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date: 26 September 2017

Fakes and Forgeries in Art, and the More Specific Term “Art Fraud”: A Criminological Perspective

Summary and Keywords

Fakes and forgeries are topics of frequent and agitated discussion in the art world. For criminologists, this interests shifts to art fraud because of its fit with issues of non-authentic art. While fraud shares with the wider interests the need to demonstrate deception (an obvious aspect of a fake), a successful prosecution will require in addition that the defendant be shown to be dishonest (that is, that the deception is intentional), that there is harm as a consequence, and that the victim was actually deceived. Despite its popularity as a topic for discussion in the art world, actual cases of art fraud are exceptionally rare, although cases of “mistaken identity” are reasonably common (but these will often lack the deception and intentionality required of fraud). Among the reasons for art fraud being infrequently observed appear to be: (1) police are less than eager to pursue issues of fraud in art; (2) the deceptive skills required of a successful art faker are actually rarely observed or achieved; and (3) the role of the victim in art fraud is complex and often renders victims either passive or non-compliant with the justice process.

Keywords: art fraud, authenticity, disputed identity, fakes, forgeries, fraud, mistaken identity, non-authentic art, role of victim

Introduction

Nestled somewhere in the inner regions of popular media rests the art world with its wide-ranging interests. Rarely does art attract the attention of the criminal justice system generally, and, more specifically, anything approaching interest on the part of criminology. However, there is considerable wealth involved in many parts of the art market, and inevitably that wealth attracts the attention of those willing to pursue illicit pathways to gain access to some of that wealth. There is as a consequence occasional awareness that all is not well, or necessarily honest, in the art market, as when yet another scandal involving fakes bursts upon the scene. As this is being written, the sad tale of the undoing of the Knoedler Gallery is being played out in a courtroom in New York, replete with allegations of fakes and fraudulent behavior on the part of gallery administration. While we shall comment later upon the actual rarity of legal interventions such as seen in the Knoedler Gallery case, such actions indicate the important role that the legal system can play in cases involving fakes or forgeries in the art world.

In these pages the focus will be on the issue of fakes or forgeries in the domain of art. Books continue to be written about the topic (for examples, see Kurz, 1967; Hoving, 1996; Yang, 1997; Bazley, 2010; Keats, 2013; or Charney, 2015), and museums around the world have had special exhibitions focusing on fakes and forgeries. There is nothing new in all of this, of course, since fakes have been with us as long as there has been a thriving market for works of art. Even earlier, if we take the word of Keats (2013), who makes the claim that an important example of forgery can be found in the Shabaka Stone, which was created in the 8th century BCE in Egypt (now in the British Museum), so that in this instance the deception was created at a time and place where there wasn’t even a word for art, let alone an art market.

The Issue of Art Fraud

For those working in the criminal justice arena, a major source of concern is art that is deceptive and that becomes part of fraudulent activity. In such cases, the focus shifts from a wider interest in fakes and fakery, to a more limited criminological field where the conditions are narrowly defined. Art fraud, as is true of other forms of fraud, has four specific “elements” that must be present if a successful prosecution is to occur.

  1. 1. There must be some form of deception on the part of the defendant;

  2. 2. This deception must have produced some form of harm;

  3. 3. The victim was deceived, and

  4. 4. There was some level of knowledge, intent, or dishonesty on the part of the offender. (See Lanham et al., 1987)

The first of these elements, deception, might appear to be a common feature of non-authentic art. When one uses a term such as “fake,” there is likely to be a commonsense understanding that somehow the work in question is not what it seems to be, that is, it is somehow “deceptive.” In the legal process, however, for an act to constitute a fraud, the requirements are much more rigorous and complex. Without question, if the events under consideration arise in the art world, there must at a minimum be proof that the facts of the object being reviewed are not what is claimed of that work. It is, simply, deceptive (the proof of what might be deceptive may be contentious). The requirements to prove fraud go well beyond this, however. That deception has to be intentional in terms of the acts of the defendant (the term used commonly in law here is “dishonest”), there must be some harm to the victim (most commonly, the loss of money expended on the work), and the victim has to be deceived (although this is manifest in most cases of art fraud).

It follows that only when these four elements are present and have been established through a legal process, is it possible to say that a defendant has committed an art fraud. Put another way, to assert that a person has engaged in art fraud when a case has not been presented to a court, and a finding handed down that the individual has engaged in fraud, can render the person making that allegation a target for a lawsuit seeking damages for such an utterance (a not unlikely possibility in an arena like the art market where so much depends upon the reputation and good standing of individuals involved).

