The intersection of authenticity and provenance: issues and challenges

The “Beltracchi” affair, which came to light in the 2010s, exposed a major fraud orchestrated by Hélène and Wolfgang Beltracchi, a German couple of forgers. More than 300 works were copied and placed on the art market by them, presented as genuine. Taking dishonesty to its extreme, they did not hesitate to stage themselves and be photographed with the fakes while posing as their own ancestors, all in order to construct a provenance for their forged collection and to bolster its credibility.

This example shows how the two distinct notions of provenance and authenticity may, in certain cases, interact to the point that one is placed in the service of the other. Without claiming to provide an exhaustive historical account, it may be recalled briefly that, from antiquity to the modern era, the primary pursuit was aesthetic. The “beau” (beautiful) prevailed, and neither an artwork’s lineage nor its attribution was decisive. Greek sculptures were regarded as a model of perfection, and the painting of the Ancients served as the benchmark in artistic training, which largely proceeded through copying.

The contemporary quest would be quite different. For some authors, the prevailing mindset today is a “prelogical” mentality^[1] according to which artworks carry within themselves the trace and permanence of their author, even an embodiment of the author, leading to a search for authenticity at any cost. The artwork, conceived as a unique commodity, is thus invested with an imperative of lineage.

Today, this search for authenticity is intertwined with another search, which is essentially - though not exclusively - : that of provenance, also referred to as a "historical proof"^[2]. An artwork’s history is closely scrutinised in order to verify the validity of its possession, and in the absence of provenance, certain cultural objects increasingly fail to sell.

Yet there can be little doubt that authenticity and provenance are closely linked, since an accurate and exhaustive reconstruction of the chain of ownership back to the artist ultimately makes it possible to establish an artwork’s authenticity - it should nonetheless be noted that provenance research also exists autonomously and cannot be reduced solely to a means of proving the authenticity of a work.

At the outset, it must be emphasised that there are very few decisions, whether at first instance and on appeal, or from the Cour de cassation, that engage directly with provenance, making any attempt at systematic synthesis largely unworkable. A handful of scattered decisions, older or more recent, have nevertheless enabled courts to address provenance, whose relevance calls for further discussion.

I. Authenticity and provenance as two distinct notions

A degree of confusion sometimes appears to surround the role of the provenance researcher, who is occasionally asked whether they authenticate works. Authenticity and provenance are, however, distinct notions, though they may intersect.

1. Authenticity

For a very long time, authenticity was the principal characteristic that made or unmade an artwork’s value. It involves the pursuit of the author of a painting, the period of a piece of furniture, or the excavation site of an antiquity. Establishing an artwork’s lineage makes it possible to affirm or to refute its authenticity, and thus to distinguish the genuine from the fake, it being specified that, as a matter of law, a work produced so as to deceive as to the identity of its author is a forgery^[3].

Various actors may attest to an artwork’s authenticity. As regards contemporary works, the artist is the natural guarantor. Failing that, artists’ heirs or artists’ committees may present themselves as guarantors of the authenticity of an artist’s works. Professionals may also take a position. It is common to rely on authors of catalogues raisonnés and on specialist experts. Finally, in the context of a sale, the auctioneer may guarantee the authenticity of a work offered at auction. In the latter case, the fact that the same person may be both dealer and expert calls for caution.

Authentication, whoever carries it out, relies on specific methods. It may first involve stylistic analysis, seeking to recognise an artist’s style, a task made difficult by studio practice and the existence of followers. Scientific analysis may supplement that approach through graphological examination, including of a signature, carbon 14 dating, which allows the materials used to be dated, or the use of infrared reflectography, which reveals sketches beneath the visible paint layer. While these techniques may appear reliable, they nevertheless have limitations, including the use by forgers of period pigments, and the uncertain and evolving nature of scientific techniques. When the examinations mentioned above prove conclusive, they generally result in the issuance of a certificate of authenticity. This document constitutes an artwork’s passport, may exist only in a single original, and has no expiry date.

The notion of authenticity therefore concerns the origin and lineage of cultural property, rather than its trajectory, which is connected to provenance. The distinction between a work’s origin and its history is essential, even if the French language sometimes places both under the single term “provenance”. In English, these two concepts are referred to by two different words. The term provenance is used for the work’s history, whereas provenience refers to origin, lineage, or the place of discovery of an object.

2. Provenance

Provenance thus relates to a work’s trajectory from its creation to its present location. Provenance research is a transdisciplinary field that seeks to secure the traceability of cultural property^[4].

Art historians have researched the provenance of works for decades, in order — generally — to demonstrate prestigious origins and to establish a high quality pedigree. Other professionals are also concerned and may conduct provenance research in their work, including art dealers, experts, curators, and lawyers. Nevertheless, as the field has developed rapidly in recent years, a profession has taken shape, that of the provenance researcher. It now aspires to become autonomous, and training programmes are being created for this purpose, abroad as well as in France.

The methodology of provenance research is not standardised. It is currently practised in diverse ways, in the absence of a defined framework, but certain main lines may be identified, including material analysis of the work, bibliographical research, and archival research on movements of the work, transactions, and the actors involved. The findings are generally set out in a report, for which no nomenclature currently exists. Unlike certificates of authenticity, issued as a single original without expiry, provenance research reports reflect the work’s traceability as at their date of publication. Available data may increase over time, and new archives may be discovered, rendering incomplete the results recorded in an earlier report.

The recent development of provenance research in France explains the lack of a regulatory and ethical framework. There is little case law to date, and the directions that judges will take can only be conjectured.

II. The intersection of the notions in sales law ‍

1. Who bears responsibility for provenance research?

From time to time, case law shows a concurrent mobilisation of provenance and authenticity, giving rise to the question of who bears responsibility for conducting provenance research at the time of sale.

