Will the Real Warhol Please Stand Up?

Law student Gareth Lacy, from the University of Washington School of Law, has just published a law review article concerning the Simon-Whelan v. Andy Warhol Foundation authentication lawsuit. The article, Standardizing Warhol: Antitrust Liability for Denying the Authenticity of Artwork, also covers what Lacy calls the “rise of class action lawsuits in the artworld.” The article was published in the Washington Journal of Law, Technology & Arts. Here’s the abstract:

Art authentication boards are powerful; their determinations

of authenticity can render artwork worthless or add

millions of dollars to market value. In the past, boards that

denied authenticity of artwork typically risked tort liability

for disparagement, defamation, or fraud. In Simon-Whelan v.

Andy Warhol Foundation for the Visual Arts, Inc., however,

an art collector alleged monopolization and market restraint

after an authentication board denied the authenticity of his

Andy Warhol painting by stamping “DENIED” on the back of

it. The case is the first antitrust lawsuit against an authentication

board to survive the defendant’s motion to dismiss.

The decision therefore suggests potential liability exposure

under the Sherman Antitrust Act for art professionals who

render opinions on the authenticity of artwork. This Article

discusses how Simon-Whelan provides a framework for

pleading antitrust claims against authentication boards and

considers what standard could be appropriate for analyzing

similar claims at trial. This Article also describes how

antitrust law governing standards setting and product

certification outside the art world could apply to art authentication

and organizations setting authenticity standards.