Transactional malpractice in and around fine art prints

19 Jan, 2017 Articles

Art prints form a separate and independent segment of art market. They are produced in multiples where each peace forms an original work of art. Therefore, art prints are highly collectible. Even adjusted for risk, investing in prints appears to be quite attractive. For instance, Pablo Picasso’s La femme qui pleure, I (State VII/VII), was sold for $5,122,500 in November 2011 at Christie’s, doubling the previous record price[1].

Where something becomes worth of collecting and transacting, along come the swindlers. This article will discuss the most typical types of malpractice in art print transactions and provide some advice on how to protect yourself when buying the desired piece.

Distortion of edition size

In addition to the numbered prints, several “proofs” are usually printed before the plate is destroyed. This is a traditional practice, which is partly due to peculiarities of technical process of print creation (e.g., working proofs, pre-cursors to a limited edition series pulled so that the artist may examine, refine and perfect the prints to the desired final state; cancellation proofs,  final prints made once an edition series has been finished to show that the plate has been marred/mutilated by the artist, and will never be used again to make more prints of the edition) and partly due to “human element” (e.g., artist’s proofs, generally thought for artist’s personal use; printer’s proofs, retained by the printer for reference, which are often signed by the artists as a gesture of appreciation). Noone has ever determined the maximum amount of the proofs done.

An obvious abuse occurs, when too many proofs are printed and sold in addition to the numbered prints. The “limited edition” is no longer as limited as the buyer of a numbered print might suppose. In addition to signed/numbered edition, there might be also an edition of "Publisher’s Proofs", "Deluxe Edition" on better paper or "Canvas Edition", "Remark Edition" and the "Hand-Enhanced" edition. The most contradictory one is the HC edition (Hors de Commerce), which in French means "Not for Sale" and is intended to be used as sample prints to show to dealers and galleries.

What you as a buyer might do is to request the seller to disclose all the information he/she knows about the types and sizes of all the editions printed from the same plate. Be careful and aware of the guarantee terms and damage awards mentioned in the respective agreement or provided by applicable legislation.

Sale of reproduction

The other type of unfair unscrupulous business practice is selling a reproduction as an original print. Determination whether the print is original is a difficult matter (as an example, please see Simon-Whelan’s case about Andy Warhol’s self-portrait at http://artlaw.online/en/cases/simon-whelan-s-antitrust-suit ).

The mostly common type of such a fraud is intentional representing a photo-mechanical reproduction (e.g., a poster) as an original fine art print.[2]

The signature on a reproduction can be either forged or real. In case of artist’s personal (real) signature, the question arising is whether the artist has approved the copies by this signing, while not being participating himself in the process of making the reproduction until the very last moment.

It is known also that some artists signed blank sheets of paper (like Dali, for example) which are later printed by a reproductive process and sold as originals.

The seller might offer the purchaser a reproduction instead of an original print also unintentionally. It could be understandable unless the dealer refuses to refund the buyer the purchase price. All the signs of offence are clearly seen except for fraudulent intent which could vanish all the former ones. Although reputable dealers watch closely for mislabelled reproductions, using catalogues that list all works by an artist, with relevant details such as date, size of edition, states, and any known copies[3], it is still possible for reproduction to pass unnoticed. Catalogues may be much of a help in “pastiche” and “evocation” types of forgery. In the pastiche type, elements from many different works of the copied artist are patched together in the forgery. In evocation type forgery, the forger does not incorporate any specific elements from the copied artist, but rather tries to capture the "spirit of the time" and the artist's technique. Clearly, if oil does not appear in the catalogue of the complete works of the forged artist, the oil's authenticity is highly questionable[4]. Nevertheless, catalogues provide little protection against “direct copy” forgeries.

What you as a buyer might do is to review all the available documents regarding the desired art print (expert opinions, provenance, catalogue-raisonne, etc.), attract your expert to double-check the work. This might improve your chances to make an appropriate purchase.

Posthumous prints

Despite of the clear forgery of the artist’s signature, a print signed by artist’s relatives after his death is not considered an absolutely valueless fake. For example, posthumous Pissarro prints have a stamp resembling his signature; late Picasso prints often have the signature stamp. Such signatures are ways that the estate or heirs can certify that prints going on the market in some degree adequately reflect the artist's intent, have been produced in limited editions, or in other ways are not just valueless reproductions[5]. Reginald Marsh’s, Bellows’s, John Sloan’s multiples were signed by close relatives after their spouse-parent died.

Nevertheless, false identification of a signature as the artist’s own when it is actually that of an heir or estate is a fraud. Therefore, what you as a buyer might do is to request the seller to disclose all the information about the creation process of the desired print.

Legislation targeted particularly at fine art prints

The USA legislators were the first ones to respond to the growing amount of malpractice and to pass the so called “fine art print laws”, specifically designed considering peculiarities of the sphere. These laws, in a nutshell, are mainly consumer protection statutes whose purpose is to allow the consumer, before they buy a print, to know exactly what they are buying, the type of print, the paper it is made on, the media used to make, the true size of the edition and whether or not the artist had anything to do with the creation of the print as indicated by their signature[6]. Moreover, these laws help to define the originality of a print (as an original work of art), define the limited edition and all the original prints within it, etc., that help to determine the scope of protection and influence of copyright law norms on the art print production and trade.

