8
authorship and authentication
Henry Lydiate
introduction
Bientication of authorship of an art work is an important artistic and art •  ss jssue. Both issues are interrelated: whether or not a work is an uthentic Giotto, Rembrandt, Van Gogh, Dali, Pollock or Warhol is just Important to the art historian, curator and critic as it is the seller, buyer, lealet investor, insurer or auctioneer. Academic art experts inform, influence and advise art market professionals in their commercial dealings. Consideration of authentication of artworks cannot fail to raise the issue lof contemporary works by German artist Hans Haacke, who memorably created works that dealt centrally with issues of authenticity and provenance. I In 1974 Haacke was asked to contribute a new work to an international group show. PROJEKT 74., at the Wallraf-Richartz-Museum in Cologne, celebrating Kts 150th anniversary. He conceived an installation work, Manet-PROJEKT 174, about the provenance of a painting in the museum's permanent collection [by Manet, Bunch of Asparagus (1880) that would be exhibited on an easel, together with ten wall panels containing information about the lineage of the original work, from Manet's studio through many changes of ownership, to the present. Social and economic details of the many owners of the work would be displayed on the panels, particularly a well-known German financier who had assisted in the Museum's buying of the original painting, and whose financial operations dated back through the Nazi era. It was out of respect for this man that the Museum announced its decision to reject paacke's proposed conceptual art work, which was therefore not shown. But Haacke's concept has been well documented and is referenced to this day; one critic viewed the Manet-PROJEKT 74 work as a 'powerful allegory' of Walter Benjamin's maxim (from his thesis on the Philosophy of History) that 'there is no document of civilization which is not at the same time a document of barbarism'. Undaunted, however, in 1975 Haacke recycled his concept | to produce and successfully exhibit a work, Seurat's Les Poseuses (Small Version) 1888-1975. Both these conceptual works relied upon the existence °f credible evidence of the making of the work and its lineage of ownership er ninety years.
142   Henry Lydiate
All legitimate lines of enquiry should, ideally, lead back to the artist's studio, as should enquiries to resolve related legal issues, such has the legal right to own and deal with the object; to reproduce    ^ v -i otherwise merchandise a copy of the object; or to alter or change the °* after its completion by the original author.
The older the art work, the more difficult it is to achieve a satisfact rj convincing audit trail back to the original artist (who may have died c before), in which case the art market, particularly buyers and coll ultimately decides the current market value (usually, but not always  h ° by academic art experts). The newer the art work, the easier authent' should be, especially where the original artist is still alive or died in °n times.
This chapter explores key ethical, legal and practical issues involved m arising. Lineage is the heart of the matter, and so our explorations will ^ chronological.
Antiquities and Old Masters
Up to and including the Dark Ages, hard evidence about artists, their vwfl
and working practices is inevitably scarce, and authentication of
art work
made during those centuries is undertaken more through a mixture of sci« tific analyses of the objects and scholarly guesses and assumptions, than bv documentary audit trails back to the original artist.
Just as the Italian Renaissance shed light on the nature and content of? Western art, posterity has also benefited from the survival of a wealth of documentation detailing the commercial transactions of (mostly commissioned) artists during that seminal art historical period, and to a certain extent; beyond it. Surviving letters of the artists, their assistants, benefactors, patrons, commissioners, and related legal documents, paint a vivid picture of the successful artist operating also as a sophisticated business manager. Written commission contracts appear to have been the norm, specifying in elaborate detail what should be created (say, a three-panelled altarpiece), detailed design specifications (often requiring figurative representations of the patron and his family), the nature and extent of the hands-on involvement of the maestro (who must paint the faces and hands, though his assistants may painM background or clothing), specification of materials to be used (so much lapis lazuli or gold leaf), completion and delivery dates, installation arrangements, a guarantee of how long the work would last, and the master's overall fee to be paid in stages. The survival of such enormously valuable documentation into modern times, as well as the works in question, can put beyond doubt authorship and authentication issues.