A case alleging fraud in art may pursued in two major ways. First, a criminal prosecution can be initiated, whereby the state alleges that an offender has violated the criminal law of fraud. Second, a civil case can be undertaken by an individual (or group of individuals) seeking some form of redress (usually involving return of money) as a result of actions by another individual or group of individuals who have deceived them with art that is deceptive. There are a number of potential advantages to the use of the civil process, including the fact that the level of proof required is lower (“balance of probabilities” versus proving a case “beyond reasonable doubt”) and, of course, the important issue that only through this device will the plaintiffs have some chance of obtaining a return of the money they have lost. The ultimate problem with a civil process, however, is that costs may have to be borne by the plaintiffs (whereas a criminal process is undertaken by the state at no financial cost to the victims of the fraud).

The Actual Rarity of Art Fraud

It is, however, extremely rare for the criminal justice system to be called into action in a suspected case of art fraud. In Australia, for example, in the past thirty years or so there have been fewer than a dozen cases, including both civil as well as criminal cases, where allegations of fraud have reached the courts. Even with a low incidence crime such as homicide in Australia there will be over 200 incidents reported each year nationally, leading to the conclusion that the low rate of art fraud (hardly unique to Australia), at least as a matter being dealt with by the criminal justice system, is certainly remarkable to say the least.

The reasons for a low level involvement of the criminal justice system in art fraud can’t be said to be simply a consequence of the low incidence of deception in the art market. Hoving, for example, reports that among the 50,000 works he viewed in his years at the Metropolitan Museum of Art in New York fully 40% could be considered as “phonies” or “forgeries” (Hoving, 1996, p. 17). Sloggett, writing from her experience with the Australian scene, is more modest both in language and in the level observed, noting that 10% of works coming onto the art market could be considered as cases of “mistaken identity” (Porter, 2007).

Those of us who work within the criminological community will recognize that some of the problem here is the typical issue of the “dark figure” of crime, that is, even the number of people recorded officially as involved in crime taken seriously by the justice system will underrepresent the total number of persons so involved due to the numerous reasons that conceal the total volume of that crime in terms of the number of offences officially recorded. The problem with the “dark figure” metaphor when applied to art fraud is that there are no cases of such fraud according to official records, for the simple reason that official records contain no reference whatsoever to fraud that has taken place in the art market. In fact, as far as official statistics are concerned, there are no incidents of art crime, including art fraud. Obviously, this does not imply that cases of art fraud do not occur (although, as we shall argue, these are exceptionally rare), rather official data from criminal justice sources are silent when it comes to the question of the incidence of art fraud.

One factor in all of this is that often instances referred to as “fakes” or “forgeries” by many writers actually do not come close to meeting the specific features required to prove fraud and are more correctly described from the viewpoint of the criminal justice system by terms such as the “mistaken identity” suggested by Sloggett. The problem arises because while there may be some possibility of a “mistaken identity” regarding a specific object, and therefore the object may be seen as “deceptive” or “false” in terms of the claims made, the restrictive conditions of fraud may not apply. Keats is without question correct in describing the Shabaka Stone as deceptive, and in that sense it becomes in his view yet another example of what he terms a “fake.” The assertions in the Stone were made in the 8th century BCE and appear to have been manufactured as a political device for supporting the claims of the entitlement of the Pharaoh to assume the throne, and thus can be viewed in the current environment as deceptive. Deception is certainly present, and further, that deception is intentional, but there is in this narrative no indication of harm to potential victims, and as such, no evidence of fraud.

The Issue of Perspectives

The problem here is one of the meaning of the key terms. It arises because the terrain of the art world contains many different perspectives, and a natural consequence is that differences have to be expected in the way words are used. Among these perspectives, artists make up a first group, and here we see the problem of diversity, since there are some artists (or representatives thereof) who see the production of fakes of their work as potentially damaging to the future sale of their products (Utrillo is given as a common figure who suffered from this phenomenon). On the other hand, there are multiple examples of artists who have quite a different take on the problem, such as Salvador Dalí, who, full of mischief, signed hundreds of blank pieces of paper virtually inviting others to use the legitimate signature as a device for creating a false work. Charney (2015) at the beginning of his book, quotes Picasso as saying: “Bad artists copy, good artists steal.” Similarly, among dealers there are those who participate knowingly in fraudulent activities, whereas others see fakes and frauds as a threat to the art market generally, and to their living specifically.

