In a Manhattan court a trial is ongoing concerning the the Knoedler Gallery’s sale of forgeries (Laura Gilbert, 'Who is really to blame in the Knoedler fakes case?, The Art Newspaper 27 January 2016). Collectors Domenico and Eleanore De Sole bought a painting supposedly by Rothko for $8.3m that turned out to be a fake, and now accuse Knoedler Gallery and its former director Ann Freedman of trickery and lying (for the origin of the work, see here).
The lawyers for Knoedler, Freedman, and the gallery’s owner 8-31 Holdings argued that their clients did nothing wrong. At stake is whether the defendants have to pay the De Soles $25m for knowingly selling them a forgery in 2004. That painting was one of 40 purported Abstract Expressionist works brought to Knoedler by the Long Island art dealer Glafira Rosales, who in 2013 admitted to federal authorities that they were all painted in Queens by a single artist. Knoedler tried to “trick their customers into thinking the paintings were real” and Freedman was “lying” about the works, said the plaintiffs’ attorney Emily Reisbaum.The De Soles insisted that Freedman put in writing what she told them about the work. The document they received asserted that the work was by Rothko (acquired directly from the artist’s studio) and ownership had passed to "someone living in Switzerland", and that the painting had been authenticated by eleven experts. Reisbaum said in court that everything Freedman had put in that letter is false.
Proving that Freedman knew that the story behind the work was not true will be the plaintiffs’ biggest hurdle. Reisbaum laid out the red flags that she said prove Freedman knew, or should have known, the work was fake. First, the source of the paintings was unknown and “Knoedler never found any proof of where the artworks came from”. Second, Reisbaum said, Rosales sent an “endless stream of unknown artworks” to Knoedler over a 14-year period; no one had ever seen them before, they were undocumented, and they kept coming. [...] The last leg of provenance was also missing: there were no shipping records of works coming from Switzerland to the US.The lawyers for the defendants are defiant, arguing that they plaintiffs cannot prove their fraud case by the necessary “clear and convincing evidence” (The 'They-can't-touch-you-for-it' defence). Luke Nikas, representing Freedman, explained to the court that Knoedler and Freedman believed in the picture because Rosales was a “brilliant con”, the works seemed to be authentic and the dealers did not note the missing evidence verifying the stated collection history because:
they lived in a “highly dysfunctional world”, where record keeping wasn’t a priority.It is at this point that a case about purported 1950s paintings becomes of relevance to the antiquities trade. To what extent is the excuse "this market is a highly dysfunctional one where record keeping was (and is) not a priority" going to shield the dealer for responsibility for the items they handle? In New Yrk shops cannot sell meat or apples of unknown provenance, TVs without the paperwork showing they are of legal provenance. Why should this not apply to other commodities just because dealers see a way of making profits from items they have obtained from source3s which cannot supply that documentation? Rosales presented the Gallery with an oral story (in fact stories if you read the article), but the dealer took them on 'trust' and did no due diligence to verify that - which would have revealed the total lack of supportive documentation. In that case, a responsible dealer should say to the supplier,
"while the price IS tempting, no thanks, I'm a responsible dealer and I cannot take responsibility for such items when I cannot see the paperwork".The case therefore hinges on proving this was a case of "I'll ask no questions so you'll not tell me lies" or not. I think responsible collectors and dealers should be watching the verdict of this case, as it may well throw a shadow over the “highly dysfunctional world, where record keeping isn’t a priority" which is the no-questions-asked portable antiquities market.
UPDATE 8th Feb 2016
Perhaps some other dealers have been having a quiet word with the gallery, at any rate, there has been a settlement: http://www.nytimes.com/2016/02/08/arts/design/knoedler-gallery-director-settles-lawsuit-over-fake-rothko.html