When judges decide attributions

August 6 2012

Image of When judges decide attributions

Picture: New York Times

Those allegedly fake Jackson Pollocks sold by Knoedler will soon be debated in a New York courtroom. In The New York Times, Patricia Cohen looks at what happens when judges have to decide on authenticity:

Of course judges and juries routinely decide between competing experts. As Ronald D. Spencer, an art law specialist, put it, “A judge will rule on medical malpractice even if he doesn’t know how to take out a gallstone.” When it comes to questions of authenticity, however, lawyers note that the courts and the art world weigh evidence differently.

Judges and juries have been thrust into the role of courtroom connoisseur. Legal experts say that, in general, litigants seek a ruling from the bench when the arguments primarily concern matters of law; juries are more apt to be requested when facts are in dispute.

In a seminal 1929 case involving the authenticity of a painting purportedly by Leonardo da Vinci [above], both a judge and jury got the chance to weigh in. The art dealer Joseph Duveen was sued by the owners of the painting, “La Belle Ferronnière,” for publicly calling it a copy. The jury included a real estate agent, a shirt manufacturer and a furniture upholsterer. Two artists were also on the panel and ended up on opposite sides of a hung jury.

With a deadlock on his hands, the New York State Supreme Court judge took the case back. He rejected Duveen’s argument that artistic attribution was not a question of fact that could be decided in a court of law but purely a matter of opinion, and ordered a second trial. Duveen ultimately settled with the owner. [...]

What previous rulings show, however, is that while judges and experts consider the same evidence — provenance, connoisseurship and forensic analyses — they tend to value it differently. For example judges tend to give added weight to the signature of an artist on the work, Mr. Spencer said, whereas experts rely more heavily on the connoisseur’s eye.

Juries have also gone their own way. In deciding the Duveen case in 1929, The New York Times reported, jurors reacted to the expert testimony by concluding that “the connoisseurs had given them little but an exotic vocabulary and a distrust for connoisseurs.”

The Duveen case picture was recently sold at auction as 'Follower of Leonardo'.

Update - a reader writes:

I was intrigued  by the juxtaposition of your pieces on Lord Duveen's 1929 litigation and on the recently discovered painting of a female person, two infants and a lamb; I (seriously) hope the two are not related.

Me too!

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