The list of different perspectives is a long one and includes (in addition to artists and dealers) consumers of art, art commentators, journalists, various forms of art scholars (those in such fields as art history, art appreciation, etc.), auction house personnel, authentication experts (including scientists who are concerned with development of procedures to protect legitimate artists), a variety of academics and scholars who have wandered onto this particular stage (historians, economists, sociologists, philosophers, and others), and, of course, those in the criminal justice system, including law enforcement personnel, lawyers, judges, and other criminal justice scholars, including criminologists.

Writers from all of these perspectives have contributed to discussions of non-authentic art. As is to be expected, misunderstandings can occur when one moves from one perspective to another. Most of the time, the results are understandable, and there is, or there should be, an expectation of some tolerance in the way the topic is treated given these many perspectives. There are instances, however, where the reader may be jarred when what amounts to mistakes are made. Keats (2013) opens his book with a tale concerning how, early in the 16th century, the Marquis of Mantua visited the patriarch of the Medici family who had just received a work that the family had commissioned from Raphael that was a portrait of another Medici, Pope Leo X (today this work hangs in the Uffizi Museum in Florence). The Marquis obviously liked the work, and suggested that it would be a fine gift, to him, of course. At that point, Medici was agile enough to slide out of the situation without yielding to the pressure, but when the Marquis later sought the intervention of the Pope at the time (Leo X had died by then), the patriarch knew that something had to be done. What he did was to seek the assistance of the fine painter, Andrea del Sarto (who still has a room devoted to his work in the Uffizi Gallery), who was commissioned to execute a copy of the portrait. This copy was duly presented to the Marquis, who was quite pleased to receive what he thought was a work by Raphael.

If one reads this account from the viewpoint of the criminologist, there are present three of the four elements required for the actions to be considered a fraud. The work was “deceptive” in that it was not what it was alleged to be. The actions of the Medici were certainly intentional, and, Mantua was certainly successfully deceived (at least until another person intervened and spelled out the story). There has been, unfortunately for Keats and his interpretation of the story, no physical harm in this account. Without this harm, there has been no fraud. Yet Keats asserts that Medici was guilty of “defrauding a fellow nobleman”, and that the “criminalization” of Medici illustrates what Keats terms “… the difficulty of appreciating how people thought of fraud in other times and places” (2013, p. 3).

The object in question was certainly deceptive, and thus some would call it a “fake” or a “forgery.” And, Keats is certainly correct in his assertion that the story demonstrates that how people thought of such deception in another place (Italy) in another time (early in the 16th century) becomes difficult to assess in the contemporary context of Western art. According to the narrative as rendered by Keats, the Marquis of Mantua, for example, was still pleased with the painting after he found out that it had not been painted by Raphael, recognizing the talent and skill shown by dal Sarto in his re-creation of the genius of the original artist.

The purpose of this is simply to demonstrate that mistakes can be made when we move from one perspective to another. Keats is a writer who finds a provocative style suitable for the arguments he is trying to make. Certainly, his observations on the contemporary scene are worth advancing. While the observations made here about his errors might seem to many to be trivial, for the present writer it is hard to escape the fact that he is, simply, wrong in his assertions about fraud, whether this occurs in the 21st or the 16th centuries.

The Issue of What Terms to Use

The perspectives found in the art arena are numerous, and it is absurd to think that there will be any consensus among them about how to use such terms as “fake” or “forgery.” Some will elect to flop about, using one term here, another term there. Kurz, in the preface to the original edition of his classic book on fakes goes back and forth between the terms “fake” and “forgery” at least a dozen times on just the one page, implying equal meaning to these terms (see Kurz, 1967, p. vi). Others may attempt to impose a standard definition as they proceed. For example, Charney (2015) prefers the term “forgery” as the suitable generic term for intentional non-authentic art, and he defines it as “… a forgery is an object made in a wholesale, fraudulent imitation of something else,” which is seen as different from a “fake” defined as “… an original object that has somehow been altered or “doctored”—a painting, for example, to which a spurious signature has been added.” (Charney, 2015, p. 16). However useful these definitions may be for the tasks Charney sets out to accomplish, other writers continue to use such words as “fakes” or “forgeries” as interchangeable terms for non-authentic art.

