Ashley was passionate about Conceptual art, but her pyromaniacal son had a different burning enthusiasm. After the firemen left, our client discovered that the extensive documentation on her collection had gone up in flames. A smoking mad Ashley phoned us with heated questions early the next day.<\/p>\n
\u201cSince Conceptual art is all about the idea being expressed in an artwork rather than its physical form, what exactly did my idiot son lose in the blaze?\u201d <\/p>\n
The answer, we said, depended on whether she still had the original certificates of authenticity that accompanied the art\u2014the paperwork that validates and sometimes provides instructions on how to build pieces that are often created and easily replicated from commonplace materials.<\/p>\n
\u201cThe certificates are toast,\u201d she said. \u201cWhat does that do to the art\u2019s value?\u201d<\/p>\n
\u201cFrom a financial point of view, it more or less extinguishes it,\u201d we answered. Certificates are used to authenticate Conceptual art, so losing a certificate means losing most\u2014if not all\u2014of the art\u2019s value. A collector can still enjoy a work, but probably can\u2019t sell it.<\/p>\n
Or get a tax deduction, for that matter. We know of one case where a cultural organization wouldn\u2019t recognize a donor\u2019s contribution of Conceptual artwork for tax purposes because the donor didn\u2019t have the original certificate of authenticity.<\/p>\n
\u201cBut artists are required to replace certificates, right?\u201d Ashley asked.<\/p>\n
Unfortunately, no. Many artists (and their studios) routinely refuse to reissue lost or destroyed certificates. To take just one example, the artist Dan Flavin\u2014who made sculptures out of fluorescent tubes\u2014regarded the original certificate as so integral to his work that he (and his estate, after his death) declined to give collectors duplicate certificates even if there was clear evidence that the work was authentic. And a Dan Flavin artwork without a certificate is basically an expensive reading light.<\/p>\n
\u201cBut certificates are just pieces of paper,\u201d protested Ashley hotly. \u201cWhy can\u2019t Conceptual artists simply issue new ones?\u201d<\/p>\n
\u201cFor the same reason a sculptor can\u2019t\u2014or won\u2019t\u2014simply make a new cast of a sculpture,\u201d we told her. \u201cFor many Conceptual artists, the certificate is the work.\u201d<\/p>\n
To be fair, many Conceptual artists are rightly concerned about legal repercussions if a lost certificate is found and there are suddenly two original certificates floating around. The extra certificate could allow someone to create an unauthorized second work\u2014a forgery. And the first work would no longer be unique. This is particularly an issue with Conceptual artists like Felix Gonzalez-Torres. He famously observed about his Untitled (A Corner of Baci), 1990, which was composed of a pile of\u00a0 chocolates available for visitors to take and eat, \u201cAll these pieces are indestructible because they can be endlessly duplicated.\u201d<\/p>\n
\u201cWhat if I locate copies of the lost certificates?\u201d asked Ashley.<\/p>\n
\u201cBetter than nothing,\u201d we said, \u201cbut savvy buyers\u2014and the major auction houses\u2014typically require the original documents for a sale.\u201d It\u2019s just too easy to make forgeries by photocopying legitimate certificates belonging to authentic works.<\/p>\n
\u201cDo you know of any recent legal cases involving lost certificates for Conceptual art?\u201d asked our client. Actually, we did.<\/p>\n
In 2012, Puerto Rican art collector Roderic Steinkamp sued Chicago\u2019s Rhona Hoffman Gallery in New York State Supreme Court for $1.4 million in damages after Hoffman apparently lost the signed certificate of authenticity to artist Sol LeWitt\u2019s Wall Drawing #448, which was originally realized in 1985 in a private residence in Cambridge, Massachusetts. In 2008 Steinkamp had consigned and delivered to the gallery a small representation of the work as well as the certificate, which set forth exact instructions about how to create the wall drawing in a different setting. Steinkamp claimed that the gallery had not acted as a proper caretaker of such valuable property.<\/p>\n
The gallery reportedly tried to settle the dispute by asking Steinkamp to suggest the lowest amount he would accept as compensation, but the collector refused.<\/p>\n
