“Scholars agree…”
“Most scholars believe…”
“It is the generally accepted opinion…”
“It is the scholarly consensus…”
These phrases crop up, again and again, whenever someone discusses the attribution — that is, the authorship, or the identity of the maker— of a work of art. But what does it actually mean? For most of my professional life as an art historian, I’ve thought of it as something like a statistical curve, with the distribution of various attributions distributed according like a bell curve. The apex of the bell represents “scholarly consensus.” It’s an imperfect image, as it doesn’t really encompass all of the dimensions that go into making — or contesting — an attribution. With this image, I am reaching for something that can convey at once two concepts that are not quite convergent — a visual representation of the concept of scholarly consensus, and a visual representation of the statistical probability that the artwork in question can be attributed to this particular artist. Consensus does not necessarily equal certitude.
Art historians know this. Secure attributions can be overturned, as new research turns up fresh evidence. Works can be re- or de-attributed. De-attributions can be reversed. Fakes become real, real things became forgeries. Scholars want nuance. They want to discuss things like provenance and condition, histories of restoration, or of damage, destruction — works suffer from fire, flood, mold, decay, they are cut down, or desecrated, or split up for various reasons. Art historians are also contentious — often cantankerous. Connoisseurship feels so personal. Judgments are, after all, subjective interpretations of the evidence. Disputes over attribution can — and do — bubble over and become personal.
These disputes can also become unexpectedly public. Witness the Rijksmuseum’s response to the National Gallery’s decision to demote Girl with a Flute from a painting attributed to Vermeer to one by an unknown associate working in the “Studio of Johannes Vermeer.” [1] Girl with a Flute will be included in the Rijksmuseum’s 2023 Vermeer retrospective as a Vermeer. The retrospective will also include two other disputed Vermeer paintings, A Young Woman Seated at the Virginal and St. Praxidis.
On the National Gallery website, the painting is attributed to “Studio of Johannes Vermeer.” The accompanying text reads: “Once cautiously attributed to Johannes Vermeer, Girl with a Flute was more likely painted by a studio associate of Vermeer. Although the general character and appearance of the work relate closely to works by Vermeer, especially Girl with the Red Hat, the quality falls short of Vermeer’s standards. Girl with a Flute demonstrates an awareness of Vermeer’s idiosyncratic painting processes—such as the use of certain unusual pigments and the distinctive application of highlights—but a lack of skill or experience in reproducing them.” Girl with a Flute, c. 1669/1675.
In an interview with Het Parool, Pieter Roelofs, Head of Painting and Sculpture at the Rijksmuseum, responded to the National Gallery’s decision to demote the attribution of the National Gallery’s Girl with a Flute to “Studio of Rembrandt” with fighting words: “‘They came out with their findings with the news that it was from “Vermeer’s studio”, which is interesting because it introduces an idea that Vermeer had a studio…In Amsterdam we see things differently than in Washington. ‘You can’t blame them for that: you can only come to conclusions on the basis of your own knowledge. But we can supplement the image by pointing to other paintings. We believe what we say is correct, our argument is clear and based on cutting-edge insight. Girl with a Flute is being lent as “not Vermeer” but we will hang it as Vermeer. The doubt will disappear during the flight over the ocean.” Taco Dibbits, director of the Rijksmuseum, was more diplomatic. “We have discussed the technical findings with Washington and our view of Vermeer based on these technical findings is a more inclusive one than that of Washington. […] “Attribution is not a hard science but we feel that Vermeer is such an innovative artist who took so many directions in his art that we feel that for us as yet the painting is by Vermeer,” Dibbits told the Guardian. “We keep it within the oeuvre. We differ in view. It is something we have discussed at length. We are all happy with it.”
Differences in opinion and deviations from consensus are all part of scholarly discourse. In the case of works like the National Gallery’s Girl with a Flute, the impact on a work’s market—or monetary—value is largely theoretical. (It might affect the work’s insurance valuation, but not much more.) For works in private collections, and especially for works currently on the market—shifts in accepted scholarly opinion can make an immediate, and tangible, impact on the work’s value.
So how do players in the art market protect themselves from potential damages stemming from shifts in scholarly opinion or consensus?
Authenticity warranties represent one strategy deployed by auction houses to protect themselves. These warranties are typically buried in the fine print of the sales contract.[2] But this month, to mark the five-year anniversary of the historic Salvator Mundi sale—Anny Shaw, of the Art Newspaper, revisited the authenticity warranty buried in Christie’s paperwork. The warranty states, ”We warrant, subject to the terms below, that the lots in our sales are authentic (our “authenticity warranty”). If, within 5 years of the date of the auction, you give notice to us that your lot is not authentic, subject to the terms below, we will refund the purchase price paid by you.” The warranty expires this month. During the warranty period, if the Salvator Mundi were found to be inauthentic, could the buyer return it to Christie’s for a refund?
Alex Rotter (far right) taking the winning bid for Salvator Mundi, Nov. 2017. Photo: Timothy A. Clary/AFP/Getty
Christie’s states that “the authenticity warranty does not apply where scholarship has developed since the auction leading to a change in generally accepted opinion. Further, it does not apply if the Heading either matched the generally accepted opinion of experts at the date of the auction or drew attention to any conflict of opinion.”
The authenticity warranty rests on “the generally accepted opinion of experts at the date of the auction” (and not subsequent developments).
What is the “generally accepted opinion of experts”?
