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What Is a Warhol? The Buried Evidence

1.

After Andy Warhol died in February 1987, his will directed that a foundation should be set up in his name, funded with proceeds from the sale of some 95,000 pictures, prints, sculptures, drawings, and photographs left in his estate. As well as creating and endowing the Andy Warhol Museum in Pittsburgh, the Andy Warhol Foundation for the Visual Arts provides financial support to artists and scholars, galleries, publications, and educational projects.

dorment_1-062013
Gianfranco Gorgoni/Contact Press Images
Andy Warhol, New York City, 1970

Warhol’s bequest made no provision for the authentication of his artwork. But in 1994 the foundation initiated work on a multivolume catalogue raisonné of Warhol’s art, in part because the project would “contribute to the stabilization of the market for Warhol works over time, thus having a direct benefit to the Foundation’s longterm goal of converting its Warhol works to cash at favorable prices.”1 In the following year the foundation’s directors set up an authentication committee to pass judgment on artworks attributed to him. Since then several large artist-endowed foundations have adopted the same policy. None have aroused the kind of controversy and ill feeling the Warhol authentication board attracted almost from the start.

Among the procedures that caused widespread disquiet was the Andy Warhol Art Authentication Board’s standard practice of stamping the word “DENIED” in indelible red ink on the reverse of a rejected work. This became even more disturbing when collectors, art dealers, academics, and journalists raised questions about the methods of a board that operated in secret and refused to let owners know the evidence or reasoning behind their decisions, some of which were subsequently shown to be blatantly wrong.2

In the cases of which I was aware, when the validity of the board’s conclusions was challenged, its members declined to engage in any form of dialogue, either with owners of the works of art they deemed inauthentic or with those who had known or worked with Warhol.3 This policy left dissatisfied owners with little alternative but to speak to journalists or even to go to court, as happened in 2007 when the collector Joe Simon-Whelan brought a lawsuit against both the foundation and the board for refusing to authenticate a picture from Warhol’s 1965 series of Red Self Portraits.

The judge allowed the case, or most of it, to move forward. At the heart of the complaint was the board’s inability to explain why it had denied the authenticity of a virtually identical picture from the same series belonging to the collector and former art dealer Anthony d’Offay. D’Offay’s Red Self Portrait was signed, dated, inscribed in Warhol’s handwriting, and included in all three editions of the catalogue raisonné of the artist’s work published during his lifetime.4

The status of Simon-Whelan’s and d’Offay’s pictures could have been resolved by the board with the cooperation of both owners by convening a meeting of academics and art experts where the case for and against the series could be openly discussed. Instead, the foundation’s president, Joel Wachs, hired two of the most expensive law firms in the United States—Carter, Ledyard and Milburn, and Boies, Schiller and Flexner—to defend a decision by the foundation’s board that, as more of the facts about Simon-Whelan’s Red Self Portrait became known during the pre-trial hearings, began to look increasingly untenable.

What is initially striking about the transcripts of the witness depositions taken during the pre-trial hearings in the summer of 2010 is the performance of lead counsel Nicholas Gravante Jr. for Boies, Schiller and Flexner. Gravante is a formidable litigator. But I have searched the transcripts of his interrogation of Simon-Whelan in vain for any serious or sustained challenge to the factual evidence proving the picture’s authenticity presented by Simon-Whelan’s lawyer and backed up by creditable witnesses.

Instead, Gravante used his cross-examination to make personal attacks on Simon-Whelan. But Simon-Whelan’s lawyer, Brian Kerr, argued to the court—in my view, convincingly—that the accusations were no more than a diversion from the issue of the authenticity of Simon-Whelan’s painting. According to Kerr, the defense made these irrelevant accusations to ensure that there was no time to discuss the real issues raised by the case.5

Making many counterclaims, the foundation spent $7 million (including Mr. Gravante’s fees) to prevent Simon-Whelan from presenting his case in court. In the autumn of 2010 Simon-Whelan withdrew his suit, saying that he did not have the financial resources to continue. In a statement to the press made on November 15, 2010, he said:

I am deeply saddened that I was unable to reveal the truth in court, but when faced with threats of bankruptcy, continuing personal attacks and counterclaims, I realized I no longer stood a chance of proceeding further…. I had no other choice but to sign a document bringing the case to a close.

