The Orange Balloon Dog

by Don Thompson

  Art adviser Jaime Frankfurt acted as an agent in the sale to Howard. When Frankfurt learned of the alleged deception he returned his $500,000 commission, which was about seventy times what Qian had been paid for creating the work. Dealer Richard Feigen was also an intermediary in selling a Knoedler fake. He also returned his commission, then sued Knoedler and Freedman. That case settled privately.

  Howard and others filed nine other lawsuits against the gallery and Freedman. Other publicly identified plaintiffs include Domenico De Sole, the retired CEO of Gucci and current chairman of Sotheby’s, and his wife, Eleanore. They paid $8.3 million for a Rothko. Nicholas Taubman, the former US ambassador to Romania, paid $4.3 million for a Clyfford Still. Knoedler had paid Rosales $950,000 for the Rothko and $600,000 for the Still.

  Ann Freedman stated in a court filing that she showed the paintings brought by Rosales to “approximately fifty renowned art experts.” She said that some “unambiguously conveyed that the works were genuine.”61 She on several occasions cited Robert Motherwell’s wife, the artist Helen Frankenthaler, as viewing one of the fakes and saying “Yep, it’s Bob.”62

  The other experts Freedman listed (without identifying the some who agreed “the works were genuine”) included E.A. Carmean, former curator of the National Gallery of Art, and Mark Rothko scholar David Anfam. Anfam, an expert on abstract expressionism and author of the Rothko catalogue raisonné, later stated that he had never authenticated the works but had written a positive email to a Buffalo museum that was considering acquiring what turned out to be a Qian Barnett Newman. The Dedalus Foundation wrote in 2007 that it would include a Motherwell in its next compendium of that artist’s work. Two years later it wrote to say the work would not be included.

  The De Soles said in a pretrial statement that “every independent witness … confronted with [the statements Freedman cited] … denied making them.”63

  The late art dealer Ernst Beyeler authenticated two of the Qian Rothkos, describing one as “sublime,” and exhibited them at the Fondation Beyeler in Basel. David Mirvish, a Canadian collector and former dealer, brought artist Frank Stella to Knoedler to see the paintings. Freedman in her court testimony quoted Stella as concluding that each painting looked too good to be true, but seeing them in a group, in context, convinced him that they were authentic.

  Scholars requested some of the paintings for exhibit. Fifteen works were shown at leading art fairs. The Solomon R. Guggenheim Foundation borrowed what turned out to be a Qian Barnett Newman, for exhibit in 2007–08 at the tenth anniversary show of the Guggenheim Bilbao Museum. Two Qian Pollocks were stamped with the Pollock-Krasner Foundation copyright, meaning that the foundation had verified them. These were included in a book about the artist, published by Taschen.

  Jack Flam, president of the Dedalus Foundation—which updates the Motherwell catalogue raisonné—said he told Freedman in December 2007, “We believed … [the Rosales Motherwells] were not authentic.”64 Several other experts questioned individual artworks or their backstories. The Richard Diebenkorn Foundation challenged several works, and later informed the Kemper Museum of Contemporary Art in Kansas City that a Diebenkorn acquired in 1997 for $110,000 was not authentic.

  The fraud was confirmed when a Qian Pollock purchased by Pierre Lagrange for $17 million was submitted to the Orion Analytical lab in New York for testing. The lab found that the oil paint contained a pigment not commercially available until 1970. Pollock died in a car crash in 1956.

  The De Sole case went to trial before a Manhattan jury in January 2016. The plaintiffs asked $25.3 million in compensation for the fake Rothko, including damages. The central issue was whether Freedman knew, or that circumstances were such that she should have known, that the works she sold were fake. The allegations against Freedman, the gallery and its owner, 8-31 Holdings, included fraud, deceptive trade practices, breach of warranty and false advertising. Charges were filed under the Racketeer Influenced and Corrupt Organizations Act, which was originally intended to prosecute organized crime and allows for monetary judgment up to three times the amount lost. The defendants continued to deny knowledge of the fakes.

