Sunday, July 23, 2017

How to improve the global art market: a proposal

Is it time to create an International Art Market Practice Board to assess and appraise controversial issues and promote best practice? 
What might such a board look like? Who would sit on it? Would they be appointed or elected, and how often would they convene? Who would decide which issues would be explored and why? 

In May 20017, the BBC broadcast a documentary about the murders in rural Kent in 1996 of Lin Russell and her daughter Megan, along with the attempted murder of Megan’s sister, 9-year-old Josie. Director Matt Rudge’s programme invited a panel of experts, including forensic scientists, former detectives, barristers and criminologists — some of whom had been directly involved with the original case — to re-visit the evidence relating to the notorious Chillenden Murders. They did so with admirable diligence and deep moral concern. It made for compelling television; but it prompted other thoughts too.

Happily we don’t have many brutal homicides in the art world, but we do have other crimes. Could a similar methodology be adopted for exploring the legal, ethical and moral problems that arise in the art market? Variants on advisory panels and mediation agencies are already being explored in cultural heritage disputes, but not for the professional practices of the broader art market, certainly not for the contemporary art market. 

No group of experts could reasonably be expected to address every case of allegedly unethical behaviour, every questionable business practice or disagreement between parties. In any event, such matters are often decided amicably between individuals, or through the market’s own Darwinian logic, which is not dissimilar to the kind of self-regulating systems that operate in other commercial sectors. Even in more serious cases where these mechanisms are inadequate to the task, there are options through civil action or criminal law. Problems do arise. Problems get resolved. 

However, there are many issues that are specific to the art market, some of which are a source of dismay to outsiders and which could therefore be having a detrimental effect on wider participation. These issues often revolve around an ethical axis rather than a strictly legal one, but transparency is always at the core.

Three or four examples might suffice: 

Firstly, art is notoriously susceptible to cross-border manipulation by ‘grey market’ participants. This has led to a general acknowledgement that in an increasingly financialised market, tighter regulation of insider trading would be constructive. In fact, international regulation of insider trading is gradually taking shape. But will business practices in the art market be properly covered by it? We hear much of the auction guarantee system, but few know how it actually operates, how often a very small group of individuals share privileged information among themselves, which can drastically effect prices. The participation of auction houses on both sides of the transaction in guarantee situations ought to be a cause for concern.

Secondly, in one or two recent cases concerning art forgery, the legal system has failed to clarify the precise nature of what occurred. This is essentially a failure of enforcement. The Knoedler scandal made it to court, but was then abruptly concluded before the most significant figures had taken the stand. Thus, thanks to out-of-court settlements, no explanation was ever forthcoming on how the scam was actually mobilised throughout the supply chain, nor what the implications of the case might be for the broader art trade. 

Thirdly, while international press coverage has drawn attention to the problematic business techniques used by some art recovery agencies, the market in general has been largely silent on the issue, preferring instead to draw a blind eye, or to view such approaches as a mere occupational hazard: “At least we got the pictures back.” Perhaps, but do the ends always justify the means? If market participants were to conclude that the real moral hazard may lie in actually doing business with the more problematic companies in this sector, then one might reasonably see that as a form of self-regulation in practice. Unfortunately, the art recovery market still operates as a virtual monopoly. And monopolies are not a feature of mature markets. 

Elmyr de Hory, 
Portrait of a Woman, 1974
Finally, as prices have risen exponentially in recent decades, many connoisseurs and experts have ceased offering opinions on high-value works of art coming to market or to exhibition. When a respected compiler of an artist’s catalogue raisonné is forced to abandon the project following death threats from disgruntled collectors unhappy with his opinions, we know we’re not in Kansas any more. Similarly, the multi-million dollar “lawyering up” by foundations to intimidate owners against consigning works for sale, usually on grounds of disputed authenticity, has begun to resemble the kind of practices we associate with gangster movies.  

A public discussion at this year’s Art Basel, ably moderated by András Szántó, sought to address some of the perennial issues of art market transparency and whether or not current market regulations were sufficient to confirm its maturity as an “industry”. 

The consensus seemed to emerge that the informal, ‘handshake’ nature of art market business transactions should be treated simply as a given, and moreover that any attempt at further regulation of matters such as information disequilibrium (which is widely acknowledged as rife across the art market) would surely have a detrimental effect on business. 

It was also pointed out that relative to other business realms, the art market is relatively small in dollar terms. The sociologist Olav Velthuis referred to the size of Walmart’s turnover in the US alone — $500 billion, he reports — compared to the estimated size of the global art market — “somewhere between 40 to 60 billion US dollars”. Unfortunately, while we have relatively reliable benchmarks for assessing the size of Walmart, no comparable reliability can be applied to the global art market. Its inherent secrecy and confidentiality — sometimes referred to as a kind of omertà — preclude accurate statistical appraisal.

How, then, to move the art market forward on structural issues of this kind, without throwing the proverbial baby out with the bath-water? 

