• II •
It would be a dangerous undertaking for persons trained only to law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.
—Oliver Wendell Holmes, US Supreme Court Justice, 1903
The spots I painted are shite. The best person who ever painted spots for me was Rachel. She’s brilliant. The best spot painting you can have by me is one painted by Rachel.
—Damien Hirst, in reference to his famous spot paintings, 2008
Whether we like it or not, much of the desire for Aboriginal art crystallizes around . . . a cocktail of exoticism, primitivism, redemption and innocence, which in turn perpetuates derogatory ideas of Aboriginal art as a racial curio fetishised as the production of an authentic spirit.
—Benjamin Genocchio, art critic, 2001
If an artist produces an artwork in the vein of another artist, signs it with the other artist’s name, and sells the piece as an original by the other artist, that artwork is a forgery. If an artist makes a unique creation and signs and sells it as his or her own, that work is an original. These situations are clear-cut. But some situations are not. There may be complicating factors that result in ambiguity and require judgment in separating authentic art from inauthentic. While determining one from the other is often thought of as an exercise in detection through examining materials and workmanship, sometimes it is a matter of definition according to law or custom. And with definitions being subject to interpretation and shades of gray, it may seem as if certain artworks are not fully fake or fully original but somewhere in-between. Instead of envisioning a binary separation, a more helpful model for understanding this puzzle may be a continuum, with each end offering a definite determination but with degrees of confusion when moving toward the middle.
The confusion is caused by factors of several types. The first to be addressed is the linguistic complication that the meaning of the term “forgery” is subject to variations. There are specialized definitions that can leave ordinary-language users disoriented. Then comes the atmosphere in which an artwork was created, sometimes making it difficult to separate legitimate copying or emulation from outright fraud. The turmoil that results can give cover for artists to get away with forgery. Another concern arises over what happens to the authenticity of an artwork when more than one person has a hand in the process of making it. As part I has shown, this question has troubled the attribution and authentication process for centuries. If a sculptural torso is given new arms and legs and a mostly new face, is it still an original by its first maker, or should the restorer be named as the (or an) artist of record? If two artists collaborate to make a painting, should both names go on it, even if one is a studio employee of the other? When an engraving plate is recut and printed from after the artist’s death, does the result lose authenticity? What if the factor connecting two artists to a particular work is not the workmanship but the image? If one artist appropriates an image from another, what happens to originality and authenticity? And what if what is appropriated is not a specific image but a style identified with an Indigenous people? An artist’s ethnic and cultural identity can raise a tangle of concerns about authenticity. Taking stock of these factors involves knowledge in several fields, from law to philosophy to commerce to art history, criticism, and restoration.
Understanding the difference between a forgery and a legitimate artwork begins with the meaning of the term “forgery.” Typical dictionary definitions say it is “the act of reproducing something for a deceitful or fraudulent purpose,”1 and “the act of forging something, especially the unlawful act of counterfeiting a document or object for the purposes of fraud or deception.”2 The crux is that something is produced with the intention to deceive. Terms with like meanings include “counterfeit,” “falsification,” “fake,” “phony,” “fraud,” “bogus,” and “impostor,” among others. Beyond its general meaning, “forgery” is sometimes subject to more restricted technical usage by specialists. Artworks that commonly are described as forgeries would not, in many cases, be labeled that way in legal terms. In certain contexts other than the law, such as works of pewter, philately, and among some art theorists, a distinction has been made between forgery and fake, although by definitions that are inconsistent with one another.
