Standardizing Warhol: Antitrust Liability for Denying the Authenticity of Artwork
32 Pages Posted: 26 Apr 2010 Last revised: 2 Jul 2014
Date Written: February 1, 2011
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.
Keywords: Andy Warhol, Warhol, Authentication, Antitrust, Standardization, Standards, Certification, Twombly, Authentication Committee, Andy Warhol Foundation
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