Wednesday, April 23, 2014

Selling non-disclosed posthumous forgeries with dates that predate the death of the artists may be -Easy- but it's not -Art- dot com

NOTE: Footnotes are enclosed as: [FN ] 

UPDATED: April 23 & 25, 2014 

Under U.S. Copyright Law "Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair. [one of which is:] The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes."

Henri Matisse (1869 - 1954), King’s Sadness, (Sad King), 1952, Gouache paper, cut, clowns on canvas, 292 x 386 cm. Registration: SDBDR. Henri Matisse / 1952, Performed in Nice, Purchased by the State, 1954, Award 1954, Stock Number: AM 3279 P

"Tristesse du Roi, 1952, Silkscreen | by Henri Matisse | #7051, Paper size: 100 × 130 cm, Image size: 78 × 107 cm, On high quality, fine-grain art paper, £129.95"

Henri Matisse died in 1954. 

On page 137 of the Seventh Edition of Black's Law Dictionary, -bait and switch- is defined as: "Most states prohibit the bait and switch when the original product is not actually available as advertised."[FN 1]

The website baits the public when it offers for sale at £129.95 each its' so-called "Tristesse du Roi, 1952, by Henri Matisse" and then switches the public when it discloses that it was actually posthumously done in 1991 some 37 years after Henri Matisse's death in 1954: 
  • "This high quality print was produced using the silkscreen method. Silkscreens are created one colour at a time making them ideal for artworks featuring bold areas of colour. This Open Edition print was published by King Posters in 1991. Silkscreen on 350gsm rag paper, printed by King Posters, Brighton. Limited stock - fewer than 100 copies remaining."[FN 2]

The dead don't create artworks, much less in silkscreen.

Yet, the webstie, run out of Brighton in the United Kingdom, would have the public believe and act on the belief that it is "the UK's favourite place to buy art."[FN 3] 

Silkscreens a.k.a. serigraphs are original works of visual art created by an artist and would -never- be trivialized as reproduction/poster.

This  factual perspective is confirmed by U.S. Custom`s May 2006 An Informed Compliance Publication titled Works of Art, Collector`s Pieces Antiques, and Other Cultural Property, which -in part- states: "The expression original engravings, prints and lithographs means impressions produced directly, in black and white or in color, of one or of several plates wholly executed by hand by the artist, irrespective of the process or of the material employed by him, but excluding any mechanical or photomechanical process."[FN 4]

In other words, silkscreens versus reproductions are not interchangeable, much less the same.

This factual perspective is confirmed in the 1991 The Fifth Edition of the Artist’s Handbook of Materials and Techniques by Ralph Mayer, the author wrote: “The major traditional graphic-arts processes of long standing and continued popularity are lithograph, etching, drypoint, woodcutting or wood engraving, aquatint, and soft-ground etching. ...The term “graphic arts” excludes all forms of mechanically reproduced works photographed or redrawn on plates; all processes in which the artist did not participate to his or her fullest capacity are reproductions.”[FN 5]

Remember, in 1991, Henri Matisse [d 1954] was some 37 years dead. The dead don't participate.

On page 661 of the Seventh Edition of Black's Law Dictionary, -forgery- is defined as: "The act of fraudulently making a false document or altering a real one to be used as if genuine."[FN 6]

Galerie Dina Vierny, 1982, Art Print | by Henri Matisse | #433954, £140, Paper size: 76 × 52 cm, Image size: 76 × 52 cm, On high quality, fine-grain art paper”

Once again, Henri Matisse died in 1954.

On page 1303 of the Seventh Edition of Black’s Law Dictionary, -representation- is defined as: “A presentation of fact - either by words or by conduct - made to induce someone to act, esp to enter into a contract.”[FN 7]

The website makes the representation to the public when it offers for sale "Galerie Dina Vierny, 1982, Art Print | by Henri Matisse" as a "high quality lithographic print [that] was produced on fine art paper providing beautiful colours and impressive detail"[FN 8] at £140 each when in fact Henri Matisse [d 1954] was 28 years dead in 1982. 

Nothing can be posthumously [1982] "by" a dead Henri Matisse [d 1954].

On page 476 of the Seventh Edition of Black’s Law Dictionary, -disclosure- is defined as: “The act or process of making known something that was previously unknown.”[FN 9] 

The website then makes the following disclosure for the same "Galerie Dina Vierny, 1982, Art Print | by Henri Matisse": "This lithographic poster originates from the archives of the Parisian printing studio, Atelier Mourlot."[FN 10]

So, the website is using the vague ambiguous representation "high quality lithographic print" as an euphemism for their disclosure "Lithographic poster."

