Art Forgery & Authenticity Disputes in Germany

Rechtsanwalt für Kunstfälschungen, Echtheitsfragen und fehlerhafte Zuschreibungen

Legal Advice on Fake, Misattributed and Disputed Artworks under German Law

Questions concerning the authenticity and attribution of artworks are among the most complex disputes in the international art market.

If an artwork purchased as an original is later considered to be a forgery, or if an established attribution to a particular artist is withdrawn, substantial financial interests may be at stake.

We advise and represent collectors, buyers and sellers, galleries, art dealers, auction houses and other participants in the art market in disputes concerning art forgery, authenticity, authorship, attribution and provenance under German law.

These cases combine art-historical and scientific questions with German contract law, sales law and civil procedure. The decisive legal question is not simply whether an artwork is currently regarded as “authentic” or “fake”. It is necessary to establish what was contractually agreed, how the artwork was described when it was sold, what representations were made and which party must prove the relevant facts.

Art Forgery or Incorrect Attribution?

Not every artwork that is subsequently considered inauthentic is necessarily a forgery.

An art forgery generally involves an artwork that has deliberately been created or altered to give the impression that it was made by another artist or during another period.

A misattribution is different. An artwork may have been attributed to a particular artist for decades before new art-historical or scientific evidence leads experts to reconsider that attribution.

Terms such as “workshop of”, “circle of”, “school of”, “attributed to”, “follower of” or “after” a particular artist can also have considerable implications for the value and legal description of an artwork.

This distinction is important from a legal perspective. A subsequent change in scholarly opinion does not necessarily mean that an artwork was deliberately forged. Nor does every change in attribution automatically entitle a buyer to rescind the purchase.

I Bought a Fake Artwork in Germany – What Are My Rights?

If an artwork turns out not to be by the artist to whom it was attributed when sold, the starting point is the purchase agreement.

It is necessary to examine precisely how the artwork was described and what statements were made concerning its artist, authenticity, date, provenance and other characteristics.

If the work was purchased at auction, the auction catalogue, condition report and the auction house’s terms and conditions may also be important.

Depending on the circumstances and the applicable German law, potential remedies may include:

• rescission and reversal of the art purchase,
• reduction of the purchase price,
• damages, or
• avoidance of the contract on grounds such as fraudulent misrepresentation.

Whether such remedies are actually available depends on the individual transaction, including the contractual description of the artwork, the knowledge of the parties, the applicable limitation periods and any contractual limitations of liability.

Authenticity as a Legal Question

“Authenticity” does not always have a single meaning in the art market.

In the case of a painting, for example, it may be disputed whether the work was created entirely by the artist, whether assistants or members of the artist’s workshop participated, whether it is a later version or repetition, or whether the signature and the artwork itself must be assessed separately.

For a legal dispute, the question is therefore not simply which attribution is currently preferred by art historians.

The relevant issue under German law is what characteristics of the artwork were contractually agreed or could legitimately be expected in the particular transaction.

Evidence may include:

• the purchase agreement,
• invoices,
• auction catalogues,
• condition reports,
• certificates and expert opinions,
• catalogues raisonnés,
• provenance information, and
• correspondence between the parties.

Certificates of Authenticity, Expert Opinions and Catalogues Raisonnés

Experts, scholars and catalogues raisonnés can play a central role in determining whether an artwork is accepted as authentic in the art market.

Inclusion in an authoritative catalogue raisonné may significantly influence the market’s acceptance of an artwork. Conversely, rejection by the author of a catalogue raisonné or by a recognised authentication committee can substantially affect an artwork’s value and marketability.

From a legal perspective, however, the evidentiary significance of an expert opinion must always be assessed in the individual case.

Expert opinions are not necessarily legally binding. Different specialists may reach different conclusions, and scholarly attributions may change as new information becomes available.

Where authenticity is disputed, it is therefore important to determine which expert evidence is required, which specialists are appropriate and whether further scientific or technical examination of the artwork should be undertaken.

Scientific Examination of Artworks

Scientific analysis has become increasingly important in authenticity disputes.

Depending on the artwork, investigations may include the examination of pigments, binding media, canvas, wood, paper or other materials. Imaging techniques may reveal underdrawings, alterations, overpainting or other characteristics that are not visible to the naked eye.

Such examinations can provide powerful evidence.

If a material used in an artwork was not available until after the alleged date of creation, this may strongly contradict the claimed attribution. The opposite conclusion is more difficult: the presence of historically appropriate materials does not, by itself, establish that a particular artist created the work.

Art-historical assessment, scientific analysis and legal strategy should therefore be coordinated.

Provenance and Art Authenticity

The provenance of an artwork can also provide important evidence concerning authenticity.

