UK Law and Practice Contributed by: Margherita Barbagallo, Sanskriti Mohta and Nilojana Nirmalan, Dragon Argent
4.2 Art Authentication In short, neither a foundation, artist’s estate, author of a catalogue raisonné nor any person exercising moral rights on behalf of the artist can be compelled to include a specific artwork in a catalogue raisonné or to issue a favourable opinion as to its authenticity. Such decisions are matters of expert judgement and scholarly opinion, not legal obligations that can be enforced by a court. Those who provide opinions on authenticity – whether scholars, foundations or authentication committees – will almost always frame their views as carefully qualified opinions rather than assertions of absolute authority. This is done precisely to avoid giving rise to enforceable duties that could expose them to liability at the suit of an artwork’s owner. Their role is to apply their expertise, not to guarantee outcomes. For this reason, it is strongly advisable for buyers to obtain a certificate of authenticity at the time of pur - chase if one is available, and to conduct thorough research into the artwork’s provenance. A well-doc - umented ownership history, tracing the work back through reputable collections and exhibitions, can provide valuable evidence of authenticity that does not depend on the co-operation of third parties after the fact. 4.3 Legal Remedies Following a Declaration of Inauthenticity The civil remedies available will depend on the specific facts of the case, including the terms of the contract, the nature of any statements made at the time of sale, and the time that has elapsed since the purchase. The first place to look is the contract of sale itself. Does it contain an express warranty as to authentic - ity, an authenticity guarantee, or any agreed remedial mechanism if the work is later found to be inauthen - tic? Some auction houses and dealers offer limited authenticity guarantees, often restricted to a fixed period such as five years. The contract may also distinguish between deliberate forgeries and honest misattributions, with different remedies or exclusions applying to each. The party alleging inauthenticity will bear the burden of proving it.
death. Instead, authenticity is established through a combination of scholarly resources, expert opinion and, increasingly, scientific analysis. The process is ultimately one of evidence and persuasion rather than formal designation. The most authoritative resource is typically a cata- logue raisonné , a comprehensive, annotated index systematically logging all works attributed to an art - ist. These are usually compiled by scholars, art his - torians or experts who may have worked closely with the artist during their lifetime. Inclusion in a catalogue raisonné is widely regarded in the art market as strong evidence of authenticity. Another important port of call is the artist’s estate or foundation. These bodies are often run by family members, beneficiaries or professionals such as gal - lerists, and they may hold certain legal rights in the artist’s work, such as copyright. While they do not possess a legal power to authenticate, their views carry significant weight in the market, and they may maintain their own archives or records that can assist in verifying a work. In the absence of a catalogue raisonné or an active estate, the most reliable approach is to consult an acclaimed scholar or recognised authority on the art - ist. The question to ask is: who is regarded as the leading expert in both market and academic circles for that artist? Such experts can be commissioned to prepare a report setting out their findings on authen - ticity, though their opinion will typically be carefully caveated as a matter of expert judgement rather than absolute fact. Finally, forensic techniques such as x-ray analysis and pigment testing can provide valuable scientific evidence to support or challenge authenticity. Artifi - cial intelligence (AI) is an emerging tool in this field, with AI models being trained to distinguish forgeries from genuine works. At present, the technology is still developing and is best used as a supplemental tool alongside traditional methods, but it is an area worth watching closely.
176 CHAMBERS.COM
Powered by FlippingBook