According to the complaint: \u201cThe unique nature of Sol LeWitt\u2019s wall drawings renders their accompanying certificates of authenticity critical to the works\u2019 value.\u201d It also points out that every LeWitt certificate reads, \u201cThis certification is the signature for the wall drawing and must accompany the wall drawing if it is sold or otherwise transferred.\u201d<\/p>\n
Steinkamp sued in New York because he had delivered the piece there. A few weeks after the suit was filed, the parties reached an undisclosed settlement out of court. The gallery\u2019s insurance refused to cover the loss.<\/p>\n
\u201cIf only there were insurance for this kind of thing,\u201d huffed Ashley.<\/p>\n
Actually, though our client had failed to take advantage of it, such insurance does now exist. Just this year, insurance brokerage firm Crystal & Company\u2014a leading adviser to financial institutions and art collectors\u2014teamed up with AIG Private Client Group to offer insurance for Conceptual art pieces that compensates collectors if a certificate is lost or damaged. Executive vice president Jonathan Crystal explains that when he originally asked AIG if certificates were covered, the insurer\u2019s response was \u201cof course.\u201d However, based on his close reading of AIG\u2019s policy, Crystal wasn\u2019t so sure. That ambiguity led his company to add a simple endorsement to policies issued by AIG clearly stating that lost certificates are covered\u2014at no additional cost. As Crystal points out, \u201cWhen millions of dollars are at stake, people become very granular about contractual policy language.\u201d<\/p>\n
We told Ashley that certificates of authenticity are so important for Conceptual art that one of the first questions a buyer of such a piece should ask is whether the seller has a certificate\u2014although in our experience this question often comes as an afterthought. Once a collector has a certificate, it should be stored in as safe a place as a physical artwork would be stored, and not in a loose-leaf binder with one\u2019s business papers, as many people mistakenly do. Collectors should ensure that their heirs also clearly understand the importance of these documents.<\/p>\n
Ashley\u2019s next question was a good one. \u201cDo I still own the copyright to the Conceptual works, allowing me to reproduce them? Or did I lose the copyrights in the fire too?\u201d<\/p>\n
There may have been no copyright to own, we explained, since Conceptual works are mainly ideas, and under U.S. law, ideas are not copyrightable. Moreover, copyright to the physical manifestation of the ideas\u2014the artworks\u2014would likely have been retained by the artists.<\/p>\n
\u201cWhat about the lost bills of sale for the works?\u201d Ashley asked. \u201cCan I get those replaced?\u201d<\/p>\n
The answer was maybe. In our experience, reputable galleries will often replace a lost bill of sale, which serves as both a receipt and evidence of the sale. The bill normally describes the artwork, parties, price, terms of payment, and date and place of sale. The buyer typically keeps the original signed by the artist or seller, while the seller keeps a copy. Some artists\u2019 studios will even issue appraisals of works without certificates even if they won\u2019t reissue the certificates themselves.<\/p>\n
We suggested that Ashley check to see if her homeowner\u2019s insurance coverage extended to valuable papers such as bills of sale and other documentation regarding her artwork, as some policies do. Under such coverage, the insurer would pay for the time and effort of having someone reissue the papers and restore the files.<\/p>\n
\u201cIt seems as though losing a certificate of authenticity is worse than losing a bill of sale,\u201d Ashley observed.<\/p>\n
\u201cCorrect,\u201d we replied. As Jonathan Crystal put it: \u201cIf your wedding license goes up in flames, it doesn\u2019t mean you\u2019re not married, but without your certificate of authenticity, your artwork no longer exists.\u201d<\/p>\n
Ashley was so inflamed by her predicament that she asked if we would write a column about lost certificates. Her one request? That it not be a puff piece.<\/p>\n
Thomas and Charles Danziger are the lead partners in the New York firm Danziger, Danziger & Muro, LLP, specializing in art law. Go to Danziger.com for more information.<\/p>\n
Some facts have been altered for reasons of client confidentiality or, in some cases, created out of whole cloth. Nothing in this article is intended to provide specific legal advice.<\/p>\n
A version of this article appears in the November 2015 issue of Art+Auction.<\/p>\n