The document he signed said that he had “never been aware of any evidence, that Defendants have engaged in any conspiracy, anticompetitive acts or any other fraudulent or illegal conduct in connection with the sale or authentication of Warhol artwork.” He added, however, that he had “not agreed to deny the authenticity of the Red Self Portrait, as originally demanded by the Foundation,” and he continues to defend it.

It appeared that the foundation had won hands down. But in this instance, appearances were deceptive. A year later, on October 19, 2011, the chairman of the Andy Warhol Foundation’s board of directors, Michael Straus, announced that the Andy Warhol Art Authentication Board was to close. Henceforth, he said, the foundation would use its huge financial resources exclusively for “grant-making and other charitable activities.”6 Less than a year after that, on September 5, 2012, Straus made another surprise announcement: the Andy Warhol Foundation would sell at Christie’s the estimated 20,000 pictures, prints, drawings, and photographs still remaining in Warhol’s original bequest until it has finally divested itself of most of the work by Andy Warhol it owns.7 Proceeds from these sales, the first of which took place in November 2012, will enable the foundation to increase its grants to museums and other organizations.8

Trying to explain those decisions, Wachs stated that the foundation’s priority was its “responsibility to Andy’s mission. Our money should be going to artists, not lawyers.” But why, in uncertain economic times and when most financial experts consider blue-chip artists like Warhol among the safest investments, has the foundation chosen this moment to sell such an enormous number of works?

For although it was always inevitable that the foundation’s supply of Warhols it could offer for sale would diminish until few if any were left, the number of works being offered for sale suggests that this would not have happened for some time. Even taking into consideration the cost of storing and curating the huge number of works the foundation owns and pays its sales agents to sell for them, its operating expenses have always been offset by the inexorable rise in prices for his work.

The Art Newspaper and The New York Times dutifully reported the story as it appeared in press releases issued by the Warhol Foundation and Christie’s. Neither publication later asked whether there is any connection between the closure of the authentication board in October 2011 and the announcement nine months later of the sale of the foundation’s material assets. But I believe there is a connection—in the form of another lawsuit that has had relatively little attention.

In April 2010, Philadelphia Indemnity, the company with whom the Andy Warhol Foundation had contracted to provide liability insurance, brought a lawsuit against the foundation. The insurance company refused to pay costs arising from allegations in Simon-Whelan’s lawsuit, which is mentioned on almost every page of their complaint, saying that, among a number of contractual violations, the foundation failed to notify them—as the foundation’s insurance policy required—of “any specific wrongful act” committed by one of the foundation’s members, including the publication of material “with knowledge of its falsity.” In response, the foundation countersued for full payment of its legal costs in that case—up to $10 million.

While litigation was in progress, lawyers for Philadelphia Indemnity were made aware of papers that Joe Simon-Whelan filed with the court on November 5, 2010, in his own suit against the foundation—including transcripts of witness testimony taken during the pre-trial hearings.9 These were placed in the public domain by Laura Swain, the judge in that suit, on February 15, 2011. They can be read by any member of the public at the United States Courthouse on Pearl Street.10

This is what lawyers for Philadelphia Indemnity could have learned from those documents.

2.

The Andy Warhol Art Foundation has always presented itself as operating independently from the Andy Warhol Art Authentication Board. This made sense. The very fact that a dealer or museum bought a work directly from the foundation was considered a guarantee of authenticity. Paintings sold by the foundation were usually stamped on the reverse with a “PA” (i.e., painting) or a “PO” (i.e., portrait) number, as for example “PA81.014.” Such works normally did not need further authentication by the board.

But on some occasions, the authentication board did pass judgment on pictures owned by the foundation. When that happened, it was essential that the authentication board be seen to operate independently. Only then could the foundation sell the work as an authentic Warhol in good faith.

