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What Happens to Confiscated Art 'Fakes'?

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This story begins where most end. In 2001, after a four-year investigation and trial, Dewey Lane Moore pleaded guilty to one count of mail fraud in his attempt to sell through a Florida auction house almost 300 flea market pictures that he had knowingly attributed to Degas, Frankenthaler, Johns, Manet, Matisse, Picasso and a host of other renowned living and deceased artists. He was sentenced to six months house arrest and, as part of his plea agreement, Moore agreed to forfeit all but one of the 294 paintings to the FBI, which had confiscated the works during its investigation. So what did the Federal Bureau of Investigation do with all those pictures?

The FBI and the U.S. Postal Service, which also investigates counterfeit art frauds over the years, generally don't want to give the fakes back to the person convicted of selling, or trying to sell, them for fear that they will be used in a future scam. "You see the same artworks showing up again and again, sometimes three or four times," said Lynne Chaffinch, program manager for major art thefts at the FBI. The federal law enforcement agency maintains a database only of stolen art, not fakes and forgeries, but there is a high degree of overlap, because a large percentage of stolen art is actually counterfeit. "I see a lot of fakes," she said. "In the stolen art area, fakes tend to travel with the story that they're stolen. The works aren't shown around, and no one asks a lot of questions. No one goes to an appraiser to check on it."

Most counterfeit art cases are handled by one of the two federal agencies, in large measure because these frauds tend to be committed across state lines, involving multiple jurisdictions. The majority of charges are for mail fraud -- advertising in a publication or otherwise making a fraudulent solicitation through the mail -- or wire fraud, using the telephone for the same purpose. Which agency investigates the case may depend on who received a complaint first, although the FBI handles cases involving wire frauds. There is no federal statute against intentionally selling counterfeit property, such as artwork. There are such laws on the local level, although it is rare that complaints regarding art fakes are investigated to completion by local law enforcement. New York City, for instance, has laws against schemes to defraud, criminal possession of a forged instrument and larceny under false pretenses, and the penalties are more severe than under federal mail and wire fraud statutes. (The penalty for mail fraud is up to five years in prison, while larceny under false pretenses may result in up to 25 years.) However, New York law enforcement hasn't pursued a counterfeit art case in "more years than I recall, and I've been here a while," said a spokesperson for the Office of the New York City District Attorney.

What to do with counterfeit art is determined on a case-by-case basis, often dependent upon whether or not the owner knew that it was a fake. Proving fraud, intentional deception, is often quite difficult, according to Lawrence Katz, counsel for the inspection division of the U.S. Postal Service, because "in the very subjective world of the arts, people can simply make an honest mistake." There is little hope of obtaining a court order to destroy counterfeit property or pressuring an owner to forfeit it to law enforcement agents when there is only a question of an attribution in dispute.

When the FBI recovers a stolen -- albeit fake -- artwork, "in most cases, all we can do is return it," Chaffinch said. At times, agents will advise the owner that the work is a counterfeit, which implicitly puts that person on notice that the piece should not be represented as authentic in the event that it is sold, but works of questionable ownership and authenticity "tend to pass through various hands" before law enforcement is alerted that a crime has taken place, she added.

"The best way to insure that a counterfeit artwork doesn't resurface in the art world is to destroy or deface it," said Catherine Begley, a former special agent in the New York office of the FBI. "Shred it, incinerate it, stamp it so that no one will be fooled again."

In fact, both the U.S. Postal Service and the FBI try to do exactly that, permanently marking the work (branding a sculpture or applying an ink stamp to a painting or work on paper) as a fake, requiring that the work be accompanied by a certificate describing it as counterfeit, applying (through the U.S. attorney in charge of trying the case) to a judge for permission to destroy the work or pressuring the suspect to forfeit or abandon the work to the government as part of a plea agreement.

Jack Ellis, a former U.S. Postal Service inspector who led an investigation into a nationwide art forgery ring in the 1980s and '90s, oversaw the incineration of tens of thousands of fake Chagall, Dali, Miro and Picasso prints in 1997, but still he was startled to find that thousands of fakes confiscated by the by the government were allowed to return to the market. In 1995, "we asked the trial judge to let us destroy all the pieces we knew were fakes," he said, but the trial judge, Harold Fong (who has since died), instead ordered an auction of 11,000 of the counterfeit prints in order to repay the Postal Service for its costs investigating this case. The prints, which had been marked as fakes in small letters on the back and were accompanied by certificates stipulating that these are fakes, raised $347,550. Other seized counterfeits in this case, which had not been part of the original complaint, were not marked at all and were returned to their owners. "Our fear, of course, is that some of these auctioned works may get into the wrong hands," Ellis said. "Cover the back of the print with a mat, lose the certificate that says it's a fake, and someone is back in business selling counterfeit art. It's very discouraging."

Perhaps more discouraging is the fact that members of the art trade made efforts to keep the Postal Service from incinerating the bulk of the fakes. "I had a lot of offers from dealers," Ellis noted. "Some offered up to a million dollars to buy these prints so that they could sell them as 'the famous fakes.'"

