Art and Law: Forgery - prevention vs cure

What exactly is art forgery? How can you prevent to buy a forged work of art? And what can you do when it turns out you have unexpectedly bought a fake artwork?

Rumour has it that 20% of the fine art traded in the Netherlands is false. Also on an international level, there are often scandals regarding forged modern artists, such as Pablo Picasso, Jackson Pollock and Mark Rothko. The high prices charged for their works and the seemingly simple techniques they applied appeal to forgers. But what is forged art exactly? How can you prevent to buy forged art? And what can you do if it turns out you have bought a forgery?

What is forgery?

A work of art is referred to as a forgery if it is attributed to another person than the creator of the work of art. This can be done in various ways, such as:

• The work bears a false signature. This could include a work of art which was specifically made for this purpose or an existing work of art by another artist which is increased in value by the signature.
• The provenance of an (unsigned) work of art is false, like a certificate of authenticity, purchase receipts, stickers of former owners or exhibitions.
• The seller gives verbally a false name of the artist.

To prevent that a work is unmasked as a fake, mostly a combination of the above methods will be applied.

Not fake but not (completely) authentic either

There is not always a clear boundary between false and authentic. In the following examples it is often difficult to determine whether it concerns a forgery:

• A work of art was painted in a workshop by a student but signed by the master and thus recognized as an authentic work. This was common practice among old masters such as Rubens for instance, but it was also how Andy Warhol worked in The Factory.
• A painting was later retouched or largely painted over. So then the question will be how much of the work of Jan van Goyen should be visible to be considered a real Van Goyen.
• A work of art was not made by the artist but well by using his moulds. This could be casts from an original mould by Rodin made after his death, or a new print made with an old etching plate.
• The surrealist artist Salvador Dalí sold a great number of signed blank pieces of paper. The signature is authentic, the rest of the work isn’t.

How to prevent buying fake art?

Before making a purchase, perform a thorough investigation and lay down explicitly in the purchase contract what you intend to buy! If present, study the General Terms & Conditions, for instance of the auction house where you make the purchase. This way, you not only reduce the possibility of buying a forgery but you increase the chance of termination or annulment of the purchase contract in the unwished-for event the work of art turns out to be a forgery.
Try to gain as much information about the provenance of the work of art as possible. Is the work of art included in oeuvre catalogues of the artist? Is it known from exhibitions? Do experts authenticate it? If the word of the seller is the only source for the artist, the buyer has sufficient reason to doubt the authenticity.

Investigate the regular prices of works by the artist. Is the price right in view of the scope and quality of the work of art? Low price is often an indication that there is doubt as to the authenticity of the work and that means you should doubt it, too!

What to do if a work of art turns out to be a forgery?

Unfortunately, buying a forgery cannot be entirely ruled out. Even artists sometimes don’t recognize forgeries of their own work, as, for instance, the Dutch abstract artist Karel Appel who issued certificates of authenticity for pieces made by Geert Jan Jansen. So what can you do if you find out your purchase is a forgery?

You can call to account the seller and dissolve the contract, or annul it by pleading error. In this case you must be able to prove that the work of art is forged and that you have fulfilled your duty of investigation. Whether the purchase can be dissolved or annulled depends on what has been included in the General Terms & Conditions of the purchase agreement, the level of expertise of the parties, considering all the circumstances of the case. Not every seller will agree to the annulment or dissolution of the sales contract. Russell Advocaten will gladly assist you to establish a sound and convincing file.

More information

Would you like to learn more about forged art? Do you have any questions about the annulment or dissolution of a contract? Or do you have any other questions regarding art and law? Please contact Russell Advocaten: