At Friday's Art Law Day at the annual meeting of the Appraisers Association of America, Judith Bresler gave the keynote address on the topic of the complications created by prosective liability for authentication experts. As prominent cases ranging from the Knoedler forgeries to the decision by the Warhol Foundation and others to cease authenticating works have shown, the opinion of experts as to whether a work of art is indeed by a particular artist is a recurring and important issue. Not only do transactions worth tens of millions of dollars rest on that authentication, absent a robust exchange of opinions about authorship, frauds and forgeries are actually encouraged. As it stands, many qualified authenticators and experts have simply judged that giving an opinion is too great a risk to facing a defamation, fraud, or negligence claim, on which they will usually prevail but only after great expense. As Bresler said, “when authenticators are afraid to practice their profession, it has a far reaching effect.”
The New York City Bar Association has, Bresler advised, been working on a draft legislative proposal to address this concern. The proposed law has three main features:
1) Some heightened pleading requirement would apply to any authentication-based claim. This would presumably be like the particularity requirements that apply to fraud claims.
2) The claimant would have to prove its claim by clear and convincing evidence. That is a far greater burden of proof, meaning that the claim is overwhelmingly likely to be right, in contrast to the ordinary preponderance of the evidence burden, meaning only that it is ever so slightly more likely than not.
3) There would be a one-way fee-shifting: if an authenticator is sued and she prevails, she gets her attorneys’ fees. Not so for a prevailing plaintiff against an authenticator.
These would all be improvements on the status quo. Stay tuned for progress updates.