Behind the Veil: More Questions About Art Authentication

James writes:

On Wednesday, The Wall Street Journal published my story about a new lawsuit brought against Dedalus, the foundation dedicated to the Abstract-Expressionist painter Robert Motherwell. The piece also related my concern over the unchecked power of many artist foundations.

At the conclusion of the story, I wrote:

Artist foundations have come to serve as the art market's rating agencies, with catalogues raisonnés providing triple-A stamps of approval. As such, these foundations regularly make determinations that can have a significant monetary impact on the value of art, as the Killala lawsuit maintains. At the same time, because these same foundations derive income from the sale of work in their possession by the same artist, there is the potential for conflict of interest, in fact or appearance, in their evaluations of works submitted for authentication.

The American Association of Museums (AAM) and the Association of Art Museum Directors (AAMD) both have best-practice guidelines and enforceable standards of conduct for museums. Not so artist foundations. Despite their considerable influence, artist foundations follow no industry standards, are allowed to operate in complete secrecy, and are accountable to no outside individual or entity beyond the attorney general and the Internal Revenue Service, with only the courts offering glimpses of their operations. Surely it is time that changed.

So far I have seen many more private responses to the story than public comment. This is perhaps an indication of the reach these foundations enjoy in the world of art and the fear many have of upsetting them. Upon publication an employee at a major auction house wrote me a note that sums up much of what I've heard from others:

In so many ways I've always thought of the art world as the "last frontier"...we've certainly evolved quite a bit from the days when deals were conducted with a wink and a handshake, but we still maintain a comfortable distance from the Sarbanes-Oxley reality of most transaction-based cultures. So there's a part of me that agrees with you and supports your demand for accountability in areas of the art world which wield considerable and unchecked power, but there's also a part of me which is already nostalgic for the "Wild West" aspects of our world which have yet to be over-regulated by lawyers.

All of that said, you've raised an important point and I agree with the message. I hope the article is well-received.

Killala v Dedalus is not the first such claim against an artist foundation. In its latest issue, ArtNews magazine features an extensive article about Simon-Whelan v. The Andy Warhol Found. for the Visual Arts. called "The Trouble with Warhol" by Eileen Kinsella (not available online). Another case to consider is Thome v. The Alexander & Louisa Calder Foundation,

Artist foundations are repeatedly finding themselves in major litigation. I believe that one of the reasons may have to do with their culture of secrecy. Foundations have stated that to open up their decision-making to greater transparency, in art authentication and catalogue-raisonne scholarship, could expose them to lawsuits and provide road maps for forgers. A counterargument could be made that such secrecy has already exposed them to lawsuits, since aggrieved parties now turn to the courts as their only resource to open up artist foundations to greater scrutiny. In addition, by not sharing the details of their decisions with others, artist foundations silence a discussion about connoisseurship that could help the wider public recognize and understand what's real, what's questionable, and what is a fake work of art.

Without transparency, much of my reporting on the Motherwell story had to rely on court documents, which are publicly available, and on public tax filings. A government online database called Pacer, or "public access to court electronic records," contains the full text of Killala's complaint against Dedalus and the dealer Julian Weissman, and can be downloaded for about $2.40 (case 1:2011cv00702 document 1). The Foundation Center also provides an essential resource for those who want to view publicly available tax returns--known as the 990 Finder. Dedalus's 2009 return (available here in PDF) was recently posted, revealing, for example, that Jack Flam earned $442,867 in compensation and benefits as the president of Dedalus that year.