Further, while words such as “fake” and “forgery” will have some reference to non-authentic art, only where the key elements of fraud are present is it going to be possible to speak of an art fraud. It is interesting that many of the examples of non-authentic art discussed by Keats or Charney are actually examples of proven art fraud. Four of the six artists discussed by Keats (2013) as “modern masters” went to trial (although one, Keating, was let off by the prosecution when he became seriously ill). These same four are mentioned in Charney’s book, which has the stories of several other individuals who were found guilty of fraud, including the recent cases (not mentioned by Keats) of such figures as John Myatt, Beltracchi, and those involved in the sad fate of the Knoedler Gallery in New York.

The point of all of this is that criminologists will be using terms in a way not commonly employed in the world of art. In the wider art world, there will be a more fluid and loose use of such words as “fake” or “forgery” than will be found in criminological discussion of art fraud. Those with a background in criminal law, for example, will know that even the word “forgery” may present problems. There was a case (R v. Closs) in the middle of the 19th century in England where the presiding judge laid down a finding that forgery was an offence that involved documents, but since a work of art did not constitute a document, the criminal law regarding forgery could not be applied. While the logic may prove a bit confusing in the contemporary context, in some Common Law jurisdictions, such as Australia, this case still constitutes the relevant precedent, so technically speaking, the charge of forgery may not be pursued where the false object in question is a work of art (a charge of fraud, however, may be applied).

Questions about the proper terms to be applied arise as well in the narrative of the Head of a Man painting at the time a major work in the collection of the National Gallery of Victoria (NGV) in Melbourne. This work originally was attributed to van Gogh, and was purchased as such in the 1920s by Richard Semmel, a wealthy Jewish industrialist living at the time in Germany. When Hitler came to power in 1933, Semmel left Germany and divested himself of his art works, selling this painting in Amsterdam in mid-1933, and from there it went through the hands of three other owners before being purchased in 1940 by the NGV where it was displayed as the only work by van Gogh in Australia. For several years the Head of a Man was a major feature of the NGV’s international collection. It was lent to an international exhibition of van Gogh’s work in Scotland in the early 2000s, and at that point the questions raised about the authenticity of the work could not be ignored. The painting was submitted to van Gogh experts in Amsterdam to assess its status, and their conclusion in 2007 was that the work was not done by Vincent van Gogh. This finding that the painting apparently was a case of “mistaken identity” resulted in widespread labeling of the work as a “fake” by the newspapers of the day. But, the problems did not stop there, since in early 2013 the NGV was notified by letter that the heirs of Semmel were now seeking the return of the painting. While the Gallery might have won had they disputed the claim to the painting in the courts (among other matters, the current law in Victoria provides that claimants in such cases have to file suit within six years of their loss, whereas over 70 years had elapsed in this case), following so-called “Washington Principles” which were promulgated to address the problems of cases such as this, the NGV agreed to the return of the painting to the heirs. The painting is still on display in early 2016 at the NGV, with a placard that identifies the owner as Richard Semmel and a statement that it is in the NGV on loan from his heirs (the heirs, by the way, still argue that the work is by van Gogh).

In this case, the NGV has specifically addressed the question of whether the painting is a “fake,” arguing that while it previously had been wrongly attributed, it was still an original work by a skilled artist, the work being done according to the experts at the same time as works by van Gogh, and it emphatically was not a “fake” (National Gallery of Victoria, 2007, p. 10). Again, what we see is the many problems posed by the implications inherent in the finding that a work has not been correctly attributed. Correcting the attribution may, in fact, result in the up-grading of a work in terms of its market value. When such an “up-grading” occurs (see NGV, 2007, for two such cases), implied is a finding that previously the author of the work had not been correctly identified, but the conclusion would not in these cases be that the “mistaken identity” (a correct statement) was a “fake” (an inappropriate statement in any case) in its prior state.

