The Perfect Fake: Creativity, Forgery, Art and the Law

DePaul Journal of Art, Technology & Intellectual Property Law Volume 15 Issue 1 Fall 2004 Article 2 The Perfect Fake: Creativity, Forgery, Art and the Law Michael J. Clark Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation Michael J. Clark, The Perfect Fake: Creativity, Forgery, Art and the Law, 15 DePaul J. Art, Tech. & Intell. Prop. L. 1 (2004) Available at: https://via.library.depaul.edu/jatip/vol15/iss1/2 This Lead Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. Clark: The Perfect Fake: Creativity, Forgery, Art and the Law LEAD ARTICLE THE PERFECT FAKE: CREATIVITY, FORGERY, ART AND THE LAW Michael J. Clark, J.D., Ph.D.* I. INTRODUCTION ... [I]f it is later proven that the painting had been wrongly attributed to a master when it was the work of a student, what is left but the painting? - Scott Hodes, 'Legal Rights in the Art and Collectors' World' ' Art [is] the truly metaphysical activity of man.... [T]he existence of the world is justified only as an aesthetic phenomenon. - Friedrich Nietszche, 'The Birth of Tragedy'2 The more total society becomes, the greater the reification of the mind and the more paradoxical its effort to escape reification on its own ... To write poetry after Auschwitz is barbaric. * Assistant Professor of Literature, Film and Law, Department of Engkish, Portland State University. 1. SCOTT HODES, LEGAL RIGHTS IN THE ART AND COLLECTORS' WORLD 44 (1986). 2. FRIEDRICH NIETZCHE, THE BIRTH OF TRAGEDY 22 (Walter Kaufmann trans.) (1967). Published by Via Sapientiae, 2016 1 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 15, Iss. 1 [2016], Art. 2 DEPA UL J. ART. & ENT. LAW [Vol. XV: I - Theodor Adorno, 'Prisms'3 Great art remains stable and unobscure because the feelings that it awakens are independent of time and place, because its kingdom is not of this world. - Clive Bell, 'Art'4 ... [A] 11 the rulers are the heirs of those who conquered before them.. .Whoever has emerged victorious participates to this day in the triumphal procession in which present rulers step over those who are lying prostrate. According to traditional practice, the spoils are carried along in the procession. They are called cultural treasures, and a historical materialist views them with cautious detachment. For without exception the cultural treasures he surveys have an origin which he cannot contemplate without horror. They owe their existence not only to the efforts of the great minds who have created them, but also to the anonymous toil of their contemporaries. There is no document of civilization which is not at the same time a document of barbarism; barbarism taints also the manner in which it was transmitted from one owner to another. - Walter Benjamin, Theses on the Philosophyof History5 Legal concerns surrounding the forgery of artworks are often deeply vexing, largely because such questions inevitably demand the kind of interdisciplinary discussions that the law is ill suited to 3. THEODOR ADORNO, PRIsMs 34 (Sherry and Samuel Weber trans.) (1990). 4. CLIVE BELL, ART 102 (1949). 5. Walter Benjamin, Theses on the Philosophy of History VII, in ILLUMINATIONS 256 (Harry Zohn trans., Hannah Arendt ed.) (1968). https://via.library.depaul.edu/jatip/vol15/iss1/2 2 Clark: The Perfect Fake: Creativity, Forgery, Art and the Law 2004] THE PERFECTFAKE undertake. For example, questions about the forgery of paintings invariably raise questions about the very elements that constitute "originality" and "authenticity" from an artistic perspective.6 Although such terms have grown to possess specific legal meanings, particularly in the area of copyright law, they are more properly suited to the aesthetic dimension. Such questions place legal practitioners in a difficult spot. In spite of the generally omnivorous and insatiable character of legal thinking, forays into the world of art and aesthetics have often been greeted with skepticism by the very lawyers and judges charged with such ventures. The reasons have much to do with a series of unstated presumptions about the role of art in its relation with the larger "society." That is, many hold that the artistic sphere is by nature exempt from rules that operate in other social arenas.7 Prohibitions against censorship are just one manifestation of such beliefs. But there is a simpler, more straightforward reason for the tendency of judicial reason to avoid substantive discussions of works of art as well-a lack of expertise. Judges are, in general, well versed in legal reasoning and history, but may well be generally ignorant of the central issues, themes, and historical circumstances that drive the art world. In this regard, law's relation to art is much (though not wholly) like law's relation to religion: to the largest extent possible (and at least in principle), it adheres to a position of carefully guarded non-interference. This attitude is famously articulated by Oliver Wendell Holmes in Bleistein, v. Donaldson Lithography Co., where he supported a plaintiff's right to copyright a circus poster: 6. Copyright law demands that works of authorship (i.e., anything owing its existence to an author) possess a de minimis level of originality in order to receive protection from infringement. 