Recently, the high court of appeals in Paris upheld an art
expert's right to refuse to authenticate a work of art.
While this decision took nine years to come to fruition, it
validates an art expert's freedom to make an authenticity
determination that he or she sees fit, free from the pressures of
legal liability for that decision.
Authentication is often critical for the completion of fine art
sales since buyers look for authentication as an express warranty
that the work is attributable to a certain artist.
Authentication can drastically change the price of a work depending
on the notoriety of the artist and can sometimes be the deciding
factor in the completion of a sale.
This dispute in Paris involved the owner of a painting who
believed the painting was authored by the French painter, Jean
Metzinger. Bozena Nikiel is a well-known expert in
Metzinger's body of work as well as the author of an upcoming
Metzinger catalogue raisonné. Nikiel holds the droit
moral right for Metzinger's work, giving her the ability to
attribute works of art to Metzinger. The owner was in the
process of selling his painting, but in order to complete the
transaction he needed a certificate of authenticity from Nikiel and
an assurance that the painting would be included in her catalogue
After her initial evaluation of the painting in 2005, Nikiel
made clear that she could not authenticate the painting as one by
Metzinger and claimed the painting did not meet the level of
sophistication exhibited by Metzinger's works. When the
owner's art dealer approached Nikiel again two years later
insisting she authenticate the painting, she maintained that she
could not and returned her consultation fee. Even when the
owner commenced legal action in 2009, Nikiel stood strong,
insisting the painting was not by Metzinger and that she could not
The lower courts ordered Nikiel to pay damages to the owner of
the painting and additional fines of €30,000 due to the
court's determination that she had wrongfully refused to
authenticate the work. The lower court had appointed an
expert who found that the painting was worthy of authentication
even though the expert did not specialize in Metzinger's work
and Nikiel disagreed with him on several points. In January,
the high court in Paris, Cour de Cassation, overturned the lower
court's determination that the work was authentic on the
grounds that the ruling violated Articles 9 and 10 of the European
Convention on Human Rights that guarantees freedom of thought and
expression. Nikiel is now free to decide not to authenticate
a work based on her own expertise and opinions without worrying
that a court could find her liable to the work's owner for such
The decision here is a victory for art experts who are in the
business of authentication. While the decision is confined to
France and thus provides the most reassurance to French experts, it
will likely have a positive influence on similar disputes being
challenged under the European Convention on Human Rights in other
jurisdictions. The ruling also may have a persuasive effect
on American courts that are dealing with authentication disputes,
especially in light of the recent dissolution of some fine art
authentication committees concerned with liability issues.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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