A recent lawsuit involving the artist Cady Noland illustrates the way in which a living artist’s disclaimer of a work, even when everyone knows it’s “real,” can still transform it into a fake. Cady Noland is the bestselling living female artist at auction. Her screenprint on aluminum piece, Bluewald, sold in May 2015 for $9.8 million. (We can talk another day about women’s low valuation in the art market compared to men’s). But Noland is also known to be a bit protective of her work. In 2011, she viewed her work Cowboys Milking shortly before it was to be offered for sale at Sotheby’s. Noland had created the silkscreen on aluminum work in 1990. The owner, collector Marc Jancou had consigned it to the auction house, which estimated that the work would fetch $250,000 to $350,000. But given that Oozewald, another silkscreen on aluminum work by Noland from the same period, had sold in the same auction week for $6.6 million—$4.4 million above its low estimate—Jancou had reason to hope Cowboys Milking would sell for much more. The market for Noland was now officially hot.
But when Noland went to see Jancou’s sculpture before it was to be auctioned, she didn’t like what she saw. The aluminum corners of the work had been bent in restoration. Although a respected conservator had pronounced the piece to be “in very good condition,” Noland decided to disavow authorship of the work. She also demanded it be withdrawn from auction. Sotheby’s complied and the collector sued for $26 million.
Noland claimed that she was entitled to disavow the work as a matter of moral rights under the Visual Artist’s Rights Act of 1990 (VARA), 17 U.S.C. § 106A. If the work were indeed not hers—a forgery, for example—Noland would have had a legitimate claim to disown it. But it is not at all clear that VARA affords her the right to disclaim authorship of a work and to render it inauthentic merely because she doesn’t like its condition. And yet, regardless of whether VARA technically allows this kind of disclaimer, the legal niceties are beside the point.In the art market, the artist has the last word about authenticity. (In a famous case, Arnold Herstand & Co. v. Gallery: Gertrude Stein, Inc. 211 A.D.2d 77 (1995), Balthus famously gave what were likely false affidavits disclaiming his work, presumably just to spite his ex-wife; the court acknowledged that the artist’s statement, regardless of its veracity, rendered the work “unsaleable.”) Cowboys Milking became instantly inauthentic and unmarketable.
Sotheby’s—no naïf when it comes to these kinds of things—had already contracted out of this kind of risk in its standard consignment agreement. The contract allowed Sotheby’s to withdraw a work if in its “sole judgment (a) there is doubt as to its authenticity or attribution,” a purely subjective standard that protected the auction house from the vagaries and uncertainties of authenticity that I address here. With language like this, Jancou didn’t stand a chance. He lost his lawsuit against Sotheby’s for breach of contract and breach of fiduciary duty.
The Cady Noland story shows how art market participants like auction houses manage the deep uncertainties swirling around authenticity, but it also raises a deeper question: why is authenticity so subject to fluctuation? Why should an artist’s word, especially if it seems capricious, be enough to transform an authentic work into an inauthentic one? The work was damaged, but was it fair to say that it was no longer a Cady Noland? Plenty of artworks circulate in less-than-perfect condition, including Noland’s. Prices often reflect this. Why should the artist have the power to disavow a work she clearly made? And why should her power persist twenty-two years after she made the piece, long after she sold it and was no longer in privity of contract with its buyer, and even though the work had functioned for all those years as an authentic one?
While part of the answer lies simply with custom and the art world’s deference to an artist’s wishes, part of it also reflects the unstable nature of contemporary art itself. Ever since Duchamp transformed a ready-made into a work of art merely by designating it as such, art was no longer something that was intrinsic to an object or that could be evaluated aesthetically. It was art by fiat. But if an artist has the power to transform a lowly object into art through sheer choice, then by sheer choice he or she can transform a work of art back into a lowly object—the power to confer arthood is the power to take it away. A urinal went from being a quotidian thing to (arguably) the master artwork of the 20th century. Cady Noland’s power to strip an object of its art status is the necessary corollary to this.
Note that authenticity in both cases—Duchamp’s and Noland’s—bears no relationship to the visual quality of the piece or to whether it touched the hand of the artist. These have been the hallmarks of authenticity for centuries. Legal battles revolve around the well-settled view that authenticity disputes are determined by three components—connoisseurship, provenance, and scientific evidence. But traditional methods of authentication can no longer help us. No connoisseur, no researcher of provenance and no scientific analyst could find a trace of what makes Fountain an authentic Duchamp or Cowboys Milking an inauthentic Noland. Authenticity no longer inheres in the object, just as art no longer does.
AMY ADLER is the Emily Kempin Professor of Law at NYU School of Law. A leading expert on Art Law, Adler has lectured about her work to a variety of audiences, including the attorneys general, museum curators, and the FBI. This piece is excerpted from her forthcoming article, "The Artifice of Authenticity."