Stemming The Tide Of Federal Litigation Against Art Experts And Authentication Boards For Opinions About The Authenticity Of Art

There has recently been much attention devoted to the potential liability of art experts who are asked for opinions about the authenticity of artwork, and the resulting impact on the market if experts refuse to express their views openly. Experts have been sued for expressing negative opinions that make artwork unmarketable, for expressing positive opinions that are relied on by purchasers but later called into question, for omitting a work from a catalogue raisonné, and even for declining to express an opinion or finding that it cannot determine whether a work is authentic or not. In addition, a number of artist-established foundations have closed down their authentication boards, citing fear of litigation.

The Lanham Act Is Limited

The claims against experts have been varied—product disparagement, negligence, negligent misrepresentation, breach of contract, fraud, and more recently under the federal Lanham Act.

However, there may be one less weapon for disappointed owners who would sue those experts, based on the recent application of the U.S. Supreme Court's decision in Dastar Corp. v. Twentieth Century Fox Film Corp.1 to disputes relating to authorship of art by a federal court in New York.

Earlier this year, in the case of Gilbert v. Indiana, Judge Katherine B. Forrest of the U.S. District Court for the Southern District of New York found that the federal Lanham Act should not be regarded as authorizing a federal cause of action for a statement of whether a work of visual art is or is not by a named artist.2 This is significant because the federal Lanham Act allows the prevailing party to recover up to three times its actual damages and its attorneys' fees, and therefore posed a particularly intimidating threat when asserted by angry owners of art. In the U.S. system, parties can usually recover only their actual damages but typically cannot recover attorneys' fees. In addition, lawsuits asserting violations of federal law are sometimes viewed by the public and the media as more substantial, more legitimate and more worrisome than lawsuits asserting common-law claims filed in state court.

Gilbert v. Indiana involved a statement by the artist Robert Indiana about his own work, in a dispute with someone who claimed a contractual right to pass off his own art as Indiana's. The significance of the decision in Gilbert v. Indiana—and the U.S. Supreme Court case that it applies—is important for scholars concerned about expressing opinions about art.

The federal Lanham...