Historical collection inventories, invoices, exhibition catalogues, photographs, correspondence and previous auction records may help establish the identity and history of an artwork.

Gaps or inconsistencies in provenance do not automatically mean that an artwork is forged. They may, however, provide grounds for further investigation.

For high-value artworks, it can therefore be advisable to combine provenance research with art-historical expertise and scientific analysis.

Liability of Art Dealers and Galleries

If a forged or misattributed artwork was purchased from an art dealer or gallery, the contractual relationship and the precise statements made when the artwork was sold must be examined.

A key question is whether a particular attribution or authenticity became part of the contractual description of the artwork.

Other relevant issues may include warranties, exclusions or limitations of liability, the seller’s knowledge and the information available at the time of the transaction.

The legal assessment therefore depends on the precise wording of the contract, invoice, catalogue entry and accompanying correspondence.

Art Forgeries Purchased at Auction

Art auctions raise additional legal issues.

It is necessary to determine whether the auction house itself was the seller or acted as an intermediary for the consignor, what representations were made concerning authenticity and attribution, and which auction terms and conditions apply.

Catalogue terminology can be particularly important.

An artwork catalogued under the unqualified name of an artist may have to be assessed differently from a work described as “attributed to”, “workshop of”, “circle of” or “after” that artist.

We advise buyers, consignors and auction houses on authenticity disputes arising from art auctions in Germany.

Liability of Art Experts

An art expert may also become involved in a legal dispute if an artwork was acquired in reliance on an expert opinion and is subsequently considered inauthentic.

However, an expert does not necessarily incur liability simply because an attribution later turns out to be incorrect.

Art attribution frequently involves scholarly judgment rather than a fact capable of mathematical proof. Different expert opinions may legitimately exist.

Potential liability therefore depends, among other matters, on the expert’s contractual mandate, the professional standard applicable to the assessment, the methodology used and whether the opinion was prepared with the required degree of care.

Who Has to Prove That an Artwork Is Fake?

The burden of proof is often one of the decisive issues in art authenticity litigation.

A party seeking rescission, damages or another legal remedy must generally establish the facts required for the particular claim, insofar as those facts are disputed.

This is one of the central difficulties of art litigation.

An art-historical conviction that an artwork is not authentic does not necessarily establish the facts required in court. The relevant question is whether the decisive facts can be proved using admissible evidence and to the standard required in German civil proceedings.

Before commencing litigation, it is therefore important to assess:

• which facts must be proved,
• which party bears the burden of proof,
• which documents and expert evidence are available,
• whether additional examinations should be carried out, and
• the evidentiary risks of court proceedings.

Suspected Art Forgery – What Should You Do?

If doubts arise concerning the authenticity or attribution of an artwork, it is generally advisable not to take irreversible legal or factual positions before the available evidence has been assessed.

Relevant documents should first be collected and preserved, including:

• the purchase agreement and invoice,
• auction catalogue and auction terms,
• condition reports,
• certificates and expert opinions,
• provenance documents,
• correspondence, and
• existing scientific or technical reports.

The next step is to determine which art-historical or scientific investigations may be required and whether contractual or statutory deadlines need to be observed.

For valuable artworks, coordinating the expert examination with the legal strategy at an early stage can be particularly important.

Art Authenticity Litigation in Germany

If an authenticity dispute cannot be resolved out of court, the case may ultimately have to be decided by a German court.

Such proceedings require careful preparation because the court must assess legal questions on the basis of evidence concerning matters that may themselves be the subject of scholarly disagreement.

Expert evidence can therefore play a central role.

We advise on the procedural strategy, preservation of evidence and selection of appropriate experts and represent clients in German court proceedings concerning forged and misattributed artworks.

Dr. Louis Rönsberg – German Art Lawyer

Dr. Louis Rönsberg is a German-qualified lawyer and partner at SLB LAW in Munich. He has advised and represented clients in German art law matters for many years.

A particular focus of his practice is the representation of clients in disputes concerning art forgery, authenticity, attribution and provenance as well as the rescission of art purchases and auction transactions.

As an experienced litigation lawyer, he assesses authenticity disputes not only from the perspective of German sales law but also with a view to potential court proceedings from the outset. The burden of proof, selection of appropriate experts and preservation of evidence are therefore important elements of his approach.

Where appropriate, Dr. Rönsberg works with specialised art historians, provenance researchers, conservators, scientific laboratories and other experts.

Legal Advice on Art Forgery and Authenticity in Germany

We review purchase agreements, auction terms, expert opinions, catalogues, provenance documents and correspondence and advise on the legal options available under German law.

Where necessary, we coordinate the involvement of appropriate specialists and represent our clients in negotiations with sellers, buyers, art dealers, galleries, auction houses and other parties.

If an out-of-court solution cannot be reached, we also represent clients in litigation before German courts.