CO U RTE S Y O F A R I S ( P E A R S O N )
economically motivated to control market inventory and, in turn, values forced many authentication boards to disband, such as those associated with the Andy Warhol, Jean-Michel Basquiat, Jackson Pollock, and Roy Lichtenstein foundations. Scholars, under fear or threat of similar litigation against them, have also become reluctant to render public or even private opinions about the authenticity of works. How, then, can collectors navigate the thorny landscape of fakes and forgeries? Provenance research has long been a central tenet of authentication. Most art experts agree that authentic paintings tend to have a “correct” provenance, including literary references in the artist’s catalogue raisonné, scholarly publications, exhibition records, or auction catalogs. On the other hand, if a work by an important artist has no documented history, then it may be a fake or forgery, though that is not always the case. Additionally, a fake or forged artwork almost always has a fake or forged provenance. One common misconception in the art market is that a good provenance means that the legal title to or ownership of the work is clear. These two concepts are not identical. Provenance is the history of physical possession of a work from the date the artist created it to the present day, and thus it is only a subset of legal title. Legal title is the full right, interest, and ownership of the work, which may or may not overlap with physical possession of the art. Because the art market does not record and track both sides of a sale-purchase transaction, every
This page: Title insurance for any piece of art should always accompany all art transactions. Opposite page: Judith L. Pearson, President of ARIS Title Insurance Corporation.
provenance carries the inherent risk of being inaccurate or incomplete, including the provenance information stated in catalogues raisonnés and auction catalogs. In addition, where a purchase sale is recorded, such as in an auction catalog, it is generally recorded in a generic fashion (e.g., “Private Collection”) because most collectors do not wish to disclose information about their ownership. Even those who have nothing to hide are reluctant to have their names published as the owner of a work for fear of becoming the victim of theft, facing public speculation about their financial position, or facing solicitations from the marketplace. These market challenges on clear legal title are compounded by the prevalence of transactions involving multiple layers of undisclosed consignors or dealer-agents. Because legal title and authenticity are regarded as first cousins of each other, the process that a title insurance company undertakes to guarantee clear legal title serves as an additional lens through which to study authenticity, as well as understand valuation. Standard title-
insurance-underwriting protocols involve confirming the legal basis under which a current seller possesses a work. This process always includes disclosing to the title insurer the identity of the current owner, even if this information is confidential in the marketplace (and will not be disclosed to parties on the opposite side of the transaction), and inherently brings to the forefront information that might suggest whether the provenance circulated in the market is, in fact, fake itself. A title insurance company’s underwriting process indirectly helps the market by adding an additional level of connoisseurship to the investigation of authenticity. In order to protect collectors’ art assets, title insurance should accompany all art transactions just as it is an integral element of all real estate transactions. No one would buy a home without title insurance; why would a collector purchase art without the same protections? u For more information on ARIS Title Insurance Corporation, call 212.563.3600 or visit aristitle.com. JUNE 2012 71