Authentication and Archives - Law in the Art World – Venderequadri

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Autentiche e archivi - Diritto nel mondo dell'arte

Authentication and Archives - Law in the Art World

by VendeQuadri in Blog

What is it about?

An authentication is a written certificate of attribution of a work of art, available for sale on the market. Typically, in addition to a precise description of the work, it also contains a photograph or some representation of it. The signature of the person issuing it is mandatory.

In this regard, it should be noted that the authentication may come, depending on the chosen interpretative option, from the artist, his heirs, archives, foundations, committees of experts and associations dedicated to the artist, or from any other agent appointed by the author's heirs to catalog the entire corpus of his works.

Archives are private law entities that pursue the purpose of registering, upon request by interested parties, the authentic works of a (deceased) artist, rejecting false works, and denouncing forgeries.

Their existence is therefore one with the problem of authenticity.

There is often some confusion in this area, which can be partly dispelled by starting by distinguishing between classical works of art and contemporary works of art; and, again, between contemporary works of art by living artists and contemporary works of art by deceased artists.

For classical works of art, we are partly outside the scope of the issue that concerns us here: in the case of ancient art and antiques, in fact, and especially for those pieces dating back to before the first decades of the 19th century (given that until the end of the 18th century, authors did not normally sign their works), the term expertis is correctly used.

This means a detailed description of the work, accompanied by an expert's reasoned opinion regarding its originality and provenance (without indicating its value), to which a photo is attached.

The person who is interested in authentication is generally the seller, in order to fulfill the obligation to issue and deliver to the buyer a certificate of authenticity and provenance (imposed by Article 64 of the Code of Cultural Heritage and Landscape).

Therefore, in these cases, the seller will turn to university professors, art historians, or other experts, chosen based on their experience accumulated over the years, academic recognition, and studies conducted on this or that artistic movement in a specific historical period.

The activity of these "consultants" is in fact free, it is not regulated by any law, and their competence and reliability lies entirely in their CVs.

For contemporary works of art, the term "authenticated" is more frequently used. As already mentioned, the entities (potentially) authorized to issue them are extremely diverse: from the artist to archives, through various committees, foundations, and so on.

Further distinguishing, it should be noted that anyone buying or selling contemporary works of art by living artists must request or issue a certificate of authentication from the artist.

Who in this case is certainly the most suitable person to judge the authenticity of the works.

Anyone who buys or sells contemporary works of art by deceased artists must always obtain or issue a certificate of authentication (even when the work is signed). In this case, the range of possibilities permitted by the regulations, and by the case law interpretation thereof, regarding the person in some way "authorized" to issue the authentication tends to be infinite: practically anyone, or almost anyone, can claim certification authority. With all the consequences, complications, disputes, even in court, and above all, the bizarre situations this inevitably creates.

However, it is sufficient to point out that in the case of the sale of contemporary works of art (by living or deceased artists), the seller is obliged, as established by Article 64 of the Cultural Heritage Code, to provide the buyer with documentation certifying the authenticity or at least the probable attribution and provenance of the work.

Or, failing that, a self-certification containing all the information available to you regarding the authenticity or probable attribution and provenance. This must be duly signed and, if possible, affixed to the back of a photographic copy of the work.

The consequences of non-compliance are multiple.

On a civil level, the implications are mainly on the interpretation of the contract of sale of the work of art and its validity.

From a criminal perspective, failure to issue or issuing false authenticity documentation will undoubtedly have consequences for the detection of certain crimes such as counterfeiting, alteration, etc.

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“Da Vienna a Roma. Le meraviglie degli Asburgo dal Kunsthistorisches Museum” al Museo del Corso

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Cosa significa archiviare un’opera d’arte?

What does it mean to archive a work of art?

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Article 64 of the Code of Cultural Heritage and Landscape Article 64 of the Cultural Heritage Code requires art sellers to provide buyers with documentation certifying their authenticity, attribution, and provenance, or a declaration with all available information. On the criminal front, Article 648 of the Criminal Code punishes receiving stolen goods, that is, the purchase or concealment of goods originating from crime for profit; those acting in the exercise of their professional activity risk more severe penalties. Finally, Article 712 of the Criminal Code concerns reckless purchasing: anyone who purchases suspect goods without verifying their legitimate provenance is punishable. In short, those operating in the sector must always guarantee traceability, accuracy, and verification of the origin of the works. In other words, if a work, whether original or not, that has a reference archive, is not accompanied by an authentication, it is not recognized by the market. It is not handled by professionals in the sector, because they would be acting in violation of the law: this poses a risk for the intermediary, seller, and buyer due to possible charges of receiving stolen goods and reckless purchasing. An unarchived painting remains a wall painting: it shouldn't leave the home; it remains anonymous and unknown. Of course, some perceive archiving as a risk, but what are the alternatives? The alternative is to expose oneself to the law and take risks, as we find confirmation online. In Ravenna, for example, a private individual attempted to sell a Schifano, which was declared a fake by the Mario Schifano Archive. The result? The work was seized by the Carabinieri of the Unit for the Protection of Cultural Heritage and a lawsuit was initiated, at the end of which the owner risks five years in prison and a €10,000 fine. Of course, submitting the work for archiving carries a certain risk: it involves an "authenticity check," and the outcome is not guaranteed. But the only alternative is to enjoy the work privately, forgotten by the broader art scene, and deny potentially authentic works the recognition they deserve. Art. 64.1: Anyone who engages in the business of selling to the public, exhibiting for commercial purposes, or acting as an intermediary for the sale of paintings, sculptures, graphic works, or objects of antiquity or historical or archaeological interest, or who habitually sells such works or objects, is required to provide the purchaser with documentation certifying their authenticity, or at least their probable attribution, and provenance; or, failing that, to issue, in the manner established by the laws and regulations governing administrative documentation, a declaration containing all available information regarding their authenticity, or probable attribution, and provenance. This declaration, where possible given the nature of the work or object, is attached to a photographic copy. Art. 648: Outside the cases of complicity in the crime, whoever, in order to procure a profit for himself or others(2), purchases, receives or conceals money or things deriving from any crime, or in any case interferes in having them purchased, received or concealed(3), is punished with imprisonment from two to eight years and with a fine from 516 to 10,329 euros [709, 712]. The penalty is increased when the act concerns money or things deriving from the crime of aggravated robbery pursuant to article 628, third paragraph, aggravated extortion pursuant to article 629, second paragraph, or aggravated theft pursuant to article 625, first paragraph, n. 7 bis. The penalty is imprisonment from one to four years and a fine from 300 to 6,000 Euro when the act concerns money or things originating from a contravention punishable by arrest of a maximum of one year or a minimum of six months(4). The penalty is increased if the act is committed in the exercise of a professional activity(4). If the act is of particular triviality, the penalty is imprisonment of up to six years and a fine of up to 1,000 Euro in the case of money or things originating from a crime and the penalty is imprisonment of up to three years and a fine of up to 800 Euro in the case of money or things originating from a contravention(5). The provisions of this article also apply when the perpetrator of the crime from which the money or things originate is not imputable [85] or is not punishable [379, 649, 712] or when a condition of prosecution relating to such crime is missing. 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