Following decisions by the Keith Haring Foundation, the Pollock-Krasner Foundation and the estates of Pablo Picasso and Jean-Michel Basquiat to disband their authentication boards, a bill has been introduced into the New York State legislature to make lawsuits against art authenticators more difficult to win and to punish “nuisance” lawsuits.
The legislation, introduced by Republican State Senator Betty Little and Democratic Assemblywoman Linda Rosenthal, would amend the state’s Arts and Cultural Affairs Law by raising the standard of proof brought by a claimant that an art authenticator had acted negligently or fraudulently in rendering an opinion and by requiring the claimant to pay the authenticator’s legal fees if the claimant does not prevail in court. The Senate version of the bill (S.6794) was reported out of the board on April 30 and is pending consideration by the full Senate, while Assemblywoman Rosenthal’s bill (A.09016) is still under review by the Tourism, Parks, Arts and Sports Development Committee.
“The fear of liability and the threat of costly litigation is deterring specialists from providing opinions that are essential in determining authenticity, value and historical significance of artwork,” said Senator Little, who chairs the Senate Cultural Affairs, Tourism, Parks and Recreation Committee. She added that the bill would “protect authenticators from frivolous legal action while still holding them accountable for wrongful actions. It strikes a balance that’s clearly needed.”
Many individual art authenticators and authentication boards have been challenged in their decisions, since these opinions concerning what is or isn’t genuine are taken as the final word by reputable art dealers and auctioneers. A refusal by an authenticator to attribute a work of art to a particular artist may mean the loss of millions of dollars. “Claimants who hope they have a $50 million painting often have the resources to litigate, and the process of defending yourself can be extraordinarily expensive,” said Nicholas O’Donnell, a partner in the firm of Sullivan & Worcester who handles art law cases. “The authenticator may get paid $5,000 or $10,000, and that person risks a lawsuit that could cost them $500,000 and go on for years.”...
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