The painting “Spanish Elegy,” attributed to Robert Motherwell, has been declared a forgery by the Robert Motherwell Catalogue Raisonné Project of the Dedalus Foundation. COURTESY DEDALUS FOUNDATION, NEW YORK

After years of examining artworks and rendering expert opinions for owners—often free of charge—several art-authentication boards and artist-endowed foundations have decided that the risks and potential costs associated with determining authenticity are simply too high.

At a time when the market for some modern and contemporary art is nearing the peak levels seen in 2007, the stakes are especially high when it comes to getting an expert’s stamp of approval as to the authenticity of a work. And as values have risen, so, too, has the number of disgruntled art owners willing to resort to long and costly litigation when a work they own is deemed questionable or inauthentic.

“Everyone is concerned about litigation that threatens to stifle scholarly opinion,” says Sharon Flescher, executive director of the International Foundation for Art Research (IFAR), a nonprofit organization that provides information on authenticity, ownership, and theft. “It costs a lot of money to defend against a suit, even if one wins.”

Perhaps no group knows that better than the board members of the Andy Warhol Foundation for the Visual Arts, which spent nearly $7 million in recent years to defend against an antitrust lawsuit that stemmed from the decisions of its authentication arm. The organization then became locked in a battle with its insurer over the amount for which it should be covered under two of its policies, according to Warhol Foundation attorney Nicholas Gravante Jr., of law firm Boies, Schiller & Flexner. At press time, the matter was still pending.

In October, the foundation sent shockwaves through the art world when it announced that the Warhol authentication board would cease authenticating works in early 2012 and ultimately be dissolved. According to its statement, the foundation wants to focus on supporting artists and artistic expression.

Observers were stunned. Not only is Warhol difficult to pin down in terms of authorship and authenticity, but his works continue to be at the forefront of the contemporary-market boom, often reaping tens of millions of dollars at auction.

The board’s decision has sparked considerable debate over how much responsibility foundations have to owners of works, as well as the extent to which committees and individual experts can freely express their opinions without fear of being sued. Though authentication boards generally require owners to sign indemnity agreements, a number of lawsuits have been allowed to proceed on other grounds.

For instance, when news came out that a set of 74 plaster casts attributed to Edgar Degas was supposedly discovered in a French foundry, numerous art historians, curators, and other art experts admitted to having doubts about the legitimacy and quality of the plasters, but none of them wanted to make their opinions public.

As William Cohan reported for ARTnews in early 2010, a group of Degas experts met discreetly at New York’s Metropolitan Museum of Art to discuss what, if anything, they should say or do about the plasters.

Among the few scholars to comment publicly was Gary Tinterow, former chair of the department of 19th-century, modern, and contemporary art at the Met. In May 2010, after vetting it through the museum’s legal department, Tinterow (who is now director of Houston’s Museum of Fine Arts) gave a brief statement to ARTnews about the controversy: “In my opinion, there is nothing that demonstrates that Degas had a set of plaster casts made of his sculptures during his lifetime.”

Charles Bergman, chair and CEO of the Pollock-Krasner Foundation, told ARTnews, “If a foundation can operate according to its charitable mission and not be involved in authentication matters, so much the better, [as opposed to] dealing with litigation and legal fees.” Bergman added that his organization is “more than sympathetic to the position that the Warhol Foundation took in this matter.” After spending several years compiling a Jackson Pollock catalogue raisonné and a supplement, the Pollock-Krasner Foundation disbanded its authentication board in 1995. But that didn’t protect the foundation from being sued by collectors who felt that works they owned should be included in the catalogue. The claims were ultimately dismissed.

So what should an uncertain art owner do? Says Bergman, “We do recommend that the parties involved go to Sotheby’s or to Christie’s or to IFAR, which we think is well equipped to handle that kind of inquiry.”