One practical suggestion might be to create an International Art Market Practice Board, perhaps something akin to the Financial Services Authority, that convenes in certain agreed instances. The potential implications of each case would need to have been recognised as significant to the broader market, its professional practices, and reputation. The panel might convene either before a case progresses to civil proceedings or criminal court, perhaps even with a view to obviating the need for future court action. Or its deliberations might be used to provide expertise to subsequent hearings. This might be particularly helpful given that judge-led court hearings are often improperly equipped to deal with the delicate nature of art market-related issues concerning authenticity, connoisseurship, agency, moral rights, and so forth. The Board might also convene once a year to review the general state of the market, to identify potential causes for concern and to suggest ways the market might be improved (and not necessarily through more regulation). 

The aim here is not to bring more law into the market, however critical specialist art lawyers are to a healthy market, but rather to pool expertise across all relevant domains: law, the art trade, forensic science, art history, museum management, academia, journalism, connoisseurship, art criticism, insurance, art fairs, and auction houses.

An interesting outcome of the BBC documentary referred to above was the disclosure that the barristers who participated in the programme, Stephen Kamlish QC and Sheryl Nwosu, have offered to represent, at his forthcoming appeal, Michael Stone, the man now thought to have been improperly convicted of the crimes in 1996. Kamlish and Nwosu’s decision was a direct result of having collaborated with other impartial experts from cognate fields of enquiry, which led them to question the judgement handed down in 1996. By reviewing the evidence in this way, the panel threw light on the professional practices of the relevant agencies and hinted at ways investigative procedures could be improved. 

Could a similar methodology and ethical purpose provide the foundation for an International Art Market Practice Board?

Tuesday, April 18, 2017

Bernard Buffet: Yes or No?

What are we to make of French artist Bernard Buffet (1928-1999), whose paintings have for decades been greeted with snorts of derision by most of the serious art world? 

While working as an art market journalist during the 1990s, we used to gather around each others’ desks whenever a Buffet appeared in an auction catalogue. They invariably drew gales of laughter from the entire office. It wasn't just the tacky subject matter: anorexic nudes, gloomy clown masks, clunky still lifes; it was the technique too: the black cloisonné outlines, the bilious palette, the daubed, scratchy backgrounds. Buffet’s work seemed to encapsulate the worst aspects of post-war French painting. There is a word for a fear of clowns — coulrophobia. If you’re not familiar with it, just take a look at Buffet’s paintings. They’re hilariously bad.

But wait, is he due a revival? If we are to believe Nicholas Foulkes’s excellent biography, Buffet’s grim existentialist vision is poised to enjoy a market renaissance. The problem is — and it’s now a familiar one — the motor behind the Buffet industry is not being driven by the art historical or art critical community, but from, yes, you guessed it, bankers and other opportunistic investors. 

Bernard Buffet: The Invention of the Modern Mega-Artist (Arrow Books, 2016) is no slim volume. At 450 pages, Foulkes has rolled his sleeves up, notched up some air miles and consulted many of those closest to the artist, some of whom were instrumental in promoting Buffet from a Gallic James Dean-lookalike to château-owning millionaire in a matter of just a few years. Most prominent of his sources was the soigné French socialite Pierre Bergé, later to become the lover and business partner of Yves St.Laurent. Bergé was Buffet’s first great romance and by most accounts the architect of the young artist’s transformation from a moody, poverty-stricken outsider to art world vedette during the 1950s. Bergé’s subsequent efforts to undermine his former lover’s career following their break-up — something Bergé adamantly denies — is one of the book’s more intriguing subtexts.

Although a man of few words (“oui, non, peut-être” seems to have been the limit of his vocabulary), the youthful Buffet was blessed with the etiolated good looks of the half-starved Left Bank drop-out.  He also had a chip on his shoulder the size of the Gorge du Tarn and a gargantuan appetite for booze and fags. But he also had what Foulkes repeatedly refers to as a Stakhanovite appetite for work. Had he been a better painter that productivity might have been a good thing (Picasso was no layabout) but so prodigious was his output that it inevitably led to accusations of robotic repetitiveness. You might say there were always too many Buffets for the world to digest, but in his heyday so popular was he among an undiscerning public (including the Japanese) that his fame and wealth grew and grew. 

At the beginning of Buffet’s career, Pierre Bergé, the dealer Maurice Garnier, and the rest of the artist's coterie of well-connected admirers never doubted his “genius” and deployed all the familiar art market techniques to launch him to stardom. It’s clear that Foulkes also subscribes to the “genius” tag and even digs up a couple of quotes from none other than Andy Warhol in support of this dubious assessment, conveniently overlooking the fact that Warhol was the cynical contrarian par excellence. “Art is what you can get away with,” he once said, and it was clear that Buffet was getting away with it to spectacular effect. 

Today, the international art market is notable for its art historical ignorance and lack of aesthetic criticality. Instead we’re witnessing an increasingly obsessive reliance on econometric analysis and investment-based data-mining designed to feed the appetites of billionaire plutocrats, Wall Street speculators, wealth managers and family offices. This amounts to another form of groupthink, a kind of anamorphic distortion in which art historical and aesthetic concerns are fuzzed up by the moiré of price data. Perhaps unsurprisingly given these recent trends, Foulkes’s book closes with contributions from the new breed of Buffet-dealers and Buffet admirers, or rather, investors. “If I had £100,000, I’d invest in a painting by French expressionist painter Bernard Buffet,” gushes Jean-David Malat, super-salesman for the Bond Street corporate mega-gallery, Opera. If he’s wrong, it could be the death of Malat.

