The International Catalogue Raisonné Association (ICRA) was founded in 2019. It unites prominent scholars and professionals engaged in the research, writing and production of catalogues raisonnés (hereinafter - also CR). In addition, it enjoys the support of experts in art law from various jurisdictions. ArtLaw.club had the honour to discuss the work of the association and current challenges faced by the authors and users (scholarship, market and legal professionals) of catalogues raisonnés with an art historian and curator, ICRA founding member Dr. Sharon Hecker and an attorney-at-law, managing partner of CBM & Partners Studio Legale based in Milan Mr.Giuseppe Calabi.
ArtLaw.club: Could you describe the idea behind the Association?
Sharon Hecker: a founding idea of ICRA, established and chaired by attorney Pierre Valentin, was to create an international forum for scholars and professionals engaged in writing catalogues raisonnés, supporting them along the way. It is in some way similar to another well-established association in the USA called CRSA (Catalogue Raisonné Scholars Association), which deals with the practical aspects of making a catalogue raisonné.
Besides, one of ICRA’s ideas has been to secure art lawyers from different jurisdictions who could advise on legal nuances in complicated situations throughout the process.
Giuseppe Calabi: a catalogue raisonné is a definitive, or at least comprehensive, publication of the works of the artist which is relied upon by a variety of people. There is much pressure on the authors to make it as accurate as possible and secure themselves from potential liabilities that may arise from the inclusion or exclusion of an artwork from the publication. Within ICRA there is a list of law firms that have agreed to support its members with an accessible and more cost-effective legal support on legal issues in the respective jurisdictions, which currently cover six jurisdictions. My firm is the legal advisor for Italian law.
ArtLaw.club: At the end of 2019, ICRA held its inaugural conference dedicated to problems and challenges in creating catalogues raisonnés, summing up all kind of areas these challenges embrace. What were the main takeaways of this conference?
Giuseppe Calabi: On November 22 2019, the first Conference organised by ICRA took place in London at Christie’s premises. With respect to the most relevant legal issues related to the publishing of a Catalogue Raisonné, Pierre Valentin, ICRA’s Chair of the Board with the support of ICRA’s panel of legal advisors, presented an interesting comparative law analysis on how the potential liability of CR’s authors is regulated in four jurisdictions, namely US, UK, Italy and France.
Summarizing the findings, the situation is quite comfortable for catalogues raisonnés authors in the UK, since there is no liability for inclusion or exclusion of certain work from the catalogue. Existing legal exceptions include fraud and gross negligence, while the latter had not been reviewed in court yet. Besides, unlike other jurisdictions, there is a possibility to invoke the violation of moral rights, which duration under the UK law is 70 years. Most civil law countries, like Italy, for instance, provide for perpetual duration of moral rights, the so called "right of paternity", which is considered part of the list of moral rights to which an author and in some cases the heirs of the artist are entitled to.
In France the situation is similar. There a pivotal judgment by the Supreme Court was awarded in 2014 stating that expert’s freedom of expression is an absolute right under Article 10 of the European Convention on Human Rights, trumping other obligations. In the case the suit was brought by the owner of a work known as La Maison Blanche attributed to painter Jean Metzinger but rejected by a Metzinger specialist. The Supreme Court then overturned the judgment of two lower courts, concluding that there is no obligation by an author of the catalogue raisonné to include, exclude or to perform any other action a third party requires him to do in relation to catalogue raisonné under the principle of freedom of expression.
Italy has the same situation as in France. Principle of freedom of expression here is protected by Article 21 of the Italian constitution. Even though the law provides for consistent exemptions, there has been no case law until now that established responsibility of the author of catalogue raisonné for negligence or fraudulent omission of a certain work of art.
Regarding the situation in the US, it is worth to mention a very recent decision by the Supreme Court in UK-based Mayor's Gallery suit against the Agnes Martin Catalogue Raisonné LLC in New York. In the case, a plaintiff alleged that Agnes Martin heirs' established foundation refused to include a number of authentic artist's artworks in her catalogue raisonné causing several millions in losses to the Mayor Gallery. The court ruled in favour of the foundation establishing that experts are actually free to do whatever they think is appropriate and their opinions on the genuineness of the artworks do not form warranties of any kind. The court also defined its role in authentication disputes leaving the questions of authenticity and value of art to the market and art specialists.
Sharon Hecker: this is a very problematic issue. The law does not classify catalogues raisonnés by quality or reliability. Legal professionals are not qualified either by training or by experience to judge the quality of artworks or catalogues raisonnés. This leads art lawyers to perceive catalogues raisonnés as a kind of Bible, which is a very risky approach.
While a catalogue raisonné can serve as an important tool in summarizing and assessing an artist’s oeuvre, we cannot rely on all of them equally and uncritically. Not all are of the same quality, value or scientific level. The mere fact of writing a catalogue raisonné does not make its author an authority on the artist, mostly it is vice versa. For an art historian writing a catalogue raisonné generally is a lifetime work - you need to travel to see the works, to have a lot of experience in the particular artist in order to make it as complete, descriptive, and critically reasoned as possible.
Here we come to the other major problem which is financing. Ideally, the reasoned catalogue should be written by an independent scholar and published independently from the market. This is of course very hard to accomplish, since art historians, institutions, and artist’s foundations often do not have their money to publish the catalogue raisonné and therefore have to turn to external financing. Any market sponsored catalogue might carry a risk of a conflict of interest, since the value of a certain artwork depends heavily on the decision of the author to include or exclude it from the corpus. Therefore the inclusion or exclusion criteria of a work must be absolutely transparent.
