by Milko den Leeuw and Jane Sharp
Currently, in the year 2013, we are witnessing remarkable changes in the art world. On the academic level we see excellent research on authentication matters setting new standards. At the same time we see an art market in despair as it continues to expand into a corporate art industry. This transition period is mainly the result of a clash between the conservative opinion-based art industry and the latest offspring of the academic fields of forensic methodology and protocols. The confrontation between the old and new school has been magnified in several lawsuits in Europe and America. This is a moment of extraordinary challenge in the history of authentication research.
However, what we mainly learn from studying recent lawsuits is that there is a trend toward transforming old-school habits into these ‘new’ methods. These new methods now are applied in the law field without any critical reflection, and are not drawn into academic discussions. Judges, prosecutors, attorneys and experts currently working on specific cases of authenticity are about to fall into the same traps that have hobbled the art market’s opinion industry for decades. Authentication research is under increasing pressure and renewed scrutiny mainly because of the lack of discussion about protocol and the consequences of judicial involvement. The following case, derived directly from authentication research as a core practice, exemplifies this dilemma. It speaks to the need for renewed protocols within art history and forensic methodology as an organized and constant practice.
One of the fields most polluted with forgeries is without doubt that of the Russian avant-garde. During the late 1970s and early ’80s as Russian politics slowly moved toward a more open climate (culminating in Gorbachev’s glasnost and perestroika), the Western art world thrilled to the potential for increased access to the limited supply of Russian avant-garde art. The quest for unknown masterpieces was launched. In the West the demand for original works was so enormous that art spotters and smugglers couldn’t keep pace with market needs. Western art dealers first approached Russian museum staff workers to assist in their quest. This was a logical step because museum staff workers knew private (and secret) collections. As soon as the word spread in the Russian museum community everyone wanted to have a piece of the pie. The museum staff members who knew most about the quality of the private collections were painting conservators (restorers). And in the mid 1980s a certain painting conservator X possessed the ideal combination of skills and knowledge. He was not only acquainted with many private collections in Russia but also very knowledgeable about the original works of the Russian avant-garde housed in the museum collection with which he worked. Even today not many people know that in the 1980s in the most important Russian museums the material analysis of paintings was already at a high level- in some cases at a higher level than in the Western art world. Because this particular painting conservator had free access to research files on the most highly valued avant-garde painters, Malevich, Goncharova, Larionov, Popova, Exter etc. it was relatively easy for him to start supplying the western demand with ‘newly created original masterpieces, supposedly coming from (fictive) previously unknown private collections. This painting conservator’s training in old master techniques, his knowledge of painting techniques and materials appropriate to the ‘right’ period made him an ideal forger. In close collaboration with Western art dealers and Russians living in Europe his forgeries were smuggled out of the USSR. Fictive provenances were easily produced, as in the West people knew that the archives in Russia had been manipulated by the regime for decades (which is only partly true).
The doorway was wide open and the Western art market was literally flooded with fakes. First Germany, France and Switzerland, at a later stage the Netherlands, Great Britain and the United States of America were awash in “newly discovered” avant-garde works of art. Around the mid 1990s a critical self-awareness arose within some auction houses, as critics, journalists, and a few art historians realized that the trickle of fakes threatened to overwhelm the field. Entirely new oeuvres were created. Art dealers sought Western scientists to perform ‘material checks’ to suppress their looming doubts. Some art dealers were perfectly confident that by doing so they would find confirmation of their interests (to positively identify works of art with their purported creator). They knew that the same material characteristics and painterly choices made by authentic avant-garde painters were also used by forger X. To bring the fraud chain to a higher level of perfection the art dealers and the forger (who was also became their spotter) mixed genuine works with fakes in the same sale exhibitions. From East to West ‘art experts’ dressed up the new findings with written opinions (for huge amounts of money) and the ‘innocent’ art world rapidly degenerated into a corrupt art market, making it almost impossible to distinguish truly reliable works from counterfeit ones for decades.