  Three weeks into the trial, Freedman settled with the De Soles. Freedman would still have to testify as to her state of mind at the time of the sales. The next day Knoedler and 8-31 settled with the De Soles, ending the lawsuit. Lawyers would not disclose the terms. This left unanswered questions that a jury verdict might have resolved: Do sophisticated buyers have a greater obligation to research authenticity on their own? What steps must galleries take to establish due diligence in regard to fraud? Was Knoedler justified in ignoring the red flags that seem to have appeared?

  Glafira Rosales avoided a long prison sentence for her part in the crimes she admitted to - fraudulent conspiracy, wire fraud, and money laundering. She spent 82 days in jail following her initial arrest. In mid-2017 the Manhattan district judge cited Rosales’s cooperation and sentenced her to prison time served, plus nine months in home detention as part of three years of supervised release. The sentencing guideline for the charges she pleaded to was 12 to 15 years.

  Where are the Qian paintings now? Two are in museum storage, others are with known collectors. Other works were resold with no records available. One Qian Motherwell is in the possession of the FBI, which is keeping the work “for educational purposes.”

  Who is this genius forger? Qian Pei-Shen lived in China during the Cultural Revolution, and generated notice for his paintings of Mao Zedong. He moved to New York in 1981 to attend classes at the Art Students League. To support himself he worked as a janitor, then as a street artist on West 4th Street. He charged $15 for a portrait.

  One day a passerby brought him a picture and offered him $200 to reproduce it as a painting. The customer was José Carlos Bergantiños Díaz, who later introduced Qian to Rosales. An FBI investigator said Bergantiños was the one who was said to have forged artist signatures and treated the canvases to age them. He was arrested in Spain in 2014 on fraud charges. The US government sought to extradite both Bergantiños and his brother Jesús Ángel Bergantiños Díaz.

  Rosales and Bergantiños operated King Fine Arts, a modest gallery on West 19th Street in Manhattan. They almost certainly could not have sold the paintings through their King gallery; they needed the Knoedler history and brand to made the offering of undocumented works plausible.

  In a 2014 interview with Diane Sawyer of the ABC News program Nightline, Qian said he had created the paintings but did not know that they would be sold with attributions to other artists, that Bergantiños told him the paintings were for art lovers who could not afford the real thing. “I made a knife to cut fruit. But if others use it to kill, blaming me is unfair.” Qian said that he now lives in a one-bedroom apartment in Shanghai, surrounded by hundreds of paintings signed in his own name. In late 2016, a book was in preparation about his life and work.

  The Qian story is incredible in part because the conventional path to faking another artist’s work is for the forger to study the artist and the artist’s life, to “become” the artist. David Stein, who created work attributed to Matisse, Chagall, Picasso and Degas, has said, “You have to know intimately the artist you are imitating … when I painted a Matisse, I became Matisse, when I painted a Picasso I was Picasso.”65

  Qian did none of these. He just stood at an easel and mimicked the style of an artist whose work he saw in an art-book illustration. Qian did not produce copies, but new compositions containing components of original paintings. One week he did a Rothko that fooled Rothko experts. The next week he produced a Motherwell that fooled other experts.

  The most surprising aspect of the Qian story is the misplaced reliance on dealers, curators and other art experts to certify authenticity. Buyers relied on the Knoedler brand, that of the less well-known Weissman gallery and the story of Mr. X as a substitute for a documented history for each artwork. In many cases they purchased without consulting a lawyer or an art adviser. One reason was
that buyers feared losing the opportunity to purchase through the delay that involving a third party would produce.

  But consider: no one would purchase a $10-million property without a condition report and a search of legal title. In the art world, some sophisticated buyers will acquire a $10-million artwork lacking documentation, perhaps not from King Fine Arts on West 19th Street but with the reassurance of a better-known dealer brand. Even experienced gallerists did this. Richard Feigen was quoted as saying, “I overly depended on Knoedler’s reputation … I didn’t examine it with the care I would have with an individual or gallery with less of a reputation.”66

  Buying from an auction house is not necessarily safer than buying through a dealer. Auction houses perform their own due diligence; however, they limit their liability. The “Terms and Conditions” in an auction catalogue state that the auction house warrants only the description for an item in boldface or italics, not the other information provided. To cancel the sale, a buyer must generally bring proof to the auction house within four years of purchase that a work is fake. However, many buyers do not learn there is a problem until they attempt to resell.