The creation of moveable artworks emerged out of the Italian High Renaissance, and through the Mannerist period, when the foundations 01 what we now know as the secondary art market were developed. In other words, artworks also began to be bought and sold as commodities or
A uthorship and authentication   143 a demonstration of wealth, social standing and the possession of ultural values.
ommodification of moveable artworks accelerated in the Netherlands the seventeenth century. As the most powerful and successful trading * jn the then developed world, the Dutch economy boomed, and the derable disposable incomes of newly rich trading classes fuelled what a booming trade in commissioning, buying, selling, and investing jntmgs, particularly though not exclusively from Dutch painters like ^.'meer and Rembrandt. This period coincided with the North European ant Reformation of Western Christianity, which stimulated the s[ng secularization of artist's subjects - Vermeer's Girl with a Pearl ^mLng (1660-05); Rembrandt's Anatomy Lesson of Doctor Tulp (1632) - and ■ cted secular art dealers and collectors, and (with increasing circularity) uraged artists to create uncommissioned, speculative, autonomous works Crock the thriving market. And the market gradually began to spread, first h ough Western Europe, eventually throughout the developed world. lOld"Master paintings from this period onwards have become the subject of ■uthorship and authentication disputes, largely due to the absence of credible Lid detailed documentation contemporary to the original authorship. Over > the intervening centuries to date, this has led to many disputes - academic, curatorial, legal and business: acceptance or repudiation of an art work in an [artist's canon: whether and if so how to tackle problems of conservation, Rtoration and replacement; the deliberate fabrication of fakes and forgeries; and intentionally, recklessly or carelessly trading in artworks of questionable Iauthorship. In the absence of persuasive contemporary evidence, heavy reli-lance is placed on academic experts to achieve resolutions. In recent limes, for [example, academic experts have judged that studio assistants, followers or [imitators, in fact painted some works that for centuries had been accepted as [original Rembrandt's. Such repudiations or declassifications can have enormously deleterious consequences for an owner of such a work when it comes to reselling such inauthentic work in the art market.
Further legal and business complications can and often do arise, through the absence of persuasive contemporary evidence and, more especially, from the absence of a credible documentary audit trail from the original author, to its first transfer or sale out of the artist's possession, through the many changes of legal possession and ownership, to the latest owner who wishes |to bring it to the art market for sale. And this is where good evidence of a legitimate audit trail of ownership, and of original authorship, so often coincide.
[Modern and Contemporary art
The second half of the nineteenth century saw the birth not only of Modern ! Art, but also of the image of the artist as an outsider, estranged from main-| stream society both in thought and expression, and in lifestyle. From around
144   Henry Lydiate
the time of Manet's painting of Le Dejeuner sur I'herbe and the est- k • by him and his so-called Impressionist fellow painters of t]le ^ lshjfc Refuses, in 1863. la boheme was rapidly becoming society's normali^^B tion of the artist. These new bohemians chose internal, personal e from contemporary culture, often physically removing themselves fr ern civilization to distant exotic lands - like Gauguin's self-imn0 ? in Tahiti.
Although the works of Modern artists are relatively closer to
~ -----------------~w      'viun.^.j closer to u„ ■ i
which ought to make it easier to establish the provenance of their w  i/ Un*i
in terms of true authorship and of legal ownership), the nature *
bohemian lifestyles and attitudes to their contemporary society m ^ llleir tlinn nnt racnit^ „i------.j____*i____     •  .   -ill-        " more
-"'vlJ more o^H
than not resulted in less clear evidence than is available from earlier time almost became the norm for artists to sell or give away their works wirtl bothering with contractual or documentary formalities, for the new 0\v to do likewise, and so on down the market chain - until there came a l9 or business challenge to the latest seller about true authorship 0r Wj! ownership.
Such bohemian attitudes and sloppy conduct of the commercial dimension of artistic practice were adopted by generation after generation of Modem* artists, and on into the contemporary era, where it is still commonplace for artists' studio sales to be executed without formal documentation - and for collectors to acquiesce accordingly. But in the case of living artists and those who died less than seventy years ago, international intellectual property laws can and do have vital roles to play in resolving authorship and authentication disputes.
