There are moments when the discourse on art seems incredibly undemocratic — say, for example, when a historian or authenticator gets sued because a collector doesn’t like his or her analysis of a work.
Last week, the New York State Legislature introduced a new bill that will protect authentication experts from “frivolous” lawsuits by making them more difficult to bring to court in the first place. It’s meant to combat a new trend in which authenticators are increasingly “speaking with silence,” according to Judith Bresler and Dean Nicyper, who began drafting the bill in 2012.
As the Art Newspaper pointed out, in January 2012 researchers at London’s Courtauld Institute of Art cancelled a conference about a group of alleged Francis Bacon drawings because they feared legal repercussions for their opinions. The same year, several artist foundations, including Andy Warhol’s and Keith Haring’s, shut down their authentication boards for similar reasons.
If the new law passes this June, plaintiffs will have to state specifically what errors they believe the expert has committed. They’ll also have to show that the chances of proving such allegations true are higher than 50%. Additionally, if the lawsuit is brought to court and the defendant wins, the bill will allow him or her to recover all legal fees from the plaintiff.
From our vantage point, it seems poised to at least partially fill a gaping hole in a lucratively unregulated market. On the other hand, some collectors believe authenticators are sometimes pawns of the foundations they serve. A lawsuit recently brought by nine collectors against the Keith Haring Foundation claimed the nonprofit had “limited the number of Haring works in the public domain, thereby increasing the value of the Haring works that the foundation and its members own or sell.”
Regardless of who’s right, the objectivity a journalist can bring to an increasingly opaque art world with rampant fraud and forgery is crucial. Back in 2010, for example, New Yorker staff writer David Grann meticulously reported a 16,000-word story about the art authenticator Peter Paul Biro. Grann discovered that Biro may have been planting fake fingerprints into paintings he examined by everyone from Leonardo Da Vinci to Jackson Pollock. The article cast an inescapably long shadow of doubt over Biro’s other authentications.
Biro responded by suing Grann and the New Yorker — known for its fastidious fact checking — for defamation and $2 million in 2011, claiming the article had been “published with malice and an indifference to the standards of responsible journalism.” Naturally, Biro’s claim against the New Yorker was dismissed (though we are told he intends to appeal), but had Grann not had its backing, the cost of litigation would have likely bankrupted him.
In a changing media landscape where freelancers proliferate, will coverage of such stories be affected? Would a freelancer who stumbled on one as remarkable as Grann’s have had the courage to write it? It’s disheartening to note that freedom of the press in the United States plummeted 13 places last year, according to the recently released 2014 World Press Freedom Index.
We need a robust exchange about these issues, and a law that also protects journalists writing about them who may not have a giant mass-media company to back them up.
Correction, 3/18: An earlier version of this article inaccurately referred to plaintiffs as “prosecutors.”