17 U.S.C. § 102 (a). 7. The strongest statement of art's autonomy is found in Immanuel Kant's Critique of Judgment, where he points out that judgments of art (unlike more pragmatically concerned judgments) are the product of an "entirely disinterested satisfaction or dissatisfaction." Such a posture underscores the belief that art is exempt from the demands of everyday life. IMMANUEL KANT, THE CRITIQUE OF JUDGMENT 55 (1931). Published by Via Sapientiae, 2016 3 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 15, Iss. 1 [2016], Art. 2 DEPA UL J. ART & ENT. LA W [Vol. XV: I It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke... At the other end, copyright would be denied to a 8 public less educated than the judge. Justice Holmes' admonition has served as a touchstone of American copyright law for almost a century, but it has implications far beyond the particular circumstances it addressed. First, his elitism is apparent: He presumes that the "public" (who he apparently assumes has less well-developed aesthetic sensibilities than other segments of the population) would reject any art form with which they were not wholly familiar.9 Further, he assumes that judges - given their education and tolerance - would be more open to new forms. This is a highly dubious presupposition. But most important for our purposes here, Justice Holmes points out perhaps the central aesthetic and legal paradox regarding forgery of works of art: the question of the creative act and its embodiment as the "signature" of an authentic work. When pressed, one finds that the law is indeed ill equipped to understand the forgery of works of art qua art. Or, to use a slightly different formulation, we might say that law must engage in a form of translation of the work itself into a fungible commodity when concerned with the forgery of artworks. To be addressed 8. Bleistein v. Donaldson Lithographing, Inc., 23 S. Ct. 298 (1903). 9. One wonders, for instance, what Justice Holmes would have thought of rap or hip-hop music. The innovative and anti-elitist elements of rap and hip- hop are apparent to anyone who has ever listened to such music, and its appreciation is obvious to the uneducated public that mills about in the background of Justice Holmes' world. Indeed, it is likely that an "educated" judge would be more likely to be "repulsed" by some of the elements of the most radical moments in rap. https://via.library.depaul.edu/jatip/vol15/iss1/2 4 Clark: The Perfect Fake: Creativity, Forgery, Art and the Law 2004] THE PERFECTFAKE appropriately, art must become an object of property and contract in the eyes of the law. In what follows I shall attempt to discuss three separate elements in legal and aesthetic considerations of the forgery of paintings. First, I will discuss the question of the authentic work itself. In that section I offer various definitions of forgery, as well as of ancillary terms such as authenticity, originality, and creativity. My central concern will be the development of an aesthetic understanding of genuineness as a component in our apprehension of a work of art, as well as aesthetic theories which address the question of what art does for us. Second, I will raise questions about authenticity or genuineness in an era of mechanical reproduction. What, for instance, do we make of mass-produced artworks of the sort produced by Andy Warhol in the sixties and seventies of the twentieth century? How does Warhol's work challenge notions of aesthetic authenticity? In that context, I will briefly discuss Walter Benjamin's famous essay, "The Work of Art in the Age of Mechanical Reproduction," where he argues that although the perfectly reproduced work of art (as in a reproduction of the Mona Lisa) may fulfill the central demands of an aesthetic experience of the work, there is still something lacking - a nebulous element he calls the work's "aura." I will also address some troubling questions raised by Nelson Goodman in his book Languages of Art, particularly his questions about the relevance of a "perfect fake" to the act of aesthetic appreciation.

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