Most countries now have copyright laws, automatically giving to the author of an original art work exclusive legal rights of reproduction andl merchandising, thereby enabling them to prevent or authorise others doing! so; such rights normally last for up to seventy years after the artist's death. International copyright laws are helpful in addressing questions of authorship, because for over two centuries legislators throughout the world have had to define in statute who is an author, or joint author. In the UK, for example, the current definitions are: 'author' in relation to an artistic work means the person who creates it; and 'work of joint authorship' means a work produced by the collaboration of two or more 'authors' in which the contribution of each 'author' is not distinct from that of the other 'author' or 'authors'. Other countries have similar definitions, and they raise important professional practice issues for contemporary artists who engage studio assistants to create or help to create their works, or who work in creative partnership - especially in the making of mixed media artworks. Such professional practice issues can be readily resolved through the use of written contracts of employment for studio assistants (as was evidently done during the Italian Renaissance), and of written partnership agreements between creative collaborators.
But international copyright laws are also important because the)
Authorship and authentication 145
. ]jnked with related intellectual property laws that go to the heart ^^B*c3 tter statutory moral rights. These were developed in France during LiiE!!/ siěde and 011 ult0 tne carr>' twentieth century, and are based upon the ■■■■■■fprench philosophical and jurisprudential concept of droit d'auteurs.
p»iQUÉ;     seVeral statutory moral rights laws, automatically giving to the IfffV of a copyright art work certain exclusive legal rights, including the claim true authorship, and the right to prevent what the English call ^V*'ttJibution of authorship' - and the French call droit de paternitě. In Lffnf ountries, such rights last for the same length as copyright (for up to nl0b'lt years after the artist's death), except in the USA where they last up to <eVe iot beyond the artist's death, and in France where they last indefinitely. kU e rights mean that artists or their estates have the exclusive legal right to ™    tjjat a work is a true original of theirs, or to prevent others from tine that a work is theirs when it is not.
An exploration of three contemporary attribution disputes - Dali, Pollock I j Warhol - will serve to illustrate and clarify.
Dali
[The surrealist artist Salvador Dali died in 1989, but his legacy caused sub-I stantial legal problems of an equally surrealist nature for a dozen or so years after his death. The litigants were the Gala-Salvador Dali Foundation, established by the artist to curate his works and manage his Museum at Figueres in Catalonia, and Demart, the company he established to administer his intellectual property rights. Accordingly, when Dali died, his works went in one direction, to his Foundation, and his intellectual property rights (including his statutory moral rights to claim or deny true authorship) in another, to Demart. The conflict between these two commercial vehicles, established during Dali's life with his approval, centred on the concerns of the Foundation about the way Demart dealt with Dali's intellectual property rights. Indeed, the Foundation sought the legal right to administer Dali's intellectual property rights on the grounds that Demart had failed to do so properly.
Dali established the Foundation in 1982 in order to manage his museum at Figueres, and also to protect and promote his work. The Demart company [was created in 1985, and Dali then signed over to it all of his intellectual property rights until 2004. The beneficiaries of Demart's business profits would be Dali (until his death) and the Foundation. Dali's concept was simple: Demart would generate income to support the Foundation. However, after Dali's death in 1989, difficulties arose when Demart's operating costs prevented sufficient profit from copyright royalties being paid to the Foundation. In 1994 the Foundation tried to become the administrator of Demart's intellectual property rights, against the latter's wishes. In 1995 the Spanish government was persuaded by the Foundation to enact legislation transfer-°ng the administration of Demart's rights to the Foundation, and in 1997 the Spanish High Court (and in 1999 the Spanish Supreme Court) confirmed the
146   Henry Ly diäte
lawfulness of this action. The Spanish king, Juan Carlos, is honor of the Foundation and was publicly vocal in his support of this^ in 1999 Demart issued court proceedings in Spain, claim in tr ulat ?|°Ve u2 government's transfer of the rights was unlawful. SP;i
In other words, at the heart of the litigation lay the directly confljj claims from the two parties that each had the exclusive right to adm^^l Dali's intellectual property rights throughout the world. This m extremely difficult, if not impossible, for legitimate would-be users of n '* images to negotiate copyright licensing deals to merchandise them andl issues of authorship and authenticity to be authoritatively settled.