The only group that so far has not agreed with my editorial is an organization known as the Catalogue Raisonne Scholars Association, a division of the academic College Art Association (CAA). CRSA President Nancy Mathews wrote this to the Wall Street Journal:

Panero confuses artist-endowed foundations with catalogue raisonné projects, although many artist foundations do carry out such projects. He then questions the authority of catalogue raisonné scholars to form an opinion about what works are "authentic" (created by the artist in question) and what works are not. In doing so, he overlooks the seriousness of such scholarly practice, which is an outgrowth of research that takes place over many years and encompasses every aspect of an artist's work, life, and artistic environment. While Panero claims that art authentication is secretive and unexamined, in fact there is a great deal of discussion and information about the authentication process, including the guidelines developed by the Catalogue Raisonné Scholars Association available at www.catalogueraisonne.org.
Nancy Mowll Mathews
President, CRSA

The CRSA website describes its organization as "founded in 1994 to serve the interests of authors of catalogues raisonnés of works of art." I would describe this as accurate, since her blanket defense does much to "serve the interests of authors of catalogues raisonnés" but little to address the questions raised by my story--the allegations of misjudgment at the Dedalus Foundation in the lawsuits, and the broader issue of transparency at artist foundations. Ms. Mathews says I have confused "artist-endowed foundations with catalogue raisonné projects," but the confusion actually takes place at the foundations themselves. Right now, fiduciary trustees of multi-million dollar enterprises that derive their income in part from the systematic sale of art in their collection are often also in charge of evaluating the collections of others, as the scholars behind the catalogues raisonnés. This evaluation can have a significant impact on the value of art competing with the foundation's own collection in the marketplace. Ms. Mathews's organization gives no advice on the proper relationship of fiduciaries and scholars at artist foundations, an oversight that should cast the value of CRSA and its guidelines in serious doubt.

Behind the Veil: Questions About Art Authentication

Robert Motherwell in 1970 (Associated Press)

THE WALL STREET JOURNAL
March 23, 2011

Behind the Veil: Questions About Art Authentication
by James Panero

Shedding light on the closed world of artist foundations and the largely unregulated authority they have come to command.

On Feb. 1, Ireland-based Killala Fine Art Ltd. filed a lawsuit in the U.S. District Court for the Southern District of New York against The Dedalus Foundation. The New York-based private foundation, according to its website, is dedicated to preserving the artistic legacy of the Abstract Expressionist Robert Motherwell (1915-1991) while fostering the "public understanding of modern art and modernism." Dedalus subsidizes its operations, in part, from the sale of Motherwell works that it owns and from revenue earned from its control of the copyright on all of the artist's works in reproduction. In 2009, according to the latest publicly available tax returns, Dedalus generated more than $2.4 million from the sale of more than 100 Motherwell paintings, drawings and prints.

The suit claims that Dedalus made "false assurances" about the authenticity of "Spanish Elegy" (1953), a painting thought to be from Motherwell's signature series about the Spanish Civil War. A call to the Dedalus Foundation was returned by a lawyer, Peter R. Stern, who says that "there is absolutely no merit to [Killala's] claim" and that Dedalus "intends to make a motion to dismiss the complaint in its entirety." Marc Blondeau, an operator of Killala, did not return multiple requests for comment left at his offices in Geneva, but court records outline Killala's claims.

The lawsuit is not the first time that Dedalus, established in 1981 by Motherwell and now operated by art professionals and former Motherwell associates, has been challenged in court over its authentication practices. In court documents, Joan Banach, a former employee who has been in active litigation with the foundation since 2009—citing wrongful dismissal and gender discrimination—similarly questions the way Dedalus has been evaluating Motherwell works. Regardless of their legal outcomes, the two cases shed light on the closed world of artist foundations and the largely unregulated authority they have come to command in the world of art authentication and, by extension, the art market.

In 2007, Killala purchased "Spanish Elegy" from Julian Weissman, a New York-based dealer also named as a defendant in the suit, for $650,000. Killala claims it bought the painting believing it to be an authentic Motherwell. (A call placed to Julian Weissman Fine Art LLC in New York was answered by a representative who said the dealer was "unavailable for comment.") Killala claims in its court filing that prior to the sale, and as a prerequisite, Mr. Weissman asked Dedalus to authenticate the work. According to the lawsuit, in late January 2007 Jack Flam and Morgan Spangle, both employees of the foundation and members of the foundation's board of directors, examined the painting at the Weissman gallery.

