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As the dust settles on the latest Old Master attribution scandal (‘Sotheby’s wins case involving questionable Caravaggio.’ Art Newspaper 16 January 2015) it is important to note that the law did not find in favour of the system, which was not being challenged, only in Sotheby’s use of it. Justice Rose merely ruled, from the evidence presented to her by experts, that Sotheby’s experts are “highly qualified” to decide whether a painting was by Caravaggio.

The painting concerned, representing three card players, was sold on a Sotheby’s auction in 2006 for £42,000, quite a high bid for a supposed copy. At the time the owner was probably delighted, and willing to accept the cheque (minus commission of course). It was only later, when Sir Denis Mahon started saying in his opinion the painting was an original, that things turned ugly. This is the duality of an expert-looking attribution process, which the auction market currently accepts as the best system, sometimes throwing in bits and pieces of forensic evidence like X-rays and infrared photographs as flavorful support or denial, as was the case in this attribution.

But the game is far from over. Even now Sotheby’s is planning to auction for millions a “Constable,” which Christie’s experts very recently said was a mere copy to be sold for small change. They have nothing other than just different experts. This is one of the fundamental anomalies of this system, that is, how does the quorum of experts get decided? I have read reports such as “the attribution to Van Dyck is accepted unanimously by experts,” without the slightest indication how that body of unanimous experts can be defined. In other words, it is not indicated where, or even by who, the line separating experts from non-experts is to be determined? Luckily for Sotheby’s in this instance Justice Rose ruled underneath them.

However, the situation threatens to spiral out of control, and this ruling is just a stop plug to potential disaster. As Christie's and Sotheby's, the market barometers, move more and more into online only sales, particularly in the lower end of the fine art market, they will tend towards a model where they have less and less contact with the physical object. This will become an even greater problem for the attribution process, and the currently accepted expert-looking model. In other words, as it wont make sense any longer to consign paintings, experts will see only digital images. The audience who will be buying at online only auctions will not be demanding pre-access to the physical property either. Such access at traditional auctions, with all artworks in the same venue during the auction, will no longer seem feasible. Indeed, it must be denied in the online only auction model or the model itself is doomed to failure. More and more the property will remain in the custody of the current owner until it is sold, and the due diligence will be done only remotely. That conjures up a nightmarish situation unless the online only auction moves away from the ping-pong games of attribution played at the expense of sellers and buyers, which is the current model.

This is where forensics and the attention to the three pillars of attribution will become vital, and where experts in this type of due diligence will become sought after, as opposed to the more traditional specializing experts who pronounce momentary judgements based on instinct and past knowledge only. Let me qualify “past knowledge,” and explain what those three pillars are. I say “past knowledge” in the Derridian sense, in that under the current model experts are only as good as what they knew yesterday.

Alternatively experts in the new model will rely on what they currently know about art forensics, genesis and provenance research, and art historical issues such as iconography, style, and formal analysis, that is, the three pillars of attribution. They will demand access, from owners, to all three, and be able to apply these within a broader framework of epochs and ages of the history of art to make decisions about attributions. They will come to each problem fresh and as free of subjectivity as possible. This is an inductive as opposed to a deductive method. Due diligence will require cross checking not only data and information, but also those other experts who make and pronounce statements about artworks, for example, those working in art forensics or as compilers of catalogue raisonnés, and so on.

It is interesting to note that provenance research did not come up at all in the Sotheby’s case. It was probably deemed by both sides to be unimportant, but without understanding provenance you cannot understand originality, no matter how long you stare at a painting. The reason no one wants to buy this disputed Cardsharps, or give it credence, could simply be that it might be stolen, a secret fact that could be well known.

However, if the provenance and possible whereabouts of all the contending copies hasn’t been thoroughly and independently studied and theorized then it is impossible to comment. It could also be that the embarrassment of the many experts who gave weight to the one in the Kimbell, who would now have to retract and say otherwise now the real one has been found, is too much to suffer. Justice Rose might have forgotten that experts are also people, and that people have passions and their own agendas. Perhaps she doesn’t believe in group-think.

There might be a thousand reasons why an expert is saying this is not a Caravaggio, and none might be related to the truth. It also doesn't matter that more than one person is saying this painting is not Caravaggio.

Looking to the future

It will be smaller startups who will offer buyers and sellers a better deal in the future, who will have a distinct advantage in the online only auction model over the established auction houses trying to muscle in. In simple terms small startups will not already be supporting a weighty burden of departments peopled by expensive “experts” inherited from the dusty past. Christie's investment in online only auction sales is reported to be a whopping £50 million (and maybe more). This investment must, obviously, be recovered, and a cost-hungry staff of around 2,200 has to be constantly maintained.

The buyer and the seller will be recovering these costs for Christie’s. It should be highlighted that one of the major shareholder’s concerns with publically-traded Sotheby’s is the excessive costs of the organization, elaborated in the fancy lifestyles and luxurious living of Sotheby’s upper executive echelons.