When Words Can Make a Difference

Do these words make a difference? In some cases, whether an object is determined to be authentic can make a big difference in its value. In the BBC television program “Fake or Fortune” (aired in Australia on February 23, 2016 by the Australian Broadcasting Company) the topic for the program was a painting where the identity of the artist was in dispute. The painting had been included in the catalogue of works by Pierre Auguste Renoir published by the distinguished French firm Bernheim-Jeune (who also in earlier years had been the agents for the works of the Renoir), but it had been rejected as not an authentic work of Renoir by the Wildenstein Institute. Without the endorsement of the Wildenstein Institute, the painting will not be accepted for sale by the major auction houses. As such, the painting has little value. In the course of the television program, considerable circumstantial evidence was reviewed which supported a claim of authenticity by the current owners, including a review of provenance information (the painting could be traced to the Monet family, which had held the painting since Renoir had gifted to work to his close colleague Monet, and it emerged from the Monet family as a consequence of the settlement of the estate of Blanche Monet in 1937), a variety of scientific findings that supported the claim that the work had been done by Renoir (including a comparison of the pigments used by Renoir set out by the artist himself at the time the painting was completed, these pigments shifting to quite different pigments as Renoir’s career evolved), and the supportive opinions of several Renoir scholars who were interviewed in the program. The Wildenstein Institute reconsidered the earlier conclusion as a result of the submission to it of the new findings, but that organization concluded that the work could not be considered an authentic painting by Renoir because it had not been signed by the artist, they found the provenance information was not compelling, and the painting was weak and not up to the standard of a genuine Renoir.

Can this art work now be considered a fake? The finding of the Wildenstein Institute can be taken as an indication that there is not a uniform consensus that the painting is an authentic work by Renoir. However, the evidence reviewed in the television program made a strong case for an opposing conclusion. If nothing else, what this narrative underscores is the observation that scientific evidence is at times conclusive in determining that a work is not authentic, but it is less able to establish the opposite case, that is, that a work is authentic, in this case, that the work being examined was a painting by Renoir. The owners of the painting, at least according to the program, will continue to display the object in their home as an authentic work by Renoir, and the Bernheim-Jeune firm will continue to list it as a genuine Renoir in their own catalogue of this artist’s work. However, the negative finding of the Wildenstein Institute will have a catastrophic effect on the value of the painting in the open market. Put simply, the work becomes almost valueless. Whether the object is at some time in the future termed an authentic Renoir, it now is of little worth on the open market, and becomes in the word derived from the title of the television program, a “fake.”

But, is this attribution a correct or exact one? The very title of the television program gives us little room to maneuver here, since the choices are “fake” or “fortune” (that is, genuine). Are these the only two options available? It would seem appropriate in these circumstances to create another set of terms, and “disputed identity” appears a good fit. At some point in the future, another set of judges, perhaps located somewhere other than the Wildenstein Institute, might come to a different conclusion about the proper identity of the creator of this work? Such disputes are not without precedent in the art world. The work of the “Rembrandt Project” provides an illustration, and in particular, the possibility considered by these scholars that the Polish Rider painting in the Frick Collection hung as a work by Rembrandt might have been painted instead by Willem Drost. This reattribution was emphatically rejected by the Frick Museum, and it continues to be displayed as a work by Rembrandt by the Frick (for a discussion, see Bailey, 1994). Another illustration of disputes that can arise regarding the authenticity of a given work can be found in the discussion (perhaps “debate” would be a better word) of the painting Riverbank that has been attributed to the 10th century Chinese landscape master Dong Yuan, but which some argue is a modern fake by the well-known creator of false works Zhang Daqian (Smith & Fong, 1999). Much is at stake in such attributions, and it should be recognized that given current science and connoisseurship, somewhere in serious discussions there would seem to be little choice but to create a category of “disputed identity.” Certainly, the word “fake,” while at times captures well the indecision noted regarding a specific work, may in other circumstances prove widely inaccurate to correctly describe the attributions that might be available.

The point of all of this is that at times, words matter. The finding that the two works in question (the NGV Head of a Man or the disputed attribution of the Renoir) could not be established as the products of well-regarded artists has huge consequences for the two works should they be placed on the art market. While in the narratives of neither of these paintings is it possible to identify motivations or actions that would sustain a prosecution for art fraud, the works can be viewed as suffering from a problem of incorrect attribution, and the present attribution for both has the consequence of a huge loss of potential value for the current owners. Whether the terms “fake,” “disputed identity,” or “mistaken identity” are used, the two paintings have lost an enormous amount of their value by the finding that these are not an authentic product of the named artist.

We see here the kinds of problems that can occur with the use of language. The media coverage in Melbourne when the attribution of the work to van Gogh was found to be incorrect made use of such words as “fake,” a word that by implication can be applied in the case of the work identified with Renoir in the very name of the TV program (“Fake or Fortune”). While both works (the possible Renoir in the BBC program, and the Head of a Man at the NGV) have now been found to be “non-authentic” and as such, their value is much lower than if they were attributed to the more valuable artist, in neither case is it possible to observe the dishonest behavior that must be present to sustain a criminal charge of fraud. Further, (and, the title of the television program aside), a reasonable person would be a bit careful in these cases even with the term “fake.”