Shaw quotes an inadvertently comical passage written by the attorney Roland Foord, a partner at Stephenson Harwood, where Foord tries to answer the question, “What are the Generally Accepted Views of Scholars?” with some questions of his own. “How many scholars are required to make a generally accepted view?” He asks. “Do they have to state their views publically? Does the scholar need to see the art in person? Does the scholar need to see scientific analysis on the art before their view should be considered relevant? What if there is only one leading scholar for that artist?”
In an article for the Journal of Intellectual Property and Entertainment Law, Katie Dixon and Zachary Shufro note, “In the United States, an “art expert” is simply someone who holds himself or herself out as such.” Here in the U.S., experts and authenticators are not required to hold licenses or certifications from any professional organizations. And how many “experts” need to be consulted? And of those consulted, how many of them have to share the same opinion for that opinion to be generally accepted?
In theory, I suppose, without clear definitions, a work’s authenticity could rest on the generally-accepted opinion of a group of randomly-selected persons, perhaps produced by calling a vote. But art historians are a community, and within that community, experts are known by reputation, as well as by their institutional affiliations, their credentials, and training. And there are norms of practice, as well, tests to run, archives to consult, and certain unspoken standards (today, it would be considered bad form to make an attribution without seeing the work in person, though in the past, art historians have been known to make attributions solely from consulting photographs).
The sales contract gives Christie’s another out, in the form of further expert review (and potentially, more litigation): “At Christie’s option, we may require you to provide the written opinions of two recognised experts in the field of the lot mutually agreed by you and us in advance confirming that the lot is not authentic. If we have any doubts, we reserve the right to obtain additional opinions at our expense.”
Not that the buyer of the Salvator Mundi had any plans of triggering the authenticity warranty and returning the painting to Christie’s for a refund. Martin Kemp — who is an unapologetic believer in the painting’s authenticity as a Leonardo — tells us that “likely that the masterpiece will be housed in a Saudi museum within the next two years.”[3] In the same piece, Kemp voices his disappointment that “our visual engagement with the painting has been skewed by fictionalised stories, lurid journalism, and attributional vitriol.” But Kemp misses the motivation behind the public’s fascination with the Salvator Mundi as a potential dud. It has very little to do with the painting itself. I wrote, in an earlier piece, that this fascination derives from a collective desire for schadenfreude: “The oligarchs have already taken so much. They seem to have stacked all the odds in their own favor: they always win. In this version of the story, where it turns out that the Saudis have vastly overpaid for the Salvator Mundi, we are the underdogs. Our prize, when we win, is the pleasure of watching them lose.”
Legal definitions of scholarly consensus are not necessarily congruent with the norms of scholarly practice. The legal definition is both narrow and precise–and yet also strangely vague. But that’s because the legal definition serves a different end. Scholarship, in ideal, is exploratory and dynamic. It is about expanding the field of knowledge. If a scholar questions an attribution, the motivation should not be punitive. In this ideal scholarly world, even in the negative — a de-attribution, the discovery of a fake or forgery — there is something positive. This is not true for a work on the market, where a negative can only snowball into more negatives. In both situations, scholars and experts couch their language, but that blur of uncertainty exists to serve different ends.
Notes:
1. See, also, the National Gallery’s Press Release announcing this re-attribution, which set out the stakes for attributing Girl with a Flute to the “Studio of Johannes Vermeer”: “The idea that Vermeer worked with studio associates challenges the long-held belief that he was a lone genius and, instead, posits him as an instructor or mentor to the next generation of artists. In part because Vermeer’s oeuvre contains only about 35 accepted paintings, scholars have generally considered it unlikely that he had students or assistants.
With no surviving documents to provide evidence of a workshop—no records of pupils registered by the Delft painters’ guild, no mention of assistants in the notes of visitors to Vermeer’s studio—it was believed that he must have worked alone. Until now.
‘The existence of other artists working with Johannes Vermeer is perhaps one of the most significant new findings about the artist to be discovered in decades. It fundamentally changes our understanding of Vermeer,’ said Kaywin Feldman, director of the National Gallery of Art. ‘I am incredibly proud of the interdisciplinary team of National Gallery staff who worked together to study these paintings, building on decades of research and using advanced scientific technology to uncover exciting discoveries that add new insight to what we know about the enigmatic artist.'”
2. William W. Stuart’s 2002 Maine Law Review article, “Authenticity of Authorship and the Auction Market,” gives a good overview of the case law through the turn of the 21st century. Then, as now, an auction house’s main exposure to liability comes through its catalogue description. In a 2017 Antiques Trade Gazette article, attorney Milton Silverman discussed the ways in which an auction house might be vulnerable or liable when a work’s authenticity comes into question. Silverman wrote, “Where an artwork is being offered at an auction, the auction house’s liability will, to a certain extent, depend on how the work is described in the sale catalogue.” How can an auction house reduce its legal liability? One way, Silverman proposed, “[c]ould be for the auction house to catalogue such a painting as “in the manner of” – which may be just as possible in 2015 as 1615, although then, of course, the painting may not attract as much interest as if catalogued “in the studio of”. Such cataloguing decisions are a fine balance.”
Auction houses are doing more marketing now–writing long-form blog posts, creating videos and other content. I wonder if those marketing materials also present points of liability? Maybe someone versed in this particular field of law will enlighten us?
3. Kemp also told the FT that the Saudi government invited him out to look at the painting, but he declined due to personal reservations over the “iniquities of the Saudi regime.”
it might be art 
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