M P F A B L O
Fraud and Forgery
A controversy has arisen regarding the status of a document sold in August by Adam's auctioneers in Dublin. A link to an article by Lorna Siggins is copied below in which a director of the company is quoted as follows: "Cole added that the company did have an obligation to the purchaser to establish beyond reasonable doubt that the letter was sold as catalogued." What a shame that Adam’s was not as diligent in their dealings with one of our clients who purchased a pair of falsely catalogued paintings from them in 2015. In fact, it took five years and the service of legal proceedings against the company to recover the substantial outlay on the paintings.
Even more shameful is the fact that Adam's has included the same forgeries in their current House Collections sale at Townley Hall on the 13 October 2020 with the same false cataloguing used
by them in 2015.
Adam’s continue to ignore the findings of five leading experts from Ireland, England and France.
Instead, they continue to rely on false information copied from a
Sotheby’s catalogue produced in an earlier unsuccessful attempt to sell the paintings. Our report is copied in links found on our
Most auction houses do their level best to properly describe the lots they sell but their good work is undermined by the small number of firms who drag the standards down, without fear of prosecution.
The RICS logo at the bottom of page 5 of Adam's
On page 5 of Adam's catalogue, the logo of the RICS is displayed. It
includes the following advertisement: 'the mark of property
professionalism worldwide'. In a previous sale where Adam's
catalogued a Walter Osborne painting in the full knowledge that it was a
forgery, we brought the matter to the attention of the RICS in London.
They promised to investigate and report their findings but, despite a
number of reminders, we are still waiting for their report.
Link to Lorna Siggins article ST 5th October 2020:
Due to the unabated proliferation of
fraud and forgery in
the art market and abundant
misattributions, we have logged some
typical examples of these
dealings in the links above. Walter Osborne, Aloysius O'Kelly,
Nathaniel Hone, Augustus Burke, Roderic O'Conor and Frank O'Meara are
regularly forged but the list is endless. Much of the work of these
particular artists is signed in block capitals, which are easy to copy
for even the most ham-fisted of forgers. On top of this, the unfortunate
collector is regularly stuck with the the clumsy misattributions
of book-worm experts who spend far too much time in libraries and who
lack the forensic skills of a of a well trained dealer, conservator or
forensic analyst. We must then consider the appalling mistakes made by
the 'Department Specialists' in the major auction houses and their
extraordinary inability to assess a painting for excessive repainting and restoration. The result
of all this is that
collections formed without proper expertise comprise on many occasions
works that are significantly compromised in one way or another.
There is nothing worse in any market than malpractice, especially when
it is combined with profound ignorance. One of our latest postings
exposes further details of the murkier side of the art market in which we
describe the recent history of two
Paul Henry drawings we
bought in New Zealand recently and their reincarnation soon after they left
our hands. We describe a 'collector' who fraudulently invents a
provenance for the drawings and an ignorant auctioneer who naively
believes that a mundane VAT payment is sufficient to establish a
concrete provenance. We
describe how this mendacious operator reneged on an undertaking to rectify the
misinformation given to the press by posting saleroom notices rectifying
the false description. We describe a gullible Irish Times
journalist who believes that once his copy is provided by his
advertiser, it is fit for publication. To make matters worse, his
editor, who is fully aware of the fraudulent nature of the operation, refuses to print a
clarification or correction in spite of the much feted policy of the newspaper.
With the ink hardly dry on the Paul Henry scandal, we were obliged to
write again to the same editor concerning a
Louis le Brocquy forgery and
the same lack of editorial discipline. We naively believed that we
could embarrass the newspaper into taking action by charging them with
malpractice in the following terms:
‘The sophisticated operators who use ignorant resellers such as
Morgan O’Driscoll must be overcome with joy whenever they read about the
success of their scandalous operations in your columns. The Irish Times
puts itself forward as the leading broadsheet in the country yet you are
perfectly happy to support this grubby trade without question in the
greedy self-interest of selling advertising space’.
We have asked the editor if he ever takes into
consideration the consequences for the unsuspecting reader who might be
taken in by the misinformation published in his newspaper. We are still
waiting for a reply. We have called
again and again on The Irish Times to describe their ‘Art and Antiques’
page as an advertisement feature and to make it clear to their readers
that the copy for these pages is effectively written by the advertisers.