Other Buffet speculators include the jet-setting financier Stephan Wrobel who is busy deploying strategies more usually associated with the stock market in order to increase his Buffet position. Wrobel counts Buffet as one of the towering figures of twentieth-century painting, listing him alongside the likes of Giacometti, Bacon, and Freud. To juxtapose Buffet with Giacometti, Bacon and Freud would until recently have been enough to exclude Wrobel from the high table of critical sophistication, but criticality is no longer the issue; it’s now about primitive accumulation. In another quote, Wrobel refers to Buffet being “in dialogue” with Dürer, Rembrandt, El Greco, Goya, Courbet, Delacroix, Cézanne, Picasso, Matisse, Morandi, et al. If he is, they aren’t listening. 

The mention of Morandi is noteworthy, for earlier in the book, Foulkes, working up a head of defensive steam to condemn Buffet’s exclusion from a big Pompidou Centre survey show, has this to say about the painter’s seeming victimisation by the critics:

“To omit him altogether (while including his Biennale colleague Giacometti and the one-trick bottle-painter Morandi) is a compelling piece of evidence for a conspiracy, pogrom, or campaign of intellectual terrorism.” 

I’d give anything to overhear the dialogue between the one-trick bottle-painter and the one-trick clown-painter. For me, Morandi wins hands down. 

While Foulkes does well to garner testimonies from a host of confidants and cheerleaders, including  Buffet’s former lover Pierre Bergé; the painter’s life-long dealer and business manager Maurice Garnier; Buffet’s adopted son Nicolas, and the iconic chanteuse Juliette Greco, what is really missing are the voices of scholarly critics, prominent curators and respected art historians. 

Picasso’s biographer John Richardson has a walk-on part but is understandably withering about the suggestion that Buffet might be compared with Picasso. The very idea is laughable, of course. Picasso was occasionally off form, but rarely was he was that consistently off form. To liken Buffet’s crudely banal Horreur de la Guerre (aboveto Picasso’s Guernica, as one prominent French museum director did, is just one of the many blundering comparisons quoted throughout the book. 

Such is the determination of those invested in the Buffet industry to recover his stock that, if necessary, art history must be rewritten. Benjamin Buchloh is one of the few academically established names to make a brief appearance. While interviewing Warhol, he realises after a few minutes that Andy is not referring in glowing terms to Jean Dubuffet, as Buchloh assumed, but to Bernard Buffet. At that point the German art historian’s interest fizzles out like a damp Gauloise. Given the close homophone, it’s an easy mistake to make…until you survey the two artists’ oeuvres and their respective contributions to the history of art. 

One can’t help admiring Foulkes’s strenuous attempt to make the case for Buffet’s “genius,” but unlike the speculators queuing up to secure examples of his work, I don’t buy it. 

This is a hugely entertaining biography, beautifully written and rich in colourful, anecdotal detail. The Francophile Foulkes is clearly in his element writing about the snobbish gratin, the cultured upper crust of post-war Paris, through which a young, Ricard-soaked Buffet drifted in a haze of Gitânes smoke. It’s also a poignant tale. After a lifetime spent in his various châteaux, relentlessly churning out his lugubrious Dante-inspired grands machines, grimacing clowns, sinister cathedrals, minatory birds and giant insects, with only his loyal, once beautiful, whisky-soaked wife Annabel for company, the ageing, reclusive, alcoholic Buffet, now running to embonpoint and still at odds with the world, puts a plastic bag over his head, ties it round his neck and finally bids the world, “Au revoir”.

Will his reputation be revived and the market rise? — Oui? Non? Peut-être… 
______________________________________________________        

Saturday, November 12, 2016

Dr Ruth, Donald Trump and Ronald Reagan's wristwatch

February 1999, I was in a freezing New York, just across the street from Donald Trump's high-rise homestead, reporting for the London-based Antiques Trade Gazette on a celebrity charity wristwatch auction being beamed live via a then largely unfamiliar thing called 'the Internet'.

Unfortunately, en route to the event I left my new Pentax SLR camera on the rear seat of a yellow cab (mobile phones were still relatively new-fangled devices back then and none had cameras installed). 

Had I not lost my camera, I'd have been in the weird position of snapping at close quarters the narcissistic, bullying, misogynistic, homophobic, racist, Islamophobic, Putin-idolising, bellicose, hip-shooting, tricologically-challenged, tax-dodging, President-Elect and future Commander-in-Chief of the USA: "the most powerful job in the world". 

Trump bought Ronald Reagan's unprepossessing Colibri wristwatch that night for $7,000. I wonder if he still owns it? 


Thursday, October 8, 2015

It’s National Poetry Day: An Art Lawyer Speaks


"The art trade's nearing its demise;
money-laundering is on the rise.
Yet fakes and forgeries are far worse,
they’re every dealer’s nightmare curse.
We lawyers’ love them, though.
Just think of all that lovely dough!
The Knoedler case soon goes to trial.
Many months of writ and bile,
a gravy train awash with loot,
I’ll buy a new Armani suit
in which to shimmy to the bench
and say in German, Dutch or French:
'My client’s innocent, M’Lord
of anything so untoward!
She’s honest, ethical and clean
and bought the Rothko sight unseen.
The Motherwell looked fine as well.
The Clyfford Still seemed mighty swell
When viewed upon a MacBook Air
through Raybans to reduce the glare.
Absolve her of the charge, I beg.
We’re sitting on a powder keg,
for if she swings the trade could wilt
and all the galleries they built
would lie abandoned ruined, broke.
Imagine all those arty folk,
Sleeping rough and begging dimes
and dreaming of the happy times
when dodgy Pollocks could be sold
to hedge fund dupes with piles of gold.' 

