Sunday, April 25, 2010
The AW Blog is pleased to pass along information that is beyond what is in the news and the typical links found on the internet, but comes straight from parties involved in the litigation for your consideration.
This past Friday I had a very interesting conversation with Bernard Ewell, ASA. Many appraisers are familiar with Bernard as he has been a long time participant and active member of the personal property appraisal community. Bernard is also one of the better known appraisers and authenticators of works by Salvador Dali. According to Ewell, he has reviewed and inspected over 50,000 works by Dali, and has been called as an expert witness on numerous occasions.
Many may also know that Bernard does the Dali authentication for Park West Gallery (PWG). He was recently a plaintiffs witness in the defamation suit against the Fine Art Registry (FAR). As posted here on the AW Blog and other sources, the jury did not find that FAR defamed PWG. FAR also counter sued for defamation and trademark infringement. The jury found against the defamation charge, but awarded FAR $500,000 on the trademark charge.
As I have mentioned in past AW blog posts, the recent lawsuit and verdict did not consider the authenticity, value or if the prints were enhanced, although these topics were presented by each side to support their defamation charges and counter charges. The jury was tasked in the complaint to find on the basis of defamation, which typically includes a very high burden of proof. It is possible some of the evidence presented on the prints in question led the jury to believe there are issues of representation, and therefore supported the decision to not find in favor of PWG on the defamation charge. Many of the buyers who testified against Park West Gallery are also involved in a consolidated Federal case against Park West with claims of $22 million. The cases will be heard in Seattle in 2011.According to Ewell, there are also cases in Michigan state court in June as well. These cases, if not settled before hand, very well could be based upon how the jury determines the authenticity of the art and how evidence is presented by the plaintiffs and defendants attorneys.
Now, back to my conversation with appraiser Bernard Ewell. On one of his recent blog post Ewell mentioned that because there are so many different signatures by Dali, authentication is difficult and the signature should only be a small component of the Dali authentication process. (Click HERE to read that blog post by Bernard Ewell.) Ewell states “I and other witnesses testified that Salvador Dali signed his name in so many different ways that it was not a reliable approach. Anyway, I have always followed the dictum that the artwork should authenticate the signature rather than the signature authenticating the artwork.”
Click the Read More below for the rest of the article.
Given the amount of press reports in this case there are statements circulating that some of the Dali works sold by PWG and authenticated by Bernard Ewell were in fact true Dali works, but the signatures were not those of the artist Dali. Ewell insists he has not acted as an advocate of PWG, being true to his appraisal ethics and focusing only on authenticating the art. My main question to Ewell was did he authenticate Dali works for PWG with questionable signatures. He said all of the prints in question with signatures, in his opinion were signed by Dali. The FAR experts seem to agree that some of the prints in question are in fact authentic works of Dali, but they contend the signatures are not by Dali. Not unusual in a court of law to have differences of opinions by different expert witnesses. It comes down to which side can produce the better witnesses and most credible evidence. Ewell also believes there are ulterior motives involved by other Dali dealers and specialists in attempts to discredit the authenticity and legitimacy of the PWG collection of Dali artwork. To many outsiders, that might sound like paranoia or conspiracy theories, but on many occasions it is business as usual in the art world. It is yet to be determined in this particular case.
Ewell stated he has reviewed and studied the provenance of the PWG Dali inventory and found in favor of the art work and signatures being legitimate. Ewell thought he was not able to reveal enough relevant information at the trial on the provenance of the PWG Dali inventory, on his experience, credibility and his authentication process. Ewell also stated to me PWG has shown him Dali’s in the past which they were considering for purchase, and which were not correct in his opinion and PWG declined to purchase.
Ewell also thought his time on the witness stand was cut short by a time allotment by the Judge in order to speed the trail. This, according to Ewell is perhaps why some of the provenance issues were not strongly featured in his testimony and reinforced to the jury. There was also concern that the PWG attorney wanted a more structured testimony from Ewell instead of a narrative on his authentication process which he believes works more favorably with jurors in art authentication cases.
Many appraisers have seen and inspected cruise ship art purchased at sea with little secondary market value. We have also seen this art come out of galleries as well, much property is poster art, lithographic prints, giclee prints and prints with artist enhancements. The art comes with certificates of authenticity and appraisals, but in many cases we find there is little value on the secondary market for this decorative property. At times, purchasers are disappointed to find what they thought had value, when in reality, it did not. It is unfortunate that many of these buyers are a captive audience on the cruise with excess time and funds and decide to make an “investment” in art. As we know as appraisers, novices and art investments usually dont mix. Many of these buyers believed in the reputations of the cruise lines and in PWG and therefore had a sense of security. Many made large volume and dollar purchases without doing any due diligence, seeking expert consultations or value research.
So are we back to square one with cruise ship art. Not necessarily, but there still are other cases in June in Michigan and sometime in 2011 in Seattle where the courts and jury will hear how the PWG art was represented and how it was authenticated. These suits are buyers of PWG art who are now directly suing PWG. There still we be opposing experts, with each side presenting specialists to support their claims and positions. Ultimately, it will come down to the credibility of the witnesses and the evidence presented. Working against PWG is the failed defamation case. Meaning, the published articles and statements by FAR may not have been false or at least they did not defame PWG based upon the recent jury verdict.
Additionally, if the prices the clients paid for the art is in fact greatly out of line with the true value of the art, and that is admissible in court, there could be concerns on how the jury would deliberate the price to value evidence. Ewell stated to me he only authenticated the art for PWG and never appraised or valued it. PWG did their own in house appraisals, and as we know as appraisers, that is really not an acceptable valuation within the profession, nor an arms length transaction. Certainly a potential conflict of interest..
A little on business practices, and I asked this of Ewell and he did not have an answer. PWG has stated at their peak, total art sales were in the $300 million range per year, both for fine and decorative art. This includes the cruise ship sales and gallery sales. PWG claims 1.2 million satisfied customers. I wanted to know why PWG would not make those few customers who were unhappy whole or find mutually agreeable settlement terms. Or just refund the purchase price less shipping and a stocking charge and resell the art. It is only a small percentage of total sales, and the bad publicity being generated would certainly be ratcheted down. I think the negative publicity and press coverage has done more to hurt PWG than their sales practices. Is it arrogance? Is it that you just get too big and powerful as a company you feel you don’t have to work with dissatisfied clients. Perhaps PWG believe they are in the right and doing the right thing, the work was authentic, represented fairly and if so, why refund? Regardless, I would think a refund and confidentiality statement would have made most of this go away, at least in the courts, and it would cost far less in lost sales, legal fees, and the public relations campaign to support their corporate image, not to mention the debate in the court of public opinion.
It will be interesting to see how the June lawsuits in Michigan against Park West Gallery will be decided. It should help the appraisal community bring some form of closure to the value of cruise ship art and the issues of provenance, sales practices, how the pieces are represented and auctioned and statements of authenticity and value.
As with the past trial, Bernard Ewell says he again looks forward to testifying in the upcoming cases.