By Karen Abidi, lawyer
Art forgery is a radical misrepresentation of an artist’s work, said Justice Vickery of the Victorian Supreme Court earlier this month, in Charles Blackman and Ors v Peter Gant and Anor  VSC 229. He ordered the destruction of fake art purporting to be by the renowned Australian artists Robert Dickerson and Charles Blackman.
Fake art is said to represent 10 per cent of the Australian art market. It damages the artists’ reputations and the market for their genuine works. It also harms art buyers and the broader art industry, as the circulation of fakes creates uncertainty and lack of confidence in the art market.
The artworks in this case were two drawings falsely attributed to Blackman, called “Street Scene with a Schoolgirl” and “Three Schoolgirls”, and one drawing falsely attributed to Dickerson, called “Pensive Woman”. Click here for images. They were not copies of the artists’ actual works, and therefore there was no issue of copyright infringement. They were drawn in the style of these artists, with false signatures. The judge stated that they were deliberately contrived to mislead the unsuspecting public.
The artists were the plaintiffs in the case. When the buyer of the fakes, an inexperienced art purchaser, found out that the drawings were forgeries, he returned them and received a refund. He suffered no loss and was not a party to the legal proceedings. The defendant was Peter Gant, a Carlton gallery owner, who gave valuations of the three drawings (of amounts reflecting that they were genuine) and was the seller of one of them.
Dickerson, now elderly, gave evidence at the trial that he did not draw Pensive Woman. He said he felt “a bit sick” when he first saw the work, and described it as “very bad work” and “bloody awful”. Blackman was unfit to give evidence at the trial, as he is afflicted by a form of brain damage that affects short-term memory. Expert evidence was given that the schoolgirl drawings were un-Blackman like and poorly drawn. The judge was left in no doubt that the art works were “fakes masquerading as the genuine article”.
The judge stated that a valuation not only gives a market value for the art, it also certifies its authenticity. A valuation is a representation that the art is by the particular artist. The giving of the valuations, and the sale of one of the drawings, was held to constitute misleading and deceptive conduct by Mr Gant in trade or commerce, in breach of section 9 of the Fair Trading Act (Vic) 1999. The judge ordered that the drawings be delivered to the artists for destruction. Robert Dickerson said that he would rip up the fake with his bare hands.
The judge made no finding that Mr Gant knew the drawings were forgeries or that he acted other than innocently. A person may engage in misleading and deceptive conduct in breach of the Fair Trading Act even if they act honestly and reasonably.
Following this decision, art dealers, galleries and auction houses that sell and value art will need to be confident of the authenticity of the art they are dealing with. There can be no “turning a blind eye” to art of questionable provenance. Since this court case, a Whitely said to be fake was withdrawn from auction in Melbourne, and another Whitely and a Dickerson of questionable provenance have been reported. This decision gives artists legal ground on which to seek to prevent trade in their fake art, and fosters certainty and confidence in the Australian art market.