Richard Polsky writes:

As the owner of Richard Polsky Art Authentication, I’ve always believed that authenticity is the bedrock of any art transaction, which seems to have been proven out by the constant stream of related articles in the New York Times. During the last six months alone, we’ve been treated to the spectacle of the Knoedler gallery scandal for selling fake canvases by Jackson Pollock, Mark Rothko, Robert Motherwell, and others. Then there was the dealer Mary Boone pulling a bait and switch of a Ross Bleckner painting on the actor Alec Baldwin. This was followed by London’s James Mayor Gallery suing the Pace Gallery, over their rejection of 13 Agnes Martin works that they once sold, for inclusion in the catalog raisonne that Pace is in the process of compiling.

Recently, we expanded beyond our core business of exclusively authenticating the work of Andy Warhol, Jean-Michel Basquiat, and Keith Haring. We now offer a “Preliminary Opinion” service, which will focus on the work of 39 significant Post-War & Contemporary artists — and Georgia O’Keeffe. Rather than an in-depth authentication analysis, our new concept is to offer a client a credible, but affordable opinion, on the probability of a painting being genuine or not.

The logic behind branching out into 40 additional artists is based on the complete abandonment of authentication responsibilities by virtually every major artist’s estate. As followers of the art world know, the Andy Warhol Art Authentication Board closed up shop five years ago. Their decision was almost entirely based on incurring millions of dollars in legal fees to defend themselves against lawsuits, brought by disgruntled clients whose works were rejected. Immediately following the Warhol board’s announcement, the authentication committees for Roy Lichtenstein, Jean-Michel Basquiat, Keith Haring, and others, all followed suit. Each of them cited the same reason; fear of being sued.

In 2015, when I sent out an announcement that I had formed an art authentication company, I was immediately inundated with inquires, all asking the same thing, “How are you going to protect yourself from being sued?” The simple answer was by being completely transparent (though I still have the client sign a disclaimer). When a collector signed a release with the Warhol estate, he agreed to allow them to stamp the back of his painting with the word “Denied,” if they concluded it was a fake. When the collector wanted to know why it was rejected, he was given the unsatisfying answer, “We can’t tell you because we don’t want to aid counterfeiters.” While most owners simply shrugged, a number of people felt they were treated unfairly, and took action. My guess is that if the Warhol people had just leveled with these painting owners, much of the litigation, which led to their ultimate demise, could have been avoided.

Part of my motivation for starting Richard Polsky Art Authentication was the opportunity to be involved with something that was intellectually satisfying. I enjoy using a body of knowledge that I had acquired from many years of studying art. Additionally, I frequently found myself smiling after informing a client that his Warhol was the real deal; having to tell a client his painting was a fake wasn’t a good feeling. Not surprisingly, those who owned authentic pictures never failed to compliment my skill and acumen; those on the other end of the stick thought I was ignorant. But one of the unforeseen pleasures of the art authentication business was that I was now in a position to give something back to the art world. I decided to offer our services to university art museums on a pro bono basis. Recently, we were asked by Oxford University to examine a small Keith Haring sketch that was given to them — and it happily turned out to be genuine.


Richard Polsky has accumulated forty years of expertise in the contemporary art world as a gallery owner, author of multiple books on the art market, lecturer, and provider of litigation support. Richard Polsky Art Authentication can be viewed at www.RichardPolskyart.com.

I was very inspired after reading this recent online NPR article on blind and visually impaired art enthusiasts being able to “see” and experience works of art at the Smithsonian American Art Museum in Washington, D.C. through uniquely guided tours.  The museum offers America InSight tours twice a month led by specially trained docents to blind and visually impaired visitors.

During these specially guided tours, the dozen or so volunteer docents use verbal descriptions of artwork as well as other senses in their verbal descriptions, such as the sound of music to bring to life a work of art.  The visitors are encouraged to imitate the pose of a sculpture while participating in the tour.  In some cases, low vision and blind visitors can even touch some of the art with the use of Latex-free gloves.

While moving slowly through the museum during the tour, the blind and visually impaired visitors are able to “see” the artworks in their imaginations with some getting close to the artwork to view it better with the aid of a magnifying device.

The Smithsonian American Art Museum’s America InSight tours certainly prove that there are a number of ways to experience works of art and not just through sight.

In recent art world news, on December 29, 2016, the Polish government signed an agreement with the privately owned Princes Czartoryski Foundation to purchase the Czartoryski art collection, which is recognized as one of Europe’s most significant private art collections.  The family foundation has administered the collection since its inception in 1991.