In addition to serving as Dedalus's board president, Mr. Flam is the director of the foundation's continuing catalogue raisonné project, which Dedalus describes as a "systematic and comprehensive scholarly reference text in which each work known to have been executed by a particular artist is illustrated, thoroughly documented and described." The foundation outlines one of its main purposes as the establishment of "a reliable corpus of authentic works." A catalogue raisonné is a primary reference tool for scholars, art dealers and auction houses, and so plays a critical role in the market fortunes of a work of art. Inclusion in it assures buyer and seller that the work is authentic; exclusion renders the work suspect.

Soon after examining "Spanish Elegy," Dedalus sent a letter to Mr. Weissman stating that "The Dedalus Foundation, Inc. (the "Foundation") has caused the above-described Work to be examined by its representatives. It is the opinion of the Foundation that the Work is the work of Robert Motherwell." A copy of the letter is included as an exhibit to the lawsuit.

Mr. Spangle sent his own letter to Mr. Weissman. A former gallerist who joined the Dedalus board after Motherwell's death while his father-in-law, Richard Rubin, was the foundation's president, Mr. Spangle now serves as its executive director. On Feb. 15, 2007, he wrote to Mr. Weissman: "Here is the letter of authenticity which is issued by the Foundation. While it does not say directly that the painting, Spanish Elegy, 1953, will be included in the catalogue raisonné which is being prepared by the Foundation, I can assure you that the painting will be included." (This letter is also an exhibit to the lawsuit, with emphasis in the original.)

The lawsuit states that based on these assurances, Killala purchased the painting from Mr. Weissman. But two years after the sale, Dedalus "suddenly retracted its earlier representation and raised doubts about the painting's authenticity." On Feb. 17, 2009, according to Killala's filing, Dedalus sent a letter to Mr. Weissman stating that "based on new information," the project "has determined to withdraw" its letter of authenticity. In the same letter, Dedalus informed Mr. Weissman that "at present we do not plan to include [the painting] in the Catalogue Raisonné."

The exclusion, Killala writes in its lawsuit, means that "the art market will harbor very serious doubts about its authenticity. The work will lose all commercial value, and become unsaleable in the trade." In the case of its "Spanish Elegy," Killala now says, Dedalus made "false statements" in promising to include the work, since it "is in fact not an authentic Motherwell."

Killala is now seeking, among other claims, compensatory damages from Dedalus and the return of the purchase price from Mr. Weissman. "The Dedalus Foundation is not a for-profit entity," says Mr. Stern in response to the suit. "It is creating a catalogue raisonné as a public service to the art community. When it renders an opinion, it is an opinion, not a statement of fact. And in rendering an opinion, the foundation reserves the right to change its mind, as does every other catalogue raisonné in existence. . . . If anyone has liability to Killala, it is Mr. Weissman" as the seller of the work.

At no time did Dedalus offer any explanations, Killala claims, either of why it originally accepted the Motherwell as authentic, or what made it change its mind, or why it took two years to do so. Nor did it ever disclose how it arrived at its judgments, a claim Mr. Stern disputes in this particular case. Still, in general, this is the way many artist foundations work, a point with which Mr. Stern concurs: "As is the case with most catalogues raisonnés, the authors decline to give reasons to their decisions. It's standard."

Foundations might fear litigation, or risk tipping off forgers on what their evaluators are looking for, if they were more forthcoming in their deliberations. Yet such silence also gives artist foundations complete authority with little accountability.

'It's not that the process has to be open, but the results and methods do need to be made public," says the art historian E.A. Carmean. "That's the very definition of a catalogue raisonné—it's a reasoned catalog. With some exceptions, the modern catalogue raisonné is published without a discussion of the inclusion or exclusion of contending objects. The product should reveal the ways the decisions are reached."

This lack of transparency is all the more troubling in the case of Dedalus, since another lawsuit also suggests that the authentication process may be flawed.

When Dedalus first began its catalogue raisonné project in 2001, it employed an outside art historian, Joachim Pissarro, to serve as its director, with a committee of advisers set up to work alongside him. In 2006 Mr. Pissarro left the project and Mr. Flam, Dedalus's president, took over.

