The Author of a Catalogue Raisonné is Not Required to Authenticate Artworks

Order of the Paris Judicial Tribunal, Interim Administration, October, 10 2024, No. 24/52939

An auction house was commissioned to sell a sculpture of Alberto Giacometti entitled “Femme Plate V” on behalf of a private individual. That individual asked the Alberto and Annette Giacometti Foundation to authenticate the sculpture, but the Foundation refused, calling it a "defective copy", not in accordance with the artist's original plaster, and not to be included in the catalogue raisonné written by the Foundation.

The auction house hired an independent expert, who compared the sculpture with another copy of the work belonging to the Pompidou Centre and concluded that the two works were identical. The same expert wanted to examine the copy belonging to the Giacometti Foundation, but the Giacometti Foundation refused, offering only to arrange a further examination by the Foundation’s committee of experts.

The auction house requested the Court to determine the authenticity of the sculpture on the basis of Article 145 of the French Code of Civil Procedure (CPC). That section allows pre-lawsuit investigations and findings of fact by the court if there are legitimate grounds for doing so, but not in cases where the legal claims involved are “doomed to failure.”

The Court rejected the auction house’s request. Although the Foundation argued that the owner of the sculpture had contractually waived any claims against the Foundation in his authentication application, and that the claim was time-barred because the authentication request had been made in 2014, neither of these was not the basis for the Court’s decision. Instead, the Judge simply found that the claims against the Foundation were “manifestly doomed to failure” because no action against the Foundation could succeed based only on the Foundation’s refusal to recognize the authenticity of the sculpture in question. The auction house conceded that the only basis for claiming against the Foundation was that the Foundation’s actions were abusive, and the Court determined that this could not be the case here.

The Judge went on to say that the holder of an artist’s moral rights, whether it is the artist, the artist’s estate, or a Foundation as in this case, does not have a duty to rule on the authenticity of each work presented to it. More specifically, on the question of the Giacometti Foundation’s responsibility not to authenticate the work, the court responded:

• That the holder of the moral right of an author cannot be liable for refusing to render an opinion on the authenticity of a work based on the analysis of a “committee of experts recognized in the field;”
• That the Foundation’s moral right to require respect for Giacometti’s name does not come with a duty “to decide on the authenticity of each work presented to it, nor, a fortiori, to modify its opinion each time it is presented with new elements.”

That, in this way, a Foundation such as the Giacometti Foundation is not a “compulsory certifier.”