The defeat was bitter but it is not irremediable. In November of last year Joe Simon-Whelan walked away from his historic lawsuit against the Andy Warhol Foundation and its Art Authentication Board. Simon-Whelan’s complaint alleged that the board had denied the authenticity of a Warhol self-portrait in his collection, despite knowing it to be genuine. The case has created enormous interest on both sides of the Atlantic, not least because unlike most controversies over the attribution of works of art, this one is in essence wonderfully clear-cut.
The dispute can be summarized by a question I put to the foundation’s president, Joel Wachs. Writing in these pages in November 2009, I called attention to what I believe is the “sublime idiocy” of the authentication board’s statement (with reference to an identical self-portrait from the same series as Simon-Whelan’s): “It is the opinion of the authentication board that said work is not the work of Andy Warhol, but that said work was signed, dedicated and dated by him.”1 All I asked Wachs to do is to tell us how this was possible. He has not replied.
Lawyers for the foundation dismissed Simon-Whelan’s case as “frivolous.” Yet Wachs revealed that the foundation spent $7 million to defend itself against such frivolity during the pretrial proceedings alone. Faced with the burdens of pursuing his lawsuit against a foundation with assets valued at half a billion dollars, Simon-Whelan signed a settlement agreement in which he explicitly withdrew his complaints relating to breaches of antitrust law and fraud, stipulating that
there is no evidence, and he has never been aware of any evidence, that Defendants have ever engaged in any conspiracy, anticompetitive acts or any other fraudulent or illegal conduct in connection with the sale or authentication of Warhol artwork.
However, in a public statement released after the settlement, he stressed that he had “not agreed to deny the authenticity of the Red Self Portrait, as originally demanded by the Foundation.”2
The pretrial proceeding revealed much that was not known about how the authentication board reaches its decisions, and, when they are challenged, defends them. For although no one at the secretive board or foundation has even attempted to answer the question to which Wachs has not so far replied, at long last we have been allowed to hear the arguments they have been able to muster against the authenticity of the Red Self Portraits, in the form of “expert witness” statements that the foundation paid the outside scholars to write.
In the months after Warhol’s death in 1987, two of the artist’s associates, Fred Hughes and Vincent Fremont, formed the not-for-profit Andy Warhol Foundation for the Visual Arts. Financed by the sale of hundreds of millions of dollars’ worth of work from Warhol’s estate, the foundation helps support artists, projects, exhibitions, publications, and galleries. The good work it does is not at issue here—although that sometimes functions as a red herring the foundation tosses to the press to distract attention from controversies arising out of decisions made by the Andy Warhol Art Authentication Board, a not-for-profit entity formed by the foundation in 1995 to determine the authenticity of works attributed to Warhol.
In December 2001, Vincent Fremont, the foundation’s sales agent and consultant to the board, persuaded Simon-Whelan to submit a picture he owns to the board for authentication. Simon-Whelan’s Red Self Portrait is one of ten identical self-portraits Warhol created in August 1965. Not only is its provenance impeccable, but it had already been authenticated (before the board came into existence) both by the Andy Warhol Foundation and by the Warhol estate. Simon-Whelan was told that verification was merely a formality. But when the picture was returned to him, it was stamped in red ink with the word “DENIED.” No reason was given, and no explanation was forthcoming at the time.