What made this bizarre situation surreal was that Dali's works had beeJB subject of arguably the most acts of forgery and counterfeiting encountered modern times. It is generally acknowledged that Dali during Iris lifetime ily signed blank sheets of paper, for a fee, which would-be publishers use later; estimates range from 100,000 to 500,000 such sheets. This resulted" large numbers of works being of very questionable authenticity, which* should have been the earnest task of both Demart and the foundation to be pursuing rather than fighting each other, especially when Robert Descharnet" Dali's old friend and Director of Demart was widely acknowledged as one of the world's leading Dali authentication experts (a matter which was also wrapped into the Demart - Foundation dispute because the latter body questioned his credibility as such an authority).
A further complicating factor was whether Dali had the legal right to assign his statutory moral rights to Demart in 1986, three years before his death. Under UK law, which follows the approach taken by most countries in the world, statutory moral rights cannot be 'assigned' (transferred to someone else) by the artist. This is because, unlike copyright, moral rights are personal and not economic rights. Moral rights legislation usually makes special provisions for transfer of moral rights at the artist's death: in the UK such rights automatically pass to anybody named in the artist's will but. if there is no such provision in a will, the moral rights pass to the artist's estate - in Dali's case, this would be the Foundation.
In July 2004, the Foundation published the following statement:
Demart has accepted the claim brought by the Foundation whereby it sought the dissolution of the Salvador Dali Pro Arte Trust. As a result, the Foundation will become the full owner of the entire stock capital of Demart, which it had already been managing as the sole director. The Foundation withdraws the legal action brought against Demart worldwide since the situation is now such that it is unnecessary to continue with the action. Demart withdraws all of the legal action it had brought against the Spanish State and the Dali Foundation or third parties regarding matters affecting the dispute concerning the industrial oM intellectual property rights, which the foundation currently directly ofj indirectly controls.
Authorship and authentication 147
This is great news that the Foundation is pleased to announce to the market, since it finally brings a peaceful end to legal disputes that ve now been entirely overcome. This is the best possible way to honour Jvador Dali on the occasion of the centenary of his birth.
ended a legal saga that had damaged the market for Dali's works for P^US tnan a decade after his death, with all the intellectual property rights, f°ie,jn2 statutory moral rights to determine true authorship, now in the ^Bgof °ne body'ttie Dali Foundati°n-
pollock
K* pollock-Krasner Foundation is (at the time of writing) in dispute with lessor Bllen G. Landau, a Jackson Pollock expert based at Case Western |lj iversity, who authenticated thirty-two works discovered in 2002, including [   enty-two small drip paintings on board.1 Landau's opinion that the works :    Pollock originals is supported by strong circumstantial evidence: they re discovered by Alex Matter, the son of Pollock's friend the photographer land designer Herbert Matter (1907-84) and the painter Mercedes Matter, I  n0 nad labelled them as Pollock experiments executed in the 1940s, and had placed them in storage. Landau's credentials as a Pollock expert are also strong: she had been a member of the Pollock-Krasner Foundation's I authentication board until it was wound up in 1995.
| The dispute arose after the Foundation had sent six transparencies of the | Matter finds to a professor of physics at the University of Oregon, Richard | Taylor, who is a painter, an art theorist, and - significantly - a pioneer in a ■ new authentication technique know as 'fractal analysis' (images are magnified, and repealed patterns identified). Taylor compared his findings in relation to the newly discovered works with previous works (that had been ■pcepted by the Foundation as authentic Pollocks), which he had also subjected to fractal analysis. He found 'significant differences'. Taylor's full report is with the Foundation, and it has triggered the co-authors of Pollock's catalogue raisoime publicly to doubt the authenticity of the new finds.
In February 2006, the Foundation published a brief statement setting out its position regarding the disputed works, which is reproduced here in full:
The Pollock-Krasner Foundation has reviewed the findings of Professor Richard Taylor of the Department of Physics at the University of Oregon concerning his testing of a group of newly discovered paintings attributed to the American Abstract Expressionist artist Jackson Pollock (1912-1956). The study was conducted as part of the Foundation's ongoing investigation into the authorship of these works. Taylor's findings are reported today in a news article in the scientific journal Nature (vol. 439: 648, 9 Feb 2006).
