Suing for attributions
June 11 2014
Regular readers and 'Fake or Fortune?' viewers may recall the recent case where David Joel, the owner of the above Monet, recently lost a case against the Wildensteins, whom he had tried to sue in a French court in order to make them accept that the picture was indeed by Monet (they had said 'Non'). It's surely strange that in France (where they already have a strange enough system for inheriting the power to make attributions) courts can compel experts, no matter how flawed, to legally change their opinion on an attribution - isn't it a case of free speech? In an interesting review of a recent case which has far reaching ramifications for this sort of thing, the law firm Constantine Canon reports, on its Art@Law blog, that:
On 22 January 2014, the Supreme Court delivered a judgment at odds with the previous line of cases.
The dispute concerned a painting attributed to French Cubist painter Jean Metzinger known as La Maison Blanche [above]. Its owner, Laurent Alexandre, sought a certificate of authenticity from Bozena Nikiel, the author of the artist’s forthcoming catalogue raisonné. Nikiel disputed its authenticity. Alexandre took Nikiel to court, and the court-appointed expert concluded that the painting was an original work by Metzinger. Nikiel was ordered not only to include the work in her catalogue raisonné, but to pay Alexandre damages in the sum of €21,000. On appeal in 2012, the Court increased the amount payable in damages to €30,000, unless she granted Alexandre a certificate of authenticity within a month of the decision.
Refusing to let go, Nikiel appealed the decision to the French Supreme Court. She fiercely contested the credentials of the court-appointed expert. She argued that his research should have led him to consider the authenticity of the work as “doubtful”. Nikiel’s insistence on an indisputable authenticity finding sheds light on the differing standards of proof applied by the courts and the art market when considering the authenticity of an artwork. On the one hand, the standard of proof applied by the courts is the “balance of probability”. By contrast, the market applies a higher standard. If doubts are cast over the authorship of an artwork, it is generally un‑saleable (as a work by the artist).
In the end, the Supreme Court found for Nikiel. It overturned the decision of the Court of Appeal by recognising that Nikiel’s refusal to authenticate the painting was as a result of her “intimate conviction”. By finding her liable in damages because she held the opinion she did, the Court of Appeal had breached her right to freedom of expression under the European Convention of Human Rights.
The decision is striking as it is the first time that France’s highest court has ruled that the expert’s freedom of expression is an absolute right, trumping other obligations. It contradicts earlier decisions on authenticity (many of which were decided by the Supreme Court itself) that the freedom of expression must be qualified by an imperative requirement to “objectively” record the full body of an artist’s works. In a departure from earlier decisions, the Supreme Court declined to engage in a balancing exercise of the differing expert opinions, leaving it to the market to follow its course.