  A detailed, traceable provenance is one reassurance of authenticity for buyers. However, previous owners often do not want to be identified. Evidence of prior ownership can be forged. This makes due diligence problematic. One partial solution is for a buyer to sign a confidentiality agreement if the gallery will disclose the previous owner’s name and any other information it has on the history of the work. The agreement is that information provided can be disclosed only if there is subsequent evidence of fraud, or on resale to a buyer who executes a similar agreement. Auction houses will not do this.

  ***

  A unique art authentication case—and another example of the litigious world of contemporary art—surfaced in mid-2016. Peter Doig, a fifty-seven-year-old British-Canadian artist living in London, was shown a photograph of a 1976 painting thought by the owner to be by Doig. The artist said the work, signed “Doige,” was not his.

  The owner was a sixty-two-year old retired Canadian prison officer named Robert Fletcher. When Doig disclaimed the painting, Fletcher sued, asking for a court declaration of authenticity plus $7.9 million in damages and costs. Although Doig was in England and Fletcher lives in Thunder Bay, ON, the suit was filed in a Chicago court—because the painting was then in the possession of a dealer in that city who helped to fund the lawsuit. The claim was that Doig took art classes at Lakehead University in Thunder Bay for a year as a teen, and was later incarcerated in that city on a drug charge. Fletcher said the painting was done in 1976 while Doig was in jail; Fletcher later purchased it for $100.

  Doig said in his response that he had never been in Thunder Bay, either as a student or an inmate, that he grew up in Toronto and attended art school in England. Doig was sixteen or seventeen when the painting was created. He attempted to gather documentation to prove his whereabouts in 1976, a task many would find challenging.

  The concern about authenticity was understandable. One authentic Doig painting brought $26 million at auction.

  Doig’s lawyers asked the Chicago judge, Gary Feinerman, to dismiss the case because an artist should not be required to prove a painting was not done by him, and certainly should not be required to disprove it forty years after creation of the work. How would you do that for a good fake? Doig’s lawyers also argued that there was no basis for the case being heard in Illinois. To the amazement of everyone, probably including Fletcher’s lawyers, the judge initially allowed the suit to proceed to a jury trial in United States District Court for Northern Illinois.

  In August 2016, at a hearing and after seeing evidence of Doig’s whereabouts at sixteen, Judge Feinerman ruled that Doig “absolutely did not paint the disputed work” and that the creator was Peter Edward Doige, a carpenter and amateur painter who had since passed away.67 Feinerman dismissed the case.

  Legal claims are sometimes filed by a collector against an expert who has refused to authenticate a work of art. The Doig case raises the possibility of an artist filing suit against an expert who has authenticated a work that the artist disclaims, or against a museum that shows a work and attributes it to the artist.

  What would a Fletcher “win” in the Chicago suit have accomplished? If the artist and his dealer both claim the work is not authentic, it is unlikely a potential purchaser would give much weight to a legal opinion by Judge Feinerman that it is authentic. But then there seems little apparent logic to much of the litigation that takes place in the curious world of contemporary art.

  CHAPTER THIRTEEN

  GOVERNMENT-PLUNDERED ART

  “The purpose of a just government is to prevent plunder, not facilitate it.”

  —Glenn Beck, political commentator68

  WHEN YOU THINK OF ART THEFT, IT IS PROBABLY IN THE CONTEXT OF famous events such as the Rembrandt and Vermeer robbery of the Isabella Stewart Gardner Museum in Boston in 1990. If you think of theft by governing groups, the ISIS looting of historical sites in Syria and Iraq may come to mind.

  Less commonly recognized is state involvement in art theft. The example of the late Maria Altmann is recounted in the movie Woman in Gold. This is a 2015 British-American drama starring Helen Mirren and Ryan Reynolds. Altmann was a Jewish refugee in Los Angeles. For a decade, she and lawyer E. Randol Schoenberg petitioned Austrian officials to reclaim her family’s Portrait of Adele Bloch-Bauer I (1907), Gustav Klimt’s painting of her aunt. The Klimt painting shows the face of a Viennese aristocrat. It is highly recognizable, perhaps because it reminds the viewer of Klimt’s more famous work The Kiss, also painted in 1907.

