By: Olivia Bravo

Intro

Art forgery is a crime, but should it be met with such harsh penalties? If some art forgeries are so good that they are never discovered and enjoyed the same as the original work, does this argument deserve a more nuanced approach? More importantly, is the cost of litigation worth the hassle?

Art Forgery Defined   

There are many arguments for and against authenticity in art. Is it the artist that creates a work that gives it its value? Or is a work’s value derived from its innate qualities? Because of the subjectivity of the art world, it has long since been a landmine for conmen and fraudsters to exploit. An art “forgery,” or art “fake” is when an artwork is presented by one artist, despite being created by another. Although used interchangeably, an art fake is a copy or replica made and circulated on the market while the original is hanging in a museum or in a private collection, whereas a forgery is made with the intention to deceive an audience. 

Art forgeries undermine the integrity of the art world, but in order to understand the full scope of the issue, it is important to recognize that a forger’s motivations are often more nuanced. Similarly, while psychological factors drive forgers to create their works, the allure of counterfeit works is not driven by the forger, but by societal demand. This recognition is crucial for transparency and for enforcing authenticity in the art market. 

The Case for Litigation

Art has a universal cultural impact, and as a society, we have placed a high value on the protection and cultivation of art and artists. A harsh reality of today’s art world is that more fakes and forgeries are offered for sale than legitimate works, to the point that 20% of the pieces in the world’s most prestigious museums and galleries could be potential forgeries. Many leading art experts and authenticators are even refusing their services to avoid liability, leaving authentication of works to scientists to use instrumental analysis and imaging to determine age and material composition of works. Art forgeries have had a significant impact on the fine art world: creating an economic burden for private buyers, galleries, and art museums who have the sole responsibility of litigating against forgers. 

Art forgeries also create a significant economic deficit when sold to consumers. It is estimated that counterfeit goods cost the US economy between $200- $250 billion per year. The US government suffers significant tax implications from the presence of counterfeit goods in the marketplace. With respect to art forgeries, an individual buyer suffers economic hardship because they are assumed to have purchased an art piece found to be a forgery at an inflated price, which saturates the art market and affects the valuation of other artist’s price point. 

The United States does not have any federal art forgery laws. Federal prosecutions have been successful under the Racketeer Influence and Corrupt Organizations Act (RICO), and independent federal charges are authorized by the Federal Trade Commission under the FTC Act. Even so, criminal prosecutions are rarely brought due to the high burden of proof, and only pursued in extreme cases. Many states require a high burden of proof of intent to defraud in order to bring criminal charges, and only protect the victims of forgeries through consumer protection statutes. 

An arguably more effective means of litigation, through the application of intellectual property laws, would protect artists rights and fill gaps left by criminal and civil protections due to the lower standard of proof needed to bring an infringement claim. Copyright and trademark law can be advantageous in litigating art forgery, assuming the work is not in the public domain and the copyright has been registered. Both have limited reach due to their specific authorship and publication requirements, but can be attached to federal criminal laws to be more effective. However, overall stricter regulation and harsher punishments in the U.S. and globally might better confront the circulation of fake art and deter future perpetrators.

Is There a Case For Leniency?

Art forgers are the talented creators of their art and own copyright protection to their original works. Should this be considered in the art forgery debate? For example, there is a psychological effect on how we perceive art that is disrupted by the knowledge that a work is a forgery. When the monetary value of a work is assigned according to the art market based on “fair market value,” but that value is tied to the artist and the perceived knowledge of their innate talent, what are we really valuing? Is it the art or the artist?  

Substantial resources are being invested into the prevention of art forgeries to the extent that art experts, authenticators, and foundations—dedicated to preserving the legacy of great artists—are becoming extinct for fear of litigation. This burden of authenticity has led to a situation where prosecution is the only recourse once a forger has already been found guilty. But lawsuits are so expensive that there might be room for a nuanced approach that either includes more protections for all parties involved or for a rethinking of art forgery litigation. 

So, what is the solution to a problem that clearly has many ethical and theoretical considerations? Should forgers be met with harsh punishments that will further shape the legal landscape of art fraud prosecution? Or is there a case for potential leniency depending on the intent of the artist and the subsequent impact their forgery has on the viewer and the world? Authenticity remains an elusive judicial concept, and as courts evaluate how to assign losses for victims as well as fair sentences for art forgers, a critical rethinking on how we view art and art litigation might be in order.