Marc Weber, an attorney in Zurich, has passed along his recent book section on certain aspects of U.S. law dealing with fake or wrongly attributed art works. It appears in a volume honoring Kurt Siehr on his 75th birthday, which appears to be worth seeking out as well, with contributions in both English and German. Marc has made the piece available at his website, and I’ve reproduced the introduction below:
A work of art isn’t always what it seems to be. Sometimes the buyer learns that he has just purchased a forgery and sometimes the seller realizes that he has just sold an original. As with other contract dispute, the dissatisfied party will seek redress in the courts, but the courts are faced with problems that are specific to dispute arising from the sale of art when it comes to fakes, the provenance and authenticity of works of art.
If the sold piece of art is a forgery, the buyer sues for the repayment of the purchase price in exchange for the return of the work of art. The buyer will seek to do the same after having bought a work of art which is not executed by the artist but by his school. The seller attempts to sue the buyer for the return of the work of art in exchange for the restitution of the purchase price, should a work of art sold as a real copy turn out to be the work of the master or a painting from a school is actually a work of the master himself. The legal remedies of the first case (warranty) differ from the ones of the second case (mistake).
In addition to the remedy of rescission of the contract, under certain circumstances, a cause of action for product disparagement may arise. Finally, if artists’ authentication boards or committees are considered as the only authority to authenticate certain pieces of art, breaches of antitrust laws could be claimed.
It is a concise and very lively summary of the relevant legal rules, with helpful summaries of many of the major cases. It is also a suitable tribute to Prof. Siehr, who I have not had the pleasure of meeting, but who has some outstanding scholarly writings which are well-written, scholarly, and sometimes even funny.