Taylor Hampton

Art Law – The Tort of Negligence and Reputation Management

By 11th April 2018 No Comments

There are few in the art world who haven’t heard of the Beltracci forgery scandal, where Wolfgang and Helene Beltracci were charged and convicted of selling 14 forged paintings (the actual number of forgeries is still unknown). High profile cases like this boast the drama and excitement that comes with the trial of a master forger. However, there is always collateral damage when sales of forgeries occur.

In the case of the Beltracci trial, art expert Werner Spies, who had no knowledge of the fraud, was unwittingly caught up in the affair. Werner Spies originally claimed an alleged Max Ernst piece, actually painted by Beltracci called “Earthquake,” was authentic and should be included in Ernst’s catalogue raisonné. Having been informed by the police that the painting might be fake, investigations showed that the purported work by Ernst contained pigments used after the paintings was supposed to have been painted.

In 2011 The Monte Carlo Art Company sued Werner Spies for negligence in France after buying the painting and selling it through Sotheby’s in a New York auction for $1.14 million. They bought the piece under the assumption that it was an original Max Ernst, and subsequently had to refund the buyer.

On appeal in 2015, it was decided that an opinion given by an expert in the course of an auction sale needed to be distinguished in respect of an author of a catalogue raisonne. An expert could not be requested to proceed with a scientific analysis of every painting in a catalogue raisonne and cannot be held responsible in the same manner as an expert giving an authenticity opinion in the context of a sale. Werner Spies was found not to have been negligent in his actions.

Tort of Negligence

While Werner Spies is an example of an individual brought to court over this tort, auction houses can also get sued for negligence. Take, for example, the case of Dickson v Christie’s in 2010. David Dickson and Susan Priestley sold “Salome with the Head of St John the Baptist” for £8,000 after an assessment by Christie’s determined the painting was from the school of Titian, and not the artist himself. However, Sotheby’s later sold the painting having assessed it as an original. It was `put it up for auction with a starting price of $4 million. Dickson and Priestley claimed Christie’s didn’t do the proper research in determining the painting’s correct origin and selling price. However this case settled before trial.

The more recent Thwaytes v Sotheby’s saw the auction house accused of negligence and breach of contract. Mr. Thwaytes sold Caravaggio’s “The Cardsharps” for £42,000 after Sotheby’s x-ray analysis assessed the painting as a 17th century copy. After the sale, Sir Denis Mahon made public that he believed the painting to be painted by Caravaggio himself. After this, the painting was shown at exhibitions and was at one point insured for £10 million. Thwaytes brought legal action against Sotheby’s, claiming they were negligent in their assessment since they didn’t come to the same conclusion. It was determined that Sotheby’s was not negligent, as merely because an auction house acts in a certain way that does not automatically mean that it has been negligent. Sotheby’s were entitled to rely on their expertise and connoisseurship by considering first and foremost its quality. They reasonably came to the view on the basis of what they saw that the quality of the painting was not sufficiently high to indicate it was a Caravaggio.

While auction houses are rarely found guilty in cases such as these, they are still dragged through lengthy legal battles to prove their work was sufficient. The risk of legal action after misattributing works is so great that many have decided authentication isn’t worth the risk. For instance, London’s Courtauld Institute of Art cancelled a forum discussing works by Francis Bacon to avoid potential legal action. Additionally, The Andy Warhol Foundation for the Visual Arts has stopped authenticating works altogether.

With the constant threat of litigation in the air, negligence seems to always weigh on art experts’ minds. Not only can a negligence case have a heavy cost of time and money, it can also threaten one’s reputation. That can have with permanent consequences. A last word to Werner Spies referred to earlier. In an interview with Stern magazine, he said, “how could I bear the knowledge that I was taken in [by the fake Ernst]? The loss of my reputation! It made me think that I should say good-bye to this world.” While the art world can come with high stakes, with the correct due diligence, one can make sure that one’s reputation stays protected and insured.

Taylor Hampton are experts at reputation management. To contact us, call 020 7427 5970 or email enquiries@taylorhampton.co.uk.