Steve Martin knows the risks you run
in buying paintings just for fun.
He found himself a million light
when someone saw Titanium White
hiding in his German paint 
(it was enough to make him faint.)

Do dealers learn from their mistakes?
Of course they don’t, the wily snakes!
If they could fit her in a crate,
they’d sell their granny to the Tate.

Where there’s a dollar to be earned, 
who cares whose fingers might get burned?
And what of Bouvier, the Freeport dude?
He’ll need me too if he gets sued!
He’s up against a potash tsar
(that case could buy me a new car.)
The lawyers’s code for art and sin? 
Heads you lose, and tails we win."

TF

More art doggerel here:
Lines on the Goulandris Family art feud

Wednesday, August 12, 2015

Russian billionaire must pay U.S. sculptor $640,000 for copyright infringement, court rules

Russian billionaire property developer Igor Olenicoff (left) has been instructed to pay American sculptor John Raimondi $640,000 in damages after being found guilty of having ordered and displayed unauthorised copies of Raimondi’s work.

The latest outcome of the Olenicoff saga was reported in The Observer here. It follows an earlier judgement awarded against Olenicoff for having infringed the copyright of another U.S. sculptor, Don Wakefield, whose work was also copied by Chinese artists working on the cheap at Olenicoff’s behest.

Wakefield was awarded $450,000 (see my report on that judgement here). 

Robots 
This story first came to light back in 2011 when Wakefield contacted me to tell me how he had discovered copies of his work in the grounds of various buildings in Newport Beach, California owned by Olen Properties Corp, Olenicoff’s company. 

I reported on Wakefield’s complaint in an article in The Art Newspaper in 2011, but some of  The Art Newspaper’s content is now filtered by a ‘robot.txt’ file, which means the coverage is currently inaccessible. 

In October 2014, The Art Newspaper was sold to Inna Bazhenova (right), a Russian businesswoman who has vowed to honour the paper's long tradition of rigorous and ethical journalistic impartiality.

The story of Olenicoff’s abuse of the moral rights of the artist is now in the public domain and the billionaire tax felon and cheat will be forced to recompense the artists. That’s a small victory of sorts.

The Art Newspaper mentions the Olenicoff case in a story here about Anish Kapoor's Cloud Gate, a copy of which has been installed in the town of Karamay in north-east China. A representative for the Karamay local authority is quoted as saying in their defence, "You can't say we're not allowed to build a round sculpture because there already is one." 

As part of my original investigation into the Olenicoff case I discovered a number of Beijing stone-carving companies who were prepared to copy sculptures based on images provided  by me without asking whether I had good title to the original works in question. Nor did they inquire as to who created the works. 

Moreover, where a unique, original work by Wakefield would have cost around $35,000 to make at that time (or closer to $100,000 today) and which would have retailed at $150,000, the Chinese stone-carvers were willing to produce them for between $900-$1,500 apiece. Whether this enabled Olenicoff to save on his Percent for Art obligations has never been fully clarified.

The full narrative of the original Olenicoff copyright case is available in various posts on the Artknows blog on the links below:





Both Wakefield and Raimondi were represented by attorneys Gene Brockland of Herzog Crebs, St. Louis, Missouri and Mike Kuznetsky of Kuznetsky Law Group, Los Angeles.

Tuesday, August 19, 2014

Don’t have a heart attack: ‘flipping’ is nothing to be afraid of


Jeff Koons, Hanging Heart
So why are dealers so careful about who they sell to?

The New York Times has just run a piece about the so-called ‘flipping’ of works of art that is apparently rife in the over-heated art market.

“Flipping” describes how those with a speculative instinct (you know, bankers, hedge-fund managers) like to buy works of art and then “flip” them at auction a short while later for a profit. Media reports would have us believe that the practice is growing, increasing in pace, and having a deleterious effect on the art market. 

However, new research commissioned by the New York Times suggests that it is not as commonplace as some people assume:

… the pace last year was only slightly faster than it was in the mid-1990s, signaling that the reselling may be just the latest iteration of a historical cycle, not a lasting change,” says the report.

Here, then, is another example of how many of today’s art market commentators read current trends as troubling innovations when in fact they may be part of a longer historical process. As Charlotte Gould and Sophie Mesplède recently phrased it with reference to the UK art market:
“Many of the commercial strategies adopted in the British art world which today tend to surprise, if not outrage, actually stem from a specific national history in which the role of commerce has both attached stigma to local creativity by hindering some practices, and encouraged the development of marketing innovations.”
One of the most frequently-cited instances of flipping was the acquisition in 2005 by billionaire financier Adam Lindemann of Jeff Koons’s Hanging Heart sculpture (above left) from über-dealer Larry Gagosian for $4 million before selling it at a Sotheby’s auction two years later for $23 million. A furious Gagosian bought it back at the auction.