The le Brocquy episode was exacerbated by the inclusion of a very
convincing text in Morgan O’Driscoll’s auction catalogue written by the
UCD academic, Dr Róisín Kennedy. However, to give
Dr. Kennedy her due, she unhesitatingly admitted to being duped by the
forgery. However, the affair highlights a serious issue in the academic world
and raises the question as to whether or not active academics should
involve themselves in the art trade. Their facility to write glowing
prose is all too often overshadowed by their inability to weed out
forgeries, which requires entirely different skills. The light in which
an academic might be held by their students following a major blunder is hardly worth the risk. There is no shortage of
scholarly publications for informed articles and this is surely a far
safer avenue for any academic not properly aware of the murkier side of
the art trade.
The Garda Bureau of Fraud Investigation is responsible for policing the
forgery trade but their hands are tied by an appalling lack of
resources. Moreover, the woefully inadequate structures of the Property
Services Regulatory Authority encourages the sale of forgeries
in Irish auction rooms as the flawed legislation under which the
Regulator operates does not provide for the seizure of
forgeries at short notice.
Self regulation of the auction trade is even more inadequate. According
to the Royal Institute of Chartered Surveyors: “Behaving ethically
is at the heart of what it means to be a professional; it distinguishes
professionals from others in the marketplace”. These fine words
are included in the RICS publications but they appear to have very little meaning. Their
insincerity is further enhanced by the following: “We've created a clear and
streamlined set of professional and ethical standards to guide our
members and ensure that all those we deal with have confidence in us.
There are five standards. All members must demonstrate that they act
with integrity; always provide a high standard of service; act in a way
that promotes trust in the profession; treat others with respect; take
responsibility.” Adjoined to their logo, they display a further
enticement: RICS - ‘the mark of property professionalism worldwide’.
Morgan O’Driscoll uses this RICS logo at the front of his catalogues,
presumably to instil a feeling of trust and confidence in those
attending his auctions.
However, there are a few facts that bidders should know about before they fall
for any of these advertisements. In 2011, we contacted the Royal Institute
of Chartered Surveyors about the Osborne
forgery sold by Adam’s Salerooms, Dublin, under the RICS pledge.
Our correspondence was handled by the RICS compliance director who
promised that she would take up the matter with Adam’s and revert to us
as soon as her investigations were concluded. Despite numerous reminders,
we received no response. In 2013, we contacted the Royal Institute of
Chartered Surveyors again about the standard of Adam’s cataloguing. We
were promised a response within two weeks. Three years later, we are
We considered contacting the Royal Institute of Chartered Surveyors regarding the standard of Morgan
O’Driscoll’s cataloguing but we see little point as it appears that
there is very little difference between the standards set by the Royal
Institute of Chartered Surveyors and the Property
Services Regulatory Authority where light touch regulation seems to be
the order of the day.
The majority of auctioneers and dealers make every effort to run an
honest business. It is a shame that their endeavours are thwarted by
such a small few.
If you have an interest in exposing malpractice in the art market, you
can help by adding a link on your website to our
fraud and forgery pages.
Some time ago, one of the major auction houses advertised a valuations
day in Dublin for a forthcoming sale in London. I canvassed a
number of clients and assembled half a dozen paintings for the specialist’s
visit. Two were consigned, each the property of different owners: a
study after one of the early Masters and a sketch by a rare Italian
artist. Both were destined for a much publicised sale. However,
without our knowledge or consent, the study was diverted to a
secondary venue where, unsurprisingly, it was left unsold, even though
it carried a very realistic reserve. The sketch was over-estimated by
the specialists and also left unsold in the main sale.