With the stories of these two works in hand, it is possible now to review the general question of the use of the key terms. From the perspective of a criminologist, the term with relatively clear meaning for instances where proven criminal behavior has occurred is art fraud. The “safe” terms for works that are not what they appear to be would be “non-authentic” art or cases of “disputed identity” or, in some instances, “mistaken identity.” Thus, the work, which was hung for many years in the NGV as a van Gogh can be treated as an instance of a mistaken identity, since it now appears that it is not an authentic van Gogh. Where the four material elements of fraud are present, as, for example, in the cases of Beltracci, or of Drewe/Myatt, the works can be considered examples of art fraud. The adoption of such conventions is the only safe path for those working in the criminal justice system (especially those concerned with the legal determination of whether a given art work is or is not authentic). Unfortunately, one has to expect a much looser definition in media accounts where use of terms such as “fake” or “forgery” will be common.

This is not to say that other writers, especially those coming from other perspectives, should not use such terms as “fake,” “forgery,” confabulation, “bogus,” or similar terms in their writing. In such usage, the terms will presume a meaning close to their dictionary definition. A word such as “fake,” of course can be used as either a noun, an adjective or as a verb. Typically, the meanings of “fake” would be rendered as, if a noun “any person or thing not genuine,” or “an object that is made to look real or valuable in order to deceive people,” if an adjective, “not genuine, spurious,” or perhaps “not real, but made to look or seem real,” while if used as a verb, “to make up and attempt to pass off as genuine” or “to make an object look real or valuable in order to deceive people.” There is a hint in some of these definitions (and in the common usage as found in the media) of some level of deception, which in some usages implies even more, that is that the deception is deliberate, even dishonest.

It should be obvious in the two narratives relating to the works attributed to Renoir or to van Gogh, that the implications of intentional deception implied in the word “fake” are not appropriate. Furthermore, those involved in criminal proceedings learn to be careful in the application of such words, since to imply dishonest intention without that being proven through a legal process invites a lawsuit for defamation. Tabloid newspapers in the case of the mistaken identity of the van Gogh, above, of course, tend to have an open field since there is no one involved who might be seen as dishonest remaining alive.

Some Reasons Why Art Fraud is Not a Common Crime

Up to this point the concern has been, from the viewpoint of a criminologist, how words might be used in describing non-authentic art. There are deeper concerns with many of these discussions that follow from a criminological perspective. Probably the most important of these is that obvious fact that actual cases of art fraud, while notable when these occur, are actually exceptionally rare. When it was announced that a dealer and a restorer were both to be charged with fraud in an Australian court in April, 2016, this was the first time in several years that criminal courts in this jurisdiction had seen such a charge (although this same dealer was the subject of civil proceedings in both Victoria and New South Wales). This rarity is not unique to Australia. When Keats (2013) describes “six modern masters” in his recent book, among the six, the most recent death was over 30 years ago, and all of the fakes discussed had occurred between 90 and 50 years ago. This was not because Keats was unfamiliar with his subject, although he does not discuss cases available to him in the 1990s and early 2000s. It appears this happened because these best fitted his ideas of “modern masters” and there were in fact few such cases over recent decades. Charney (2015) is less vulnerable on this point, since he covers many more examples of fakes and frauds through the ages (the six covered by Keats are included, of course), and he does have a handful of recent examples such as the notable frauds of Drew/Myatt, of the Greenhalghs, or the more recent misadventures that centered around the Knoedler Gallery in New York. Even with Charney, however, it is notable that he is silent on events that took place in the most recent years. What is important from a criminological perspective in this, of course, is not the age of the references (since the cases are worth noting), but the obvious fact that there are so few of these examples and that both of these writers tend to rely on the same, or similar, narratives because, actually, there are so few to draw upon. It is the actual rarity of these instances of fakery and fraud making their way into the criminal justice process (or legal process, since some proceed as civil cases) that is so notable.