In his influential book Talking Prices, on the pricing of contemporary art, sociologist Olav Velthuis revealed why some art dealers are cautious about who they sell to. One or two of the dealers Velthuis interviewed made it clear that if a collector buys a work from them and then ‘flips’ it at auction, he or she would never be allowed back into the gallery.

So did Gagosian ban Lindemann from his gallery?

Now Gallerist magazine has run a piece by Daniel Grant about how rising prices in the art market are putting pressure on dealers to bid up works by the artists they represent. Grant suggests that some of this pressure comes from the artists themselves, many of whom expect their gallerists to engage in these practices in order to protect their market.

Grant quotes John Cheim, of Manhattan gallery Cheim & Read, who says: “We are in conversation with our living artists about work that arrives at auction, and we attempt first to place works in collections that are not speculative.” For “speculative” read “likely to flip.”

The New York Times report concludes that, “Flipping remains very much the exception, not the rule,” but whoever said it was the rule? After all, how many people have the sort of capital required to make it a truly profitable activity? Nor does it have to be the dominant practice to be potentially damaging to an artist’s career. Even the occasional “exception” could reap untold harm, as Sandro Chia and Sean Scully will testify.

Whether it occurs frequently or infrequently, it seems clear that flipping is frowned upon by dealers, many of whom view it as potentially damaging to their artists’ equity profiles. It also suggests a culture clash between those with the artist’s welfare in mind (dealers) and those out to feather their own nests at whatever cost to others (speculators). That said, we tend only to hear of the works that have risen in value between acquisition and disposal, not those that were bought and then flipped at a loss.

The essential unpredictability of the auction mechanism (the increasingly common guarantee and irrevocable bid arrangements notwithstanding) also explains why many dealers are keen to “bid up” their artists’ works when they appear under the hammer. It makes sound commercial sense, however unethical it may seem to the uninitiated.

One of the mottoes of Paul Durand-Ruel (1831-1922), the great French dealer and champion of the Impressionists, was to “protect and defend the art above all else.” To that end, he recommended attending auctions to ensure that works by his artists did not sell too cheaply — “To keep prices up, you must never be in a hurry to sell,” he wrote, “and be ready to bid at sales for works by your artists.”

So how reliable or authoritative is the New York Times report?  It was compiled by two agencies, Tutela Capital and Beautiful Asset Advisors. Their methodologies were then audited by two independent experts, Stephen T. Ziliak, professor of economics at Roosevelt University, and Alan F. Karr, director of the National Institute of Statistical Sciences and a professor of statistics and biostatistics at the University of North Carolina, Chapel Hill. “Both experts found the methods sound,” says the New York Times.
But aren’t Tutela Capital and Beautiful Asset Advisors both embedded in the very investment culture they are supposedly helping to investigate?
Brussels-based Tutela boast an ability to deliver “a complete range of consulting services to institutional clients,” while aiming to “set the industry standard to provide art and finance solutions.” Fabian Bocart of Tutela Capital told the New York Times that reports of flipping are a form of scaremongering.
“They see bankers and hedge-fund managers coming into the market, and they have a preconceived idea of what they will do. But they’re not the rogues or vultures they imagine.” As a provider of art and finance solutions to billionaire bankers and hedge-fund managers he would say that, wouldn’t he?
Beautiful Asset Advisors, meanwhile, make it clear on their website that they openly ignore art’s aesthetic, symbolic and social values in favour of a focus on its investment potential. Are they not thereby endorsing the carnivorous instincts that underpin the flipping tendency, however occasional, slow-paced, or exceptional it may be?
For all their analytical ability and consultancy expertise, neither of these companies is truly impartial or objective. It’s a classic art market conundrum.

Saturday, August 9, 2014

“Radcliffe ruins everything.” Art Loss Register chairman under scrutiny for passing money to Balkan gangsters

The Times Magazine's exposé of the
Art Loss Register's 'Serbian Strategy' (08.08.2014)
It is perfectly understandable that victims of art theft will want to be reunited with their possessions. Law enforcement agencies and experienced former FBI and Scotland Yard art detectives devote much of their time to that very endeavour, occasionally having to interact with darker elements in the realm of organised crime in order to do so.

It has long been an article of understanding in the art world that while monies occasionally need to change hands in order to access information that might lead to the recovery of stolen works of art, the thieves themselves must not be paid. To do so is effectively to encourage more art crime. 

So, what of the Art Loss Register’s fee-chasing involvement in these activities? 

London-based The Times Magazine (left) has today published an exposé of the methods employed by The Art Loss Register (ALR) in plying its trade. One wonders how many more damaging news reports must appear before this organisation loses the last vestiges of its already tattered credibility.

The Times article reveals how the ALR’s chairman, Julian Radcliffe, paid money to shady figures from the Serbian underworld in order to discover the whereabouts of stolen works of art. You will need to read between the lines to decide just how many ethical lines were crossed in doing so. 

In time-honoured British media fashion, Radcliffe is presented in the Times piece as a “raffish figure,” an “Old Etonian” with “caddish charm”, occupying a romantically shabby office in London, and coming across “a little like something from a Graham Greene novel.” 

These groaning journalistic clichés hide the more unpalatable aspects of the whole ALR operation, which the Times proceeds to elucidate. Its methods continue to alarm European law enforcement agencies and respected insurance companies, amongst others. The auction houses, meanwhile, maintain a sphinx-like silence, perhaps embarrassed by association. 

