Art, just like any other piece of property, has value. The determination of a piece’s value can depend on several factors. However, the one that can affect the value most dramatically is the authenticity of the artwork; that is, the alleged authorship. Authenticating artwork can be a time-consuming and laborious process. If you are contemplating authenticating the artwork in your collection, there are some considerations that you should be aware of. Generally, you should understand the process of authentication and the methods by which authentication is done. But you should also recognize that the authentication process is not foolproof. The art market is rife with fraud and forgeries. Even absent fraud or forgery, art may still be misattributed by expert authenticators. Commonly, a work of art, once considered “authentic,” will later be deemed inauthentic when new information and authentication methods become available. In a similar vein, artwork that has been declared authentic by experts may still raise controversy today as to who originally created it.1 Being prepared for the authentication process and its difficulties will help you successfully navigate the authentication process for your art collection.
The Authentication Process
In our other article, “The Importance of Valuing Art,” we looked at how the appraisal process for IRS tax purposes impacts the valuation of art. Unlike the appraisal process, authentication of art is not rooted in law. Instead, it relies upon the knowledge and experience of experts in the field of study. Authentication is the “means by which experts attribute a work of visual art to an artist, era, or culture.”2 An expert may be an “art historian, museum curator, art dealer, auction house expert, appraiser, archaeologist, [or] collector .”3 Finding the right authenticator is an important first step in the authentication process. You should look for an authenticator who specializes or is familiar with authentications in the style, artist, school, or era of your artwork to ensure the most accurate examination into the authenticity of your collection.
The end goal of authenticating art should be, for an expert or group of experts, to properly determine the original creator of the art, by analyzing several factors. These factors include the age of the artwork, the medium used, the history of ownership, display, and exhibition of the artwork, the rarity and similarity of the piece, and the history of value of the artwork. Traditionally, there are four primary methods used to establish these factors and authenticate a work of art: stylistic (expert) opinions, provenance, scientific analysis, and catalogue raisonné.
- Stylistic Opinions
Stylistic opinions, sometimes referred to as “connoisseurship,” are opinions rendered by art experts who have specialized knowledge about particular areas of art.4 The experts analyze the stylistic aspects of the artwork in order to determine the original artist, creation date, era which the art was a part of, and style influences affecting the art.5 It is argued that stylistic analysis is “essential because, standing alone, the other methods  are seldom adequate” for determining the authorship of a work of art.6 Therefore, a priority in authenticating artwork should be to obtain a sound stylistic expert opinion.
In authenticating artwork, it is imperative that you can trace the ownership of the art. Provenance is the act of tracing the documented history of a piece of ownership which includes ownership, display, exhibition, and leasing history.7 Provenance is strange in that it can be the simplest method of authentication, but only as long as all of the documentation is in place. Well-kept documentation makes it easy to trace ownership of a piece of art back in time. Forgers and fraudsters have often made provenance difficult by faking or altogether omitting documents in the record of title. Even in non-fraudulent transactions, there are often times when buyer and seller will not fully document the sale of the artwork. This creates gaps in title where there is no knowledge as to what happened to the art or who it belonged to. With any gap in title, the authenticity and overall value of the art becomes questionable. Before you obtain artwork, you should always complete a title search of the artwork. Then, you should maintain proper documentation as to any sale, restoration, exhibition, display, or lease of the artwork under your ownership.
- Scientific Analysis
Modern technological innovations have provided opportunities for advanced examinations of artwork. Scientific analysis utilizes objective testing measurements to identify whether pieces of art are fake.8 Current available methods include radiocarbon dating, thermo-luminescent analysis, x-ray photography, chemical analysis of mediums and canvases, infrared imaging, and comparative analysis.9 Collectively, these methods can show things like brushstroke direction, paint build-up, aging patterns, and saturation consistency.10
It should be noted, however, that scientific analysis can never be used to positively prove authenticity. Rather, it can only be used to prove that a piece of art is not a fake or a forgery.11 Scientific analysis works in conjunction with the other primary methods of authentication to act as an elimination test; clearing risk factors that would lead an expert to believe a piece of art is a fake. Because scientific analysis is limited in measurable and testable qualities of the artwork, it can be “beaten.” As the art expert, Otto Kurz, has summarized, scientific methods of authentication are only as effective as the faker is ineffective at replication.12 If a forger anticipates what a scientific test is looking for, and they have the proper skills, they can replicate a work of art in such a way that a scientific test would be unsuccessful in detecting the work as a fake.13
- Catalogue Raisonné
Prominent artists will often have a collective reference of their works of art called a catalogue raisonné. This catalogue is a “comprehensive and authoritative cataloguing of every artwork made by an artist.”14 The intent of having a catalogue is to create a “definitive accounting of the works of an artist and [to] provide for each known work, the size, year of creation, where it was exhibited, or when it was discussed in publications.”15 Each artist will have their own catalogue which is typically maintained by the artist’s foundation. Sometimes, these catalogues will contain information on known fakes and forgeries of an artist’s works or pieces which are questionable as to their relation to the claimed artist.16 For example, “… the Jackson Pollock catalogue raisonné  has a “problems for study” section which has works which can neither be authenticated nor rejected, as well as a false attribution section which contains works maliciously or mistakenly misattributed to Pollock.”17 Within the art industry, catalogues are considered well-respected sources of information in terms of valuing or authenticating works of an artist. The main drawback is that catalogues are created for more famous artists. As such, if you are trying to authenticate the art of a lesser-known artist, they may not have a catalogue available to use.