148   Henry Lydiate
Taylor, a leading authority and pioneer in the field of fractal anal J studied the work of Jackson Pollock since
the mid-1990s and has co   • ■
database of scientific information about Pollock's work. Taylor stme '^''^a
Over the course of our research, my group has developed a c nJ pattern analysis technique - Dimensional Interplay Analysjs lpukr detects artists' characteristic patterns in their paintings. All 0f t~~ ^| Pollock's poured paintings analyzed by my research group are con^^l of a highly specific and identifiable form of fractal patterning \ySe<* paintings attributed to Pollock are analyzed, the computer look the specific fractal signature that we have found in Pollock's n paintings.
Taylor's initial discovery of Pollock's fractal patterns first appeared in M» (vol. 399: 422, June 1999). Taylor continues: ' " "I
Our analysis has revealed significant differences between the patten; the six paintings submitted by the Pollock-Krasner Foundation and owl database of the fractal nature of Pollock's paintings that we have ana-lyzed. These differences indicate that Pollock's specific fractal signature has not been found in the submitted paintings. The analysis has also revealed that the patterns vary between the paintings, indicating that they may have been painted by different hands.
The investigation by the Pollock-Krasner Foundation is under the direction of the art historian Dr Francis V. O'Connor, co-editor of the Jackson Pollock catalogue raisonne, the definitive five-volume inventory of Pollock's work. O'Connor, who has studied Pollock's work for more than forty years,
states:
The sophistication of Professor Taylor's methodology is admirable; he is capable of both distinguishing between and comparing the fractal patterns of Pollock's body English or signature, and the fractal patterns of poured fluid. His method goes beyond just recognizing the latter patterns as fractal patterns in Pollock (poured paint is poured paint). He also recognizes patterns unique to Pollock. Integrating fractal traces of Pollock's physiology into the process of pouring is the basis for the validity of his testing.
Professor Taylor's fractal test results reinforce my own skepticism and reservations concerning the paintings in question. The historical documentation to date provides no conclusive proof that the new works can be attributed to Pollock. Further, a careful stylistic inspection of Pollock's poured works from the period in which the paintings are supposed to have been painted - roughly 1943 to 1950 - reveals no relation| to Pollock's known stylistic development.
ertS t0t0 document the works from the group claiming the Pollock attri-t^ 1 •   i___i___
Authorship and authentication 149
rt 0f its investigation, the Foundation has assembled a team of review the paintings in question and has requested supporting l0 document the works from )Pate   information requested includes
I complete set of pre-conservation photographs *    list of the experts commissioned to analyze the works
B the results of provenance, scientific and forensic analysis "   my new information that would provide credible supporting evidence for
■ the authenticity of the works.
KharieS C- Bergman, Chairman of the Board and CEO of the Pollock-Krasner foundation, states:
The results of Professor Taylor's analysis provide a valuable contribution to our investigation. The Pollock-Krasner Foundation will review the 1 results of any additional materials or research once it is made available. The Foundation is withholding any final opinions as to the attribution of the newly discovered paintings until further research is completed and a consensus of scholars who have had hands-on experience with Pollock's work supports a final decision. The assertion that the newly discovered paintings are by Jackson Pollock was made in 2005 by the owner of the paintings, Alex Matter; art dealer Mark Borghi of Mark Borghi Fine Arts, Inc., New York; and art historian Ellen Landau.
The Pollock-Krasner Foundation is heir to the legacy of the artists Jackson Pollock and Lee Krasner. It is therefore deeply concerned about the integrity of its founding artists' reputation and works. The Pollock-Krasner Foundation's mission is to aid, internationally, those individuals who have worked as artists over a significant period of time. The Foundation's dual criteria for grants are recognizable artistic merit and financial need, whether professional or personal.
Whether this authentication dispute will develop into litigation is unclear. As explained earlier, US legislation dealing with attribution of authorship is significantly different to such legislation in the UK, European Union (EU) ; and elsewhere in the world. In the USA, an artist's statutory right to claim or deny authorship of work exists only until death. In this case, therefore, it seems that the Pollock-Krasner Foundation would not have the statutory moral rights to determine true authorship that they would enjoy in the EU and elsewhere.
