1709 Blog: for all the copyright community

Tuesday, 18 March 2014

Art forgery: the original and the authentic

Van Meegheren: original, authentic, fake?
One of the most interesting art exhibitions of the year is also one of the strangest: a show entirely dedicated to forged paintings. The exhibition, entitled “Intent to Deceive: Fakes & Forgeries in the Art World,” brought paintings from worldwide locations to Springfield, Massachusetts for a three-month long exhibition (running until April 27 and travelling to museums in Florida, Ohio, and Oklahoma; pictures of the fakes can be viewed here). Extraordinary precautions were taken to protect these works and, curiously, they were insured on terms that seem comparable to those surrounding the works of the original masters themselves (see here). By a delicious irony, it has become very nearly as difficult to get close to a van Meegeren as to a Van Gogh.

The entire exercise raises the question of originality, a foundational concept in copyright law, and what it means for the art world. In a sense, the originality of an artwork means something very simple: it is a true product of a “master hand.” This quality is key to the value of any given work; even a work “from the studio of” a master will command special value because of the association and all it implies. And yet, the question of establishing the originality of artworks leads to its own peculiar problems – as, indeed, it always has. The fame of artists has led to infamous forgeries. Forgers are often skilled enough to mimic the art of the master, and recreate the context of his (or her) times, convincingly. Separating original from forged works is important. However, art experts who are qualified to comment on the authenticity of works are increasingly under pressure to refrain from exercising their craft. The reason is simple: purchasers who have paid millions for artworks may ultimately discover that they have purchased fakes, leading to the loss of small and large fortunes according to the verdict that falls from an expert’s lips. Since it is in the nature of these things that certain facts may never be known with absolute certainty, experts face the threat of liability for their opinions, even when offered in the purest spirit of science and good faith.

It is difficult to explain what exactly causes the escalation in the value of artworks, but the phenomenon of forgery provides some tantalizing clues as to how human psychology works on this problem. Of course, the painting itself is of some value, but that value, however great, is still limited: after all, a good forger can paint something “like” the original, too. But the painting appears in a context: it represents the vision of the artist (who would think to paint sunflowers over and over again?), his or her development (from a blue period to a rose period and then in new directions again...) and, ultimately, the historical moment that produced both artist and work. These factors can never truly be “re-created,” and this is why each generation must seek its own “original” forms of expression.

On a more prosaic level, these issues boil down to a single, crude factor: sheer notoriety. And that is exactly what great artists and forgers have in common. It is not only necessary to protect Van Gogh; van Meegeren, too, has earned his value, not as an “original” but as an “original fake.” Paradoxically, the art market values forgery, too. It does so on terms that are perhaps more familiar to trade mark lawyers than to practitioners of copyright – van Meegeren, like van Gogh, has become a brand name in his own right, and, apparently, a highly saleable one. The notoriety associated with forgery translates into economic value, leading to the need to “protect” forged works and “insure” them against theft or mishaps.

As usual, copyright law is behind the times. In recent years, the concept of originality in copyright law has undergone its own upheavals, largely under the pressure of new technologies that make it increasingly difficult to distinguish “original” from “unoriginal” products. Common law countries are moving away from a labour-based, “sweat of the brow,” standard of originality, in decisions like Canada’s CCH (2004), India’s Eastern Book Co. (2007), and the landmark United States case of Feist (1991), and Europe’s recent Infopaq decision (2009/2013) confirms the harmonization trend towards higher-level requirements such as “skill and judgement,” a “modicum of creativity,” and “intellectual creation.”

Similarly, copyright law has traditionally protected the form in which creative works are expressed, rather than the ideas on which they are based – a requirement known as fixation or the “idea-expression dichotomy.” The dogma of a split between expression and idea – in practice, as difficult to separate as body and soul – received fundamental reconsideration in the Designers’ Guild case (2000) where, thanks to Lord Hoffmann’s courageous reasoning, it emerged that “original” ideas may also be susceptible to protection (though not in the United States).

Where does this leave forgery? Copyright law wrestles with the problem of forged art, skilfully executed expression that, quite deliberately, shows no originality whatsoever at the level of concept or vision. Indeed, it seeks to be as unoriginal as possible, as the forger's personality is utterly dissolved in, and subsumed by, the personality of the master. In effect, the forger seeks to impersonate the artist. Moral rights demand that the association between artist and work be maintained, and the forger’s goal is to disrupt that association. As such, the forger’s activities, which seek to achieve the false attribution of works to an artist, could certainly be construed as a violation of the right of attribution. However, the movement of experts towards maintaining purely private opinions on authenticity is a further threat to the moral right of attribution (and, potentially, integrity).

