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eNewsletter of the Arts Law Centre of Australia
Issue 2 June 2010

Artists Beware of Dealers Selling Fakes
By Moira C. McKenzie *

Art Forgery At The Louvre
uploaded to Flickr by cangaroojack
Licensed under a Creative Commons
Attribution 2.0 Licence
Art Forgery At The Louvre, uploaded to Flickr by cangaroojack. Licensed under a Creative Commons Attribution 2.0 Licence

A Victorian Supreme Court case in March 2010 brings hope to artists seeking to protect their reputations against art dealers selling fake artworks. The case, Blackman v Gant,1 involved eminent Australian artists Charles Blackman and Robert Dickerson bringing action against the art dealer who sold fake artworks under their names.

What happened

Melbourne businessman Robert Blanche, purchased three artworks – two Blackmans (Three Schoolgirls and Street Scene with Schoolgirl) and one Dickerson (Pensive Woman) – from Helen Stewart's Gretz Gallery. The supplier of the artworks was Peter Gant, trading as Gallery Irascible – Peter Gant Fine Art. Gant also later provided valuations of the artworks to Blanche.

Blanche realised the artworks were fakes when he had the works viewed by a Blackman art expert. Upon this discovery Blanche returned the works to the Gretz Gallery and was able to get a refund on the purchase price. Blackman and Dickerson were then alerted to the existence of the fake artworks, and took action against Gant on the grounds that he breached section 9 of the Fair Trading Act (Victoria). Section 9 states:

(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

In the Court

Gant maintained that the artworks were authentic; however Dickerson and Blackman were able to produce a significant amount of evidence to support the claim that the artworks were fakes. In giving evidence on Pensive Woman Dickerson said, "It looks absolutely, incredibly bad. What should have been a good drawing turned into a bloody awful one."

Gant argued that the valuations were merely opinion as to the worth of the artworks and thus could not be treated as false or misleading simply because they turned out to be incorrect. He relied on the cases of Elders Trustee v Reeves2 and Bateman v Slatyer & Ors3 to support this.

Justice Vickery examined the purpose of the valuations and found that while they were opinions as to the worth of the artwork he stated that 'it is open to conclude that the valuations also contained an implicit representation of fact that each of the works in contention were authentic works, each having been created by one of the Plaintiffs.'

Gant also argued that Blackman and Dickerson were strangers to the transactions between himself, Blanche and Mary Stewart, and as such did not suffer direct provable loss to justify bringing the action. On this issue Justice Vickery focused on the claim that the fake artworks had the potential to diminish the artists’ reputations and thus lower the value of their body of artistic works.

In support of this Mr Blackman's power of attorney, Tom Lowenstein, stated at the trial that ‘the fake Blackmans were "highly detrimental" to the artist's legacy in Australian art and reduced the value of genuine Blackmans on the market.’ Justice Vickery agreed with Lowenstein, saying 'the sale of forgeries led to reduced confidence in the artists' works and less demand for their pieces.’

In the end

Justice Vickery ordered an injunction to stop Gant selling or distributing the faked artworks and ordered that they be delivered to the artists so they could be destroyed. He could not make a ruling on whether Gant had knowledge that the artworks were fake or that he intentionally sold the fakes, but said 'nevertheless the breaches of the act were serious.'

What does this case mean for other artists?

This is an important case for artists as it means that they are able to bring an action against someone who sells and/or supplies fake works of art attributed to them on the grounds that it may harm their reputation, and consequently the value of their work in the art market.

Jennifer Dickerson, Robert's wife said, "It's a very good judgment to help all artists because we're not the only artists who are getting forged...I think it's just something that you've got to take the action to stamp it out, otherwise it just persists, doesn't it?"

The case focuses the spotlight on the dark side of art dealing and reminds artists that they need to be aware of who is selling their artworks. Artists should also be aware that when they sell an artwork they are only selling the physical work and not the intellectual property (ie., the copyright) attached to the work.

* Moira is a musician and passionate supporter of the arts currently studying Graduate Diploma of Legal Practice.
1 Blackman & Ors v Gant & Anor [2010] VSC 109 (31 March 2010)
2 Elders Trustee v Reeves 78 ALR 193 at 242
3 Bateman v Slatyer & Ors 71 ALR 553 at 539

Relevant Arts Law agreements and publications:
  • Sale of Artwork Agreement
  • Useful links:
  • Text of the Blackman v Gant decision
  • Email to a friend

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