Collection

Caveat emptor: why the art world is a legal landmine

It is a privilege afforded to lawyers to observe the problems faced by individuals, families and trustees in respect of their assets and seek to find solutions. Disputes concerning art, antiquities and cultural assets – sometimes more colourful and interesting than the object in question – can be particularly emotive.

One aspect that differentiates the market for art and antiquities from the trade in other valuable assets is that it is largely unregulated; anyone can buy and sell freely without having to comply with any prescribed formal requirements. As the value of such assets increase and the stakes get higher, so does the potential for things to go wrong. This can lead to interesting issues concerning, provenance, attribution, legal title and forgeries (to name a few examples).

The provenance and attribution of an artwork or antiquity are often key considerations. A connection to a well-known historic collection, or authorship by a renowned artist or maker can enhance desirability and thus add significant value. Of course, the reverse is also true in cases where the provenance or attribution turn out to be incorrect.

One can imagine the disappointment of finding out, as one of our client’s did, that artworks, which had been sold as being by a highly regarded artist whose works were in a European royal collection, were actually by a minor artist of no significance and worth many times less than the price paid.

Navigating between fact and ‘sales puff’ can often be a challenge. Does a statement that an artwork is of exceptional quality mean that it is unusually good, or is this just a statement of opinion by the seller? Buyers of art have to be cautious about readily accepting statements made about it. Even pre-eminent experts can sometimes have differing opinions. Matters such as attribution, and the physical condition of an artwork can be difficult to assess when restoration and underlying issues are not always visible to the untrained eye.

The case of Thwaytes v Sotheby’s provides a noteworthy example. Mr Thwaytes consigned a painting, The Cardsharps, to Sotheby’s for sale by auction, putting them on notice that it may be a work by the renowned old master, Caravaggio. Sotheby’s experts examined the painting, but took the view that it was a copy by an unknown artist. The picture could, of course, have sold for many multiples of the sale price had it been sold as a work by Caravaggio.

The buyer, a renowned art scholar, later identified the picture as being an autograph copy by Caravaggio himself. Mr Thwaytes sued Sotheby’s for negligence, but was unsuccessful; the court found that Sotheby’s had not breached their duty since there was nothing that would have been visible on a visual inspection that should have counteracted Sotheby’s view that the painting did not have Caravaggio ‘potential’. The case illustrates just how subjective authenticating a work of art can be.

Unscrupulous sellers - of which, unfortunately, there are a few around - will often make grandiose statements about the artworks/antiquities they are selling in order to secure a sale. It is, therefore, vital for any buyer to make sure that the object being sold is what it purports to be, or at least ensure that there is adequate protection in place should things go wrong.

Picasso works stolen from German collection

Several artworks, including 11 lithographs by Pablo Picasso, were stolen from the corporate collection of Portigon AG, a financial services company from North Rhine-Westphalia.

Portigon was formed in 2012 as the legal successor WestLB, the Western German state Bank. A spokesperson for the company confirmed the theft this past Friday in Düsseldorf.

Museums and the art trade: dangerous liaisons?

The foggy world of art dealers’ historical relationships with museums is coming into sharper relief. When the National Gallery in London acquired the archive of the dealers Thomas Agnew and Sons in 2014, it marked a growing interest in exploring this history, following the Los Angeles-based Getty Research Institute’s acquisition of the Knoedler Gallery’s archive in 2012 and the Colnaghi archive’s installation at Waddesdon Manor.

The National Gallery’s conference on 1 and 2 April, Negotiating Art: Dealers and Museums 1855-2015, will explore this relationship through the latest research, taking a broad historical sweep, fr om mid-19th-century London to fin-de-siècle Paris and 1930s Detroit. It is an opportunity, says Alan Crookham, Research Centre manager at the National Gallery, to look at a complicated relationship. “How does it manifest itself in the exchange of expertise, or helping develop collections… And are people reluctant to talk about that because of the public nature of museums?”