Yet no matter how many criticisms are levelled at the ALR (a recent New York Times article  threw light on the self-confessed “lying” and “bounty-hunting” that are part of the ALR’s modus operandi), Julian Radcliffe parries every thrust with Establishment insouciance. 

Thus when Thomas Erhardy, head of the Parisian police force’s anti-bandit task force (BRB), says, “Radcliffe ruins everything,” the Old Etonian charmer counters with: “for very good political reasons he [Erhardy] has got to be critical of us in public.” Similarly, when a representative of Catlin Insurance denies knowing that the ALR had given Serbian criminals half of the €60,000 fees and expenses that Catlin had paid the ALR, Radcliffe responds: “Catlin have got to take that public position.” 

This kind of unseemly spat does nothing for Catlin’s reputation. Nor does it say much for Christie’s, Sotheby’s, Bonhams, and numerous other auction houses, who continue to retain the services of the ALR to conduct Due Diligence checks on their auction catalogues to ensure they do not inadvertently handle stolen goods. 

The ALR’s subterranean connections with Serbian gangsters do not look good for the international auction houses. The stench of organised crime has the capacity to overpower the perfume of corporate social responsibility. 

In the absence of a credible alternative, and despite toxic coverage in the New York Times, The Times of London, and across the social network, the major auction houses’ continue to retain the ALR. 

The Times reporter obligingly trotted out the ALR’s boilerplate PR line — that the company earns “hundreds of thousands of pounds a year tracking down and recovering stolen art.” 

However, later in the piece one source close to the ALR offers a corrective to that rosy revenue profile, pointing out that the company “is in an absolute financial mess,” and that it is only Radcliffe’s own cash infusions that are keeping it from insolvency. 

As the New York Times piece reported, the ALR has lost money for the last six years. Radcliffe continues to swat away references to his organisation’s catastrophic financials, insisting that it will ultimately break even and get to profit. Meanwhile, many key staff have left, unhappy with the impenetrable sfumato of the ALR's “Serbian strategy,” to say nothing of its egregious conduct in the Michael Marks and Norman Rockwell Russian Schoolroom cases, to name just a couple of recent examples.

What future for the concept of ‘professional practice’ so enthusiastically championed by the art trade associations while these questionable business approaches are tacitly supported by the auction houses and insurance companies? 

More Artknows coverage of the ALR:







Monday, June 16, 2014

US sculptor wins $450,000 copyright damages against billionaire property developer

Russian billionaire property developer Igor Olenicoff:
guilty of copyright infringement
Back in August 2011, I revealed how Igor Olenicoff, 71, a Russian billionaire property developer (left), had commissioned unauthorised copies of original sculptures by the California-based artist Don Wakefield and had displayed them in the grounds of his corporate buildings in Newport Beach and elsewhere. 

Olenicoff, a convicted tax felon said to be worth around $2.4 billion (Forbes), was later discovered to have commissioned the copies from a Chinese stone-carver in Beijing. 

Wakefield’s approaches to Olenicoff for an explanation as to why his work had been copied without his permission were snubbed.

My subsequent report of the case for The Art Newspaper was spotted by US lawyer Gene J. Brockland of St. Louis, Missouri law firm Herzog Crebs, who offered, pro bono, to represent Wakefield in a copyright suit against Olenicoff and his company Olen Properties Corp. (see my Artknows report here).

Last week, Wakefield (right) won his copyright suit against Olenicoff on all counts, the court awarding him $450,000 in damages.

Percent for Art
One aspect of the case that has not yet been fully explored is whether Olenicoff was in some way in breach of his obligations under the Percent for Art Scheme, which requires developers of new buildings to devote 1 percent of the overall construction budget towards public art to be displayed in the grounds. 

As part of my original investigation into the Olenicoff case I discovered a number of Bejing stone-carving companies who were prepared to copy sculptures based on images provided to them without asking whether I had good title to the original works in question. Nor did they inquire as to who created the works. Moreover, where a unique, original work by Wakefield would have cost around $35,000 to make at that time (or closer to $100,000 today) and retailed at $150,000, the Chinese stone-carvers were willing to produce them for between $900-$1,500 apiece. Whether this enabled Olenicoff to save on his Percent for Art obligations has never been fully clarified. 

However, as The Art Newspaper has just reported, the Percent for Art scheme has been subject to widespread neglect in many US cities, which has sometimes allowed property developers to ignore the scheme altogether. “Cities including Los Angeles, Buffalo and Pittsburgh have either failed to set aside money for the initiative or have tied up the proceeds in red tape,” according to The Art Newspaper.

When I approached the relevant Percent for Art authority in the City of Brea, California over the Olenicoff case, it appeared that the full information necessary to satisfy the ordinance had never been forthcoming. 

One of the unauthorised copies
of Wakefield's works 
One of the Percent for Art requirements states: “The Artist represents and warrants that … the Sculpture is unique and original … and does not infringe upon any copyright or other intellectual property right.” (City of Brea, Art in Public Places Policy Manual, 2012). (For a full account of this case, see my chapter - ‘Negotiating authenticity: contrasting value systems and associated risk in the global art market’ in Dempster, A. (Ed.) Risk and Uncertainty in the Art World (Bloomsbury, 2014, pp109-124.) 

