What’s a certificate of authenticity? Who can authenticate? Why is it important to certify the authenticity and the provenance of artworks? Luca Poli of Maelström Art Gallery analises Italian legal profiles of this complex topic.
As we know, the aim of such certification procedures is to protect buyers and then to ensure the proper functioning of the art market. For this reason, the rules that govern their drafting, circulation and validity apply regardless of whether the works sold are ancient, modern or contemporary.
Who can authenticate artworks?
Under the provisions of Italian Law No 633 of 22 April 1941, the right to authenticate artworks lies, in the first place, with the author and, after his/her death, with the heirs, foundations/archives and experts.
It is quite clear that a certificate of authenticity, when it was not released directly by the artist, can be contested. In fact, the heirs and/or other authorised parties can only express a simple opinion about the attribution of authorship. As a result, even a motivated and authoritative opinion issued by technical consultants of the court can always be challenged by an other expert.
Without going into the merits of liability arising from false certifications, which are not the subject of this article, we can safely say that experts can be held accountable for their actions only in cases of wilful misconduct or gross negligence.
What is the content of a certificate of authenticity?
The law doesn’t indicate any specific content requirements to render a certificate of authenticity valid. Even art. 64 of Italy’s Consolidated Law on Cultural Heritage (“Testo Unico dei Beni Culturali”), entitled “Certificates of authenticity and origin”, only refers to generic “documentation” or “declaration”.
The experience and the case law, however, have established the practice of delivering to the purchaser a photographic reproduction of the work, with a declaration of authenticity and a description of the work (author, title, technique, size, year of creation, origin) written on the back of such photographic reproduction. Naturally, this declaration must be signed by the artist (or by other persons who authenticated the work) and the professional seller.
Who must deliver the certificate of authenticity?
Anyone who sells art professionally (galleries, dealers, etc.) is obliged to provide certificates of authenticity and attribution of the works sold.
In particular, the aforementioned Article 64 states that “Whoever carries out retail activities, the exposure for the purposes involving the sale or trade brokerage of paintings, sculpture, graphics or objects of antiquity or historic or archaeological interest, or otherwise normally sells the works or objects described above, is obliged to provide the purchaser with documentation certifying the authenticity, or at least the probable attribution and provenance; or, failing that, to release, in the manner provided for by the laws and regulations on administrative documentation, a statement containing all information available about the authenticity or the probable attribution and provenance. Such declaration, if possible in relation to the work or nature of the object, shall be placed on a photographic copy of the same.”
Note that the Article above also provides for the cases in which the art trader doesn’t have the certificate of authenticity. In such a case, the seller has to draft a declaration (accompanied by a photo of the work, where possible) including all the available information.
Which are the consequences of failure deliver of the certificate of authenticity?
The Consolidated Law on Cultural Heritage doesn’t provide a specific penalty for professional sellers who do not issue a certificate of authenticity and attribution. This doesn’t mean that there are no legal consequences.
In fact, a refusal to issue such certificate can lead to the termination of the contract for the sale of the artwork.
Maelström Art Gallery
[The information contained in this article are to be considered general and therefore do not replace the specific advice of a professional. The author can not be held responsible for any errors or omissions.]
Cover Image: Nicola Bertellotti, The infinite moment, stampa fine art, 90X135, 2015
This post is also available in: Italian