Over the past decade, many important authentication boards have been dissolved, complicating the award conditions in purchasing contracts. While there are still a number of ways to investigate the authenticity of a work, including determining whether it is listed in an artist’s catalog raisonné and performing forensic analysis, there is still a significant risk. “Part of my job is to think about how this risk of authenticity is going to be distributed,” said Megan Noh, partner and co-chair of art law at Pryor Cashman. “Essentially, it means defining the remedies available to the collector if the coin turns out to be fake.”
For private sales, the duration of the warranty (period during which the buyer can claim a claim for breach of warranty), the means of proving the absence of authenticity of a work or the methods of dispute settlement are negotiable in a contract. For example, a lawyer may ask the seller to agree in advance to grant the buyer the right to terminate their contract if, during the warranty period, a large auction house or museum refuses to accept a part because of concerns about its attribution. Such a contractual construction is designed to oblige the seller to reimburse the sums without the buyer having to take legal action to prove the inauthenticity on the basis of more concrete evidence.
Avoiding litigation can in itself be an end goal. Noting that many collectors value confidentiality and discretion, Noh said she often encourages her clients to add alternative dispute resolution provisions in their private contracts so that problems don’t automatically end in public litigation.
When buying works from galleries, there is less room for contract negotiation, so collectors should instead rely on well-written invoices. “Under New York law, if a gallery gives a private collector an invoice describing an unqualified work as having been created by a particular artist, it is effectively making an express declaration and guarantee of authenticity,” Noh said. Auction purchases are also subject to this version of an express warranty, although terms vary from home to home.