The New York Senate passed a bill the other day to protect authenticators from collectors unhappy with their appraisal. The authentication field has taken a large hit in the last several years as more and more collectors sued authenticators who ruled their work was not what the collector thought it was, and therefore was far less valuable than what the collector paid for the work. As a result of these lawsuits, experts were increasingly unwilling to authenticate a work. Further, several authenticators received death threats as a result of their work. Marc Restellini, a Modigliani scholar, stopped his work after receiving several death threats. Currently no one is willing to authenticate a potential Modigliani, and all potential works by this artist are sitting in limbo. The Warhol Foundation ceased authenticating all works, as did the Roy Lichtenstein Board. These are but a few examples.
Not only did this have an impact on the market, but it also created a scholarly freeze, in which academics were unwilling to share their research for fear it would lead to a lawsuit by a collector. Scholars were unwilling to publish a catalogue raisonné of an artist’s work, because if they had left a work out, for any reason, the owner of the work would sue the scholar for damages. In the art world, a catalogue raisonné is considered to be the authoritative list of a particular artist’s known works. If a work was left out of a catalogue raisonné, the feeling was that the work could not be attributed to that artist. Even when an authenticator was ultimately proven correct (whether the courts are the appropriate place to determine a work’s authenticity is for another discussion), the costs of litigation were destructive.
Because these lawsuits were creating such a chill on both the market and scholarship, legislators in New York worked to create an amendment to their Art and Cultural Affairs Law that would help protect authenticators from meritless lawsuits. You can read the bill here. The bill creates a higher standard that a claimant must meet in order for their lawsuit to go forward. Further, it limits the legal fees a successful plaintiff can recover from an authenticator while allowing the court to reward legal fees to a successful authenticator.
Many critics say that this bill is a watered-down version of the original proposed bill and is not strong enough. However, the true strength of the bill will not be known until it becomes law, and the reaction amongst authenticators. If they feel comfortable sharing their expert opinions once again, they are confident in the protections of the legislation. However, it is more likely that the status quo will remain until an authenticator is sued under the new legislation and the outcome of that case is made public. Such a case may take a while, as few authenticators are going to want to be the first test case.