In court papers for her gender-discrimination and wrongful-termination lawsuit against Dedalus, Ms. Banach alleges that as director of the catalogue raisonné project, Mr. Flam made "repeated misjudgments about the authenticity of works attributed to Motherwell." She says she was "compelled to challenge these errors to protect the integrity of the artist's legacy" and alleges in court papers that this is why she was fired.

Ms. Banach further alleges in her complaint that Mr. Flam "flouted established procedure" in authenticating and then deauthenticating work himself, without consulting the other members of the committee. In particular, Ms. Banach says that Mr. Flam made his own determinations about two of Motherwell's "Spanish Elegy" paintings, which she claims he subsequently reversed. She also says that Mr. Flam authenticated a work on paper that Mr. Motherwell had himself claimed was a forgery when presented with it in the 1980s. Alarmed by his mistakes, Ms. Banach claims in her complaint, the foundation's board took out a $2 million insurance policy "to cover the costs of a potential lawsuit." A work that fits the description of one of the Elegy series cited in Ms. Banach's claim now appears to be at the heart of the Killala suit.

"There is no connection between the two cases," says Mr. Stern. Lee F. Bantle, Ms. Banach's lawyer, disagrees. "The 'Spanish Elegy' purchased by Killala is one of the paintings identified by Banach in her suit," Mr. Bantle said by email. "There was a breakdown in the Dedalus authentication process which she challenged prior to her ouster."

Dedalus's response to Ms. Banach's lawsuit is to countersue for more than $5 million, claiming "breach of fiduciary duty, self dealing, theft of corporate opportunities, conversion, replevin, and spoliation of computer evidence." And it states in court papers that "Banach's apparent hope to turn this action into a forum to dispute or prove the authenticity of Motherwell works (or Dedalus's views thereon) is improper and impermissible."

It may be some time before these cases are settled, but much is already clear. Artist foundations have come to serve as the art market's rating agencies, with catalogues raisonnés providing triple-A stamps of approval. As such, these foundations regularly make determinations that can have a significant monetary impact on the value of art, as the Killala lawsuit maintains. At the same time, because these same foundations derive income from the sale of work in their possession by the same artist, there is the potential for conflict of interest, in fact or appearance, in their evaluations of works submitted for authentication.

The American Association of Museums (AAM) and the Association of Art Museum Directors (AAMD) both have best-practice guidelines and enforceable standards of conduct for museums. Not so artist foundations. Despite their considerable influence, artist foundations follow no industry standards, are allowed to operate in complete secrecy, and are accountable to no outside individual or entity beyond the attorney general and the Internal Revenue Service, with only the courts offering glimpses of their operations. Surely it is time that changed.

Mr. Panero is the managing editor of the New Criterion.

Gallery chronicle (March 2011)

Versailles with info panel from the Google Art Project

THE NEW CRITERION
March 2011

Gallery chronicle
by James Panero

On the VIP Art Fair, the Art Project powered by Google & "Angel Otero: Memento" at Lehmann Maupin, New York.

The “VIP” of the recent VIP Art Fair stood for Viewing in Private. Or maybe it was Viewing in Pajamas. The first international contemporary art fair designed to take place entirely online, VIP promised 138 galleries showing 2,200 artists, all delivered by the miracle of the internet to us in the comfort of home.[1] At its morning launch on Saturday, January 22, I doubt I was the only one throwing slippers at the computer screen. This adventure of art on the World Wide Web somehow went terribly wrong.

VIP had a glitzy, Chelsea feel. The co-founder of the fair was the mega-gallery owner James Cohan. VIP was his transliteration of a blue-chip fair to the web. There were booths to click and browse, galleries paying thousands of dollars to participate, and a business model that was lifted from Art Basel and Armory. Even the name VIP recalled the pecking-order hype that has
fueled fair culture over the past decade. The advanced publicity tried to add to that sense of urgency. In order to build up buyer pressure, VIP limited its run to a week. While browsing the fair was free, a “VIP Pass” was needed to gain “additional privileges, such as access to price ranges, chat, and the VIP Lounge”—“VIP,” here, meant in its original art-world sense. That Very Important ticket, by the way, cost $100 the first two days, and $20 for the stragglers starting on day three.