In reality, however, distinctions between the foundation and the authentication board are hard to detect. Joel Wachs is not only president of the foundation, but was also chairman of the authentication board with the power to appoint its members, although he does not take part in the process of authentication. The board had two full-time employees paid for by the foundation—Neil Printz and Sally King-Nero. They were assisted by a panel of three outside scholars and curators who were paid $2,000 per day plus travel and expenses.

The board met three times a year to pass judgment on the authenticity of all works submitted to it. Also in attendance at these meetings as a “consultant” to the board was Warhol’s former assistant Vincent Fremont (or rather, Vincent Fremont Enterprises, the only shareholder of which is Vincent Fremont), who until recently also worked for the foundation as its chief sales agent for paintings, sculpture, and drawings.

In that capacity Fremont was paid a commission of between 6 percent and 10 percent on all sales. According to Fremont himself, he “never missed a meeting” of the authentication board. When the foundation submitted works to the authentication board, Fremont was therefore in a position to help King-Nero and Printz declare to be genuine a work that, as the foundation’s chief salesman, he could then offer for sale.

Because the board’s meetings were held in secret, until recently it was impossible to know how the members reached their decisions. But the papers that have now been made public thanks to Judge Swain throw light on the board’s deliberations. They also provide documentary evidence that on several occasions the board authenticated works that it had already declared to be fakes. In one electrifying moment during his deposition, on July 7, 2010, Fremont admitted that on at least one occasion he sold as authentic Warhols paintings that the estate of Andy Warhol had confiscated from the owner on the grounds that they were not the work of Andy Warhol. He also admitted that the authentication board on which he sits decided that the same body of work had been created under what one member called false pretenses. What made the sales legitimate, he said, was that the authentication board later declared the paintings to be genuine after all.

I will make it clear here just how that happened. But first it should be explained that the estate consisted of tens of thousands of paintings and prints, most of them made at offsite factories from acetates, or plastic sheets, supplied by Warhol. One such factory is of particular relevance. Rupert Jasen Smith was Warhol’s main offsite printer from 1977 until 1987, responsible for creating thousands of Warhol’s paintings and prints. Smith’s factory and others like it invoiced Warhol Enterprises for their work and were paid for each authorized piece they created. But because Warhol never visited these factories the printers worked without supervision. Warhol therefore had no way of knowing who might be running off unauthorized prints or paintings in addition to the ones for which Warhol had paid him.11

  1. 1

    Notes of December 7, 1994, meeting of the directors of the Andy Warhol Foundation, cited in Joe Simon-Whelan’s letter to the court, November 5, 2010, exhibit 36. 

  2. 2

    To cite one widely reported recent example, the board authenticated a series of Brillo box sculptures that were shown to have been faked after Warhol’s death. See Adrian Levy and Cathy Scott-Clark, “Warhol’s Box of Tricks,” The Guardian, August 20, 2010. 

  3. 3

    See Jason Kaufman, “Challenge to the Andy Warhol Authentication Board,” The Art Newspaper, October 2003, quoting Ronald D. Spencer, lawyer and spokesman for the board: “The board does not explain its decisions because to do so would provide ‘a roadmap for forgers.’” It is worth stressing, however, that these procedures are not typical of other art authentication boards. See the letter signed by Sarah Whitfield on behalf of the Comité René Magritte, Francis Bacon Authentication Committee, and Arshile Gorky Foundation, “ What Is a Warhol? An Exchange,” The New York Review, December 17, 2009. 

  4. 4

    See Richard Dorment, “ What Is an Andy Warhol?The New York Review, October 22, 2009, and “ What Andy Warhol Did,” The New York Review, April 7, 2011, with subsequent exchanges and letters by, among others, Joel Wachs, Rainer Crone, Richard Ekstract, Reva Wolf, and Sarah Whitfield published on November 19, 2009, December 17, 2009, February 25, 2010, June 9, 2011, and August 18, 2011 (both in print and in longer versions online). 

  5. 5

    See Andrew Johnson, “Warhol Wars,” The Independent, July 11, 2010. 

