoid such risks. Without these authorities to authenticate works of art, many potentially significant works remain in limbo. Members of the New York State Assembly recognized that “[a]uthoritative authentication is essential to a well-functioning art market.” On March 3, 2014, an amendment to the New York Arts and Cultural Affairs Law was proposed, which would protect “art authenticators” from frivolous or malicious suits by angry art owners and require more particular pleadings in such cases. Unfortunately, the bill is still making its way through the legislative process, so it is yet to be seen if the amendment will be successful. But to a significant extent, the damage has been done. Artists’ foundations will not likely risk entering the ring again, in the hopes that additional protections will change the landscape of authentication disputes. And art owners, who might have on occasion been left unhappy with the results of the authentication committees, are now left with works of art that will require a leap of faith by any purchaser because authentication is not an option.