|Van Meegheren: original, authentic, fake?
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.