During the course of a discussion over a lovely long lunch at Cicciolina in St Kilda yesterday with one of my favourite art-world people, it occurred to me that the shape of the industry as we know it is set to undergo some pretty major changes.
What set me off was my dining companion’s announcement that she is no longer going to produce written valuations of artworks. Her not at all unreasonable decision is a response to the legal ramifications of Justice Vickery’s findings in the recent case against Peter Gant. Although the media hype around the case focussed on the prevalence of fakes and forgeries in the Australian art market, for the industry the issue of greatest immediate concern is a precedent that seems to place much greater levels of legal responsibility in the hands of those who value art.
It goes a little something like this – Peter Gant supplied a valuation for three artworks by Charles Blackman and Robert Dickerson. The authenticity of these artworks was challenged by the artists, and Blackman and Dickerson took action against Gant, claiming he had breached section 9 of the Fair Trading Act, which holds that: ‘A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive’ (the case is very nicely summarised in a recent article in Art + Law by Moira C. McKenzie).
Gant stated in court that he had produced the written valuations in good faith, without any intent to deceive or mislead, and that his attribution of the works to the hands of those artists was made as a matter of expert opinion. Justice Vickery found that the intent of Gant as valuer was irrelevant, but that: ‘it is open to conclude that the valuations also contained an implicit representation of fact that each of the works in contention were authentic works, each having been created by one of the Plaintiffs.’ Most ominously for all valuers of Australian art, Justice Vickery also found that it mattered little whether or not Gant knew that the works he was selling were fakes; he deemed the misattribution and sale of the works to be ‘serious’ breaches of the Fair Trading Act.
My dining companion, who shall remain anonymous, has determined that the risk to her business and reputation is too great. Because, no matter how wise we are after the event and how many of us marvel at how on earth anyone could possibly ever have imagined that something proven to be a forgery or fake was ever authentic, the reality is that a huge number of dodgy artworks are circulating in the marketplace unnoticed. How many other art valuers are going to decide that the legal and financial risks associated with endorsing the authorship of a fake/forgery by providing a valuation are too great?