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.
Instead, she produces one eyewitness we had not yet heard from. Gus Hunkele was a printer who was employed by Norgus, the company in Madison, New Jersey, that printed the Red Self Portraits. Wolf quotes a single sentence from an affidavit dated June 19, 2003, in which Hunkele declares, “I have never had a communication with Andy Warhol or anyone acting on his instructions concerning the production of the silkscreened Self-Portraits, or about anything else.” Crucial for any assessment of Wolf’s statement is that she also cites, but does not quote from, a second, revised affidavit written by Hunkele in January 12, 2004 (erroneously dated by Wolf as January 16).
In it, Hunkele explains that the reason he had no communication with anyone representing Warhol was because he was out of the building on a service call when Richard Ekstract and a colleague named Herman Meyers arrived at the office. This meant that all communication took place not with Hunkele but with his partner. Hunkele further states that his company was asked to “print several portraits by Andy Warhol for Andy Warhol and Richard Ekstract.”
Here is the paragraph in full, with my italics added to show that Hunkele’s testimony accords perfectly with Ekstract’s—and differs from Morrissey’s only in that it does not specify whether the “verbal instructions” he refers to was delivered in person or by telephone, by Ekstract alone, or by Warhol as well:
Andy Warhol owed Ekstract a favor and supplied the film positives with written instruction, color swatches and canvases for us to print on. We agreed to do the work…in the late summer or fall of 1965. Mr. Ekstract and Herman Meyers delivered the supplies to the company. Ekstract met with my partner who then turned him over to our shop foreman to whom he gave Andy Warhols printing instructions. As I was out of the building serving a customer at the time I did not meet Richard Ekstract. Norgus followed these verbal instructions as well as the written instructions on the positives and swatches. Norgus was always aware that these were being made for Warhol and Ekstract.
Gus Hunkele continues:
I did not meet Andy Warhol or Richard Ekstract personally but my business partner met Ekstract….
It has been 38 years since these [Red Self Portraits] were printed in 1965. Now that I have time to recollect and recall the events of this matter, this is to the best of my knowledge and recollection the actual facts and I would like to correct the misinformation that was given on the original affidavit which was written by the Andy Warhol Board on June 19, 2003, and signed by me. [emphasis added]
In other words, according to Hunkele, representatives of the authentication board, whom he identifies in the document as Sally King-Nero and the board’s secretary, Claudia Defendi, asked him to sign a prepared statement about what happened. The elderly man did what they asked and later, in a second statement, corrected the “misinformation” in what he had signed. Professor Wolf simply does not discuss what he says in this second affidavit.
She next attempts to explain why Warhol would sign, date, and dedicate a self-portrait that he did not make and did not consider genuine. Declaring that signing a canvas may have no more significance for an artist than signing an autograph, she says,
It was reasonable for the Board to arrive at the opinion that the existence of the signature in question does not mean that the picture is indeed by Warhol. Warhol could have made the signature for any number of reasons. For instance, he could have signed and dedicated the picture because it is a picture of Warhol.
It would indeed be reasonable if there were no difference between Andy Warhol’s signature on a photo and his signature on a canvas. However, the art market has determined otherwise: the first has little value; the second sells for millions of dollars. An artist’s authentic signature or monogram has always signified authorship and hence authenticity, which is why forgers fake signatures on counterfeit paintings and why in 1964 Duchamp’s signature transformed eight replicas of his 1917 readymade porcelain urinal into works of art that are accepted as genuine by the author of his catalogue raisonné.
It is not only the art market that lends such weight to a signature—it is the Andy Warhol Foundation. On October 23, 1990, the foundation’s sales agent Vincent Fremont wrote to Richard Ekstract denying the authenticity of his Red Self Portrait on the grounds that “the work is not signed by [Warhol].” The following year another owner, Michael Kohn, was told by the foundation that to authenticate his work required evidence that Warhol was aware of the series—and by proof, the foundation meant “evidence of contact by Warhol with the work (a signature, overpainting, etc.).” During his deposition Neil Printz, a member of the authentication board, was shown the Red Self Portrait owned by Anthony d’Offay. When asked what the significance of the date on the painting was, he replied:
The date would usually refer to when the artist made the painting, or it might refer to when he signed the painting, or it might refer to—yeah, it would usually refer to either when he signed it or when he thought he made it.
