Authentication After the Boards Dissolved

The boards did not fail at authentication; they failed at litigation

The Andy Warhol Art Authentication Board was established in 1995. It had six members, met three times a year in New York, and issued determinations of authenticity only, expressly declining to opine on value. Around 6,600 works passed through it in sixteen years, and reporting at the time suggested that ten to twenty per cent of submissions were treated as questionable.

It faced roughly ten lawsuits over its life and did not lose. The best-known was brought by the collector Joe Simon-Whelan, who alleged that the board and the foundation had conspired to restrain and monopolise the market in Warhol's work after it rejected a 1964 self-portrait that other specialists had accepted. He discontinued the action when he could no longer fund it.

The Andy Warhol Foundation announced in late October 2011 that the board would be wound up, with dissolution completed by early 2012. The announcement date is given as 24 October in one contemporaneous account and 28 October in another. Its president, Joel Wachs, framed the decision as one of priorities, on the basis that the foundation's money should be reaching artists rather than lawyers. The reported cost of the Simon-Whelan defence alone was about seven million dollars; a separate figure of at least ten million dollars, covering the defence of all the litigation across the board's life, is also attributed to Wachs. The two figures have not been reconciled and should not be treated as interchangeable.

What that arithmetic describes is a service priced at nothing, or close to it, carrying an uncapped contingent liability. No rational trustee continues to offer it.

The exposure ran in both directions, which is why the cascade was rational

An authenticator can be sued for saying no, on theories of defamation and product disparagement, because a rejection destroys the value of a specific chattel belonging to a specific claimant. The Warhol case added a second theory, that a body which controls acceptance into an artist's corpus is exercising market power. Rejection therefore attracts both tort and antitrust exposure.

Retreating into scholarship does not close the gap. Litigation against the Calder Foundation over exclusion from its catalogue made the point, and the reasoning drawn from Kirby v. Wildenstein is that inclusion in a catalogue raisonne functions as authentication while exclusion implies the opposite. A body that stops issuing opinions but continues compiling a catalogue has changed the label on its exposure rather than removing it.

The cascade that followed was therefore predictable rather than herd behaviour. The bodies acting for Jean-Michel Basquiat, Keith Haring and Roy Lichtenstein wound down their authentication work in the same period, and by 2018 The Art Newspaper was listing the foundations for Basquiat, Calder, Haring, Lee Krasner, Lichtenstein, Pollock and Warhol among those that had dissolved authentication boards for fear of litigation.

The people best placed to judge these works, with the archives, the correspondence and the accumulated comparative material, all withdrew from judging them within about five years of each other. That is a structural failure and it was produced by cost allocation, not by any change in scholarship.

The legislature was asked to fix it and declined

New York's response was Senate Bill S1229A of the 2015 to 2016 session, sponsored by Senator Betty Little with Senator George Latimer as co-sponsor. It would have amended the Arts and Cultural Affairs Law in three ways: requiring a claimant suing an authenticator to plead the facts supporting each element of the claim with particularity; allowing a prevailing authenticator to recover reasonable attorneys' and expert witnesses' fees on written findings of good and just cause; and exempting authentication opinions from the general warranty obligations imposed on art merchants.

The Senate passed it on 11 April 2016 by 59 votes to 1. It then died in the Assembly's Tourism, Parks, Arts and Sports Development Committee without reaching a floor vote, and it did not become law. Comparable bills have been introduced in later sessions. None has been enacted.

The significance for a specialist is practical. An authenticator working in New York, which remains the principal market for post-war American art, has no statutory protection, no fee-shifting remedy against a claim that fails, and no heightened pleading threshold to dispose of a weak case early. The costs described in the Warhol accounts are therefore the costs that still apply.

What replaced them: science on retainer and a warranty

The first substitute was scientific capacity brought inside the trade. On 6 December 2016 Sotheby's announced that it had acquired Orion Analytical and appointed its founder, the conservation scientist James Martin, as director of a newly created scientific research department. The immediate context was an Old Master rescission: Martin's analysis had established that a portrait sold as a Frans Hals was a modern forgery, and Sotheby's had refunded the buyer. Alexander Bell, co-chairman of the Old Master painting department, described technical analysis as already part of how the house looked at pictures and having Martin in-house as a substantial gain.

The method that department applies is not a replacement for connoisseurship and does not claim to be. Martin has described authentication as resting on three legs, connoisseurship, technical analysis and provenance, each of which fails alone: histories are readily fabricated and many distinguished collectors have owned fakes, while period-appropriate materials establish only that a work could have been made when claimed, never that it was.

The second substitute is contractual. Auction houses are under no statutory duty to authenticate what they sell. Their obligations arise from consignment and purchase agreements, from the tort of negligent or fraudulent misrepresentation, and from industry custom, which the Orion acquisition has arguably shifted by making forensic examination an expected step. Warranties of authenticity in the sale terms give the buyer a right of rescission, and the consignment terms give the house a corresponding right against the seller.

The Hals litigation showed where that chain terminates. The picture had been bought from Giuliano Ruffini in 2010 for three million euros by Fairlight Art Ventures and the London dealer Mark Weiss, and sold on through Sotheby's by private treaty for 10.75 million dollars to the Seattle collector Richard Hedreen. After the rescission, the London Commercial Court ordered Fairlight in December 2019 to pay Sotheby's 5.37 million dollars net plus interest and costs, and the Court of Appeal upheld that decision in November 2020. Weiss had settled in March 2019 for 4.2 million dollars. One judge observed that the loss had to fall on somebody, since it plainly could not fall on the forger. Ruffini has been identified as the prime suspect in a French criminal investigation into Old Master fakes; that investigation is a separate matter and nothing in the English proceedings determined his conduct.

How the market now prices what nobody will certify

The catalogue raisonne has become the de facto certificate, which is an awkward outcome for everyone. Compilers insist their work serves scholarship rather than the market, and the Warhol Foundation said as much when it closed the board and committed to the catalogue instead. The effect in the trade is identical to a determination, which is precisely the exposure the boards were trying to escape.

Timing then does the pricing. The Warhol Foundation's own estimate was that completing the catalogue would take around twenty years. A work that falls in a volume already published carries a settled status. A work awaiting a volume carries an open one, and open status is a discount that nobody quotes but every specialist applies.

The distribution of that cost is uneven in a way worth stating plainly. The Art Newspaper's assessment at the time of the Warhol closure was that none of the top five auction results for the artist had depended on the board, and that the most valuable period, roughly 1960 to 1965, was already documented. The works exposed to the vacuum are therefore the mid-market and the later material, held by owners least able to fund a forensic examination or a legal defence.

Provenance has become more important as certification has become scarcer, and it has done so at the exact moment when the record of the last forty years shows provenance to be the element most reliably fabricated. That is the position the market is now in: it has replaced a body of scholars who would say yes or no with a laboratory that can only say never, a warranty with a time limit, and a documentary history that a competent forger builds before he starts painting.