Simon-Whelan therefore began to do his own research into the picture’s history, starting with the silk-screening technique Warhol began to use late in 1962 to transfer preexisting images onto canvas. Warhol’s procedure was to send a photograph or newspaper clipping to a lab where the image was transferred to an acetate plate. Warhol manipulated the acetate (sometimes called a “negative,” or, confusingly, a “film positive”) with chemicals and scissors to give it the distinctive Warhol “look.” Once he had the image he wanted, he used the acetate to imprint the image on a silk screen, which was then used to print the image on canvas. As his former employee Bob Colacello explained, the acetate was the most important element in Warhol’s creative process because “various steps in the process [of silk-screening] were done by hands other than Andy’s. But only Andy, in all the years I knew him, worked on the negatives,” i.e., acetates.3
During the final step, when Warhol or his assistants transferred the image onto canvas, color was added in different ways—sometimes by using one or more silk screens; at other times by hand; and at still others by combining silk-screening and hand-painting. Because silk-screening is essentially a mechanical process, it hardly matters whether Warhol or his assistants actually pressed the paint through the screen’s mesh. Much more important was the way work was done on the acetate negative from which the print on the silk screen was made. This insight enabled Warhol to set up his famous factory-like method of art production.
Simon-Whelan’s research turned up a remarkable amount of information about his picture, much of it apparently unknown to the authentication board at the time. In 1964, he found, Warhol made a series of self-portraits, most with different background colors. Late in the summer of the following year he gave the acetates that he’d used to make the 1964 series to the publisher Richard Ekstract in exchange for the use of expensive Norelco video equipment. With Warhol’s permission, Ekstract took the acetates to a commercial printer who used them to make a second set of silk screens—the ones from which a second series of ten self-portraits, all with uniform red backgrounds, was printed. Afterward Ekstract returned the acetates to the artist, who was not present during the printing process. The pictures were exhibited, with Warhol present, at a party Ekstract gave on September 29, 1965, to celebrate the premiere of Warhol’s first video with Edie Sedgwick and to launch Ekstract’s magazine, Tape Recording.
The 1965 series is printed on pre-stretched white cotton, not on the linen used in the 1964 series. Because a different silk screen was used in the printing process, the halftones in the Red Self Portraits of 1965 are less dense than on those in the series printed a year earlier. Since there is no evidence of the artist’s “hand” in the form of hand-painting, the second series looks slightly flatter and more machine-made than the first. In 2003 Simon-Whelan resubmitted his picture along with this new information to the authentication board. The painting came back stamped in indelible red ink for a second time with the word “DENIED,” again without explanation.
Dr. Rainer Crone, who worked closely with Warhol to write the first catalogue raisonné of the artist’s work, contends that Warhol’s decision to give permission to Ekstract to send the acetates to a commercial printer represented a radical innovation in the way he worked. Crone’s statement is supported by Warhol’s manager and filmmaker Paul Morrissey, who, in a letter to the authentication board in 2002 describing the production of the Red Self Portraits, added that Warhol spoke to the printer over the telephone to give him specific, detailed instructions regarding the colors and ink formulations he wanted the printer to use.4
Sam Green, the curator of the first major show of Warhol’s work at the ICA in Philadelphia in October 1965, submitted a written statement to the board testifying that Warhol liked the mechanical, machine-made appearance of the Red Self Portraits, which, in Green’s words, “exemplified his new technique for having works produced without his personal touch: he wanted to get away from that.”
These statements do not in themselves prove that Andy Warhol was responsible for making the Red Self Portraits. Proof that he did so does exist, however, in the form of one work in the series now owned by the London collector Anthony d’Offay that Warhol personally signed, dated, and dedicated to his European dealer Bruno Bischofberger. This too the authentication board has stamped “DENIED.”
Yet in 1970 Warhol personally approved the Bischofberger painting for inclusion in his first catalogue raisonné and personally chose it for reproduction on the catalog’s cover. That catalog was revised, expanded, and republished twice during Warhol’s lifetime, in 1972 and 1976. If the artist had any doubt at all about its authenticity he therefore had ample opportunity to delete it but he did not do so. As Dr. Crone has stated in a letter to The New York Review, to deny at this point that the Red Self Portraits are by Warhol is an act of “gross misjudgment.”5
Yet in statements on behalf of the Warhol Foundation, Professor Reva Wolf and Dr. John Tancock support such a denial. They do so in expert witness statements for the court affirming that it was reasonable for the authentication board to declare that the Red Self Portraits are not Warhol’s.6 Both of those expert witness statements—based in part on documents provided by lawyers for the authentication board—have now been made available by the lawyers for the Warhol Foundation.
