The Amsterdam District Court on 8 January 2014 rendered a judgment in a dispute between the owner of a floral still life, on the one hand, and the Stichting (foundation) Van Gogh Museum, on the other.
The case concerned a (free) service provided by the research department of the Stichting to persons who believe they own an authentic painting by the Dutch impressionist artist Vincent van Gogh. The Stichting upon request is prepared to assess the authenticity of the work of art. The applicant must agree beforehand that, although the Stichting commits to exercising due care, the Stichting does not guarantee that its opinion is accurate. In the case at hand, the owner of the floral still life, unhappy with the negative opinion issued by the Stichting, sought intervention from the court in an attempt to confirm the work's authenticity. But alas, he failed in his mission.
Facts: an authentic piece of art work?
The owner of a floral still life (the "Painting") that he inherited from his father, in 2001 requested the Stichting (foundation) Van Gogh Museum (the "Stichting") to assess the authenticity of the Painting. He made this request, although his father in the early eighties had been informed by experts (the, then, Rijksmuseum Vincent van Gogh and the Rijksdienst Kunsthistorische Documentatie (RKD)) that the work stylistically failed to match the various stages of the artist's oeuvre and therefore could not be attributed to the master. As from 1980, the Painting - probably at the request of the owner or his predecessor - had engaged several authenticators, who were of the opinion that the Painting could be attributed to Van Gogh.
Having examined the canvas and the paint, the experts, in brief, concluded that the painting was made in the period that Van Gogh was active, that the signature can be dated back to the same time that the painting was made, that the pigments in the paint were available at the time that Van Gogh was active, that the composition / motifs / technique and the style of the signature point to Van Gogh and that certain traces found on the Painting are not uncommon in Van Gogh's work. Following the aforementioned request in 2001 from the owner of the Painting, the Stichting had a team of experts (led by a curator of the Stichting) perform a visual inspection of the Painting. The team of experts concluded that the Painting could not be attributed to Van Gogh and that further technical investigation was not warranted.
Between 2004 and 2012, the owner of the Painting on several occasions approached the Stichting and requested the Stichting to revise its earlier opinion. The Stichting refused to do so. In June 2012, the Stichting informed the owner that it had closed the file on the matter. In August 2012, an art restorer / art historian, on the encouragement of the former head of presentations of the Stichting, investigated the Painting and reported on the traces found on the Painting.
The owner of the Painting, being unhappy with the opinion of the Stichting, subsequently initiated proceedings against the Stichting before the Amsterdam District Court.
The owner of the Painting ("Claimant") argued that the Stichting's opinion is unfounded. In the face of the available scientific and technical evidence, the Stichting simply cannot not stand by its opinion without further scientific backing to support the conclusions.
Claimant argued that the Stichting is acting improperly by refusing to retract or revise its earlier opinion, while at the same time refusing to conduct further investigation. The Stichting, according to Claimant, is acting in an unlawful manner. The Claimant in this respect argued that the Stichting has a leading role in terms of connoisseurship and authenticating of works by Van Gogh: the Stichting basically has a monopoly position and its opinion determines whether the market will acknowledge the work as an authentic work by Van Gogh. As a consequence, the Stichting - according to Claimant - can be held to a higher standard of care in determining whether new facts and change of circumstances warrant a re- evaluation or new investigations.
Decision: 'the Stichting is entitled to its own opinion'
The Amsterdam District Court refuted the arguments of the Claimant. The court first held that it cannot decide whether the Stichting was right in discrediting the Painting. Attributing a work to a specific artist is not an exact science, but is an assessment to be left in the realm of experts. It is a sum of elements, such as provenance, the depiction and the style of a painting. It requires an interpretation of the facts and circumstances and that means that different experts may draw different conclusions. The court held that the Stichting in this respect is entitled to draw its own conclusions.
Furthermore, the court held that the Stichting did not act unlawfully against the Claimant. The Stichting offers a free service. The initiative for requesting an opinion lied solely with the Claimant. He could have opted not to ask for an opinion. The District Court held that the Stichting is a much respected and important authority in the field of 19th Century art and works by Van Gogh in particular. Given the interests of persons who believe they own a genuine Van Gogh, the Stichting may be considered to have acted unlawfully if the Stichting fails to undertake proper care when performing an investigation and in drawing conclusions from those results.
In the case at hand, no such irregularities are apparent. According to the court, the Stichting successfully argued that the investigations were performed in a thorough and expert manner, and that the team of experts also took into account the reports and analysis put forward by Claimant. The fact that the Stichting did not extensively document its investigations, in and of itself, does not detract from that conclusion.
The Stichting, despite the existence of contrary evidence, was entitled to decide not to retract its 2001 opinion and to refrain from conducting further investigation. The Stichting cannot be expected to carry out periodic reinvestigations. The existence of opposing opinions does not per se entail that the Stichting should have re-evaluated its earlier position. The court furthermore refuted the notion that the Stichting had violated the ICOM Code of Ethics, noting that a violation of that code, in and of itself, does not constitute an unlawful act.
The District Court denied the claims sought by Claimant.
Copyright: This contribution was researched, written and published for Oostwaard's Art Law Blog at oostwaard.com/art-law. The copyright to this contribution rests with Oostwaard. Other than sharing or posting a link to the contribution, it is not permitted to reproduce and/or disclose this contribution (in edited form or otherwise), except with the written approval of Oostwaard. It is not allowed to use the material in a context for which it is not intended. The user agrees to indemnify Oostwaard against any claims from third parties with regard to the use of the material in question.