The ideal online only auction model, which will be the best one facilitating the lower-end of the fine art market in the future, will only be able to function on the basis of due diligence, and not on the thumb-suck of expert opinion as used in the Caravaggio case. Also, this model does not need a huge investment, such as the one made by Christie's for example. Perhaps initially there will be market resistance to this new model, as owners dont want to make due diligence investments upfront and auction houses promise to take care of due diligence seemingly at "no cost", by employing their specialized looking-only experts.

How long before owners wake up to the costs they are actually paying, that is, cost-of-sales, which they themselves are fully bearing? Commission charges are always the easiest way to govern payment for the middleman in sales. The problem comes when those charges are totally unrelated to the actual business at hand, and when the middleman has grown to a giant whose beanstalk alone costs a fortune to maintain.

If this leads to the upscale and fashionable auction houses trimming themselves back to the purveyors of really high end fine art and luxury they were originally intended, this can only be a good thing for the lower end of the market, where many pleasures and many profits are still to be found. But the investment potential should be for the benefit of the buyer, and this has been lost in the razzmatazz of big business. Sotheby's have said that 50% of their business is in the £5K–£100K range, what they consider the small-change market. Actually, what they havent said is that their biggest profit margin is also in this bottom end. The higher up you go the less and less, almost no commission, the auction houses negotiate.

These shiny and gilded offerings, the ones going for millions per item, are often loss-leaders to the auction houses, works offered to get the feet through the door. Did Sotheby’s care whether the painting turned out to be a Caravaggio or a copy? In the general scheme of things, probably not, because auction houses dont like to upset museums, and a museum owns the “original.” As long as auction houses keep the numbers churning through the bottom end of their business, and the odd glamour piece parading through the top, they are happy bunnies however.

For the average person £100K is hardly a little bit of money in any ones pocket, and guarantees, due diligence and transparency are becoming more and more important than ever to those willing to spend that kind of money on art and collectibles. Certainly Justice Rose turned our attention to the highly qualified experts Sotheby’s employ. However, what got lost in translation is their lack of impartiality. After all, Sotheby’s is a limited liability company with an eye on their own profits. They serve two masters, and generally respect neither. However, in the end the claimant had the free choice to walk away. He could have kept his painting.

Dr. Susan Grundy


Editor's Note: Sotheby's Press Department sent the below Statement, which we publish in its entirety.

16 January 2015

Sotheby's Statement regarding Ruling in Thwaytes Case

Sotheby's is delighted that today's ruling dismisses all claims brought against the company and confirms that Sotheby's expertise is of the highest standards. After a four-week trial in which five witnesses for Sotheby's and three independent experts gave testimony, the judge concluded that Sotheby's was not negligent and that the Sotheby's Old Master Painting specialists who assessed the work were 'highly qualified,' examined the painting 'thoroughly,' and reasonably came to the view that the quality of the painting was 'not sufficiently high' to merit further investigation.

Talking Points - The Judge in the Thwaytes’ case has ruled that Sotheby’s has not been negligent as had been alleged. The ruling verifies that Sotheby’s followed the correct procedures in the cataloguing and sale of the painting, and goes on to single out individual Sotheby’s defense witnesses for their professional expertise. Thwaytes will have to pay Sotheby’s costs.

Extract from the Judge's Ruling - 

166. In the light of the conclusions set out above, I find that Sotheby’s were not negligent in their assessment of the Painting:

(i) They were entitled to rely on the connoisseurship and expertise of their specialists in the OMP Department in assessing the quality of the Painting;

(ii) Those specialists were highly qualified and examined the Painting thoroughly at the Picture Meeting and at the Olympia Meeting;

(iii) They reasonably came to the view on the basis of what they saw that the quality of the Painting was not sufficiently high to indicate that it might be by Caravaggio;

(iv) There were no features of the Painting visible at the Picture Meeting or the Olympia Meeting (whether under ordinary or ultra violet light) that should have put Sotheby’s on notice that the Painting had Caravaggio features or non-copy features that should cause them to question their assessment based on quality;

(v) Sotheby’s was entitled to rely on its specialists to examine the x-rays of the Painting to see if they provided any information which caused them to doubt their assessment of the Painting and those specialists reasonably came to the view that there was nothing in the x-rays that should cause them to question their assessment based on quality;

(vi) Sotheby’s were not under any obligation either to carry out infra-red analysis of the Painting or to advise Mr Thwaytes to arrange for that to be carried out. If they had carried out infra-red analysis they would not have found anything in the infra-red images that should cause them to question their assessment of the Painting;

(vii) Sotheby’s were not negligent in failing to inform Mr Thwaytes about the interest in the Painting that triggered the Olympia Meeting or that the Olympia Meeting had taken place. If they had informed him, I find that he would not have withdrawn the Painting from sale since he would have been informed that all the Sotheby’s experts were certain that the Painting was a period copy and not by Caravaggio.

About the Author

Dr Susan Grundy

Dr Susan Grundy

Dr Susan Grundy, D Litt et Phil, University of South Africa   Susan Grundy is an independent Art Investigation Consultant, patron and collector of fine art, specializing in Seventeenth Century ...