However, when a collector did just that—took his purported $17 million Pollock to Sotheby’s and Christie’s to explore a possible sale—both houses rejected the work because of its absence from the catalogue raisonné and on account of questions that were raised about its provenance, according to court papers filed in the case. In early December, the collector, Pierre Lagrange, sued the now-shuttered Knoedler Gallery and its former president and director Ann Freedman, who were involved in the sale of the work. He claimed in his suit that they “falsely represented” that the Pollock catalogue raisonné “was in the process of being updated and that the revised version would contain the Work.” No such update is planned, Bergman confirmed.

In December IFAR organized a panel devoted to these issues, titled “Warhol Board Stops Authenticating: Issues and Fallout.” Though no members of the Warhol Foundation or its authentication board were there on behalf of the organization, heads of other major artist-endowed foundations—including those of Roy Lichtenstein and Robert Motherwell—as well as experts in nonprofit, art-historical, and legal matters engaged in a lively discussion about responsibility for authenticating works.

Christine Vincent, who directed a study on artist-endowed foundations that was sponsored by the Aspen Institute, served on the panel. Rather than citing rules that govern authentication, she outlined practical considerations that foundations should consider when determining their involvement in the process. According to the written study, “the potential liability associated with art authentication . . . continues to be a concern among professionals in the art history, curatorial, conservation, legal, and art sales realms, as well as among artist-endowed foundations.” Vincent noted that “because legal actions may be brought against a foundation as an entity, as well as individually against its officers and directors, it is critical that a foundation be able to indemnify its officers and directors by securing sufficient directors’ and officers’ liability insurance.”

This was precisely the concern that, last June, led Roy Lichtenstein Foundation executive director Jack Cowart and the board to decide to cease the foundation’s authentication activity. The committee was set up in 2005, but Cowart says he became increasingly worried about litigation.

“When it came time to renew our very large insurance premium, we began to ask ourselves, ‘Is this a wise use of assets to protect the core purpose of the foundation?’” Cowart says.

The Roy Lichtenstein Foundation had not been the target of any authenticity-related litigation. However, Cowart says, in the wake of the Warhol Foundation lawsuit, he called his underwriter to ask about coverage. “He said, ‘What’s the case?’ I said, ‘I don’t have a case.’” But, says Cowart, “if you play Russian roulette long enough, you are going to hit a loaded chamber.”

Cowart explains that Lichtenstein’s works tended to be very well documented by the artist and his studio assistants. And the foundation maintains a list of experts to whom it can refer people for opinions.

Art dealer David Nash says that, unlike in Europe (France in particular) where there is a droit moral, or “moral right,” to oversee an artist’s legacy—including guarding against the circulation of fakes and forgeries in the marketplace—the guidelines for U.S. organizations are far less defined. “American foundations may or may not have the obligation or the right to determine authenticity,” says Nash, who was on the “Warhol Board Stops Authenticating” panel. “There is certainly the consideration as to whether buying insurance is a good use of a foundation’s money.”

However, Jack Flam, president of the Dedalus Foundation, feels strongly that foundations are obligated to determine authenticity. Says Flam, “I believe that any foundation, part of whose purpose is compiling a catalogue raisonné, should be taking an active role. It is important to distinguish real versus fake. Fakes undermine the integrity of an artist’s work.”

The Dedalus Foundation was recently sued over its decision to reverse opinion on a multimillion-dollar work said to be by Motherwell. The case was ultimately settled, and the foundation recouped its legal costs and physically labeled the work a forgery.

Flam believes that strengthening laws protecting free speech would be the best way to protect experts and foundations. He points to laws in several states, such as anti-SLAPP (Strategic Lawsuit against Public Participation) statutes.

Since so much of the activity within the U.S. art market takes place in New York, Flam says, “the art community should work with the state’s legislature to find a way to strengthen such laws,” with stiff penalties or legal fees added, so that “experts and scholars can express their opinions without being intimidated or even silenced by the threat of litigation.”

Art-law expert Ronald Spencer told ARTnews, “Art historian Ted Stebbins once wrote that ‘opinions are dangerous things to give,’ but it may be that the First Amendment of the U.S. Constitution will make giving those opinions a little less dangerous.”

Eileen Kinsella is editor of the ARTnewsletter.