As I also reported in The Art Newspaper, Wakefield was not the only artist whose moral rights were abused by Olenicoff. Another American sculptor, John Raimondi, also fell victim to Olenicoff’s scheme. His case will be heard from June 24.

If anything, Raimondi's complaint is even more compelling than Wakefield’s. Some years before we revealed the Olenicoff/Beijing scam, Raimondi had approached Olen Properties Corp. to discuss making work for them, but at some point Olenicoff fell silent on it. 

According to court documents outlining Raimondi’s complaint: 
“The sculptures were to be custom-made for the defendants, as they were not in Raimondi's inventory. The defendants represented to Raimondi that they were interested in purchasing his art in order to comply with city ordinance(s) requiring developers to spend a certain percentage of money on public art; in this instance between $100,000 and $250,000.”
Olenicoff had apparently "requested photographs showing multiple views of the sculptures.”  However, 
“…approximately ten days after the second meeting, Olenicoff refused to speak with Raimondi. Defendants instead had an assistant relay to Raimondi that Olenicoff had a change of heart about the sculptures. Instead of purchasing the sculptures from Raimondi, defendants, at their direction, had multiple unauthorized and infringing copies of the sculptures manufactured in China.”

As has been widely reported, Olenicoff is also a convicted tax felon. In 2007 he pleaded guilty to syphoning more than $350 million into European bank accounts before a UBS employee, Bradley Birkenfeld, blew the whistle. Olenicoff was ordered to pay $52 million in back taxes and was sentenced to two years probation and 120 hours of community service. 

As my chapter in the Risk and Uncertainty book (right) points out, the still rapidly globalising art world continues to throw down fresh challenges to market participants. Risk is not merely something to be assessed and quantified by wealth managers and investment advisers. Artists too must remain vigilant, particularly since our concepts of originality and authenticity are not shared across cultures. 

Thankfully there are still a few lawyers willing to fight the oligarchs and the billionaires who would otherwise ride roughshod over artists' moral rights.  

Friday, April 25, 2014

Spot the head-spinning irony as Science exposes fake Hirsts

Fake Damien Hirst paintings Fake Hirst spin painting
(image courtesy Manhattan District Attorney's Office)
The outcome of a recent court case in New York suggests that one way of establishing the authenticity of Damien Hirst spin or spot paintings — all of which were made by studio assistants — is the absence of any indication that the work was made by a specific studio assistant. Stop sniggering, this is serious stuff.

A Florida pastor was recently convicted in a Manhattan court of selling fake Hirst paintings. After the case, one of the jurors spoke on condition of anonymity to the Brooklyn-based art blog Hyperallergic

The juror reports that one of the fake paintings produced in evidence at the trial, “had something on it that certified that the work was made by someone in the studio.” This was clearly added by the faker in the (misguided) belief that it would indicate authenticity.

It’s perhaps not surprising that a faker might seek to insert something into a painting that would signal its author. After all, works of art have traditionally been signed by the artist who painted them or from whose studio they originated. Not all of Hirst’s works are signed, and nor do they come to market with the kind of “authentication letter” that apparently accompanied the fake works in the New York case.

And yet despite the absence of these traditional indicators of authenticity (after all, who is the real ‘author’ of an original Hirst spin or spot painting?) it is still possible to establish through size, canvas quality, etc., whether or not a work is a ‘genuine’ Hirst. The aptly named Science Ltd. — Hirst’s production company — are responsible for this quasi-scientific authentication process, but even they must be struggling to manage the imbroglio that his opportunistic modus operandi has created. 

Although no single assistant is ever credited with any particular work issuing from Hirst’s studio, he has said of one of his assistants, Rachel Howard, “She's brilliant. Absolutely fucking brilliant. The best spot painting you can have by me is one painted by Rachel.” (Burn, G., On the Way to Work, Faber, 2001) Very funny, given that definitively establishing which works Rachel Howard painted would be nigh on impossible.  

Howard is now a successful painter in her own right. As a Quaker-educated child she is said to have pondered the deep existential question: ‘If God made me, then who made God?’. Only a cynic would reply with the name Frank Dunphy for Howard’s own work testifies to a far more aesthetically curious and emotionally engaged approach to the possibilities of painting than the mind-numbingly banal merchandise that issued from the Hirst factory. 

Another assistant, on leaving Hirst’s employ, asked him for one of his paintings as a souvenir of her time with him. According to Hirst, he told her, “‘Make one of your own.’ And she said, ‘No, I want one of yours.’ But the only difference, between one painted by her and one of mine, is the money.’” (Burn, ibid

Fake Hirst spin painting
(image courtesy Manhattan District Attorney's Office)
We can assume from this exchange that Hirst correctly interpreted the assistant’s request as a request for money. After all, why else would she want the art when it’s something anyone could make? 

The factory set-up isn't the only reason authenticity is a problematic issue for Hirst Inc. It’s common knowledge that Damien likes breaking the art market rules, slaughtering sacred cows, and generally changing the terms of engagement. After his spot print editions flew off the walls of their original retailer, Eyestorm.com, he was said to have been considering producing a new work in an edition of a million. Classic Hirst hubris or maverick instinct for marketing? It matters little, for he never proceeded with the idea, perhaps advised against it by Frank Dunphy, his business manager and the real architect of his apotheosis from art world enfant terrible to global luxury brand. 