The Czartoryski art collection includes 250,000 historic manuscripts and documents, some of which were previously owned by Polish kings.  The treasured collection also includes 86,000 museum artifacts of which contain 593 precious artworks, most notably, Leonardo da Vinci’s “Lady With an Ermine” (1489-1490), Rembrandt’s “Landscape With the Good Samaritan” (1638), and sketches by Rembrandt, Auguste Renoir and Albrecht Dürer.

The purchase transaction only changes the status of the family art collection, which was set up more than 200 years ago by Princess Izabela Czartoryska.  It has been reported that the artworks will remain where they are today – most are housed and displayed in the National Museum in Krakow with the exception of “Lady With an Ermine”, which is displayed at the Wawel Royal Castle in Krakow.

The legal effort of Poland’s culture ministry “reflects a broader goal by the right-wing Law and Justice government, which since taking power more than a year ago has been striving to re-establish Polish heritage and history as a source of national identity and pride.”  Poland’s deputy prime minister and minister of culture, Piotr Glinski, who signed the agreement, has acknowledged that the $105 million paid for the collection by the Polish government is “way below the market price,” which is widely estimated at more than $2 billion, and the transaction can be viewed more as a “donation.”

Many artworks from the family art collection were looted during the war years, including Raphael’s masterpiece “Portrait of a Young Man” (1513-1514) and were never recovered.  The list of lost art work includes as many as 800 works.  The recently signed agreement “not only gives Poland the rights to the current collection, but also transfers the rights to any future claims to works of art that may be retrieved.”

As recently reported in the New York Times, the heirs of Alfred Flechtheim, a prominent German art dealer and collector, brought suit in federal court in Manhattan earlier this week against the German state of Bavaria over alleged Nazi-looted art works.  The heirs argue that the German state of Bavaria has refused to return art works that were looted by the Nazis before World War II.

The Flechtheim heirs seek the return of eight paintings by artists Max Beckmann, Juan Gris and Paul Klee from the Bavarian State Paintings Collection.  According to the complaint, the eight paintings include Beckmann’s “Duchess of Malvedi” (1926), “Still Life with Cigar Box” (1926), “Quappi in Blue” (1926), “Dream—Chinese Fireworks” (1927), “Champagne Still Life” (1929) and “Still Life with Studio Window” (1931); Gris’ “Cruche et Verre Sur un Table” (1916) and Klee’s “Grenzen des Verstandes” (1927).

The heirs had been in negotiations with the Bavarian government for seven years prior to filing their suit.  In their court filing, they accused the German state of not meeting international commitments on the restitution of Nazi-looted art.  Specifically, the complaint states “Bavaria’s refusal to confront its responsibility has persisted since the war” and its “chain of title to the paintings is defective because it was rooted in the seizure of Flechtheim’s property in violation of international law.”

In the complaint brought by the son and widow of Flechtheim’s nephew, the heirs allege that the works being sought were among those Flechtheim was forced to leave behind as he fled Germany and his galleries were taken over.

The Bavarian government has previously taken the position that the paintings were not looted art and that the works were sold by Flechtheim in 1932 before the Nazis came to power.  And, in 1974, the paintings were later donated to the Bavarian State Paintings Collections by Munich art dealer, Günther Franke.

The Flechtheim heirs, however, dispute the Bavarian government’s position, citing evidence that they claim shows the paintings were still in Flechtheim’s possession in 1934 after the Nazis came to power.  The heirs criticize the German state for its refusal to open records that they claim would be helpful in researching the fate of the paintings.  Their court filing cites a letter sent last year to the governor of Bavaria by nearly 30 members of United States Congress requesting “‘greater dialogue and cooperation to fulfill’” international principles aimed at supporting the restitution of art seized by the Nazis.”

The case is Hulton et al. v. Bayerische Staatsgemaldesammlungen et al., United States District Court, Southern District of New York, No. 16-09360.

In recent art world news, a Nazi-looted sculpture has been restituted to the rightful owners by the City of Berlin.  The looted art is a marble sculpture by Reinhold Begas entitled Susanna (1869-72) and the rightful owners are the heirs of the former publishing mogul Rudolf Mosse.

At the turn of the century, Mosse was one of the three wealthiest men in Berlin.  According to The Art Newspaper, Mosse’s “palatial neo-Baroque home on Leipziger Platz was filled with paintings, sculptures, antique furnishings and tapestries.  His collection included works by Max Liebermann, Carl Spitzweg, Wilhelm Leibl, Hans Makart and Adolph Menzel.”

Mosse was a successful publisher of the Berliner Tagesblatt newspaper, “a staunch advocate of democracy even before the Weimar Republic.”  After his passing in 1920, Mosse’s son-in-law, Hans Lachmann-Mosse managed the newspaper until he and his wife, Felicia Lachmann-Mosse, were forced to flee the Nazi regime eventually emigrating to the United States from Switzerland.

