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Abstract

The authentication of items permeates our law and our markets. While it is important for many consumer goods, authentication is crucial for artworks and artifacts where the value difference between the authentic and the inauthentic is huge. The question is raised most frequently in conflicts between buyer and seller of art where it is claimed that a warranty was breached, or between the owner of artwork and an authenticator where the claim sounds in tort. It also arises in any situation where the value of the art is important, such as tax or antitrust. Authentication of artwork can be difficult because the three principal tools, science, provenance and connoisseurship, all fail to positively authenticate art. This results, in part, from their inherent limitations, from the customs of the art world, and from the working habits of artists. It is compounded by the art world’s secrecy and shifting opinion about authenticity. Over the years, the legal rules on authentication have changed, but courts have consistently found ways to avoid deciding whether an artwork is authentic. Often it is because the parties have agreed that the work is or is not authentic, but courts have also re-defined the test to avoid that decision, invoked the statute of limitations strictly, or found that authenticity was an opinion or not part of the sales bargain. Despite the fact that no owner has won a case against an authenticator, owners continue to sue, with the result that many fewer people are willing to venture an opinion on authenticity. While scholars have suggested the use of mediation or arbitration to settle authenticity disputes, it is unclear that mediation is unused or that arbitration has significant advantages over litigation. Art expert arbitration is readily available but is not widely used. The few cases where courts have ruled on authenticity have been well-crafted decisions worthy of being followed.

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