The problem with VIP was its decision to deliver art fair 2.0 with no worthwhile updates to version 1.0. In the real world, the sales gimmicks might have worked. In the decentralized culture of the internet, the engineered ostentation of VIP felt unwelcome, if not unseemly. Then there were the technical difficulties. Cohan & Co. may know art, but apparently they flunked computer science. As VIP’s servers became overloaded with traffic, the fair began kicking back error messages almost immediately upon launch. Due to repeated malfunctions, VIP had to discontinue its online chat facility for much of the run. On its homepage, the fair tried to spin the shortcomings as a product of its success. Really it was evidence of VIP’s failure to understand the medium.

Privacy proved to be another concern, an issue that quickly had Twitter a-tweeting with criticism. Somewhere buried in VIP’s user agreement was the disclaimer that “we share your name, email address, and your country of residence with the Exhibitors exhibiting artwork that you click on, unless you have opted out of this type of sharing.” In other words, for the privilege of paying up to $100 a ticket, a user’s personal information would be sent to participating galleries with each click-through. “Viewing in Private”? More like a data-mining scam.

Yet it was the experience of seeing art at VIP that proved to be the greatest disappointment. An engagement with art may be personal, but even when viewed in private, the interaction is never airless. VIP somehow managed to deliver an art fair that might as well have been in the vacuum of outer space. The fair failed to mimic, or even recognize, the attractions of its real-life counterparts. Art fairs succeed not by displaying a succession of merchandise. Fairs work because they simulate the landscape of the street, right down to the grid of display booths. Fairs are nomadic, condensed art-world cities where each building houses a gallery. How we experience these fairs depends on the ways we navigate them, the art we get to see, and the society of people we encounter. Watching and talking to people viewing an abundance of art work—the relationship of art and people—makes a fair worthwhile. Cohan and his VIP Art Fair attempted to do away with these interactions in order to deliver his collectors most efficiently to a point of sale. The approach missed the point entirely.

Of course, there was also the inherent limitation of displaying art in electronic reproduction. The problem with VIP was not with the computer images themselves, but with the fact that these pictures had no connections to real things. Considering that this fair was populated by brick-and-mortar galleries, the disconnection was inexplicable. Traditional art fairs concentrate the art represented by far-flung galleries in one place. In doing so they bring disparate people together as well. VIP had its galleries and art work stay put. The art existed somewhere in the real world, yet the fair made no effort, by way of maps or gallery hours, to send viewers out to see it in person.

Fortunately, just two days after VIP closed, art on the internet got an unexpected reprieve. On February 1, with little advanced fanfare—or at least fanfare directed towards me—Google launched its “art project.”[2] First developed by a Google engineer named Amit Sood as his “20% project,” what the company calls its percentage for experimental work, the Art Project brought two Google technologies to bear on the world of art: Street View and gigapixel photography. The company began by partnering with an initial round of seventeen museums in eleven cities and nine countries, including the Metropolitan Museum, MOMA, Tate Britain, the State Hermitage Museum, and the Uffizi. Leaving the curatorial decisions to the institutions, Google wheeled a modified version of its 360-degree Street View camera around whichever rooms the museums opened for imaging. Then at each institution, Google took a digital photograph of one work with a super high-definition camera. This device recorded the art in approximately seven gigapixels of information—that is, with 1,000 times more definition than a standard digital camera.

All of this visual data has now been incorporated into a new user interface. Google’s special website, www.googleartproject.com, is free to use, providing floor plans and visitor information about each museum paired to the newly recorded information. It ties the 360-degree indoor panoramas directly into the existing architecture of Google Maps and Street View—to the point where, if you take one extra step past a back wall at MOMA, you end up on 54th Street. It also tabs the gigapixel scans into the gallery views, along with 1,000 or so other existing images of museum holdings in various lower resolutions (the giga-pictures have a “plus” sign in the frame icons, the others do not). When clicked through, all of these images launch in their own window.

