Legalized Art Fraud and Droit Morale
by
Dr. John Daab, for Fine Art Registry®
Introduction
If it isn't bad enough that fine art buyers and collectors are surrounded by a system of poor oversight in the presentation of authenticity of artworks for sale, various laws legalize the production and publication of fakes. Furthermore, museums are involved in not only selling copies in their shops, but exhibiting fakes as genuine. The Cummer Museum in Florida and the Milwakee Museum have conducted exhibitions with Degas bronzes cast and signed after the artist died. The Rodin Museum in France is also involved in casting the "dead guy's" work. More importantly publishing work after the death of an artist is not only confined to sculptures. Art for sale is often presented as from the estate of a given artist. At first hearing this phrase one thinks that such pieces were mysteriously found hidden in the walls or found under the floorboards of the artist's home. "From the estate" however may mean that moral right laws allow the heirs or assignees of a dead artist control over his oeuvre. For example, in addition to being a renowned writer, Doctor Suess was also an artist and a sculptor. His works are for sale from his estate meaning that copyright laws allow the estate to sell reproductions as if they were from his hand. Keep in mind that such works are clearly signed "DR. SUESS" with no indication on the canvas, or frame that the work is a copy. How is it possible that reproductions are being sold legally?
Droit Morale and the Protecting of An Artist's Work
Faced with a history of copying and creating forgeries of artist's works various countries began developing standards and laws protecting the rights of artists and their works. In Europe such rights, commonly known as Droit Morale, accorded to an artist or his/her assignee or heirs the right to attribution, publication, work withdrawal or modification and the right to prevent alteration. The Droit Morale laws are generally applicable to European Union, South America, Asia, and the United States. The laws are in force for 70 years, and pass on to the assignees or heirs when the artist passes away. These laws are significant for art buyers and collectors because they allow estates and assignees of the dead artist to publish the artist’s works from the grave. In point, Droit Morale provides a particular resonance for the "dead guy did it".
Droit Morale and Attribution
Costco, a discount supply house in the United States, sold a Picasso painting in 2004 after carefully investigating its authenticity. Costco, has been selling art over the last 10 years beginning with the works of Vincent Price. Large discount suppliers like Costco also sell gems in the $100,000 range, and exotic autos. Low cost does not mean low quality or low price. As it turns out Picasso's daughter Maya Picasso, utilizing her right of attribution under Droit Morale, claimed that the piece was a forgery. The claim did not develop from any analysis but was based purely on her word. In point, an heir or assignee may not only publish or modify works, they may attribute them as well. The cost to the buyer in this case was $32,000. Costco has since ceased selling art.
Art Fraud
In the United States art fraud falls under various general codes, and statutes outlining what actions constitute an act of fraud. Both federal and state laws call for an act to be fraudulent if it is misrepresented, if the person misrepresenting acts intentionally, and if the person victimized by the fraud suffers a monetary loss.
Legalized Art Fraud
The right of an assignee or heir to publish a work of a dead artist is quite simply an act of legalized art fraud. The artist is dead the work is not from his hand, he did not sign it, it is not authentic, and it is being sold to make money or secure a benefit. For example, selling signed Dr. Suess works misrepresents the work since Suess did not sign it, the heirs signed it intentionally and not accidentally, and the person buying it as genuine suffers a loss because it is a reproduction. It satisfies all the criteria of fraud and it is a fraud. Yet it is legal, and may continue for 70 years unchallenged and unimpeded. More importantly, after 70 years the right to publish the artist's works moves into the public's hands and the obligation to note attribution for such copying is not always clear. Guy Hain decided that by not attributing 6,000 Rodin forgeries to Rodin he could escape the trap of attribution. He attributed the works to Rodin's foundry but as it turns out the works were from another foundry thereby falling under misrepresentation and fraud.
Droit Morale and Authentication
The driving force of art authentication is scholarship. Supported by the three columns of science, provenance, and connoisseurship, scholarship serves as the platform for appropriate authentication. The process is not perfect but seeks consensus in approach, and conclusions. Attribution via Droit Morale is non-consensual, idiosyncratic,
and blatantly autocratic. Merely because an heir or assignee has the right to attribute does not in any way, shape or form legitimize the attribution. Common legal procedure compels the individual involved in the chain of custody attribution to remove him/herself from the process lest it become polluted. Being an heir or being an assignee does not confer expertness. Contiguity does not magically impart wisdom or special knowledge.
The moral right of an artist to pass attribution claims to heirs or assignees is an illogical approach to attribution processing.
Dealing with Authenticity under the Droit Morale
The pivotal point in dealing with works under possible Droit Morale is to establish if the artist is deceased. If he or she is not, the problems of Droit Morale do not operate because the artist is producing and hence the work is authentic. If the artist is deceased the following steps are recommended:
- Determine who are the rightful heirs and assignees, and do a background check on them. If they are notorious publishers of posthumous works, consider walking away.
- If the work was produced prior to death, ask how it was attributed. Non- scholarly attributions are unacceptable.
- If a Certificate of Authenticity is presented by assignee or heir and signed by either one, consider that the COA is worthless.
- If the work is signed after the artist is deceased it is a legal fraud.
- Pay particular attention to the wording of the documents relating to the work. Be suspicious of equivocating language.
- Although famous works are discovered after the death of the artist, such discoveries usually turn out to be of questionable authenticity. Be wary of the newly discovered work from the heirs or assignees especially when there is a Home Depot imprint on the back of the canvas.
— by Dr. John Daab
| July 1, 2008 |
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