In light of the few available decisions concerning voluntary sales, it is possible to state that provenance research falls within the auctioneer’s remit.

As the Court of Cassation held in a judgment of 18 January 2000, the auctioneer “a l’obligation de s’assurer de la légitimité de sa détention par le vendeur ; qu’il lui appartient de vérifier la provenance des objets dont il organise la vente et de rapporter la preuve de l’exécution de son obligation de moyen” (has a duty to ensure that the seller's possession is lawful; it is for the auctioneer to verify the provenance of the objects whose sale they organise and to provide proof that they have complied with their duty of means)^[5].

The auctioneer is therefore bound by a duty to verify provenance, — albeit a duty of means — but he must also be able to preserve evidence that they complied with that duty. Absent proof of a “démarche positive effectuée en vue de s’assurer d’une provenance régulière” (a positive step taken in order to ensure regular provenance" such as demonstrating that databases were consulted, including the Art Loss Register database, which lists missing works or works with doubtful provenance, it appears that liability may be incurred when provenance proves problematic.

This approach was reaffirmed by lower courts in 2008, when the tribunal de grande instance de Paris added that the auctioneer cannot consider themselves discharged of that duty when they entrust an expert with authentication, nor can they simply rely on information provided by the seller^[6].

Case law thus seems to confine authentication and provenance to separate functions, imposing on the expert a mission of authentication stricto sensu only, without extending to tracing the work’s provenance.

In a recent case, the Cour d’appel de Paris relied jointly on provenance and authenticity in order to declare the sale void and to hold the auction house liable.

The court first declared the sale void on the basis of the impossibility of tracing the provenance of the disputed work, thereby giving rise to serious doubts as to its authenticity. More importantly, the judges held the auction house liable on the basis of a dual fault. The auction house had authenticated the work erroneously and without reservation, and it had also verified the origin of the work insufficiently^[7].

This decision is interesting because it establishes the liability of the auction house, while the judgment of the Court of Cassation in January 2000 rejected this responsibility.

2. Mistake as to provenance as an autonomous ground?

Under positive law, there is no doubt that a contracting party’s mistake as to the authenticity of an artwork constitutes a mistake as to an essential quality, entitling that party to seek nullity of the sale.

But is the same true of a mistake as to provenance, considered autonomously?

Unfortunately, there is only one decision on this matter from the Court of Cassation, which does not allow for a final solution to be given.

In a case relating to the disappointed purchasers of a damaged and restored Boulle table, the buyers argued that these were not restorations but a real transformation and requested the cancellation of the sale.

Unfortunately, there is only one decision of the Cour de cassation on the matter, which does not allow for a definitive answer. In a case concerning purchasers dissatisfied with an accident damaged and restored Boulle table, the buyers argued that what had been done was not restoration but a true transformation, and they sought annulment of the sale. The Cour de cassation approved the Cour d'appel finding that the buyers had contracted not only because of the intrinsic quality of a Boulle table, presented as having undergone restoration rather than a substantial nineteenth century transformation, but also because of its prestigious provenance.

Provenance would therefore constitute a decisive element of consent allowing the sale to be annulled, in the same way as lack of authenticity.

It should nevertheless be noted that, in that case, provenance was not the sole issue, but was combined with lack of authenticity (Cass, Civ., 20 October, 2011, October 20, 2011, no. 10-25.980).

IIn a recent decision, a failure by the auction house to prove provenance was used by the Cour d’appel de Paris as an indicium in order to demonstrate the lack of authenticity of the work whose purchaser sought nullity (Cour d'appel de Paris, 31 May 2022, no. 19/0447).

Ultimately, the scarcity of decisions inevitably calls for caution as to the state of positive law.

Moreover, where provenance research is incumbent on the auctioneer, it is possible to question the obligations — and the corresponding liability— of the provenance researcher. Is the researcher under an obligation of result, or only an obligation of means?

At present, provenance does not appear as an autonomous ground in case law, even if it is gaining visibility. The gap therefore widens between judicial reasoning and practice, whose respective tempos differ significantly and do not allow for equally rapid evolution. In disputes linked to the art market and the provenance of cultural property, recourse to amicable solutions is possible and certainly desirable.

The lead that market practice holds over judicial practice is likely explained by direct contact with the market and by a more immediate understanding of the imperatives associated with provenance. Today, in connection with due diligence requirements, cultural property without provenance, or with lacunary provenance, can no longer circulate on the market with the ease it once enjoyed. Certain markets are closing for these reasons, such as the market for pre Columbian objects — which has been dominated by fakes for several years — or the market for archaeological objects , which is particularly exposed due to the circulation of so-called blood antiquities.

The work carried out by UNIDROIT is particularly important in this regard. The organisation has established a working group to address the issue of orphan objects, meaning those whose provenance is unknown or incomplete. The project aims to develop an international instrument that would “préciser les critères de provenance satisfaisante des biens culturels sans provenance et/ou présentant des lacunes concernant leur provenance" (specify the criteria for satisfactory provenance for cultural property lacking provenance and or presenting gaps in provenance)^[8].

Reflections on the legal framework necessary to curb trafficking and fraud, and on the fate of cultural property with unsatisfactory provenance, are crucial. Recent developments in the art market show that progress is possible, but that a protocol to be applied, rules to be followed, and even sanctions in the event of non compliance, would be welcome.

In that respect, a parliamentary initiative deserves mention. Senator Bernard Fialaire introduced in 2023 a bill revising the Loi Bardoux on art fraud. It seeks to extend the offence of artistic fraud beyond falsifications relating to an artist’s signature or identity, to include falsifications concerning a work’s dating and condition, as well as its provenance.