Saturday, March 05, 2011

Holding the Warhol Authentication Board accountable

WASHINGTON, DC. The Joe Simon litigation against the Warhol Foundation and Art Authentication Board (see here and here) underscored the impact the Board's determinations can have on the value of a purported Warhol. Although, as previously stated, such determinations on authenticity are not conclusive and binding on the market, in practice, where the Board holds that a work is unauthentic, it is tainted to the point of being virtually unsaleable (Sotheby's and Christie's, for example, will not sell a "Warhol" without Board authentication).

Joe Simon's Red Self Portrait

But with such power must come accountability, which requires establishing the legal basis of a claim against the authentication Board. Following this blog's coverage of the Joe Simon litigation, the Washington Journal of Law, Technology & Arts drew my attention to an article they had written about how this particular suit potentially provided "a framework for pleading antitrust claims against authentication boards" since it was the first to overcome the defendant's motion to dismiss. The article discusses the "potential liability under the Sherman Antitrust Act for art professionals who render opinions on the authenticity of artworks" and the standard that may apply at trial. Resorting to anti-trust principles to plead claims of this kind makes sense if you think about it because these boards have the power, through determinations of authenticity, to manipulate supply and the market for a given artist. The article can be found on the Journal's website or accessed directly by clicking here.

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