  6. 6

    See Kelly Crow, “Is That Warhol a Fake? Even His Foundation Isn’t Sure,” The Wall Street Journal, October 20, 2011. Though the board would continue to process works of art already submitted to it, Straus said it would no longer accept new work submitted for authentication. The board is now closed. 

  7. 7

    Warhol Foundation Seals Long-Term Deal with Christie’s.” The auction house also started holding online auctions in February 2013, and is negotiating private sales. 

  8. 8

    All future volumes of the catalogue raisonné will be written by former authentication board members Neil Printz and Sally King-Nero. Their inclusion of an artwork in their catalogue raisonné will amount to a judgment as to its authenticity. Since both are still employees of the foundation, their catalog will serve a function much like the former authentication board but without a panel of outside advisers who (in theory) monitored their activities. Once the foundation has divested itself of all of Warhol’s work, Printz and King-Nero will no longer be in a position to pass judgment on works the foundation owns and sells. But they apparently will continue to make judgments when they come to consider the status of the artworks the foundation is now selling at Christie’s. 

  9. 9

    Addison Thompson’s e-mail to the author, November 9, 2011, reads as follows: “Addison Thompson, Photographer, motivated by his own dispute with the Andy Warhol Art Authentication Board and Andy Warhol Foundation over their denial of Mr. Thompson’s early Andy Warhol Self-Portrait drawing, sent copies of Joe Simon’s letter to Judge Peck,” magistrate in the case; a duplicate letter was sent to Judge Swain dated November 5, 2010, to attorneys Stephen Marcellino and Richard Reiter, lawyers for the Philadelphia Indemnity Insurance Company in their lawsuit against the Warhol Foundation.

    Subsequently, Thompson phoned and spoke to Reiter and described in detail the alleged misconduct by the Warhol Foundation contained on pages 9–10 of Simon-Whelan’s letter of November 5, 2010. That letter cited testimony, under oath, from Vincent Fremont, who confiscated important Warhol works from the Rupert Smith estate in 1991, because of their questionable signatures and authenticity, only to have the Andy Warhol Art Authentication Board authenticate many of them in 2002. 

  10. 10

    The sources for all the facts in this article are contained in the exhibits made available at the United States Courthouse in Pearl Street by Judge Swain, who heard arguments against the Warhol Foundation by Joe Simon-Whelan, and by Judge Peter Sherwood in New York State Supreme Court, who is hearing the case brought by the Warhol Foundation against Philadelphia Indemnity Insurers. Documents from the Warhol Foundation’s suit against Philadelphia Indemnity can be accessed free of charge at the New York State United Court System website.

    As a guide for readers to some of the most important evidence I use, the following may be helpful:

    1) Legal tactics used by the Warhol foundation’s lawyer. Joe Simon-Whelan’s letter to the court November 5, 2010 and exhibit 37 including July 21, 2010 letter to the court.
    2) Confiscation of works of art produced by Rupert Jasen Smith’s printing factory, exhibits 16, 17.
    3) K.C. Maurer’s deposition, exhibits 16, 18.
    4) Foundation meeting notes, exhibit 16.
    5) Authentication board meeting notes, exhibits 16a and 16b.
    6) Works submitted by the foundation, exhibit 16.
    7) Transcript of Vincent Fremont’s deposition regarding the authentication of fake works, exhibit 17.
    8) Prints, exhibit 20.
     

  11. 11

    So far authenticity is concerned, the question of pirate or unauthorized prints and bronzes is a gray area. A comparable situation arises when Sotheby’s sells bronze casts that were made from models provided by nineteenth-century sculptors such as Barye and Carpeaux. In many cases there may be no guarantee that the sculptor ever saw or touched the cast, but these are sold as authentic works, with the price largely determined by the quality of the cast.

    When a bronze is sold with a bill of sale, a known provenance, or when it can be shown that the artist personally intervened in its creation (for example in the chasing or patination of the cast), these factors normally affect the price. The difference with the Warhol authentication board’s authentication of prints made without Warhol’s permission is that the board was well aware of who made these works and under what circumstances. 

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