This leaves us with the interesting question of what represents an “original” artistic expression for our own time. Notoriety matters nearly as much fame, and economic value is built on maintaining the consistency of belief rather than truth. Copyright is indeed behind the times, pushing towards higher standards of originality just as, paradoxically, true “originality” may matter less and less in today’s art world. As Helene Hegemann, a young writer who initially achieved notoriety (fame) by combining the “original” words of other writers to make her “own” work, asserted, it is “authenticity” that matters, not “originality” at all. Is an authentic fake the same thing as an original artist? Copyright law says “maybe not”; but the market, emphatically, says “yes.” Could it be that the representative works of our time may be the pastiches made possible by technology rather than “original” works of art?

If you’re travelling to Springfield any time soon, enjoy the show.

Researched and composed by Mira T. Sundara Rajan; posted by Jeremy.


Andy J said...

As ever, Mira provides much to stimulate discussion. I rather like the further twist to this already complicated subject, provided by the work of Banksy. Starting from the stand point that much of his work is 'illegal' in the sense that it amounts to criminal damage, his works are now so highly sort after that others go to the trouble of taking down walls bearings his distinctive images to cash in on the phenomenon. At the same time, the artist remains (notionally) aloof from this aftermarket and refuses to verify works which are his and which are the work of a copycat. (Although see this article in the Huffington Post for another take on this aspect.) Can it be claimed that the copyist is actually trying to hide their creative personality behind that of Banksy, and if so for what reason? Since the copyist too is likely to be creating his art in an illegal manner he cannot benefit financially from forgery, but he can probably earn much kudos among his fellow graffiti artists for his skill and wit.
All of this shows how the law can be tied in knots, not just in terms of copyright and moral rights but also about title in the works themselves.

Anonymous said...

From time to time exhibits displaying fakes seem to crop up in various places. I'm not sure there is much to admire or celebrate but there is plenty to learn from them. In many instances the fakes can ruin and destroy an artists body of work beyond repair. One only need to look to Canada where the Norval Morrisseau debate has raged on for years. On a positive note, this fraud now appears to be near it's end. The depth of the Morrisseau fraud appears to include more than 2 dozen persons and several forgers. Rumour now has it that several individuals have already flipped as some players are now in damage control and attempting to distance themselves from the fraud, and point the finger at several high profile and long term promoters of this scheme. This will certainly be a topic of great discussion later this summer. As far as Bansky goes? the mystery of the man is as good as his art.

Péter Munkácsi said...

Excellent blogpost, many thanks! Mira raised an interesting question: What represents an “original” artistic expression for our own time? Few years ago a dispute in Hungary based on the question whether „borrowing” ideas or even passages from other books is mere plagiarism or some form of intertextuality. After the discussion whether the debut novel by Helene Hegemann was plagiarism or intertextual mixing, Sigfrid Gauch, a German writer, accused Péter Esterházy, one of the best-known contemporary Hungarian writers of theft saying that the novel ‘Harmonia Caelestis’ (2000) [Celestial Harmonies] contained entire paragraphs taken from his novel ‘Vaterspuren’ [Traces of my Father]. Esterházy pointed out later that the borrowed texts are placed in a new, individual context.

The Berne Convention describes protectable “literary and artistic works” in the most encompassing terms as “every production in the literary, scientific and artistic domain, whatever may be the mode or form its expression". Although the Convention nowhere defines “author” or “work”, according to Goldstein, the normal standard for protection of literary and artistic works, applied across both common law and civil law systems, is that the work distinctively be the product of its author’s efforts and not copied from some other work or works.

However, the dichotomy 'original work - copy' meets nowadays the challenges of new approaches (ie. intertextuality). Sándor Radnóti,an aesthetician and a literary man from Hungary wrote, the type of the literary motive should be (possibly fraudulent) reworking of the literary influence, the variation, the paraphrase or pastiche of another writer’s work, presented as original. Péter Esterházy’s ‘Harmonia Caelestis’ even introduces, as a literary manifestation of and a literary response, a new era in cultural conditions, reaching beyond postmodernism.

john r walker said...

From what I have read, the cleverer forger often does not make close copies of known works, rather they make 'unknown' works by known artists e.g- If a artist is principally known for landscapes then the discovery of a previously unknown still life or religious subject picture by that artist will excite interest and will also help 'explain' why the work looks a bit different or less practiced, than the standard known works by that artist.

Another not uncommon form of forgery consists of forging the signature on a art work (from the same time/place).

The question of 'originality' and fake in the case of post-modern artworks such as Warhols multiples or Duchamp's urinal can be a bit of a self-reflexive paradox:is a genuine unoriginal factory product , genuine? - Yes, No, and Neither.