Giuseppe Calabi: obviously, catalogues raisonnés should not be considered undisputable truth. This, however, creates a very complicated legal scenario when the law should address the claim of a collector against an author of the catalogue raisonné when the former sees that his or her work is not included in the corpus. As we have discussed, the answer may vary from jurisdiction to jurisdiction.
Another hard question from the legal perspective is the one of the applicable law. Which is the law to be applied to the dispute - the law where the collector is based, or where the work is located, or the place of the author (co-authors) and the publisher of the catalogue raisonné (each of them can be in different jurisdictions). These are very hot legal issues that still need to be explored.
Sharon Hecker: there are many artists who have more than one catalogue raisonné. Modigliani, for instance, already has five with two more coming out now, De Chirico has two. This is a complicated question to understand: which of the catalogues is more reliable? The authority of one over the other depends precisely on the arguments the authors have rested on.
Giuseppe Calabi: actually, the fact that the artist has more than one catalogue raisonné could lend support to the legal argument that experts only express opinions, unless they act fraudulently or with gross negligence. Position of the UK law seems very reasonable in this respect. It should be noted though that the burden of proof for negligence lies with the claimant; this is the rule that applies in most of the jurisdictions.
Sharon Hecker: in considering the authenticity of an artwork the courts and the art market apply different standards. For instance, in the case of auction houses, they can sell the work if they see it in a catalogue raisonné. As was mentioned by auction house representatives at the ICRA conference, auction houses have no time to research and assess the validity of opinions expressed in a catalogue raisonné and must take them at face value. Even though inclusion in a catalogue raisonné is just the opinion of a particular author, the work which is excluded from the catalogue raisonné is often considered by the market unsellable and in many cases seen as ineligible for exhibiting. This is very complicated because some catalogues raisonnés are not reliable or complete.
Giuseppe Calabi: it is complicated indeed. The auction companies would normally make their decisions based on a business judgement rule: today the inclusion of an artwork in a catalogue raisonné is normally considered a requirement for accepting in consignment such artwork. However, the situation may become complicated: we have seen cases where artworks were originally included in a catalogue raisonné, accepted for sale, but later on their authenticity has been questioned. It is a hard task to strike a fair balance among colliding interests of the consignor, intermediary (a person directly and actively involved in the market) and the author of the catalogue raisonné, which may be and may be not supported by a relevant foundation.
ArtLaw.club: it is clear that the catalogue raisonné should comprise authentic, well-documented works of an artist, but should it include the possibly doubtful works (which have different scholars' opinions on their authenticity) as well?
Sharon Hecker: this question came up at the first ICRA conference. Opinions among scholars are divided. Some scholars believe that only authentic works should be included in the catalogue raisonné, whereas others think that it could also comprise a special section with discussions about doubtful works and open questions. The problem is that readers are left with an uncertain sense of the status and value for these works. The art market and art law don’t have the vocabulary for works that cannot yet be classified as authentic.
There are problems with cataloguing sculptures (and all other artworks that are inherently reproducible) where the authentication process or the question of ‘originality’ or ‘authenticity’ is much more complex than in the case of a painting. How broadly, for instance, can the concept of 'authenticity' be interpreted in the case of an authorized posthumous cast legally made from the artist’s original models but according to different criteria that he/she may not have approved in lifetime? Where should meaning and value be located for these works? There is no clear-cut answer.
I am personally in favor of discussions even for doubtful works to be included in the catalogues raisonnés because I think it is important to document different ways of reasoning and the emergence of new evidence.
Giuseppe Calabi: There is an interesting recent Italian case-law whereby some courts have agreed to issue declaratory judgments as to the authenticity of artworks by assessing whether the works are authentic through the expertise during the trial. I have some strong doubts about these judgments. First of all, the decision taken within a court proceedings is binding only upon the parties of the respective case. Secondly, courts may find whether or not an artwork is authentic but this should only be instrumental to the subject matter of the case, i.e. whether the author should be considered liable or whether the sale contract should be rescinded as a result of the artwork being found a fake counterfeit. The authenticity of an artwork should not be per se a matter that should be ascertained by a court. There have not been any precedents though where as a result of such declaratory judgment either an author or a foundation was ordered to make changes to the catalogue raisonné and include or exclude any particular artwork.
Of course, the foundation may agree to specify this information in the catalogue raisonné informing the readers that a certain court has considered this to be an authentic work, while underlying that this was not the conclusion the foundation itself came to. This might create a confusion in public.
Sharon Hecker: Attributions can and do change when new documents or scientific techniques or discoveries emerge. Art history is not static enough to be limited by a court judgment. When new information and documents come to light, existing knowledge can be supplemented or overturned.
ArtLaw.club: The has been a number of discussions within CRSA about pros and cons of catalogues raisonnés being made and supported online. How would you rate this idea from an art historical perspective?
Sharon Hecker: online catalogues are of course more available to the public and more accessible. They cut down printing and publishing expenses. Catalogues raisonnés are very expensive to buy while online access is free. However, online catalogues generate new questions: who can ensure continuity of a website? who can guarantee that the same person will be working on and updating the information and therefore what kind of quality control would there be, and by whom? Digitalization allows changes of attributions, omissions and errors to be adjusted in real time, but at the same time one cannot know what was the opinion of a certain expert at a certain point in time as can be done with a paper version. I personally think that a printed catalogues raisonné is still the most valuable tool although it could work in conjunction with an online platform. Perhaps a combination of the two would be effective.
 Cour de Cassation, Civile, Civ.1, January 22, 2014, no. 12-35.264
 The Mayor Gallery Ltd. v. The Agnes Martin Catalogue Raisonné LLC et al., No. 655489/2016 (N.Y. Sup. Ct. 2019)