Mosse’s collection had been bequeathed to his daughter, Ms. Felicia Lachmann-Mosse, but had become lost after her emigration.  In 1934, the family’s possessions were seized and sold at auction and the family never saw the proceeds.

The Mosse Art Restitution Project was established by the family in 2012 in order to locate the missing art works.  Since the founding of the Project, eight works were returned in 2015.

According to the Prussian Cultural Heritage Foundation, the marble sculpture will remain on loan to Alte Nationalgalerie in Berlin, where it is currently on display.

After a 14-minute bidding war, Claude Monet’s 1891 painting “Meule” sold for a record $81.4 million.  “Meule” was among the offerings at Christie’s Impressionist and modern art auction held on Wednesday evening, which brought in a total of $246.3 million.

According to a Bloomberg report, Christie’s also set an auction record for Wassily Kandinsky whose 1935 abstract composition “Rigide et courbe” fetched $23.3 million.

Christie’s successful auction comes after dampened expectations for this week—Christie’s, Sotheby’s and Phillips are targeting at least $1 billion in sales during this week’s auctions in New York, down 49 percent from a year ago.

Read the Bloomberg report here.

The Arts + Business Council of Greater Philadelphia is an organization dedicated to strengthening Philadelphia arts, culture, and for-profit creative businesses, by connecting the creative sector with the business, legal and technology communities.

One of the ways it fulfills its mission is through the Philadelphia Volunteer Lawyers for the Arts program, which provides pro-bono and low cost legal assistance, educational programs and business counseling to artists, arts organizations, culture and heritage organizations, collectives, makers, inventors and startups in an effort to secure a thriving culture in the region and the innovation economy statewide.

Learn more here.

The New York Times recently reported that gallery owners and collectors alike are recognizing the link between the art market and museum exhibitions.  According to one art consultant:  “A museum show can be very influential for an artist.  It changes the price point, the popularity, the awareness a person has for an artist.”

For current owners, loaning artworks to a museum may increase its value, but is not without its risks—including potential damage, seizure and insurance issues.  And, for those looking to collect, buying artworks based solely on the fact that it has been exhibited in a museum may too just be a gamble.

Read the full story here.

The National Law Review recently summarized key lessons gleaned from Hoffman v. L&M Arts, et al., No. 15-10046 (5th Cir. Sept. 28, 2016), regarding the drafting and construction of confidentiality provisions for the sale of artwork.

Hoffman involved a claim for breach of a confidentiality provision in a Letter Agreement between Marguerite Hoffman, a wealthy art collector seeking to sell her “Untitled” 1961 Mark Rothko oil painting, and L&M Arts, a broker which was acting as an intermediary between Hoffman and the buyers, Studio Capital, Inc. and David Martinez.

The Letter Agreement included the confidentiality language: “All parties agree to make maximum efforts to keep all aspects of this transaction confidential indefinitely.”  In addition, the Letter Agreement required the buyers to not hang or display the painting for six months after the sale.

Several years later, the buyers auctioned the painting, which appeared on the cover of the Sotheby’s catalog and sold for more than $31 million.   In response, Hoffman sued L&M Arts, and the buyers for breach of the confidentiality provision of the Letter Agreement.

On appeal, the Fifth Circuit Court of Appeals, among other things, found that the Letter Agreement was not breached and ruled in favor of L&M and the buyers.  Read the full opinion here.

National Law Review’s key lessons:

  • Confidentiality provision may be used to keep the sale of artwork secret, but have to be limited in scope so as to not be deemed an unreasonable restraint on the sale of property. A significant factor with respect to enforceability of such provisions is the length of the restriction.
  • Confidentiality provisions should clearly define its scope including date, time or geographic restrictions, as well as what each party to the transaction can and cannot do.
  • The parties to a transaction should always ensure that every party is bound by the confidentiality provisions, or, at the very least, include an indemnity provision for the breach of a third-party buyer when an intermediary is used.
  • In case of breach of the confidentiality provisions, parties should clearly draft the remedies and damages that may follow.

Read the full story here.

Support of living artists can be rare.

Everyone knows the cliché “starving artist.”

However, things are about to change across the pond.  Last week, London’s mayor, Sadiq Khan, announced a new program designed to fund artist’s studio space through the financing of a special trust.  The trust known as the Creative Land Trust has been established through public and private dollars to keep artistic talent in the city of London and to avoid artist flight due to astronomical housing costs.

Somerset House Studio, a mixed used historic building along the Strand, is the first to reap the rewards.

This is an encouraging step in ensuring that there is continued investment in the arts. Large American cities like Philadelphia, New York, and San Francisco among others should take notice and strive to make similar investments.