Abstract :

Due in no small part to its status as a hub for art transactions, (1) New York's legislation and court decisions have historically been at the forefront in the area of art-focused regulation and jurisprudence. In recent years, this has particularly been true with respect to the issue of art authentication. As an auction house with a primary saleroom in New York City, Bonhams operates in this cutting-edge legal jurisdiction, and regularly conducts transactions for which authenticity is a primary concern--thereby giving it a unique vantage point from which to observe developing trends in the authentication arena. As the art market grows in complexity and commercial value, the definition of and processes for determining authenticity have also evolved. The field is becoming continually more litigious, and buyers and sellers are increasingly focusing on the legitimacy of an authenticity claim, rather than on the legitimacy of the artwork itself. The contentious and convoluted nature of these questions has dramatically heightened the risk associated with connoisseurship: "[s]adly, many of those who possess rare and valuable connoisseurship are reluctant to share their expertise for fear of litigation". (2) When the ability to share connoisseurship or opine on authenticity is threatened, the art market also risks the commercial rejection of legitimate works. From a philosophical perspective, this raises numerous questions, including whether the market should prioritise the 'official' determination of a work's authenticity, however temporary or mutable, above the monetary or aesthetic value of the work, as well as the impact of a lack of confirmed authenticity on the rights of property owners, artists, and their estates. This paper will review recent authenticity disputes in the news and the courtroom, differing legal models for artists' rights as they pertain to authentication (and the result thereof on the authentication process undertaken by an auction house), and the changing landscape of authentication methodology. It will also explore the auction house's role as the intermediary in transactions where authenticity is implicated, and finally turn to practical solutions for the problem of connoisseurship at risk.