The auctioneers refused to re-offer the sketch with a more realistic
reserve in their subsequent sale because: "we don’t re-offer unsold lots
in our important sales". To put it another way, the value and
saleability of the painting had been tarnished or burned to in trade
jargon. The auction house wanted our client to re-offer the painting in
an unimportant sale months later. It’s a bit much to expect anyone to
have to wait for over a year for their painting to be sold so this offer
was rejected and a request was made for the return of both paintings to
Dublin. However, the auctioneers refused to deliver the painting until
‘unsold’ charges were paid. The pre-auction confirmation indicated a
minimum unsold charge of £0.00 per lot and no illustration fees had been
agreed. In any event, as we shall see below, whether or not charges of
any sort might have been due is debateable and is not the point of this
The study was eventually downgraded even further and despatched to a
provincial outlet of the same firm where it sold for a fraction of what
it had been expected to make in the high flying London catalogue. We now
come to the sting in the tail, or should I have said tale. Disregarding
the fact that our client had
graciously agreed to a 50% reduction in the reserve, the auctioneers sent us a
cheque for a pittance in settlement of the ‘sold’ account. On top of the
buyers premium and sellers fees, deductions were made for, shipping,
insurance and catalogue illustration. However, to add insult to injury,
the ‘unsold charges’, which the auctioneers were claiming against our
second client were levied against our ‘Master’ client’s sold account,
even though they knew that we were acting as agents for two different
clients. Needless to say, we took them to task and they eventually
returned the second painting and sent us a paltry second cheque to make
up the balance on the ‘sold’ account. The affair dragged on for the best part of a
year and cost us a great many hours in unpaid work. However, just in
case there might be any misunderstanding, the auctioneers did eventually
meet all of their legal obligations to our clients and it seems fairly clear
that the reason for the fiasco was that one department had no idea of
arrangements made by their colleagues.
The point of this article is to demonstrate the difficulties, which can
be encountered in dealing with a large auction house, even for a
professional, and this particular firm might not be any worse than their
competitors in this regard. Caveat Emptor is a phrase often quoted in
the art business. However, from a seller’s point of view, Caveat
Venditor is far more important and one should be aware of the pitfalls,
which might lie in wait for the unwary. To end on a more positive note,
some of the smaller auction rooms might be much easier to deal with and
we would be very happy to pass on some suggestions on request. Better
still, appointing an experienced dealer to sell your paintings privately
can save you as much as 25% in costs and give you a quicker return
without the danger of spoiling the desirability of your paintings by
having them burned and branded as unsold lots.
Droit de Suite
Dominic Penny b.1948
On the Vartry River, Wicklow, Summer Corn
Oil on canvas, 11 x 15 inches. Signed by the artist
Euro 3,250. This painting is for sale free of Droit de Suite.
Waiver: All sale and resale rights under Droit de Suite have been waived
by the creator of this painting.
Dominic Penny. 24th February 2013
The European Union Directive on Droit de Suite
(also known as the Artists Resale Rights) is invalid as it binds all
Member States to the social welfare systems of other Member States.
Droit de Suite was first introduced in France in the 1920s as a social
welfare measure to assist impoverished artists. However, under the
Treaty of Rome, every Member State is entitled to its own social welfare
arrangements. Apart from this, as an art dealer, I refuse to collect
Droit de Suite royalties because the Directive infringes a number of
fundamental rights to which I am entitled as an Irish citizen, and which
are enjoyed unhindered by traders in other goods throughout Ireland and the
The Directive also infringes
European Union standards under which Member States trade with each
other. For example, under the 7th VAT Directive, an important principle
was established whereby traders accounting under the Margin Scheme are
allowed to charge VAT on the profit margin only. The Directive on Droit
de Suite is an infringement of this standard because the levy is charged
on the gross sale price. In very many cases, it is the expense incurred
by the dealer, which raises the price of a painting above the threshold.
These costs relate to framing; printing; marketing; receptions; and
general overheads, and are often higher than what was paid to the artist
for the painting in the first place. However, there is no allowance for
these costs in the threshold calculations. Effectively, this means that
a dealer becomes liable to pay a royalty to an artist as a result of his
own effort and expenditure in promoting the artist, and is obliged to
pay a royalty calculated on the extent of his own outlay. Furthermore,
if the dealer is forced to sell at a loss, the royalty is still payable.
All of this is in conflict with the basic principles of common law. For
this reason Milmo-Penny Fine Art Limited claims the right to sell the
work of any artist who has signed a waiver declaring that his or her
painting can be resold free of Droit de Suite.
This waiver can be in the form of an endorsement on the back of a painting or a
simple waiver document as set out in the example above.