Warhol
The Andy Warhol Art Authentication Board has provoked great media interest through its 'denied authentication' of vet another collector's professed
150   Henry Lydiate
Warhol picture, one of a limited edition of Self-Portrait silk-in 1964—65. The collector was Joe Simon, a London-based fi]^ He bought the silk-screen as an investment in 1988 within Warhol's death, paying £120,000. The picture's provenance appea^/68 been well established. Warhol had made an acetate of a photog,\ '° nuv< portrait, which he gave to a friend, Richard Ekstract, to make^^^B screens as decorations for a party celebrating the premiere of Warh ^ ^1 underground video. Ekstract sent the acetate to a printer. After'n^'S 'lrs| Warhol gave the pictures to Ekstract in gratitude for his having fac- 'Xlri-V-both the video production and the party. Ekstract gave some of theT^^I edition to partygoers. The Andy Warhol Foundation, established by through his will, authenticated Simon's picture, as did Fred Hughes'1 is the sole executor of Warhol's will, and his former business man Simon proposed to sell his picture for around £1.4 million, and a pote ^ buyer submitted it to the Andy Warhol Art Authentication Board In authentication.
The Andy Warhol Art Authentication Board, Inc. is a limited liabia company registered in New York State. Its website is minimal, merely sav' ! 'a procedure has been established for the authentication of works of purportedly by Andy Warhol', that it 'does not offer any appraisal service ' gives Claudia Defendi as the contact name, and a Manhattan address and landline. Its website is accessed via The Andy Warhol Foundation For Visual Arts, Inc: www.warholfoundation.org/authen.htm.
The Foundation is a separate limited liability company also registered in New York State, and its website offers the link directly to the Board - without further explanation of their legal or business relationship. The Foundation not the Board, was established through Warhol's will and was therefore the legal body specifically entrusted and empowered by him to safeguard and promote his artistic legacy, and has commissioned and already published' three volumes of Warhol's Catalogue Raisonne (paintings and sculpture from 1961 to 1969), with two more volumes in train. Given these uniquely authoritative publications by the Foundation, and its direct personal links with Warhol up to his death, it is difficult to fathom why it does not itself authenticate authorship of 'works purportedly by Andy Warhol'. Applicants to the Board say that it does not certify or discuss why it denies authentication (to around one in six submissions). It is widely believed that the Board's essential criterion for authenticating a work is whether it is satisfied that there is good evidence of Warhol's having supervised and overseen its creation. Given the common knowledge and ample documentary evidence of Warhol's unique and deliberately perverse ways of working, especially during The Factory years, it might have again been expected that the Foundation was the best body to understand such ways of working, to interpret and decide all authentication issues.
Art historian and friend of Warhol, John Richardson, owns works given to him directly bv Warhol, but has said that even he would not 'dare submit
Authorship and authentication 151
t0 t^ie Board f°r fear °f bemg told they're not by Andy', and He t'linwj1ether it is possible to authenticate Warhol's output: 'He used to 11 silk-screens' and assistants would come in at night and run off a few H^for themselves. But did they make them any less authentic than the jS0P'eS   , ran off for Andy during the day?'. For many years Warhol engaged f assistants to execute his ideas. Paul Morrissey, Warhol's former
C 01 ^ •    .    ■ m _ _______ .t
1111"1
1113
0f The Factory, maintains: There's no such thing as an authentic
oY Ronnie Cutrone, a Warhol assistant: 'Actually, Andy rarely got
Wlfll° , He had an ability to let go and say, "You do it". It was easy to rip luolvei- ...,,,„      _-, , .  , ,,,,,
in*
s paintings and sign them'. Sam Green, who curated some Warhol 'lS i would do his signature. Andy only cared about authorship when it
Ktosdlmg.
Warhol actively encouraged such challenges to hitherto traditional —aches to authorship: 'Why don't you ask my assistant Gerard Malanga ie questions? He did a lot of my paintings'. And a propos his Flower
approaches to authorship: 'Why ■jntings
11 decided I won't sign the fake ones that're turning up all over Europe -I the ones that people told us they bought from Gerard. Maybe I should do new ones and make good on the fakes in Europe. I don't know. I'll see.
|On the back of some of the fakes made of his print portfolios {Marilyn I Monroe 1967 and Flowers 1970) Warhol endorsed: 'This is not by me. Andy Warhol.'
