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.

1.

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…