As an artist, the introduction of
Droit de Suite has severely infringed a number of rights, which I have
enjoyed as an Irish citizen since birth:
- The fact that the resale rights
are inalienable means that my fundamental rights to private
property have been infringed;
- I am entitled only to limited
copyright on works that I create;
- my rights to form a contract
under my own terms and conditions are severely restricted;
- my testamentary rights have been
encroached upon and severely curtailed.
Bunreacht na hÉireann, the
Constitution of Ireland, enacted by the people of Ireland on the 1st
July, 1937 states at:
ARTICLE 43. 1. 1° The State acknowledges that man, in virtue of his
rational being, has the natural right, antecedent to positive law, to
the private ownership of external goods.
ARTICLE 43. 1. 2° The State accordingly guarantees to pass no law
attempting to abolish the right of private ownership or the general
right to transfer, bequeath, and inherit property.
Furthermore, Article 17 of the
Charter of Fundamental Rights of the European Union states: Everyone has
the right to own, use, dispose of and bequeath his or her lawfully
Droit de Suite is a gross
infringement of these rights. Prior to the introduction of Droit de
Suite, I enjoyed full control over the copyright of my own work,
and paintings which I had bought by other artists. The Directive on Droit de Suite
interferes with these rights as it gives an outside agency the right to
collect levies on my paintings whenever they are resold. The rights
under the Directive are inalienable, which means that I am denied
the right to opt out of the scheme. The Irish Government mistakenly
believes that the Directive can be side-stepped by allowing artists the
option of joining a collection agency or not. Brian McCabe, Intellectual
Property Unit of the Department of the Enterprise, Trade and Employment
states: “If an author chooses not to pursue that right, then that is a
matter for the author.” That of course is as it should be. However, he
is overlooking one of the terms of the Directive, which clearly states that the
rights are inalienable. In effect, this means that artists are not allowed
to decide for themselves whether or not they wish to be paid a royalty. They are denied
choice, and the right to decide on a fixed and final price for their
work. This is entirely unacceptable in a free democracy.
Under the Treaty of Rome, every
Member State of the European Union is entitled to their own law of
contract. However, the rights that I have enjoyed under Irish law, prior
to the introduction of Droit de Suite, have been infringed. The
Directive does not allow me to form a contract for the sale of a
painting, which includes free and unhindered copyright. My testamentary
rights have also been infringed. Prior to the introduction of Droit de
Suite, I had the right to bequeath my paintings to my heirs or to others
free of any encumbrance.
I retain full copyright over my
paintings and forbid any agency from collecting royalties or levies on
my behalf on the sale or resale of my paintings.
This obnoxious Directive was forced
on the European Union as a result of lobbying by a small group of
extremely wealthy French families who are heirs to the fortunes of
artists long dead and gone. These families were unable to collect
royalties from paintings sold in London and elsewhere. Because paintings
offered for sale in France were subject to the levy, many vendors opted
to sell overseas. This led to a drain on the French auction houses who
joined the lobby for the implementation of Droit de Suite. After many years
of resistance by Ireland and a few other States, backroom deals were
finally agreed and the Directive came into force.
A number of greedy Irish artists
were only too delighted to promote its introduction here. Their claim is
that they do not have the opportunity to collect royalties, in the same
way as an author earns revenue every time his book is reprinted. I fail to see
the connection between writing a book and painting a canvas. In any
event, the claim is bogus as there is nothing preventing an artist from
selling printed reproductions of their work.
I call on all artists throughout
the European Union and elsewhere to join with me and offer their works
for sale free of Droit de Suite. I see no reason why your
local gallery or your local auctioneer should not sell your works free
of Droit de Suite if you waive your rights. l make a simple claim to
copyright on my invoices, and also on a label attached to the back of my
paintings. I also issue a Droit de Suite waiver which states: "All sale
and resale rights under Droit de Suite have been waived by the creator
of this painting". This does not prevent me from including reproduction
rights of a painting if I wish to do so, or any other terms which may be
agreed with the purchaser. I use the same procedure if I am donating a
painting to an institution or a charity, or if I make a gift to a
private individual. I have also put my local collection agency on notice
that they do not have the right to collect royalties on my behalf.
However, if you are unsure about your own position, you should seek
local professional advice.
State imposition of
inalienable rights is intolerable in a modern democracy.
Dublin, 2nd March 2009
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