The prospect of having to sign so many prints might have been another factor in dissuading him from going ahead with the million print edition. Hirst found signing his Eyestorm spot prints so onerous that in order to break the tedium he occasionally signed other names instead of his own. I recall seeing ‘Mickey Mouse’ and ‘David Hockney’ scrawled on the border of two spot prints in the Eyestorm warehouse.

What those jokily signed works are worth today will remain an imponderable until one of them comes to market. Even then, who could authenticate it? Will connoisseurship do the trick? Or will Science once again prevail?


Wednesday, April 2, 2014

Oxford seminar calls for more rigorous standards in technical art history

Professor Mark Pollard of the University of Oxford
 chairs the closing session at the research seminar  
We are just a few weeks away from a three-day international meeting in The Hague that seeks to address the highly topical issue of ‘Authentication in Art’.  To attend, you will need to fork out a swingeing €700 attendance fee, plus accommodation and expenses, all of which is likely to exclude a fair few interested commentators, myself included. 

So it was particularly constructive that Nicholas Eastaugh and Jilleen Nadolny of London-based Art Access & Research, the leading specialists in art materials analysis, organised a free, one-day symposium at Trinity College Oxford to explore some of the core issues facing this emerging discipline. Yesterday’s event was also used to informally announce the imminent launch of Dr Konstantin Akinsha's Russian Avant-Garde Research Project (RARP), an explicit acknowledgment that Russian modernist art remains particularly susceptible to fakes and forgeries. 

The 30 delegates at Oxford were drawn from a range of scientific and art historical disciplines, reflecting the extent to which this burgeoning research area requires a blend of analytical and interpretative methodologies embracing art history, pigment and materials studies, connoisseurship, analytical chemistry, database technology, and so on. 

It will be interesting to see whether The Hague meeting succeeds in progressing any of the ideas and aspirations discussed at the Oxford seminar, most of which centred around the need for more rigorous professional standards and protocols. With the art market booming again, and fakes proliferating, it now seems clear that charlatanism is not confined to the faking of paintings and the forging of provenance documentation. It also extends to a new breed of self-appointed and ethically compromised ‘forensic scientists’ willing to issue certificates of authenticity for inauthentic works in return for financial kickbacks. 

There are essentially two aspects to what is now commonly termed ‘technical art history’ (the fuzzy issue of nomenclature was another underlying theme of the seminar) — academic analysis of works of art and market-commissioned analysis. However, it is not widely known that the leading practitioners of the latter also take a disinterested approach to what they do. 

Research and analysis conducted by Eastaugh and Nadolny at Art Access & Research is entirely disconnected from any market outcome and their fees are in no way dependent on the real or notional value of the works they investigate. That approach represents the industry benchmark for best practice. However, there are still too many market participants seeking the services of the art market equivalent of snake oil salesmen to endorse and authenticate questionable pictures. The distinction between academic and commercial motives has become a leitmotif of art forensics. 

Boris Kustodiev's Odalisque, ...or is it?
What can the industry do to combat ethically negotiable practitioners? That is yet to be decided. As the symposium heard, conventional courts of law are ill-qualified to pronounce on art market matters and too often their judgements are flawed, as the recent case of the Kustodiev canvas at Christie’s (right) suggests.  

The art market is often described as “the last unregulated market,” but not everyone agrees with that assessment. My recent blog entry (here), which hinted at a putative correspondence between the activities of hedge funds in the financial markets and opportunities for insider trading at the top of the art market, was dismissed by Art Market Monitor as “a spurious connection that retails the mistaken idea that there is no regulation in the auction market (a falsehood that never seems to die).” 

In my piece I quoted New York Magazine writer Andrew Rice who recently wrote: 

“It’s an opaque market, where secret side deals, price manipulation, kickbacks, and collusion are an everyday facet of business. It rewards inside information, and since the market is largely unregulated, players can trade on it without any fear of legal consequences.”

Certain aspects of the art market are indeed regulated, as Art Market Monitor maintains; the conventional rule of law pertains as much in the art world as it does in any other sphere. Money-laundering and other fraudulent practices are generally dealt with severely (forgery seems to be an exception, inviting short sentences in open prisons, and celebrity media contracts on release). The processes of self-regulation work…but only to a degree. Opportunities to exploit the informal nature of the art trade are abundant and potentially destabilising, as the recent Beltracchi, Knoedler, and Subhash Kapoor cases amply demonstrate. 

During the Oxford seminar's closing discussion, Dr Anna Dempster of Sotheby’s Institute called for a more nuanced understanding of the balance to be struck between market transparency and the confidentiality that most art professionals see as essential to a healthy trade. Summarising, Nicholas Eastaugh called for a professional code of practice in art authentication, preferably one ratified by the main professional bodies and leading market participants. It was agreed that a starting point would be a consensus on minimum standards.

Questions that might re-emerge at the forthcoming Hague conference include: how to promote creative collaboration between art historians and their ‘technical’ counterparts; how to get the technical laboratories to work productively together; and how to expose those unqualified practitioners with unacceptably close ties to market outcomes. 

One thing seems certain — “Connoisseurship down the microscope,” so to speak, is here to stay.