Professor Wolf now maintains that Warhol signed and dated a work that he was either not responsible for making or did not wish to authorize; and then dedicated it to Bruno Bischofberger, his own art dealer. What she doesn’t explain is why he would personally approve the picture’s inclusion in all three editions of his first catalogue raisonné. To account for this she writes as if she had doubts about the statement of a formidable eyewitness, Rainer Crone, in these pages. In the following quotations from her expert witness statement, the italics are again mine:
The art historian Rainer Crone claimed, in a letter published in February 25, 2010 issue of The New York Review of Books that he and Warhol discussed what image should be used for the cover of Crone’s 1970 book (which is significant as the first catalogue raisonné of the artist’s work). According to Crone’s story, Warhol showed him a picture from the 1964 group and a picture from the 1965 group. Crone further claimed that he and Warhol together chose the example from the 1965 group. Crone also reported in his letter that this image is of the 1965 group example that was owned by Bruno Bischofberger.
The man whose account she seems to question here had a close collaborative relationship with Warhol that began in 1968 and continued until a week before the artist’s death in 1987. Even if she doesn’t know this, the authors of the Andy Warhol catalogue raisonné, which is published by the foundation, do. In the acknowledgments for the second volume, they write:
Our efforts here…particularly benefited from two textual precedents: Rainer Crone’s comprehensive catalogue of Warhol’s work of the 1960s, published in his monograph of 1970, and Patrick S. Smith’s series of interviews with Warhol’s colleagues and friends…. Both are landmark achievements in the Warhol literature and were constant sources of reference during this project.
Notice, too, that Professor Wolf ignores something far more important than the image on the catalog’s cover—the inclusion of the picture in the catalog itself, where on page 294 it is identified both as the work belonging to Bruno Bischofberger and as the picture reproduced on the front of the book’s dust jacket.8
But the professor is indefatigable. “While it is possible that Warhol did select the image for the cover of Crone’s 1970s book, no firm evidence that he did is known.” No firm evidence? Crone, who was there at the time working alongside Warhol, swore, under oath, that he observed Warhol making the selection, and what he says corresponds verbatim to what was said in the 1970 catalog entry.
To counter this factual evidence, Wolf opines that it might have been the designer of the book who chose the image for the cover. Once again, Crone says Warhol did the choosing—not only in the pages of The New York Review but under oath during his pretrial depositions. By now Wolf is tap-dancing:
Even if in the unlikely event that Warhol did select the cover image for Crone’s book, what this selection means is open to interpretation. For example (and here admittedly we enter the realm of speculation), given his unique sense of humor, Warhol could even have been making a private joke, to himself, by selecting an image he did not make for the cover of his book. It is plausible this choice could have been a joke, for instance, because Warhol was not entirely confident in Crone’s judgments regarding authenticity in Warhol’s work. [emphasis added]
Crone’s straightforward statement of a fact proved by the cover image has now become an “unlikely event” and a young and ambitious artist’s inclusion of a pivotal early work in his first catalogue raisonné has become a “private joke.”
If Professor Wolf can cite another example in the entire history of art when an artist, at the very beginning of his career, made a “private joke” at his own expense and at the real risk that in doing so he would damage the market in his work by scaring off potential buyers, I will be delighted to publish it.9 Aside from this, it would be clarifying if she will tell us exactly how much the foundation paid her for her services to scholarship—not her hourly fee, which we know was $500—but the total amount she earned to write a report that runs to twenty-one footnoted pages with seven pages of bibliography and references.
Dr. John Tancock, a former director of Sotheby’s who now works as a private dealer, also made a statement as an expert witness on behalf of the Andy Warhol Foundation. Early in his discussion Tancock states that the Warhol authentication board “has been comprised of the following experts” and goes on to list nine of the board’s past and current members.10 Beside each name he provides a short CV giving their qualifications for sitting on the board. The list is complete except for two notable omissions: the art dealers George Frei and Vincent Fremont; both were founding members of the authentication board who have since resigned. Tancock identifies Fremont as a consultant to the board. The foundation’s website tells us he is the “exclusive agent for the sale of Foundation-owned Warhol paintings, sculpture, and drawings.”11 After these two stepped down from full membership of the board, Sally King-Nero joined the board, on which Neil Printz had been an original member.