Did Google succeed where VIP failed? The answer is yes, because the Art Project attempts to supplement, rather than substitute, the viewing of art in person. Like Street View and Google Maps, the Art Project offers an invaluable digital record, here of art and museology, to anyone with a computer and an internet connection. I found the specter of Google’s cameras reflected in the Hall of Mirrors at Versailles a fitting image for the project’s singular mash-up of the beauty of innovation, old and new.

Like the zoom feature of Maps’s Satellite View, Gigapixel also offers a chance to see and appreciate the landscape of an art work’s surface in ways that were before unavailable outside of the conservation lab. Seen up close, the precision of Holbein can be as astonishing as the virtuoso brush marks of van Gogh. Google even allows users to clip and share zoomed images—potentially leading to new conversations and discoveries about key works. It says something about the genius of Google that everyone, from expert to amateur, can find something new in the Art Project. That’s because the project does not try to be a replacement for art, but instead offers a revolutionary new road map for exploring art in person. The exciting part is what happens as millions of people log in to see what they can discover for themselves.

My next discovery was made not behind a computer screen but through the low-tech conversation of a dinner party. Angel Otero is a young artist whose inaugural New York show opens at Lehmann Maupin gallery a day after this issue goes to press.[3] In January, we met sitting across from each other following the opening of a show of Joe Zucker’s latest work at Mary Boone (beat that, VIP Art Fair). A painter’s painter, Zucker can attract a heady following, so perhaps it was not surprising that I became interested in the artistic practice of one of his guests. The day after the dinner, Otero invited me up to his studio in Ridgewood/Bushwick for a visit and an advance look at his forthcoming show.

Born in San Juan, Puerto Rico in 1981, at age twenty-four Otero left a job as an insurance agent, along with his studies at the University of Puerto Rico, to earn an mfa at the Art Institute of Chicago. Here, while studying on a scholarship, he became something of a stand-out, attracting the attention of established painters and critics alike, including Zucker—who saw a kinship in the way Otero popped the hood on the process of painting.

Certainly it also helped that Otero has an unusual background. In a recent interview, he recounted how soon after arriving in Chicago, a professor asked the class which contemporary artists they liked to follow. Otero said Jackson Pollock and Willem de Kooning, because those were the painters he knew and liked. The answer drew laughs from his more sophisticated peers. Yet this innocence has now left Otero with his unburdened relationship to paint, a willingness to experiment with his medium—and a healthy dose of wide-eyed charm.

At the Art Institute, and now in his large studio overlooking the skyline of Manhattan, Otero developed a technique that turns oil paint into a “skin,” which he then peels and applies to canvas and other armatures. Otero may not be the first to manipulate paint in this way, but his gift for handling materials turns process into an art form. For his inaugural New York show, he painted images and stenciled words onto large sheets of plexiglass. Once the top layer of oil dried into a gummy mass, he used a large scraper to separate the more liquid paint beneath from the glass. He then attached these large sheets, of what one might call oil on oil, to canvas in reverse, with the wet underside now on top. The results might have been all thumbs, but instead the work became elegiac, with the shadows of painted imagery folding and melting off the picture planes.

With his first show at a top-shelf gallery, Otero now finds himself in the barrel of art’s spring-loaded career cannon. The position may be enviable for the great majority of artists who never experience their day on the launch pad. It also comes with the unenviable pressure of ceding some control over development to the people investing in your future. Otero now faces a burden of where to take his talent and opportunity—especially in his choice of imagery, which moves among literary allusion, personal mythology, and pure abstraction. He may develop into the Puerto Rican Anselm Kiefer, forever confronting island stories. I would prefer he continue his experiments in process to create a body of work that evokes the memory of paint itself. In either case, his feel for paint must remain personal—something we can only sense when viewing his work in person.

[1] The VIP Art Fair was on view at www . vipartfair . com from January 22 through January 30, 2011.

[2] Art Project, Powered by Google opened at www.googleartproject.com on February 1, 2011.

[3] “Angel Otero: Memento” opened at Lehmann Maupin gallery on February 17 and remains on view through April 17, 2011.