US federal law follows the standpoint of English common law, and is similar to the law in various other countries as well, in denoting forgery as pertaining to documents and not to artworks. Items it does cover include deeds, stock certificates, wills, money orders, currency (where the term “counterfeit” also appears), identification cards, etc.3 The makers and sellers of false art can be charged with a variety of other offenses such as fraud, money laundering, and (notably in the United States) tax evasion. In the 2013 high-profile case of phony paintings in New York that were claimed to be by Jackson Pollock, Mark Rothko, and others, and sold for tens of millions of dollars, the charges against the defendants (artist Pei-Shen Qian and three co-conspirators who sold the works) included conspiracy to commit wire fraud, wire fraud, conspiracy to commit money laundering, money laundering, making false statements to the FBI, and submitting false tax returns.4 The term “forgery” does not appear in the court documents. The phony paintings are designated as “the FAKE WORKS” and referred to by that term repeatedly.5 However, for public consumption, the US attorney in charge of the case talked more loosely of “modern masters of forgery,” and the IRS special agent-in-charge described “the sale of counterfeit paintings.”6 In other federal cases, a range of terms for phony artworks can be found within the official court documents. The judge’s decision in the case of James Kennedy, who was found guilty in 2013 of mail fraud and wire fraud for the sale of phony prints attributed to Dalí, Picasso, Miró, and others, uses the terms “fake,” “counterfeit,” and “fraudulent” often and synonymously to describe the false works, seemingly as a linguistic strategy to avoid frequent repetition and monotonous reading. The word “forgery” appears several times in describing how the prints acquired false signatures, but not in substitution with the terms for the phony prints themselves.7
State laws tend to mirror federal laws on forgery, although with some exceptions. At the state and federal levels it is forgery to copy another person’s seal or handwriting, and in some venues, this provision has been applied not only to documents but also to artworks. When Tony Tetro was arrested in California in 1989, he was charged with thirty-eight counts of “felony forgery” of lithographs and twenty-nine counts with watercolors.8 Besides the artworks, of particular interest to authorities when they searched Tetro’s home were tablets on which he practiced artists’ signatures.9 And occasionally in other state-level cases, where the charge is not forgery, the term is still used to describe phony art. For instance, when the Parke-Bernet auction house in New York was sued over the wiggle room their catalog’s fine print included that gave protection against mistakes they made in authenticating phony paintings as Raoul Dufy originals, the judge’s decision called the paintings “forgeries.”10
Outside of the legal realm, when “forgery” is differentiated from commonly accepted substitute terms, the one it usually is paired against is “fake.” In his 2015 book, The Art of Forgery: The Minds, Motives and Methods of Master Forgers, art historian Noah Charney declares that forgery is “the wholesale creation of a fraudulent work,” whereas a fake is made by “the alteration of, or addition to, an authentic work of art.”11 With both terms there is an intention to deceive by suggesting the work was done by an artist other than the one(s) who actually did it, so that the value is enhanced. The difference is in being made as a phony from scratch versus being turned into a phony later. Following this distinction, an existing painting by a lesser artist that was refashioned to be a Monet, then, is a fake, whereas one painted from the start to look like a Monet is a forgery. A marble sculpture with the artist’s name removed and replaced by Henry Moore’s name is a fake, and a newly carved marble signed with Moore’s name is a forgery.
Charney’s book is about fine art, although he briefly discusses phony literary works as well as religious relics and fossils. The distinction he presents is sometimes found in the decorative arts. With postage stamps, phonies made as duplicates of existing stamps are called “forgeries,” with the term sometimes restricted to those used to defraud collectors, and “counterfeit” describing those used to defraud the government by being put into public circulation. A fake is a genuine stamp that has been altered to change its design or has been subjected to a false cancellation mark to make the result appear rare.12 A similar two-part distinction, without a separate category for counterfeit, is found with works made of pewter. As explained by the Pewter Society, “A forgery is a piece of modern pewter which is made specifically to deceive the purchaser.” An existing work is copied. A likely process is to use molds of genuine items that will include blemishes and wear marks found on originals. Fakes are made by “using a legitimate unmarked item and embellishing it with inscriptions or decoration” such as adding a false maker’s mark or combining parts of existing works into a “marriage” item.13 The difference between replica and alteration is also explained by Brian Innes in his 2005 book, Fakes and Forgeries: True Crime Stories of History’s Greatest Deceptions: The Criminals, the Scams, and the Victims.14 However, a forgery is identified as an existing item that has been altered, such as by adding a false signature, and a fake is “a copy of something genuine that already exists.”
This reversal leads to the question of whether one of the two terms “forgery” and “fake” belongs specifically with one of the two concepts they represent rather than the other concept. Is there a good reason to think of forgery as new creation and fake as alteration, instead of the other way around? Or is the connection arbitrary? A greater problem, however (which is highlighted later in part II in the section on restoration), is that the difference between a phony made from scratch and one made by alteration is not clear-cut but subject to a middle ground that creates confusion. If an existing work is altered so greatly that little of it is evident in the final product, how is this different than starting from scratch?
A second approach to the forgery-versus-fake distinction separates copying an exact image from copying a style. Anthony Amore, in The Art of the Con: The Most Notorious Fakes, Frauds and Forgeries in the Art World (2015),15 defines forgeries as “paintings created by an artist in another’s style and name without authorization,” whereas fakes are “exact unauthorized replicas of existing works passed off as the original.” Amore does not say so directly, but the intention to deceive is implied when he speaks of paintings made “without authorization” and “passed off,” all within the context of his discussing “fraudulent art.” Applying this distinction tells us that an exact copy of one of Monet’s haystack paintings is a fake, and a painting of haystacks done in Monet’s style but not duplicating an existing Monet is a forgery. Similarly, a duplicate of a carved sculpture by Henry Moore is a fake, and a sculpture that follows Moore’s style without copying one of the artist’s images outright is a forgery.
