USA Law and Practice Contributed by: Jana Slavina Farmer, Adam Buchwalter and Dara Elpren, Wilson Elser Moskowitz Edelman & Dicker LLP
Tariffs Since 2025, the evolving US tariff policy has intro - duced additional complexity to cross-border art trans - actions. Beginning in 2025, the Trump administration imposed sweeping tariffs under the International Emergency Economic Powers Act (IEEPA). While origi - nal works of art were generally exempt under IEEPA’s “informational materials” exemption, collectibles were subject to duties ranging from 10–50% depending on the country of origin. On 20 February 2026, the US Supreme Court struck down the IEEPA-based tariffs, holding that IEEPA does not authorise the president to impose tariffs. Tariffs imposed under other statutory authorities, such as Section 232 of the Trade Expan - sion Act (national security tariffs), remain in effect. Art market participants engaged in international transac - tions should continue to monitor tariff classifications and rates, as the regulatory landscape remains unset - tled. 6.3 Gallery and Auction House Liability for Fake Art Auction houses’ liability is typically governed by con - signment contracts with the seller, and the terms and conditions of sale with respect to the buyer. While the Uniform Commercial Code imposes baseline obliga - tions with respect to warranties, these can typically be contractually modified. Auction houses make an express warranty of authenticity when their auction catalogue attributes an artwork to a particular artist. The house will usually guarantee the authenticity of an artwork for five years from the date of the sale. If it is determined that the artwork is not authentic within this period, the auction house will usually rescind the sale and pursue remedies from the seller. Past the typical authenticity guarantee period, buyers may try to bring claims based on breach of contract, fraud, unjust enrichment, and other legal theories, but such claims are rarely successful due to the expiration of applicable limitations periods. See, for example, Fox- ley v Sotheby’s Inc. (SDNY 1995) where the buyer’s claims regarding inauthentic work were dismissed, as they arose after the expiration of the five-year guar - antee period. Unlike auction houses, gallery sales are not public and galleries do not publish catalogues or generally rep - resent authenticity in writing. In fact, there are often
no written contracts for the sales of artworks. That said, where inauthentic art was bought from a gallery, buyers may pursue legal issues against the gallery for fraud, breach of warranty, unjust enrichment, and other claims. The cases filed against the famed Man - hattan gallery Knoedler, which was discovered to have sold a number of forged Mark Rothko and Jackson Pollock paintings, illustrate these claims (see De Sole v Knoedler Gallery, LLC (SDNY 2013) and others). 6.4 Pre-Sale Checks for Auction Houses and Galleries While the art market is not heavily regulated, auction houses typically conduct pre-auction checks due to the commitments they take on as part of their auc - tion terms and consignment agreements. The auction house will typically warrant title to the artwork and warrant authenticity for a period of time (usually five years). A consignor (seller) will typically, in turn, war - rant title and authenticity to the auction house in their consignment agreement. Due to the importance of relationships to the auction business, auction houses will typically perform provenance and authenticity checks, including requesting documentation of own - ership and exhibition history and confirming whether the artwork is included in the accepted catalogue raisonné for the artist. As the condition of the work directly affects value, auction houses will typically per - form a condition assessment. As a function of international anti-money laundering requirements, auction houses conduct due diligence on their clients and beneficial owners. This includes verifying their identity and understanding the source of their funds. While major galleries are likely to follow similar prac - tices, what specific checks are conducted can vary depending on the gallery size and whether it has an international presence. In the United States, the buyer is ultimately responsible for exercising due diligence in their art purchases. 6.5 Role and Responsibilities of an Art Adviser An art adviser is someone who provides expert advice, to a private individual or an institution, about acquir - ing or selling artworks or managing collections of art
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