Starting with the Californian Civil Code of 1971, about 15 other USA states adopted print or multiple laws in an attempt to regulate market and protect the buyer.

These are not unified statutes. Every state has adopted different norms. The mostly common aspect to all these acts are the disclosure provisions.

Disclosure provisions

Since prints and other fine art multiples are created using so many different processes and with greater and lesser degrees of the artist’s involvement or even consent, it is very difficult for the consumer or collector to know what type of multiple they are considering for purchase, whether it is authentic, and whether it has been made with the artist’s involvement or authorization[7]. Additionally, a collector needs to know whether the market will later be flooded with additional copies of the same or a substantially similar print, possibly deflating the value of all the prints in the marketplace[8]. Obligation to disclose information protects the consumer from making uninformed decision or decision that would not correspond to the consumer’s (buyer’s) intention.

Certificate of authenticity

Different states have inserted disclosure obligations in different legislative acts: civil codes, special print laws, consumer protection statutes. Predominantly, they require art dealer to provide certificates of authenticity along with any sale of a fine art print. This obligation covers inner-state sales and sometimes also coming-in purchases. In some states certificates of authenticity constitute express warranties that the print they accompany is as the certificate states[9]. It is particularly important when the question of total amount of prints produced from the same plate is touched (please see “Distortion of edition size” above). It should be stated in the certificate of authenticity whether the plate was destroyed after the edition of the certain amount of prints had been produced.

You may find the full list of required information to be disclosed in the certificate of authenticity under Californian Civil Code in Art.1742-1744.9 at http://www.easylawlookup.com/California-Law/Civil-Code/par-5854/_easylookup.blp?data=CIVILCODE&sidfw=&site=EASY&print=&p_start=244&p_end=246&p_para=5854&p_epara=5885&displayer=YES&site=EASY&stype=P&sterm=+&smode=AND&sexact=ON&spon= and under New York Art and Cultural Affairs Law Art.13.01 Express Warranties at http://codes.findlaw.com/ny/arts-and-cultural-affairs-law/aca-sect-13-01.html [10]

Consumer protection information is also to be inserted in advertisements and publicity of art dealers even in case they sell prints via the catalogue or over internet. To be in compliance with the requirements of the law, the advertising and promotional material must include the same information as the certificate of authenticity, and that information must be placed in close proximity to the multiple being described for sale.

Conclusions

The modern world is acquainted with many cases of malpractice related to the fine art prints. Some countries, like the mentioned USA states, have adopted task-oriented legal acts raising the protection of the public and providing for consumer self-education. Despite of the intention of these acts to prevent confusion and deceptive merchandising practices[11], there are still some concerns in legal community as to the level of achieving those intentions/goals. The weakest parts are limited enforcement mechanisms provided for in the print laws, minimal damage awards, restriction of injunctive relief (rather often)[12].

In Europe, in its turn, unscrupulous business practice related to fine art prints mainly fall under the general consumer protection norms. There is also Unfair Commercial Practices Directive No. 2005/29/EC[13] adopted in the Member States, which targets at scrupulous behaviour of all the categories of sellers. However, as far as the author knows there is no separate legislative act in any of the European countries defining and regulating unfair practice particularly in the art print market which served for protection of all interested parties: artists, art dealers (sellers) and buyer (consumers or not).

 

Irina Olevska, LL.M, attorney-at-law, Art Law projects’ curator at Riga Graduate School of Law

Specially for artlaw.online

 

Image on preview: Joung Georgian, lithograph, hand-coloured, N. Currier c.1846, source: https://commons.wikimedia.org/wiki/Category:Hand-colored_lithographs#/media/File:Young_Georgian_-_N._Currier_c.1846.jpg


[1] http://www.christies.com/departments/prints-44-1.aspx

[2] It should be noted, however, that with the onrush of technology, even some forms of photo-mechanical reproduction might be considered valuable pieces, but this the topic worth of a separate analysis.

[3] F. Meyer, Marc Chagall, Life and Work (1963); R. Field, Jasper: Johns Prints 1960-1970 (1970)

[4] Hoving, Game of Duplicity, 26 METROPOLITAN MUSEUM BULL. 241, 246 (1968).

[5] Harriss Chrank, Fine Print Signatures - A Discussion of the Issues, http://www.ebay.com/gds/Fine-Print-Signatures-A-Discussion-of-the-Issues-/10000000000741947/g.html, looked at 17.01.2017.

[6] Joshua J. Kaufman, All Those Proofs and Editions, What's a Consumer To Do?, Art Business News, June 2003

[7] For more details please see: Expanding Art Markets: Prints, Certificates of Authenticity, and Art Licensing By Brooke Oliver, Esq., available at: http://www.50balmy.com/wp-content/uploads/2015/01/certs_of_authent2004BO.pdf , looked at 17.01.2017

[8] id.

[9] Id.

[10] Californian and New York laws are the most inclusive in comparison with other States’ laws, therefore links to the both acts are provided

[11] Susan L. Troxell, Comment, New York's Sale of Sculpture Disclosure Law: Art Merchant Beware, J. ART & ENT. LAW 15 (Fall 1991).

[12] Douglas G. Boshkoff, Art and Law, At Home and Abroad, 64 IND. L.J. 83, 89-90 (1988)

[13] Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) Available at: http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32005L0029. Looked at 17.01.2017