Dr. Wolf is professor of art history at the State University of New York at New Paltz and author of a book entitled Andy Warhol, Poetry, and Gossip in the 1960s. What makes her statement so important is that apart from simply listing the differences between the Red Self Portraits and the 1964 series (support, color, means of production, halftones, etc.), the authentication board has said nothing—not one word—to rebut the factual evidence published by Rainer Crone in The New York Review.7
Wolf begins by simply expanding on the obvious and openly acknowledged differences between the two series. But these are not in dispute—indeed they accord with what Morrissey and Ekstract have said about how the second series was created. Wolf adds no new evidence, no new facts, and no new observations of any significance to this part of the debate.
What she does do is turn a blind eye to information we already have. After declaring that members of the authentication board are “undoubted experts,” she notes that experts are expected to combine the observation of physical evidence with “a careful study of documents” when determining the authenticity of a work of art. One of the most valuable forms of documentary evidence available to art historians is statements by those who knew the artist and observed his methods at the time the work was created. Yet Professor Wolf does not mention—let alone attempt to refute—the statements I have quoted by Morrissey and Green.
1 See my article " What Is an Andy Warhol?," The New York Review, October 22, 2009, and the exchanges of letters that followed in these pages, November 19, 2009; December 17, 2009; and February 25, 2010. ↩
2 For Simon-Whelan's full statment, see Walter Robinson, "Andy Warhol's Red Self-Portrait : An Exchange," Artnet.com, November 17, 2010. ↩
3 Bob Colacello, Holy Terror: Andy Warhol Close Up (HarperCollins, 1990), p. 89. ↩
4 Morrissey confirmed the accuracy of this letter in his sworn deposition of June 16, 2010. ↩
6 During the pre-trial hearings this summer, the foundation paid witnesses whose statements it requested. The scholars called to testify to the authenticity of the Red Self Portrait stated under oath that they had agreed to do so without charge. ↩
7 In the belief that they undermine Simon-Whelan's credibility, lawyers for the foundation have offered to share these statements with anyone e-mailing either Dawn Schneider (email@example.com) or Alison Preece (firstname.lastname@example.org). There are three, including those by Wolf and Tancock. I am not qualified to comment on the legal and economic issues raised in the paper—commissioned by the foundation's lawyers—by Dr. David J. Teece replying to Simon-Whelan's allegations that the Warhol Foundation controls the market in Warhol's work by denying the authenticity of works that are in fact by him. ↩
See my article ” What Is an Andy Warhol?,” The New York Review, October 22, 2009, and the exchanges of letters that followed in these pages, November 19, 2009; December 17, 2009; and February 25, 2010. ↩
For Simon-Whelan’s full statment, see Walter Robinson, “Andy Warhol’s Red Self-Portrait : An Exchange,” Artnet.com, November 17, 2010. ↩
Bob Colacello, Holy Terror: Andy Warhol Close Up (HarperCollins, 1990), p. 89. ↩
Morrissey confirmed the accuracy of this letter in his sworn deposition of June 16, 2010. ↩
During the pre-trial hearings this summer, the foundation paid witnesses whose statements it requested. The scholars called to testify to the authenticity of the Red Self Portrait stated under oath that they had agreed to do so without charge. ↩
In the belief that they undermine Simon-Whelan’s credibility, lawyers for the foundation have offered to share these statements with anyone e-mailing either Dawn Schneider (email@example.com) or Alison Preece (firstname.lastname@example.org). There are three, including those by Wolf and Tancock. I am not qualified to comment on the legal and economic issues raised in the paper—commissioned by the foundation’s lawyers—by Dr. David J. Teece replying to Simon-Whelan’s allegations that the Warhol Foundation controls the market in Warhol’s work by denying the authenticity of works that are in fact by him. ↩