USA Law and Practice Contributed by: Jana Slavina Farmer, Adam Buchwalter and Dara Elpren, Wilson Elser Moskowitz Edelman & Dicker LLP
• have access to the artist’s records and archives; and • rely on personal knowledge, which can be invalu - able in determining the authenticity of a piece (sometimes, the artist may have established a foundation or authentication board during their lifetime specifically to handle such matters after their death). Alternatively, recognised experts (connoisseurs who have extensively studied the artist’s oeuvre) may be called upon to provide opinions on authenticity. These experts may publish catalogues raisonné , which are comprehensive, scholarly listings of known works by an artist; inclusion in such a catalogue is often con - sidered a strong indicator of authenticity. Art market- recognised practices would dictate which experts’ opinions may carry more weight in the art market. Notably, this is different from the legal frameworks for determining the admissibility of expert testimony in court. The case often cited in discussions about art authen - tication and the weight of expert opinions in court is Greenberg Gallery, Inc. v Bauman (SDNN 1993). This case involved a mobile purportedly by Alexander Cal - der, a renowned artist known for his mobiles. Green - berg Gallery and others purchased a mobile they believed to be an authentic Calder. Later, disputes over the work’s authenticity arose. The plaintiffs sued the seller for rescission and damages, claiming the work was not authentic. During the trial, both sides presented expert witnesses. The court ultimately admitted and credited the opinion of the expert who was not recognised by the art market as the leading authority on Calder. The court found this expert’s testi - mony credible and persuasive based on methodology, analysis and expertise. The court did not defer solely to the market-recognised expert, but instead evalu - ated the substance and reliability of each expert’s opinion. Because legal frameworks may differ from art market conventions, art market participants often prefer to resolve their dispute outside of court (eg, in private arbitration or mediation). The process of authentication is not without con - troversy. Additionally, the subjective nature of art authentication that relies on expert opinion means
that disagreements are common. Owners of artworks may challenge negative opinions, and high-profile legal battles have emerged involving authentication boards, some of which have disbanded due to the risk of costly litigation from disgruntled owners of works deemed inauthentic. The stakes are high, as authenti - cation can dramatically affect the value of an artwork. 4.2 Art Authentication Whether Inclusion in a Catalogue Raisonné May Be Compelled US courts have recognised that the creation and maintenance of a catalogue raisonné , as well as the issuance of opinions on authenticity, are matters of expert opinion and scholarly discretion. Courts are reluctant to compel experts or foundations to alter their opinions or to include works in catalogues rai- sonné , as doing so would infringe on First Amendment rights and academic freedom. In Thome v Alexander & Louisa Calder Foundation , (1st Department 2009), a leading New York case on this issue, the court recognised that the creation of a catalogue raisonné is a voluntary act, and neither its issuance nor its contents are controlled by any government regulatory agency. As a result, the court declined to compel the artwork’s inclusion in the foun - dation’s catalogue raisonné. 4.3 Legal Remedies Following a Declaration of Inauthenticity When a purchaser discovers that an artwork they bought is later declared inauthentic, several civil rem - edies may be available, depending on the circum - stances of the sale, the representations made, and the applicable law. Common remedies are rescission of the sale, monetary damages, or restitution. Rescission may be available if the sale was based on a material misrepresentation or mistake regarding authenticity. Alternatively, the buyer may recover damages (typical - ly, the difference between the price paid and the actual value of the inauthentic work, as well as any conse - quential damages that can be proven) under various legal theories including breach of contract, fraud or misrepresentation, and other theories. Restitution is a remedy designed to prevent unjust enrichment. If the seller received payment for an inauthentic artwork, the
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