I As Warhol's works continue to circulate throughout the secondary global |:.art market, vast sums of money have been and continue to be invested in their [purchase and sale, and the achievement of huge profits (or losses) will largely depend on buyers' (and/or their agents') satisfaction as to authenticity. The Board appears already to have established itself with art market professionals I as the preferred authentication authority, not the Foundation or other Warhol Experts.
I The Board requires all applicants submitting works for authentication to sign an undertaking not to challenge the Board's decision in court. The validity of this purported waiver of legal rights has yet to be legally challenged.
[The strongest legal contestant should be the Foundation, since it should own
[Warhol's statutory moral rights to claim or to prevent false attribution of his authorship. As explained earlier, under international intellectual property
flaws, these rights should last for the same length as copyright (in Warhol's case probably for decades to come), but under US law such rights apply only
in respect of works in the artist's ownership at death (and which were presumably inherited from Warhol by the Foundation). In the case of works not owned by Warhol at his death (i.e. the vast majority, now circulating in the global secondary art market) these rights will have expired at Warhol's death. This effectively produces a Catch-22 situation: only works inherited from Warhol by the Foundation - and not works that were sold or given away by
152   Henry Lydiate
him - can be the subject of legal challenge, but only by the Fou since the Foundation appears to be acquiescing in (if not tacitly s at'c>tl; * the authentication decisions of the separate authentication TW,,-?Up'^^
of works during Warhol's lifetime appear to have no legal remed
con-
current US law.
u»der
Authorship and authentication   153
ne other than Pollock did do these paintings, he or she had an amaz-If someone     ^ pollock>s working methods. This includes knowing exactly inS Tnock made corrections as he went along (information not publicly hovV, «P until the MoMA conservators report published in 1999). availabie U1 (Ellen Landau: response to the Harvard report)
Envoi: back to the future
As stated at the outset, lineage is at the heart of the matter. Livi J could greatly help themselves, their heirs and successors of their estate - as well as assisting future art academics and market professi^^B by adopting good professional business practices of the Renaissance °na.'*~ namely by documenting their works from initial ideas, through exccia " ' first studio sale or transfer; and for art market traders always to do lik   •' to ensure the accumulation and perpetuation of sound provenance of original authorship and true legal ownership.
Note by the editors
1 The dispute of the paintings attributed to Jackson Pollock by Alex Matter J ongoing. Harvard University Art Museums released a document at the end of December 2006 'Technical Analysis of Three Paintings Attributed to Jackson Pollock' (which is available at www.artmuseums.harvard.edu under 'Research') 'The Harvard University Art Museums have conducted an independent, pro-bono analysis of three of a group of thirty-two recently discovered works thouv be by Jackson Pollock (1912-1956)' as 'part of a broader ongoing investigation into the materials and techniques used by twentieth century artists and fits with the Art Museums' mission of object-based teaching and critical inquiry'. The three works were analysed using a variety of techniques to determine the age and composition of their materials, with the following conclusions: 'Some pigments raised questions about the proposed date of creation of the three works the research team analyzed (1946-49)'; and 'Some media raised similar questions'. A series of related responses, essentially press releases from late January 2007, arc collected at www.poIlockexhibits.com, which also promote the Pollock Matters exhibition (September 2007):
The Museum of Fine Arts, Boston (MFA) is conducting scientific research on four paintings attributed to Jackson Pollock by Alex Matter, the son of photographer Herbert Matter, for the exhibition Pollock Matters at the McMullen
Museum of Art at Boston College.
(MFA)
Scientific analysis can attempt to eliminate a work of art as genuine, but it can't determine if it is indeed the work of any given artist. That has been, and remains, the job of the scholar. A number of leading Pollock scholars have examined the paintings discovered by Alex Matter, through a range of methods from technical analysis to connoisseurship. Many attribute them to Jackson Pollock and nothing in the Harvard report effectively challenges that.
(Alex Matter via Zucker Public Relations)