Tancock writes that Neil Printz and Sally King-Nero have “deep knowledge of Warhol’s oeuvre,” citing, among other experience, their work on the Warhol catalogue raisonné as evidence of their competence. One example drawn from the recently available evidence found in discovery says something about King-Nero’s knowledge. In an e-mail to Printz dated May 5, 2003, she writes, “Hi Neil…. In my exploration of the world of silkscreening, I have discovered that the acetate as we call it…is in fact what is used to make the screen.” One research method she specifies is simplicity itself—she looked it up on the Internet. Printz, in his replies to King-Nero, seems to have no greater knowledge about how a silk screen is created than she does.12
I want to emphasize the date of this document. The year 2003 was nearly two years after the board’s decision to deny the authenticity of Simon-Whelan’s self-portrait and six years after King-Nero joined the authentication board and was given, along with Printz and other board members, the authority to participate in judgments on the authenticity of thousands of silk-screen canvases and prints by Warhol worth many millions.
One of the many questions raised by the Simon-Whelan case and other cases is whether American curators, scholars, conservators, and teachers who either receive grants directly from the foundation or work for institutions that depend on its support might have more to say about the foundation’s policies. A report in The Guardian published last August on the workings of the authentication board commented on the “silence of dealers and collectors who fear upsetting the Warhol establishment lest it decide to transform their authenticated treasures into junk.”
Whether they are paid as “experts,” make fortunes as dealers, or are recipients of grants, I don’t expect we’ll hear many who have benefited from the foundation speaking out about the activities of its authentication board. But Andy Warhol himself made his feelings known about those who would deny an artist the right to the authorship of his own paintings. In the last interview he gave, republished in 2004 in I’ll Be Your Mirror: The Selected Andy Warhol Interviews (edited by Kenneth Goldsmith with a foreword by Reva Wolf), the interviewer Paul Taylor raises the question of appropriated imagery and copyrights. Warhol says he’s having a problem with his John Wayne pictures.
AW: I don’t get mad when people take my things.
PT: You don’t do anything about it?
AW: No. It got a little crazy when people were turning out paintings and signing my name.
PT: What did you think about that?
AW: Signing my name to it was wrong but other than that I don’t care.
PT: …If indeed anyone can manufacture [a picture], the whole idea of the artist gets lost somewhere in the process.
AW: Is that good or bad?
PT: Well, first of all, do you agree with me?
AW: Yes, if they take my name away.
April 7, 2011
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. ↩
Warhol also signed Anthony d’Offay’s copy of Crone’s book in two places, once across the cover which reproduces the “Bruno B” Self Portrait eight times, and again on the book’s half-title page. In contrast to the signature on the canvas, these signatures are indeed “autographs” and as such they have never been put forward as primary evidence of the picture’s authenticity. And yet it is difficult to believe that Warhol would have autographed the book in the way he did had there been any doubt in his mind about the authenticity of the work on the cover. ↩
In a footnote to her expert statement, Wolf cites Andy Warhol’s diary entry for Sunday August 3, 1986, in which he records seeing a fake self-portrait in the 26th Street flea market. “That this self-portrait may well belong to the 1965 group,” she writes, “is suggested by the fact that Warhol notes that the stretcher (described here as ‘framing’) is not the same size as in his self-portraits and that the canvas is made of cotton….” But by this date Warhol was not only the most famous artist in the US, but also one of the best-known faces. The idea that a picture from the series (which were sold by both major auction houses and handled by respected art dealers) was of such low quality that it ended up unrecognized in a flea market is bizarre. What is more, Warhol would have recognized a Red Self Portrait instantly—he did, after all, exhibit the pictures in the series at the party Ekstract gave on September 29, 1965. ↩
These outside consultants include the late Jed Johnson (1995–1996), the late Robert Rosenblum (1996–2006), and the late David Whitney (1995–2005). Trevor Fairbrother (2005–2007) resigned. Present members are Judith Goldman (2005–present), Christoph Heinrich (2007–present), and Gary Garrels (2007–present). ↩
See Michael Schnayerson, “Judging Andy,” Vanity Fair, November 2003, and Adrian Levy and Cathy Scott-Clark, “Warhol’s Box of Tricks,” The Guardian, August 21, 2010. ↩
Joe Simon-Whelan to the court, November 5, 2010, with attached documentation. ↩