There are several drawbacks to this distinction. It is more applicable for some artistic mediums than for others. With multiple originals like bronzes and prints, most phonies are exact copies. To create a stylistic image—one attributed to a named artist but that the artist never made—runs a greater risk of detection than to add more to the quantity of something that is known and already in circulation. To discover that a duplicate of a particular image exists is not a cause for concern when the original was made in multiples. On the other hand, for a one-off such as a painting, drawing, or carved sculpture, finding that another just like it exists is an obvious problem. False works in these mediums are usually made to be stylistically similar rather than exact copies.
Other difficulties with this distinction are similar to those for the difference between creation versus alteration. Whatever medium it is applied to, this version of forgery versus fake, like the first version, is subject to a middle ground. The middle here is a pastiche. A false artwork often includes directly copied elements from one or more existing works without copying a work in its entirety. A newly created Monet might duplicate the meadow from one of the artist’s paintings, haystacks from two others, and a tree from a fourth. Is this painting a forgery? Or is it, instead, a fake? Much direct copying is involved, but the result is not a complete duplicate of an existing work by Monet. A further drawback to this approach to parsing the terms is that, as with the first approach, its proponents disagree about which word refers to one concept and which to the other. Does forgery link to an exact copy or to a style? Literary critic Stuart Kelly reverses Amore’s usage by asserting that “forgery implies a copy of a pre-existing work,” whereas “fakes are original works in the style of another artist.”16 Similarly, the Spurlock Museum (University of Illinois) has stated, “A forger makes an exact copy of an object, like a painting,” and “A faker makes objects that resemble the style of another.”17
There are still other ways of differentiating forgeries from fakes. Art historian David Scott suggests that “a fake is a copy or work in the style of an artist that is not made to be passed off as the genuine article.” A fake Van Gogh might be part of the backdrop for a stage performance, “but if the fake is offered for sale or given as a genuine van Gogh, it is classed as a forgery.”18 In other words, a fake lacks the intention to deceive. Art authenticator and theorist David Cycleback sees “fake” as an all-inclusive term both for works intended to deceive—which he calls “forgeries” if they are stylistic interpretations, and “counterfeit” if they are replicas—and for innocently misidentified works where no deception is intended.19 Both of these ways of expanding the meaning of “fake” to include legitimate works face the same difficulty: they abandon the factor of deceit and, in so doing, go against standard usage of the term in the realm of art. That is not to say that there is no precedent for this approach. The word “faux” is often used to describe leather goods that are meant to mimic genuine leather but are not claimed to be of the genuine material. The term “fake leather” is common as a synonym. And fake luxury goods bearing names such as Gucci and Rolex are common. However, in the realm of art, especially with valuable fine art where one-of-a-kind or limited-edition items are at a premium, both fake and forgery generally include the factor of deceit.
The several distinctions that have been offered between forgery and fake are problematic. They face the difficulty of not being clear-cut but subject to a confusing middle ground, or they fail to include the factor of deceitful intention that has been traditionally understood as an underlying assumption when describing phony artworks. Beyond this, the unconventional meanings, which are likely to be confusing to someone confronting them for the first time, require constant attention to be consistently applied as an alternative rather than follow the broader and better-known equivalence the terms have in general parlance. For instance, the reader of a book that designates forgery merely as stylistic copying (while excluding direct copies) may be misled when picking it up again at a later date and not remembering the author’s specialized terminology. And further yet, the various forgery-versus-fake distinctions are incompatible with one another and require readers and listeners to know precisely which of several specialized meanings is in play: Does the speaker now at the lectern mean the same when using the word “forgery” as the previous speaker did? Does a writer who announces a difference between forgery and fake apply it consistently when describing phony art?
There are certain limited domains where using one or another of the specialized distinctions can be expected. Attorneys in a court of law must apply the term “forgery” with the precision required by the particular venue where a case is drawn, and within the domain of philately, someone reading a catalog listing of an item for sale had better know whether what is being referred to is a duplicate of an existing stamp or is instead the result of a false cancellation mark. In a limited domain, where people are in agreement about a distinction and apply it consistently, the result will be refinement in communication and not the confusion invited by multiple interpretations of forgery versus fake as they are applied outside of those domains. It may be the confusion that lies in separating the terms that has led many experts and writers on forgery (as is the case for this writer) to use them synonymously. Art historian Otto Kurz, philosopher Nelson Goodman, art theorist Thierry Lenain, art critic Jonathan Keats, and philosopher Sándor Radnóti20 are only some who prefer to interchange the word “forgery” with “fake” and other terms.