For Art Authenticators, High Stakes for Finding a Fake
“I believe that experts will always believe their eyes and their own opinions,” said Ken Perenyi, surveying a crowd of art professionals, lawyers, and a screenwriter or two assembled early last month at the Art Crime Symposium hosted by New York University’s School of Professional Studies. Perenyi, often regarded as one of the best forgers of 19th-century British and American paintings, was referring to the apparent lack of chemical analysis performed on the vast majority of his work, which he sold for several decades through some of the world’s leading auction houses. An FBI investigation into his output was opened in the late ’90s and was closed five years later in cloudy circumstances. (The agency did perform chemical analysis on a number of works, analysis which, according to Orion Analytical principal James Martin, revealed them to be some of the most obvious fakes he has seen, chemically and, despite being some of the best, aesthetically.) But why have forgers like Perenyi been able to produce so much work over such long periods of time and get away with it? Reasons abound, but one of them is within grasp of being fixed.
Perenyi, who like fellow master-forger Wolfgang Beltracchi, now sells imitations of a given artist—what would otherwise be considered fakes—would have one believe that it was his sheer ability that allowed him to pass in front of experts and into collectors’ homes and storage facilities undetected. Aside from perfecting his mimicry of masters such as Martin Johnson Heade and J.E. Buttersworth, he developed a technique of aging his paintings with remarkable visual verisimilitude, oxidizing the backs of canvases and custom-built stretchers with watercolors, dust, and other pigments. He used gesso of a particular stiffness such that cracks in the oil that would typically appear after decades could be created with the push of a thumb onto the canvas. And he used onion skin tape along the edges, just as would have been used on a canvas that had been relined.
“A high class fake has to fit in logically within the evolution of an artist’s work.” –Ken Perenyi
The forger went to great lengths (and considerable monetary investment) to understand the oeuvres of the painters whose works he was knocking off. “A high-class fake has to fit in logically within the evolution of an artist’s work,” he explained, noting the use of motifs and elements found in other works from the fake’s purported period. But it’s also safe to say that the remorseless Perenyi (who, when asked if he felt badly for those who had purchased his works replied, “No, because I think they got a very good piece of art”) may have an ego of sufficient size to shield his self-assessment from the true circumstances behind why he wasn’t officially discovered.
For one, the paintings Perenyi prefers to fake are of a relatively unfashionable era in market terms. So much so that he has received some credit for raising the profile of some of his favored artists following the publication of his book, Caveat Emptor, in 2013. And even within those artists’ outputs, his works (perhaps strategically) weren’t aiming to be historically important. “My paintings were not the type that academics would be writing papers about or publishing in catalogues,” said Perenyi, explaining that acceptance by dealers, collectors, and auction house experts was sufficient seal of approval in his mind. He conceded, “I could have made a great deal more money faking modern art,” but his passion in forgery nonetheless remained pre-20th century.
“My paintings were not the type that academics would be writing papers about or publishing in catalogues.” –Ken Perenyi
As opposed to the up-to-$17 million paid for one of the many fake works purporting authorship from Jackson Pollock, Mark Rothko, Willem de Kooning, and others that made up the $80 million, 15-year Knoedler Gallery forgery scandal, Perenyi’s paintings were small time. (Works by Pollock, and to some extent other very high-priced paintings where provenance isn’t airtight, are especially strong candidates for chemical analysis. The authenticity of most paintings, however, rides on expert intuition alone.) At the end of the time Perenyi was working, Buttersworth’s auction record was a relative pittance at $290,000; Perenyi’s “Buttersworths” were no doubt selling at prices well below that. As such, he had “a large field of auction houses to keep rotating through.” And this in the relatively early days of the semblance of transparency that the internet has brought to the art market—though it’s still pretty close to opaque a decade and a half later.
On top of that, experts aren’t all that free to judge in the negative. Quiet discussions in auction house back rooms or dusty estates may result in a work being turned down for inclusion in an upcoming sale due to provenance or authenticity concerns. But, and especially in the U.S., officially declaring a piece as inauthentic and thus publically stripping it of its attribution to a particular artist can be a dangerous, even financially ruinous proposition for an authenticator.
The Knoedler case is instructive in this regard. Despite ultimately being vindicated, Orion Analytical’s James Martin received a barrage of subpoenas and other legal actions in an attempt to discredit his analyses’ conclusion that the works in question were fake, attorney Steven Schindler explained. One might think that because Martin’s judgment of the works was proven correct, all this would have been tied up neatly. Not so. Save a seamless indemnification clause in Orion’s contract, the legal fees involved in satisfying these subpoenas alone would have proven unsustainable. That’s thanks to the so-called American Rule, which stipulates that each side of a legal action pay for its own attorney’s fees. (In Europe, both sides’ fees are covered by the unsuccessful party.)
This liability issue has led several prominent foundations, at the advice of their insurers, to cease providing opinions on the authenticity of artworks, despite those foundations likely being most uniquely positioned to do just that. The Warhol Foundation ceased to provide authentication services in 2012 after waging a winning defense that cost it a whopping $7 million in 2010. The case alleged that the foundation was illegally raising the prices for the artist’s works by ruling that certain works were fake and thus limiting the supply to hit the market. It was dismissed by a Manhattan District Court after the plaintiff went on the record to say that there was no basis for his allegations. However, the foundation was unable to recoup its legal costs; the collector simply didn’t have assets to cover them.
New legislation would “establish protections under the law to ensure that only valid, verifiable claims against authenticators are allowed to proceed in civil court.” –Senator Betty Little
Soon, at least in New York, such cases may be a thing of the past. New legislation introduced by Senator Betty Little, which passed the Senate on June 15th, would “establish protections under the law to ensure that only valid, verifiable claims against authenticators are allowed to proceed in civil court,” the Senator said in a statement. Most crucially, the bill provides increased recourse for defendants to recover their attorneys’ fees and other related costs. Senator Little notes the importance of the art trade to New York’s economy and of creating a climate for “highly skilled experts who provide opinions about the authenticity of works of art” to work without the threat of spurious challenges to their decisions, directly citing the Warhol Foundation case and the decision by the Pollock-Krasner Foundation to also cease authenticating artworks.
Despite being passed to the State Assembly, no vote was taken on the bill before the close of the 2015 session on June 25th and thus, contrary to certain reports, its protections have not gone into effect. Speaking to Artsy, a spokesperson for Senator Little explained, “We are hopeful that the legislation will eventually pass the assembly. It’s not impossible that legislation could be voted on in the next six months, but our expectation is that we will be taking up this issue again next year,” when the next session is called in January.