Predictably, greed for more brought cracks in the wall and the fakes became less convincing over time as tricks were copied over and over by less qualified forgers. Although this started decades ago, even now a great deal of counterfeit art (ranging from extremely good to appallingly bad) is in circulation. However, forged paintings by conservator X, dating from the mid ’80’s to late ’90’s, remain outstanding in quality. It took a team of researchers well over eight years (since 2005) to understand how the chain of producing, smuggling and selling was managed and more importantly how to analyse the materials and working methods of conservator X. Straightforward pigment and binder measurements such as those used in contemporary forensic research is simply not sufficient. These particular fakes easily passed their material controls.
In order to identify and recognise forgeries by X on the basis of objective, repeatable and non-destructive research a whole new method had to be designed. During a period of eight years genuine paintings by Malevich, Goncharova and Larionov were used to develop new research on counterfeit paintings. The objective was to develop a research methodology and expertise beyond the reach of any forger, whatever their origin, East or West. Only the combination of art historical, painting technical and material research has produced successful results. Leaving an angle out of this triangle would ensure that forgeries could pass as genuine or rediscovered originals; the integrity of the research method however, ensures that they may be identified as fake.
The most recent lawsuits in the U.S.A, England, and Germany reveal the same routing of fraud illustrated above with the Russian avant-garde: forgers familiar with painting techniques and appropriate materials, corrupt art dealers and experts, censored archives from art dealers, and, especially the absence of a scholarly protocol in the field of material research have created a “perfect storm.” In addition, those with limited knowledge of painting techniques, and collectors eager for masterpieces, end up acquiring paintings based on hearsay recommendations instead on qualified advice.
In all the recent lawsuits only one exception to this negative situation was the 20-year-old forgery lawsuit concerning the Dutch group ‘Groninger Ploeg’ painters. In an appeal the Dutch Court confirmed the disputed paintings as fakes. The forger did not plead guilty for making or selling these fake paintings. For the very first time in art history a painting forger did not confess to the charges before a verdict of a court was reached. A rigorous analytical protocol based on objective technical investigation in combination with the painting technique of original paintings and art historical research was the foundation of this unique event in jurisprudence.
It goes without saying that no one stands above the law and any person violating the law could be taken to court. But our main question is: do paintings belong at trial? The judicial context presents new and unexpected consequences for the perpetrators, collectors, and the works of art under scrutiny. We are fully aware that law firms rely on the expertise of legal experts. But the protocol described above takes several years of thorough research by a highly qualified team of art authentication experts with diverse skills to come up with reliable proof. There is a distinct need for qualified experts that comply with the highest standards in research practice and ethical behaviour in professional relations. What becomes clear after looking at all these recent lawsuits is that a breakthrough can only be reached when a forger pleads guilty or when suspected art spotters or dealers acknowledge the charges of tax fraud or money laundering pressed against them (as we have seen recently in the Knoedler lawsuit). The fact remains: distinguishing forgeries from genuine paintings cannot be answered by a court of law on the basis of the jurisprudence alone. Thus, only the Dutch lawsuit emerges as an exception to that rule. The court is not the right domain for reliable, ethical, authentication research of paintings. Indeed, what can a judge, prosecutor, attorney or jury do in a lawsuit that runs for a limited period of time, divided between old-school experts stating opinions and new material scientists presenting findings that are not set out in a rigorous, systematic protocol or historical context. How can jurisprudence be produced on the basis of this complex reality? The current state of art authentication through jurisprudence potentially leads to enormous risks where fakes pass as genuine and genuine works are wrongly identified as fakes. Most courts try to dissociate themselves from these kinds of pitfalls. They know that misjudgements are easily made and will take years to correct. Meanwhile, criminal malpractice continues unhindered.
What may be done for deceived collectors? In most cases they want their money to be refunded. In the past, the old-fashioned art dealer with high ethical standards would reimburse a collector should any doubt have arisen. But times have changed. Due diligence at so-called fine old houses no longer seems an assumption of professional practice. It is clear that the art world has transformed from local shop fronts into an international art market and that new boundaries and rules need to be set.
Should paintings remain outside the law? Of course paintings cannot go to trial independent of agency; only persons associated with them can.
Answers to many of these questions lie in the hands of art community and law field; we have a unique opportunity to redefine our stakes in them at the upcoming AiA Congress in May 2014 in The Hague.