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AP File Photo. Friedrich Palmer of the Munich customs office poses with four paintings that were confiscated as forged copies of famous painters in Munich Monday, April 29, 1997. Forged paintings in photo l/r Cezanne, Chagall, Schmidt-Rottluff and Kandinsky. (AP Photo/Frank Augstein)

In another incident that was resolved in 1990, this one investigated by the FBI, both the art trade and collectors sought to keep counterfeit works in circulation. In that case, a Kennett Square, Pennsylvania antique and furniture restorer, Lawrence Trotter, pleaded guilty to painting as many as 55 pictures that he antiqued and sold as early American paintings by fictitious or long-deceased artists. He took these painting to dealers and auction houses in Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York and Pennsylvania, claiming at times that a picture had been owned by his family for generations or that it belonged to a girlfriend. Some people did become suspicious about their authenticity. In fact, two auction house owners knew that the pictures consigned to them were not authentic, but still they sold them -- in auction house parlance -- "as is." Sixteen of the 55 paintings were located, and the majority of these had to be subpoenaed from their owners (rather than be offered willingly) to be used as evidence, according to Peter Youngblood, an assistant U.S. attorney who was involved in the case. "A lot of the people duped by Trotter wanted to keep their paintings more than they were willing to help convict him," he said. Only five of the 16 owners wanted their money back and were willing to turn in their counterfeits. As part of Trotter's plea agreement, the works were forfeited to the U.S. Justice Department, which gave four of them to Yale University Art Gallery in New Haven, Connecticut and one to Buffalo State College in New York, for study purposes.

A number of schools have regularly accepted counterfeit art, which is used pedagogically in coursework. "We use these paintings to help students develop connoisseurship, to build their skills in identifying what is authentic and what is not," said Helen Cooper, curator of American painting at Yale University Art Gallery. Margaret Holben Ellis, chair of the conservation center at New York University's graduate level Institute of Fine Arts in Manhattan, also noted that "fakes and reproductions are very educational. Students can examine something up close to see why a work is or isn't what it purports to be, based on its physical characteristics."

Unfortunately, while the catch of fakes is often large, the ability of schools to accept more than a handful every few years or so is limited. "We receive maybe one or two per year," Ellis said. "We're located in a very small town house, and there is not a lot of room for storage." The director of the art conservation department at Buffalo State College also claimed that "we regularly get offered things, but our students can use the same pieces again and again, so we don't always need more."

After Algur Meadows, the head of an oil company and noted collector of European paintings, donated his collection of Spanish art to Southern Methodist University in Dallas in the 1960s toward the creation of a museum, it was discovered that almost all of the works by the most important artists were badly misattributed or outright fakes. "The main who sold Algur Meadows these works -- there were about 40 or 50 -- was nothing more than a professional con artist, but Meadows believed his every word," said Alec Wildenstein, an Old Masters dealer (now deceased) who was asked to find out which works in Meadows' collection were authentic. Few were.

William Jordan, an independent art scholar who was a curator at Southern Methodist University in the 1960s, stated that fakes and works with "bad attributions were deaccessioned through Parke-Bernet" -- the auction house that later merged with Sotheby's -- "and sold 'as is.' Some fakes we kept for our study collection." (A "study collection" often means deep storage, never to be shown publicly.)

In 1971, art history doctoral candidate and now director of the Department of Painting and Sculpture at the New York's Museum of Modern Art, Kirk Varnedoe, organized a show of authentic and counterfeit drawings by French sculptor Auguste Rodin called "Rodin Drawings, True and False" at the National Gallery of Art in Washington, D.C. The show highlighted 132 actual drawings by the artist and 28 intentional forgeries from the collections of a number of museums. After the exhibit closed, the forgeries were placed "in the study collections of various museums," said an assistant to Varnedoe. "Nothing was destroyed."

On the other hand, Walter P. Chrysler, heir to the automobile company, purchased 23 counterfeit paintings for $1.1 million from a dealer who was later arrested. The forgeries came to light after Chrysler publicly exhibited his collection, first in Ottawa, Canada and later in Providence, Rhode Island. By the time the Chrysler Museum of Art opened in Norfolk, Virginia 11 years later, the fakes were gone. "I have no idea what became of those works," said William Hennessy, director of the museum. Chrysler, he added, had not keep good records, and neither the museum's registrar nor the archivist can determine if those works were destroyed or resold.

These days, museums generally prefer not to destroy embarrassing works. The Victoria & Albert Museum in London, in fact, has a permanent gallery devoted to 19th century fakes that curators have discovered in the collection. "I can't imagine destroying them. They have a certain charm," said Robert Cohon, curator of ancient art at the Nelson-Atkins Museum in Kansas City, Missouri who organized two exhibitions found in the museum's collection ("Discovery and Deceit" and "Treasures of Deceit"). "I was going to just dump them into storage; then, I decided to show them to my students at the University of Missouri to see if they could tell the difference. Then, I made an exhibition of it. I couldn't destroy them, and I also I knew we wouldn't get enough money to make it worth our while to sell them, so we might as well keep them and make the best of them."

As for the 294 counterfeit paintings in Florida, no one holds out much hope that they will one day be ascribed to those famous artists, and the FBI agent had made a number of calls. Yale didn't want them, but Harvard University's Fogg Art Museum took a few but didn't want all of them. Closing this case for good is likely to take a little longer.