Fine Art Insurance: Restitution, Authentication, Theft

Fine Art Insurance: Restitution, Authentication, Theft

In early March, Berkley Asset Protection EVP Greg Smith traveled to The Art Gallery of Ontario to moderate a distinguished panel of fine art legal experts alongside Marsh Canada, focusing on issues of restitution, authentication, theft, and the natural overlap of these topics as they relate to Fine Art Insurance and risk management. The panel of industry leaders included Francois Lemoine, Regles d’art; Jonathan Sommer, Sommer Law; and Paul Bain, Partner, Dickinson Wright; whom provided deep insights and poignant examples on each of the topics, as summarized herein:

Authenticity: Fake vs. Forgery

In order to fully understand a presented situation of fraudulent art, it is necessary to first have a strong understanding of the difference between fakes and forgeries.

  • Items under the “Fake” category are unique works done in the style of an artist by a range of different forgers (not replicating works know to have been created by the artist, but novel works in the style of the artist). These are items incorrectly sold under the guise of the artist’s name
  • Items under the “Forgery” category retain some authentic aspect of an original artwork in conjunction with misrepresented elements ranging from portions of the artwork itself or related to provenance and documentation. For example, a forged work of art may have been painted by an artist’s apprentice but has been forged to include the master artist’s signature

Restitution: How should an institution proceed once a demand has been made?

As local laws struggle to catch up with evolving developments, and legal precedent remains inconsistent globally, what might be best practices for institutions facing restitution claims?

  • Conduct an audit of files and review provenance documentation and resources
  • For Canadian institutions, look to the Canadian Holocaust-Era Provenance Research and Best Practice Guidelines (2017) to guide research parameters
  • Be open to the understanding that provenance and support documentation can be forged or faked, and be sure to carefully review such documentation
  • Allow adequate time for claims to come forward and do not jump to decision before conducting the proper due diligence

Authentication: How should an institution proceed once an authenticity claim has been made?

When faced with a claim of inauthentic work, how should an institution proceed and what can be implemented to proactively protect the institution from future claims?

  • Look into additional provision that the work is guaranteed to be authentic for new loan agreements
  • Conduct highly detailed research with primary source documentation
  • Amend acquisition agreement documentation, where/when possible, to include an arbitration clause, particularly noting the use of an expert moderator’s involvement
  • Consider engagement with the public and seek to leverage the PR to turn it into a learning opportunity for the public, educating on the prevalence of fakes, forgeries, and bad actors
  • Remember that even experts can be fooled by inauthentic works- the best course of action can be to utilize the situation as an opportunity to engage with the public and seek to create a learning opportunity for the public, educating on the prevalence of fakes, forgeries, and bad actors

Berkley Asset Protection seeks to provide ongoing risk management support across a range of specialties, including museum and university collections, the focus of our March 2024 Seminar on Art Risk Management. If you’d like to learn more about this topic, or anything related to fine art, jewelry, and other personal and commercial collectible assets, please reach out to us via email at [email protected].