Why are these cases so rare? One factor which is at play is that the starting point of any criminal investigation will consist of investigation by police. Officers working typical “beats” are not likely to have backgrounds or training that make them aware of issues that arise in cases involving the art world generally, and where art fraud might be involved specifically. I am reminded of my own dismay when I had a call from a junior police constable who was dealing with a case involving a major author of fakes in the Australian market who presented me with the question: “What do I charge him with?” My heart sunk at that point, since all of my experience alerted me to the fact if the officer was really at sea with this question (and he was), if he did not know what the charge was to be, he could not know what the central “elements” were that had to be established for a successful prosecution to take place. Even where dedicated “art squads” are created, as in the U.K. or the U.S., these are likely to be quite small (Italy is an exception, but the policing unit there, which is quite large, also has a mandate to address the illicit traffic in antiquities). In most situations, it can be assumed that investigating police at best will be indifferent to the issues raised by art fraud.

A second factor is that for an art fraud to be successful, there has to be successful deception. In the art world, this means that an art object has to be presented that deceives. When there is a considerable sum of money at stake (for example, the millions that were charged by the Knoedler Gallery), the faked art work has to be able to pass whatever tests can be presumed to be at play. The object, in short, which is false, must be competently enough done to pass muster. To be sure, these standards at times can be embarrassingly easy to meet. However, in general it can be asserted that the fakers involved in what up to that point have been successful frauds in general can be expected to be competent artists, sometimes, as in the case of Hebborn, highly competent. In fact, it is likely to be rare that an artist who is highly competent will be willing to forego the admitted great difficulties in forging an independent career, electing instead to seek to hidden rewards of being a competent faker.

A third factor comes from analysis of the peculiar role of the victim in art fraud. It can be asserted, at the start, that from the viewpoint of the public and the police, often the victims of art fraud are not seen as “worthy victims,” since they often will appear to come from “haughty” backgrounds or perhaps even be seen as of dubious sexuality. These victims may as well face the humiliation of being fooled by the deception inherent in the art. More importantly, perhaps, is that the victims often have a stake in maintaining their silence, since if they maintain their silence, they may have some hope of protecting their investment. Thus, acknowledgement of the fraud may render the art object in question worthless, whereas there may be an opportunity in the future of silently slipping the art back into the market with its fraudulent identity intact if they maintain their silence. Charney (2015, p. 194) observed that in a French case, “Appeals in the media for collectors to come forward with suspected forgeries produced no results,” a finding duplicated in Australia when the police constable mentioned above went on the “Crimestoppers” TV program urging collectors to come forward and this similarly produced no results. The situation of art fraud victims is categorically different, then, from victims of ordinary property crime, where a fundamental issue on the part of victims will be a recovery of the items stolen. Such victims of “ordinary” theft have a stake in the apprehension and justice outcome of the legal process, since they presume that one possibility is the stolen items will be returned. There is in the situation of art fraud a rational inducement to silence, unless we are dealing with those rare cases where there might be some return from a civil undertaking to obtain a return of the money lost in the fraud.

A Changing Pattern?

A further factor concerns a slow change that appears to be taking place in the way art fraud is organized. We are apparently seeing a trend whereby a person who has access to a portal in the art market (rather than the artist creating the fraudulent object) emerges to become central in the organization of the art fraud. This person makes use of a portal, or perhaps shifting portals, into the art market in order to insert the fraudulent objects. The activity then involves two quite different forms of expertise. First, there must be an artist involved who can create objects that will pass review by knowledgeable individuals located in the art market. Second, there will be a person (who ultimately becomes quite central to the fraud) who arranges for the entry and sale of the object onto the art market.

In one landmark case centered in the UK market, John Myatt served as the artist for the frauds, but it was John Drewe who arranged for the entry of the faked items onto the art market (the details of the fraud, including rather elaborate schemes to obtain false support for claims of provenance, are described by Salisbury & Sujo, 2009). In a second case involving several works sold through the Knoedler Gallery in New York (described by Charney, 2015, pp. 159–164), the fraudulent activity was set up by Glafira Rosales (who had found a willing co-conspirator in the artist Pei-Shen Qian), who was able to work through the Gallery Director Ann Freedman (who claimed she was unaware that the works were fraudulent). This pattern involves a shift of tactics from the earlier landmark cases involving such figures as Han van Meegeren, Elmyr de Hory, Tom Keating, or Eric Hebborn, all four of whom were artists apparently capable of fooling collectors directly with their bogus creations (although toward the end of his career, de Hory apparently relied on associates to help in the process of the sale of his works).