In September 1998 Art World News trade magazine, the attorney Paul Winick (partner in the New York office of Thelen, Marrin, Johnson and Bridges), who specializes in intellectual property law, litigation and represents galleries, publishers and artists, wrote the article "Certificates of Authenticity: Dealer Liability."[FN 11]

In his article he explains the application of the Uniform Commercial Code as it applies to the “sales of most forms of visual art.” The author wrote: “UCC express warranty arises from two sources: The description of the goods given by the seller, and the seller statements made to induce the sale.” Those statements are said to become part of the “basis of the bargain” made between buyer and seller and, therefore, a basis for legal action if the description or statements turn out later to have been false.”[FN 12]

The author also wrote: “Warranties need not depend on the sale document and can arise in statements made in advertisements or catalogues, so long as the buyer relied on those statements in formulating the bargain with the seller.”[FN 13] and that “Warranties are applicable regardless of fault or intent. It is no defense that the seller did not mean to make a misstatement, or that he thought the misstatement to be true. If the goods (the artwork) do not conform to the promise made (the warranty), the seller is liable, whether or not he knew it to be true.”[FN 14]

When it comes to “disclaimers,” Paul Winick wrote: “Disclaimers are not viewed favorably by courts and, unless there is some way to reconcile the disclaimer and the representation, the disclaimer is disregarded and the representation is given effect.”[FN 15]

Femme nue assise et de dos, 1899 (Silkscreen print), Silkscreen | by Auguste Rodin | #80886, £64.95, Paper size: 80 × 60 cm, Image size: 55 × 42 cm, On high quality, fine-grain art paper”

Auguste Rodin died in 1917.

J. Paul Getty Museum, under their Getty Research, defines -counterfeit- as: "forgeries (derivative objects)" with a note stating: "Reproductions of whole objects when the intention is to deceive; includes sculptures cast without the artist's permission."[FN 16]

Yet, in another example of hubris by the website, they offer for sale at £64.95 each a non-disclosed posthumous forgery as: 
  • "Femme nue assise et de dos, 1899 (Silkscreen print) by Auguste Rodin This high quality print was produced using the silkscreen method. Silkscreens are created one colour at a time making them ideal for artworks featuring bold areas of colour. The silkscreen process is ideally suited to creating bold, bright images. A separate screen is used for each colour layer and many screens can be used to create a single image. All our silkscreens prints are hand-pulled by highly skilled printers. From the proofing of each colour to the choice of the paper, every decision is made with the artist's intentions in mind, resulting in an extremely high quality finish."[FN 17]

The Musee Rodin acknowledges that Auguste Rodin's originals were in "Graphite pencil, watercolour, gouache."[FN 18] "Graphite pencil, watercolour, gouache" reproduced result in reproductions.

Since the website acknowledges that they "started out 25 years ago in a basement in Brighton,"[FN 19] around 1990, some 73 years after Auguste Rodin's death in 1917, who posthumously proofed each colour and made the posthumous determination of the "artist's intentions" for a dead Auguste Rodin [d 1917]?

The dead don't proof, much less have intentions.

L'Art Independant au Petit Palais, 1937, Art Print | by Henri Matisse | #433958, £3500, Print details, Paper size: 75 × 50 cm, Image size: 75 × 50 cm, On high quality, fine-grain art paper

The website represents the above image titled: L'Art Independant au Petit Palais 1937 as an "art print by Henri Matisse [for the sale's price of] £3500""[FN 20] and that this "high quality lithographic print was produced on fine art paper providing beautiful colours and impressive detail."[FN 21] 

Then the website Easyart discloses, in contradiction to the representation "art print" and/or "lithographic print" that it is actually a "lithographic poster [that] originates from the archives of the Parisian printing studio, Atelier Mourlot."[FN 22]

In other words, nothing more than a reproduction.

Yet, the website convolutes the disclosure of reproduction/poster with a red herring when mention the Atelier Mourlot "grew to fame in the early twentieth century for reviving traditional limestone lithography by collaborating with contemporary artists of the time, including Braque, Picasso and Matisse."[FN 23]

One has nothing to do with the other.

Then in attempt to justify the "£3500" price for a so-called "art print," "lithographic print," and/or "poster," the website hypes this reproduction/poster by stating: "This old and extremely rare poster was the first lithographic poster created for Matisse by Fernand Mourlot at the Atelier Mourlot. It features Matisse's 1935 painting titled 'Le Rêve' and was created for an exhibition of Masters of Independent Art at the Petit Palais in Paris in 1937. Only 3 available."[FN 24]

Under U.S. Copyright Law, § 101. Definitions, a -derivative work- is defined as: "a work based upon one or more preexisting works, such as - art reproduction."[FN 25] 

Therefore, anything reproduced from Henri Matisse's 1935 painting titled Le Reve would be, at best, a "derivative work" ie., reproduction.

