This story begins where most would end. At the end of April, a father and a daughter –Erwin Bankowski AND Karolina Bankowska– pleaded guilty in Federal District Court in Brooklyn to selling counterfeit works attributed to artists such as Banksy, Pablo Picasso AND Andy Warhol which had been produced by an artist in their native Poland whom they had commissioned. More than 200 of these forgeries were sent to auction houses in the US, reaching a total of about $2 million in sales. The pair will be sentenced in August and are likely to serve time in prison before being deported to Poland.
The question is what will happen to those 200+ paintings. Will they be destroyed? Will they be kept in the government’s evidence lockers? Is there a chance they will find their way back into the art market? Bankowska’s court plea agreement stipulates that she “disclaims any ownership…right, title or interest” in any previously sold artwork and that she will “surrender to the government” any remaining forgeries in her possession. What the government will do with those items — and what the buyers of these forgeries will do with the paintings they bought — remains unclear.
“I expect that the items in government custody will remain there at least through sentencing and resolution of any forfeiture or restitution issues.” Todd A. Spodekthe New York City attorney representing Karolina Bankowska told the Observer. After that, he doesn’t know. “Some works may be returned with documentation reflecting their relevance to the case. Others may be retained for evidentiary or archival purposes. It is also possible that some works may be confiscated or destroyed.”
But the most likely outcome is that these fakes, like fakes in other cases, will simply return to the people who spent good money on them. “It’s their property,” he explained Jane Levinea former member of the US Attorney’s Office who worked in the art crimes division between 1996 and 2006 and is currently the managing partner of the Art Risk Group. “It’s not illegal to keep it.” In fact, many buyers keep fake artworks—perhaps as evidence in civil lawsuits against the individuals or companies who sold them the forgeries, or simply because they make an interesting conversation piece.
HAD 10 civil cases filed against Knoedler Gallerywhich closed its doors in 2011 after it was revealed that around 40 paintings had been sold as Willem de Kooning, Robert Motherwell, Jackson Pollock, Mark Rothko and others was actually painted by a Chinese artist who produced these works in his garage in Queens, New York and sold it to the gallery through a broker. All 10 were settled out of court, so there was no court ruling on what should happen to the fakes. (“I had six or seven Knoedler forgeries hanging in my office—they were Pollocks and Rothkos—but I gave them back to my client a few years ago.” Luke Nick(a Manhattan attorney who represented the late Knoedler gallery director, Ann Freedman, told the Observer.) Those litigants may have destroyed them. At least one of Knoedler’s forgeries, purported to be a painting by Robert Motherwell, was stamped on the back of the canvas to identify it as a fake by the Dedalus Foundation, which owns the copyright to the artist’s works.
Labeling the back of a forgery was standard practice for the FBI in the 1980s, according to Jim Wynnea partner and founder of the Art Risk Group, who has worked in the federal agency’s art theft squad for 30 years. “Sometimes, they put a fluorescent pen mark on the back to show it was evidence in a criminal case,” he told the Observer. Someone with an ultraviolet or black light would be able to see that fluorescent mark, raising the alarm that the artwork in question was fake. Such notation appears to be less common today, based on the assumption that experienced buyers and sellers have greater access to information about artworks—for example, through an artist’s catalog raisonné, a compendium of all known works by a given artist that lists when and where they were created, exhibited, and sold. Works not included in a catalog raisonné are assumed to be inauthentic. Some artist estates maintain authentication committees, made up of art and other experts, who decide which works of art brought to their attention are authentic.
Another result for works identified as forgeries by law enforcement is that they are kept in evidence cabinets forever. “You can’t put art back on the market,” Wynne said. But when fakes and fakes are returned to the people who paid for them, there’s no guarantee they won’t eventually be sold again, with or without disclaimers. The original buyer may not try to pass it off as authentic, but “when that person dies, the children or grandchildren say, ‘Wow, look at this Picasso!’ The label on the back may have fallen off, the seal may have faded.”
One thing that doesn’t tend to happen – at least officially – is destruction; many works of art that initially do not appear to be “genuine” (the art world term for an object that can be misinterpreted, misattributed, or an outright forgery) later turn out to be authentic, based on new studies. “Many paintings originally thought to be by Rembrandt were later reattributed as created by a follower of Rembrandt or a pupil of Rembrandt.” Arthur Branda Dutch art investigator told the Observer. “But opinions change all the time, and some paintings that were reduced to not being by Rembrandt later turned out to be by the artist. You don’t want to ruin something that might turn out to be important.”
BBC TV show ‘Fake or Fortune?’, hosted by Fiona Bruce and British art dealer Philip Mold since 2011, has been inviting people to submit artwork for evaluation and has seen this phenomenon firsthand. In 2017, a sculpture that both hosts called “worthless” was later identified as an authentic work by the Swiss sculptor. Alberto Giacometti and sold two years later at Christie’s for £500,000. However, when another British owner brought a painting from Marc Chagall for which he had paid £100,000, the show’s producers sent it to the Chagall authentication committee, which declared it a fake and destroyed it. French law allows those responsible for an artist’s estate to destroy works they consider to be counterfeits, a provision that prompted the British owner to file a lawsuit against the show’s producers.
There are similar laws in China, Greece and Italy, but “other countries are reluctant to sanction the destruction of works of art,” Brand said. “Experts can be wrong. Something that doesn’t seem right can turn out to be authentic.”
Unlike the FBI, US Customs and Border Protection makes a concerted effort to ensure that fakes and counterfeits do not find their way back into the marketplace. According to a CBP spokesperson, “Counterfeit goods, including works of art, encountered by CBP are detained while the authenticity of the item is verified. If the goods are found to be counterfeit, the goods are seized and forfeiture proceedings are initiated. The goods are stored until the forfeiture process is completed, after which all goods are destroyed.”
More for art collectors