While considerable money changes hands as a result of the frauds organized by Drewe in the U.K. and Rosales in the U.S., ultimately both of these individuals found themselves in considerable legal difficulty because the very complicated trails that both had created regarding provenance of the faked works as part of their fraud. These trails could be used as circumstantial evidence of their intent or dishonesty, a central element in the trials of both which followed as a consequence of their frauds. Lest these two cases be seen as unique, in Australia at least three other cases involving frauds where an artist produced false works which were then passed onto the art market by a co-conspirator who made use of their knowledge and position within the art market. The frauds perpetrated by Beltracchi show similar features, but in that case Beltracchi was the artist who was aided by a team of co-conspirators who helped pass the works into the art market (see the account of this fraud by Charney, 2015, pp. 154–159). Together these narratives suggest that a gradual shift is taking place in the way art fraud is organized and carried out, whereby the crime involves not just the creation of art which is deceptive, but in addition the efforts of an individual who is able to find a way to insert the false object into the art market.

Concluding Observations

From the viewpoint of criminology, there is much of interest in the study of crimes related to the art market and to the commentary found on such crimes in the public media. Here, we have examined only one small part of what might be reviewed if we were to focus on art crime more generally. For examples, we have not examined such issues as the theft of art, which is much more common than art fraud, or the important issue of the illicit traffic in cultural heritage material. The problems posed by these are certainly worth noting and merit close attention by those who are interested in what is happening to the art market. However, such issues are different in important ways from art fraud. For example, while a small part of art theft may involve organized crime and/or drug cartels, such features simply do not arise in the known cases of art fraud. Further, the media commentary on such issues as fakes, forgeries, and fraud has not commented on these connections, for the simple reason that such connections are not to be found. The present focus has been on the issues of non-authentic art, what are commonly referred to, especially in the media accounts available to the public, as fakes or forgeries. These are issues commonly raised in media commentary and can be expected to re-emerge with some frequency as new cases of fraud are revealed.

Problems of art fraud and fakery are found throughout the world, but are a particular problem in those locations where art activity is most vigorous, including the United States, the United Kingdom, France, and Germany, among others. It is such locations that we expect to find, and do find, the most frequent examples of art fraud. The major landmark cases, involving such notable figures in art fraud as de Hory, Keating, Drewe/Myatt, Beltracci, and the recent troubles at the Knoedler Gallery, took place in these locations. To be sure, art fraud can, and does, occur in locations where the art market is smaller and more restricted.

The issue dealt with here is that those coming from such perspectives as journalism, art appreciation, art scholarship more generally conceived, and the like, probably have a broad interpretation of such words as “fake” or “forgery.” When Jonathon Keats (2013) urges on the very cover of his book Why Fakes are the Great Art of Our Age he obviously has something in mind rather different from criminal fraud, and this can be seen in his discussion of the work of such artists as Warhol or Duchamp in his closing section, labeled “Forging a New Art.” While criminologists do not have it in their power to control the use of words generally, and the common usage of such terms as “fakes” or “forgeries” specifically (nor should they, by the way), at least it is possible to alert the reader that such terms as “fake” or “forgery” may have a meaning and interpretation very different from when the term “art fraud” is used, at least as fraud would be cast within a criminological discussion. Some writers might attempt, as does Charney (2015) to define “forgery” as distinct from “fakery,” whereas others will proceed, as is probably more common, to shift from one term to the other, essentially using them as identical in meaning. Keats on the cover of his book, in fact, manages to include a reference to both fakes and forgeries as two of ten words employed. This difference in usage is simply a consequence of the different perspectives of those coming to the problem of non-authentic art. Further, it has been pointed out that simplistic applications of such terms as “fake” are incapable of being applied to situations that might better be described as either “mistaken identity” or “disputed identity,” where a more textured set of understandings might be required.

Finally, those with an interest in both art and criminology might be interested in the scarcity of successful court actions, either civil or criminal, in cases of art fraud. Two lines of action can be proposed to meet the obvious problems. One, and probably most important, initiatives need to be considered within the criminal justice system to increase the awareness and concern of justice professionals, especially the police, about the problem of art fraud. Two, steps might be taken to obtain some initial figures about the actual level of art fraud, such as consideration of inclusion of problems of fraud generally, and art fraud specifically, in the routine collection of information regarding victims of crime. Certainly, the current situation of not having any data at all available on various forms of art crime is notable.

References

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