Under U.S. Copyright law § 106A. the "Rights of certain authors to attribution and integrity - shall not apply to any reproduction."[FN 26] 

So, when you combine the website's convoluted promotion of reproductions and forgeries as "art print" and "lithographic print" with the lack of connoisseurship by the news media you end up with published misrepresentations, with or without intent, of reproductions and/or forgeries as original works of visual art ie., lithographs:

  • "Eleven original prints, such as L’Art Indépendant au Petit Palais -- the first lithograph Matisse created with Fernand Mourlot in 1937 – are available through"[FN 27]  [The Times' published April 22, 2014 "Rare Matisse lithographs go on sale" article]
  • "A Matisse for £85? Rare selection of lithograph prints from the great artist go up for sale... including one for less than the cost of a posh meal out - Online poster retailer is selling 11 of the artist's original lithographs - One of the posters is being sold for just £85 by site"[FN 28]  [Daily Mail's published April 25, 2014 titled article]
  • “Eleven rare original lithographs by Matisse have gone on sale to coincide with an exhibition of his cut-outs at Tate Modern. Art website is selling the prints as part of its rare and limited editions collection.”[FN 29]  [Evening Standard’s published  April 26, 2014 “Pick up a Matisse for just £85 as rare lithographs go on sale at Tate Modern” article by Simon Freedman]

On page 816-817 of Kluwer Law International’s published 1998 Law, Ethics and the Visual Arts, Third Edition by John Henry Merryman and Albert E. Elsen wrote about “Counterfeit Art.”[FN 30] Under the subtitle -Truth-, the authors wrote: “The most serious harm that good counterfeits do is to confuse and misdirect the search for valid learning. The counterfeit objects falsifies history and misdirects inquiry.”[FN 31]

Additionally, under the subtitle -Resource Allocation-, the authors wrote: “Museum and art historical resources are always limited. What gets acquired, displayed, conserved and studied is the result of a continuous process of triage, in which some objects can be favoured only at the expenses of others. Counterfeit objects distort the process.”[FN  32]

Finally, under the subtitle -Fraud-, the authors wrote: “There remains the most obvious harm of all: counterfeit cultural objects are instruments of fraud. Most are created in order to deceive and defraud, but even “innocent” counterfeits can, and often will, be so used. The same considerations of justice and social order that make deliberate fraud of others kinds criminal apply equally to fraud through the medium of counterfeit art...”[FN 33]

What needs to be accomplished is the full and honest disclosure of all reproductions as -reproductions- by all museums, auction houses and art dealers. If the website will  give full  and honest  disclosure for all reproductions as: -reproductions- it would allow patrons to give informed consent on whether to express interest in those reproductions, much less whether to purchase one.

But if these images are not reproductions by definition and law, but -forgeries- with or without counterfeit signatures or inscriptions applied, much less posthumous, to create the illusion the artist created it, much less approved and signed it, then serious consequences of law may come into play for those who chose to misrepresent these -forgeries- for profit.

The reputations and legacy of living and past artists, present and future museum art patrons and the art-buying public deserve the re-establishment of the obvious; that the living presence and participation of the artist to once again be required, as it always should have been, to create the piece of art attributable to the artist if indeed it is attributed to them, much less purported to have been signed by them. 

1. Copyright © 1999, By West Group, ISBN 0-314-22864-0
5. Copyright © 1991 Bena Mayer, Executrix of the Estate of Ralph Mayer ISBN 0-670-83701-6
6. 1. Copyright © 1999, By West Group, ISBN 0-314-22864-0
7. Copyright © 1999, By West Group, ISBN 0-314-22864-0 
9. Copyright © 1999, By West Group, ISBN 0-314-22864-0 

12. Ibid
13. Ibid
14. Ibid
15. Ibid
21. Ibid
23. Ibid
24. Ibid
25. - § 106A. Rights of certain authors to attribution and integrity37 (a) Rights of Attribution and Integrity. — Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art — (1) shall have the right — (A) to claim authorship of that work, and (3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any reproduction, 
26. - § 101. Definitions2 A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction 
30. © Kluwer Law International 1998, ISBN 90-411-0697-9
31. Ibid
32. Ibid
33. Ibid

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