Inauthentic Works of Art
If you can combine the four primary methods of authentication described in the previous sections, you will have a fairly good grasp on the authorship of the art in your possession. However, you should remain cautious because inauthentic works of art pervade the market. One of the most famous examples of fake arts flooding the market is the story of Elmyr de Hory. Elmyr was born in Hungary in 1906 and became an astute artist in his early life. During World War II, he was imprisoned and later escaped a Berlin prison hospital. Post-war, put his art skills to work by copying many different famous works and selling them under the guise that they belonged to a Hungarian Estate. Soon, his works would be displayed in famous galleries all over Europe as authentic pieces of work ranging from Picasso to Renoir. Eventually, some of these works were discovered to be fakes and his string of faking famous works came to an end.18
Stories like Elmyr’s are few and far between today. However, there are likely people in the world today attempting to find new ways to make a living off of forged or fraudulent art. Thus, it is important to distinguish the difference between some common terms regarding inauthentic works of art. “The words counterfeit, imitation, and forgery all may seem to overlap, but they carry different meanings” to experts, auction houses, and art investors or collectors.19 First, a counterfeit is a piece of art that imitates another in violation of the law. Second, an imitation is a piece of art that attempts to resemble another piece in some way. But initially, an imitation is not a violation of the law like a counterfeit. Third, a forgery is a piece of art that has been altered in some way which harms the rights of the artist (or their estate), owner, or buyer.20 Lastly, misattribution is when art is incorrectly attributed to a particular artist.21
Breaking these terms down further, counterfeits and imitations are “fakes” which are “work[s] of art made to resemble an existing work” while “a forgery is a work of art passed off as an original work.”22 A forgery is usually passed off as authentic by forging the original artist’s signature or using methods of artists that are unique to them (i.e. brushstroke style, specific color mixing, medium, or topic). Regarding counterfeits and imitations, it is certainly a case of “every square is a rectangle, but not all rectangles are squares.” Imitating former works of art tends to be the way that newer artists learn techniques of the artists who came before them.23 But an imitation does not constitute being a counterfeit until someone attempts to pass it off as authentic or purposefully misattributes it.
The act of misattribution can be intentional or unintentional. When intentionally done, fakers often make copies of famous works, use various methods to age the piece, and then try to pass it off as being created by a famous artist. Unintentional misattribution can happen as well, even with art experts. Sometimes, there are significant gaps in title or little information available regarding a certain work of art. Due to gaps and lack of information, it becomes challenging to verify the authenticity of a work of art until additional information is discovered about the work. Unfortunately, this means that there can be significant legal and economic consequences of authentication, even if done properly.
Authentication plays a paramount role in the art market. It is the principal way by which we attribute value to a piece of art or a collection of works. Though it is not a perfect process, the combination of the primary methods used in authentication provide the best solution in determining the original authorship of artwork. As an owner, buyer, or seller, understanding how this process works, will help you properly authenticate the art in your collection or that you wish to add to your collection.
- See Katie Dixon & Zachary Shufro, Note: Risky Business: Fraud, Authenticity, and Limited Legal Protections in the High Art Market, 10 N.Y.U. J. of Intell. Prop. & Ent. Law 246 (2021). The authors here reference the case of Leonardo da Vinci’s famed Salvator Mundi, which was considered “missing” from his other works until one was restored and authenticated in 2008. This history of this piece’s ownership dates back to 1649 but has significant gaps in ownership to the present day. Many experts remain skeptical that the authenticated work is the real creation of Leonardo da Vinci because there are over 30 copies and variations of the same work that exist in the world. Id. at 248-250.
- Derek Fincham, Authenticating Art by Valuing Art Experts, 86 Miss. L.J. 567, 590 (2017).
- See Justine Mitsuko Bonner, Let Them Authenticate: Deterring Art Fraud, 24 UCLA Ent. L. Rev. 19, 30 (Spring 2017); see also Fincham, supra at 598.
- See Bonner, supra at 30.
- See id.
- Id. at 31.
- Fincham, supra at 600-01.
- See Otto Kurz, Fakes: A Handbook for Collectors and Students, at 23 (1948).
- Bonner, supra at 32 (quoting Caroline Gabrielli, Preparing the Catalogue Raisonne?: A Guideline for Publishing Online, METRO. NY LIBRARY COUNCIL (2014), http://metro.org/media/files/files/0df1431c/Gabrielli.pdf.
- Fincham, supra at 593.
- Id. at 593-594.
- See Leila A Amineddoleh, Are You Faux Real? An Examination of Art Forgery and the Legal Tools Protecting Art Collectors, 34 Cardozo Arts & Ent. L.J. 59, 93-94 (2016).
- Fincham, supra. at 569.
- See id. at 569-70.
- Id. at 570.
- Derek Fincham notes that “art will always be copied because artists learn their craft through responsible imitation. Artists will imitate to learn the techniques of their forebears in order to pursue their craft.” Fincham, supra at 572.