Art Law: How Nations Around the World Deal with Forgeries
To combat what it called the “scourge” of art forgeries, the government of Morocco announced last month plans to draft new legislation that cracks down on counterfeiters of contemporary paintings and sculptures, as well as other cultural property. Moroccan Minister of Youth, Culture and Communication, Mohamed Mehdi Bensaid, said the goal is to “establish a mechanism aimed at supporting the promotion of Moroccan artists and strengthening their presence on an international scale,” noting that “counterfeiting affects the credibility of artists, gallery owners and Moroccan art in general.”
The legislative package aims to improve detection systems, impose harsher penalties that include prison terms and not just monetary awards and better regulate auction houses. The laws of a distant nation might seem of little concern to U.S. citizens, but Morocco is one of many countries whose economies heavily depend on tourism, and travelers there and elsewhere abroad naturally want to be certain that artworks they purchase are not counterfeit.
The Moroccan art market itself is small, estimated by officials in the country at perhaps $2.5 million, but paintings by its national artists have become popular in other countries, which has led to forgeries appearing in galleries, auction houses and online.
Morocco joins a growing international effort to fight fakes and counterfeit cultural property. “Most countries in the world have rules against fake and forged artworks,” Massimo Sterpi, an intellectual property lawyer in Rome and the co-author of The Art Collecting Legal Handbook, told Observer. Those rules may lay out standard prison times for those who sell inauthentic cultural property, including dealers and auctioneers, and for the counterfeiters themselves.
In Greece, for instance, forgers and fraudulent sellers face incarceration and monetary damages (the return of the price paid and even the psychological stress caused). Sellers of forgeries and counterfeiters in Italy face fines and prison, ranging from three months to four years. Jail time usually is not part of the equation in Germany, where proven fakes, forgeries and counterfeit objects result in the cancellation of a sale and potential damage awards where the seller acted willfully or negligently. There are fewer repercussions for sellers of fakes and counterfeiters in India and Iran. India’s 1972 Antiquities and Art Treasures Act makes no provision for dealing in stolen, forged and counterfeit objects, requiring victims to bring a lawsuit in civil court, while the sale of objects considered to be national heritage in Iran requires government approval, without which the sale does not create a valid title, making it unlikely that a victim would take the matter to court.
The United States does not have any federal art forgery laws, although there are laws in every state—the Uniform Commercial Code—that require objects bought and sold to be authentic (what they are claimed by the seller to be). New York State’s Arts and Cultural Affairs Law specifically criminalizes false claims and falsified certificates of authenticity associated with artworks.
Additionally, twenty years ago the FBI established an Art Crime Team, which was originally focused on stolen artworks and antiquities but has expanded its efforts to include forgeries. That team has kept busy, for instance, raiding the Orlando Museum of Art in 2022 at the outset of an exhibition of the work by Jean-Michel Basquiat and seizing twenty-five paintings, which the FBI claimed were forged works by the artist, leading to the firing of the museum’s director, Aaron De Groft, by the institution’s board of trustees along with the resignation of its chief curator. It also pursued the claims agains Daniel Bouaziz, owner of Danieli Fine Art and Galerie Danieli in Palm Beach, who eventually admitted to selling counterfeit Warhols and was sentenced to twenty-seven months in prison.
In February of this year, Brian R. Walshe of Lynn, Massachusetts was sentenced to thirty-seven months in prison and a fine of $475,000 for attempting to sell numerous paintings on eBay that he claimed were by Andy Warhol. At some point next year, two Michigan brothers, Donald Henkel and Mark Brian Henkel, are expected to go on trial for forgeries of art and sports memorabilia. These trials were the outcome of FBI investigations.
“More fakes are offered for sale than legitimate objects,” said Robert Wittman, an art recovery and security consultant in Chester Heights, Pennsylvania, who founded the FBI’s Art Crime Team during his twenty years at the federal law enforcement agency. “Seventy percent of the prints you see for sale on eBay are not authentic.”
The same is likely true of Etsy, where there is a seemingly endless supply of what are billed as signed Picassos, Basquiats, Warhols, etc., sourced from random estate sales or ‘acquired from a private collection in Europe.’
Wittman defines art forgeries as copies of actual artworks that are sold as originals and fakes as paintings in the style of a well-known artist’s work. The FBI becomes involved in these cases, rather than state law enforcement agencies, because many fakes and forgeries are sold and shipped across state lines, leading to charges of mail and wire fraud.
Auction houses are required to comply with anti-money laundering regulations enforced by the U.S. Department of the Treasury’s Financial Crimes Enforcement Network, but forgeries are a different matter. However, the major auction houses are “imposing much more rigorous customer requirements on their consignors,” according to Daniel H. Weiner, a partner in the New York law firm Hughes Hubbard & Reed, and they “are putting money into scientific analyses of artwork to detect fakes.” One example of this is Sotheby’s 2016 acquisition of Orion Analytical, which applies technical imaging, magnified visual inspection, elemental analysis and molecular analysis to detect anomalies and anachronisms that raise questions about the attribution or age of works, ultimately determining if they are misattributed or fake.
Purchasing artwork in another country becomes complicated when concerns over forgery are raised. U.S. travelers might return to the seller if they were still in the country, claiming concerns about the authenticity of an artwork they had purchased and demanding their money back in return for the art. If the seller balks, they could apply to a government agency for assistance or hire a local lawyer to pursue the matter. However, if the travelers have returned to the U.S., the likelihood of going back to that country or hunting up a lawyer is small, unless they have spent a considerable amount of money for the artwork. In less developed nations, the cost of legal counsel would not be as great as in some Western European countries, which may determine the course of action.
“In most cases, I would tell people, ‘Chalk it up to experience and enjoy it,’” Wittman said.
Those attending international art fairs face different complications, such as jurisdiction, if there is a dispute. Purchasing from an Italian art gallery at Art Basel would raise questions about whether Italian or Swiss laws would govern the sale—a point of law that would have to be resolved before the next step in unwinding a sale could begin. Collectors have to make buying decisions quickly at art fairs, while determining if an artwork is authentic takes time. Megan E. Noh, a partner at the Manhattan law firm Pryor Cashman, told Observer that “authenticity diligence is conducted using different resources, which may vary by collecting category, age, and origin of the work in question; those resources include catalogue raisonnés (and related foundations/committees, as well as artists’ estates), forensic analysis and connoisseurship analysis.” But there is little time for all those considerations when the clock is ticking and competing collectors are hovering nearby.
Anne-Laure Allehaut, a lawyer at the New York City-based Patterson Belknap, said that “people may want something so much, and things are moving so fast, that they don’t think to ask questions.” Her more experienced art-collecting clients tend to know better. “I often have been called by clients at foreign art fairs, generally before they actually complete a sale, and I rush off a standard sales agreement to them,” which the seller would have to sign before the transaction is completed. That agreement includes warranties of authenticity, condition, provenance, proper title and outlines that any dispute would be resolved in a New York court. She added that “New York State has a developed body of law that covers these types of issues. So do the U.K. and France. Not so much Indonesia, but Hong Kong is fine.”