  The Nazis took Adele and five other Klimt paintings from the Altmann family’s Vienna home in 1938. When Altmann’s uncle Ferdinand Bloch-Bauer died in November 1945, he left his estate to her, a nephew and another niece. Within a year of his death the Austrian government claimed ownership of five of the paintings. They were put on display at the Austrian Gallery Belvedere.

  Initially Altmann asked the Austrian authorities for three Klimt landscapes to be returned. She was prepared to donate two works to Austria: Portrait of Adele Bloch-Bauer I and another Klimt portrait of Adele from 1912. Her offer required the government to acknowledge her family’s ownership. The Austrian government ignored her.

  Altmann took her legal battle to the United States Supreme Court. In 2004 the court ruled in Republic of Austria v. Altmann that the Austrian government was not immune to a lawsuit. The dispute was then referred to a three-person Austrian tribunal, which unanimously awarded her four of the five paintings.

  The Austrian government lost a final appeal. Altmann reportedly then offered Adele to culture minister Elisabeth Gehrer, who had referred to the painting as Austria’s Mona Lisa, plus two of the other paintings. Altmann asked a below-market value compensation of $90 million. Another version of the story is that after the arbitration loss, Austria was entitled to keep the paintings if it paid Altmann fair market value, and that $90 million was Altmann’s opening offer. Altmann required the compensation to pay her extensive legal fees. Randol Schoenberg and his colleagues had represented her on a contingency-fee basis of 40 percent of the value of what was recovered. Gehrer rejected Altmann’s offer, calling the requested amount “extortionate.”

  The four paintings were shipped to the US in March 2006. Portrait of Adele Bloch-Bauer I was sold to cosmetics heir Ron Lauder for $135 million, at that time the highest sum known to have been paid for a painting. Since July 2006, Adele has been on public display in Lauder’s Neue Galerie in New York City. The other paintings sold at auction for $190 million. Together with Adele Bloch-Bauer I the total was approximately $325 million, which after Schonberg’s fee was divided among heirs and charities.

  Gehrer’s “extortionate” $90-million rejection seemed at the time a huge political and economic misjudgment. The political cost to the party in power in Austria of paying $90 million and keeping the paintings would, in retrospect, have
been less than the cost of not paying and losing part of the country’s cultural heritage. Whether there was economic misjudgment is less clear. The selling price of Adele and the other works was certainly inflated by the well-publicized backstory of the underdog overcoming the Austrian government.

  Altmann died in 2011, a week before her ninety-fifth birthday. Her story had a decent, if long-awaited ending. But there are other state-plundered artworks, some of them contemporary and most with less happy outcomes.

  ***

  The story of art plundered by the Nazis from 1935 to 1945—including the works reclaimed by Altmann—is well known. Less well known is art plunder in the 1970s and ’80s by the Stasi, the East German secret police. Their motive was not to remove “degenerate art” or to build a national collection, as with the Nazis, but rather to raise hard currency to help the German Democratic Republic’s communist regime (GDR) purchase oil and raw materials on global markets. The GDR produced few goods that were in demand by hard-currency countries. Western exporters did not accept the Ostmark currency. Selling art abroad was one source of convertible currency.

  Between 1973 and 1989, Kunst & Antiquitäten GmbH, the state corporation involved in art sales, seized 220,000 objects—including 10,000 paintings. Sales of art were reported as having generated $40 million a year. The corporation’s other enterprises included sale to the West of church relics and historic books from libraries, and ransoming of political prisoners to cross to West Germany. In total these activities brought $1 billion in Western currency. After the collapse of the GDR regime in 1990, the Stasi’s compulsive documentation of its activities provided detailed accounts of the seized art.

  In 2014, reports in the New York Times described the evolution of a seized-art case working its way through German courts. In March 1982, the Stasi entered the home of seventy-nine-year-old Dresden art collector Helmuth Meissner. The agents carted off almost anything of value. The justification was that any citizen with more than a few works of art must be an unlicensed art dealer, thus a lawbreaker. Meissner had not paid dealer taxes, so the state was due 90 percent of whatever value an official placed on his collection. When Meissner protested the seizure, the Stasi had him committed to a psychiatric hospital.