Art Fraud and How to Avoid It

Notice: The following is not legal advice, and cannot be applied to any particular situation. It is meant only as general information for the purpose of discussion. If you have a particular legal issue, you should retain a qualified, licensed lawyer for assistance.

To most people, art fraud is a rare form of crime committed by charming rogues. One imagines the forger as a handsome devil, driving expensive sports cars across Europe, wooing beautiful women, and relieving ultra-rich fools of a few million of their undeserved inherited wealth. Yes, many suppose that art fraud is a crime, but that as crimes go it’s almost admirable. Aren’t these the Robin Hoods of the modern age? Aren’t they merely exposing the absurdity of the wealthy’s preoccupations? The truth, however, is not pretty. In reality, art fraud is often dark and disturbing. It is certainly not something to be admired.


According to art fraud expert Bernard Ewell in his excellent book Artful Dodgers, “art fraud is so rife that, since 1987 when an FBI agent told me that it was the third-largest crime in dollar value after illegal drugs and firearms, I have been able to annually confirm that his statement is still true”. Similarly, UK Independent art writer Michael Glover states what many experts believe when he writes that “at least 20%” of the paintings held by our major museums are probably fakes. The Independent warns that “According to European police experts, as much as half the art in circulation on the international market could be forged”. These fake artworks have been uncovered in many of the most prestigious museums in the world, including the Art Institute of Chicago, the Tate Gallery, the British Museum and the Burnley Museum and Art Gallery, among others. In one example, Art News reported that in the world of Russian avant-garde art, fakes now outnumber authentic works. Forgeries have been made of countless artists’ works, including Dali, Pollock, Rothko, Modigliani, Titian, Rembrandt, Matisse, Vermeer and Chagall. Ewell estimates that fake Dali works alone number over 100,000.


Art fraud takes many different forms. If we consider only paintings, there are wholesale forgeries – works painted by someone other than the artist to whom the work is attributed. These forgeries may be copies of existing works by the artist, composites made up of elements from such existing works, or they may be unique works painted “in the style of” the artist, but falsely represented to have been made by the artist. There also may be fakes – works that are authentic, but which are misrepresented in some way, such as by attributing a work to a more famous artist, or by fabricating prestigious provenance. Art fraud may also involve works that are stolen. Sometimes works that have been restored or modified are fraudulently represented to be untouched originals. Finally, other works which are authentic may be sold in deceptive ways, such as in a “limited” series, whereby a seller falsely implies the rarity of a work when, in fact, it is one of many.


Regarding the myth of the charming and, ultimately good, rogue art forger, it is just that – a myth. As anyone with significant experience studying or investigating crime can tell you, even where a crime is of an apparently harmless variety, it is often connected to more nefarious wrongdoing, or at least to deeply disturbed personalities. The stories of infamous art fraudsters John Drewe, Mark Landis, and the Greenhalgh family are stories which raise questions about psychological problems, empathy deficits, or pathological needs for revenge against the art establishment. In addition, the motivations of art fraudsters vary widely, some being motivated for money and seeking to remain hidden, and others motivated by a desire for fame, who then actively seek to be exposed.


Even if an art fraud is isolated, and not clearly connected to other forms of lawlessness, it is still built on lies and on the theft of an artist’s vision and legacy – it is a destruction of their self. It is also a destruction of what art fraud scholar Noah Charney called “true history.” Art fraud is built on deception, lies and on a contempt for its victims. And most of those victims are not the ultra-rich (though they are often targeted) – they are more commonly middle-class people who have turned to art as an investment, and who often feel passionately about the art they buy as an expensive but worthwhile place to put their hard-earned money, and as a direct connection to the creative hand of the artist whose name is signed to the work. But when the fraud is revealed, these people are humiliated, and they lose their precious savings.


In order to avoid being the victim of the dishonesty and greed of art fraudsters, here are a few of the things you can do:


1.    Don’t believe everything art sellers tell you. Demand that the seller provide you with full provenance documentation and a detailed chain-of-title list of previous owners, dates of transactions and the sales receipts, correspondence, etc. to back up their claims of authenticity. When they provide the necessary information and documents, have that provenance investigated by independent experts who, preferably, are not in the business of selling similar works. If the artist is alive, ask to meet with them to discuss the work. Do not assume that the dealer, family members of a deceased artist, or people who claim to have known the artist or claim to be experts actually are. Most importantly, make sure you are not suffering from confirmation bias, which is where you filter out information that indicates something you don’t want to be true. In other words, love and feel passionately about the art, but approach the determination of authenticity with cold and scientific impartiality. Finally, if you do buy an artwork, insist on a written guarantee of authenticity from the seller.

2.    If you are buying art for investment purposes, understand that, generally speaking, that is a very bad idea. The vast majority of what is sold as art is decorative art, and it will likely never have any significant value. Of what is known as fine art, there is opportunity for investment returns, but they are tough to predict except with all but a small number of purchases, and mostly among works of significant cost. And the commonly-held myths that an artist’s works become more valuable when she dies, or that limited-edition equals value, are rarely true. In order to make money investing in art you need to be either lucky, very knowledgeable, or both, just like with penny stocks and casinos.

3.    If possible, buy art from living Canadian artists. Not only is this a great way to support art in this country, and to be able to connect directly with the artist and discuss the work, but if you are displaying the artwork in your business premises it may entitle you to some nice tax breaks.

4.    Buy art because you love it. Art is supposed to be an experience and should have some special significance for you on a deeply personal level. When you buy an artwork, it should be because you feel an intense connection to it and want it in your life.

5.    If you already own art and have concerns that it is fake, have it properly investigated. If it’s found to be authentic, enjoy it. If it turns out to be fake, then you may decide to destroy it, paint “fake” on the back and keep it, or donate it to an organization that catalogues forgeries. You may also be able to sue the seller and perhaps even file a criminal complaint. You can be part of the solution to art forgery and a part of art history.

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SOMMER LAW provides advice and Canadian litigation services in relation to art and art fraud. Among other things, we can advise you of your various legal options in the event that you are a purchaser of fraudulent art, and can give you counsel if you are considering buying art and wish to determine the risk of that purchase in advance.


 

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*Sommer Law is licensed to provide legal advice and services with respect to Ontario law only. We do not provide legal advice or representation regarding Quebec civil law matters.