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Why should a court decide the authenticity of a living artist’s work?

26 August 2016

I’m relieved that Peter Doig won the authenticity lawsuit that had been filed against him in a Chicago court. The case was absurd. The artist had to prove that in 1976 he was indeed ‘Peter Doig’, a high school student living with his family, not ‘Pete Doige’ (note the extra e), a young offender in a corrections facility from whom an officer bought a painting. As a sociologist specialising in art crime, I’ve been following the story, and to me, there are so many reasons that this suit should have been tossed out by the judge, not the least being that there was a Pete Doige incarcerated at the facility at the time in question. Yet the case proceeded to trial, to the distress of many involved: a corrections officer who was taken in by charlatans; the Doige family who were badgered about the deceased Pete Doige until at least one of them was in tears.

It’s revealing that this lawsuit wasn’t instantly dismissed as frivolous, but instead went to trial. A judge was given the authority to determine if a painting was the work of a living artist, despite the artist’s denials. The Doig case demonstrates that an artist can no longer authenticate their own art. Authenticity is being outsourced to the courts.

Any changes to how authenticity is assessed can be contentious. Over the past few decades we’ve seen an increase in the use of science and technology to authenticate art. We’ve also seen an increase in suits related to the accuracy and applicability of these technologies (e.g. the unsuccessful 2015 defamation suit filed by art authenticator Peter Paul Biro against the New Yorker which questioned the effectiveness of Biro’s methods). The role of the connoisseur has been questioned and experts now risk being sued when they decline to authenticate a piece (see Lily Le Brun’s article from October 2014 for more examples). Several individuals and artists’ estates have left the authentication business altogether. Who authenticates art when there are no more art authenticators? The court.

The role of the court in authenticity cases can be positive. They can serve to square science with connoisseurship and to remove some of the legal risk involved in offering an expert opinion. The judge, as a neutral party with no financial stake in the dispute, is tasked with making a determination based on the weight of the evidence. Think of that Monet case early this year where the judge didn’t rule if the piece was fake or real, but opted not to order its inclusion in the Monet catalogue raisonée. The judge makes the final call, not art experts.

The Doig trial is the logical next step: the living artist is placed in the same position as other art authenticators, risking suit for denying works. Peter Doig, the world’s foremost expert on his own artistic output, has been stripped of the ability to authenticate his work. Neither Peter Doig nor his art are allowed to speak for themselves. The judge ruled that Doig could not have painted the piece, but that’s what Doig said all along.

As academic and legal debates over the nature of authenticity rage, we’ve entered uncharted territory. For those of us interested in the sociological and anthropological aspects of art, this is fascinating and frightening. This sociologist is watching closely and taking notes.

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One comment

  1. Geoff Bobker Aug 26 2016 at 3:49 pm

    Was this case really about the authentication of the painting? Surely, it was (or should have been) about establishing whether Peter Doig, the well known painter, is the Peter Doige (with an e) incarcerated in a detention centre at the material date. According to your own account of the legal proceedings, the decisive evidence was provided not by an art expert but by Doige’s sister. At present, Artsy seems rather fixated on issues of authenticity, but this case seems rather an outlier.

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