Is the destruction of forgeries fair and justified under droit d’auteur? The case of the Chagall "Nude 1909-10".

Ever since the commercial revolution in 12th-century Western Europe, art has been traded as a commodity. Willing patrons would commission a work of art as a symbol of wealth and power. Often, its aesthetic and spiritual value were far more important to the buyer than the name of the artists themselves. In such a creative climate art forgery did exist, but it was uncommon, and the intricacies of such a notion were not fully realised.

Imitation is an age-old practice in art. The apprentice must copy the works of his master to gain the necessary skills and grow in his draughtsmanship. While imitation has always been considered a form of flattery, it is now penalised due to its fraudulent nature. The advent of the photo-digital age has brought about two important changes: firstly, in the broadening of the definition of property. The mass production of images caused mounting copyright concerns and saw the emergence of intellectual property rights. The second is concerned with the legitimacy of art. John Berger writes in the first essay of his book ‘Ways of Seeing’ that art is declared as such when its “line of descent can be certified.[1]” This implies that, at present, a piece of art acquires its value from the extent to which its provenance can be verified. 

As intellectual property rights expanded, a space for the art market was gradually constructed within the law. It has become increasingly difficult for skilled forgers to infiltrate the market thanks to technological advancements in terms of pigment identification and carbon dating, coupled with the deterrent of criminal prosecution. One of the most notorious art forgers, Wolfgang Beltracchi, was sentenced to six years in a German prison for having forged over 300 paintings by the likes of Max Ernst and Andre Derain. Despite this, Thomas Having, former director of the MoMA in New York, believes that 40% of all works in circulation are likely to be fakes.[2]

One notable example is ‘Nude 1909-10’ (Fig. 1), presumed by Chagall, which had eluded authorities across two continents for over 50 years until the Chagall Committee took unprecedented “Draconian” [3] action by declaring its destruction in 2014. Though France is notorious for its strict application of droit d'auteur[4], the verdict sparked outrage among both artistic circles and non-artists globally because of its ethical implications. ‘Nude 1909-10’ first appeared in the UK around 1990 when property developer Martin Lang purchased the painting for £100,000, with the assistance of fine art consultant Debby Hatchwell. The painting was supposedly conceived in 1909 in Chagall’s birthplace of Vitebsk, Belarus, as recorded by Russian art critic Aleksander Kamensky in his catalogue, ‘Chagall, The Russian Years’. Though Kamensky’s alleged friendship with Chagall lends his book credibility, the incohesive and at times mysterious origin of the work casts doubt on its authenticity. Indeed, there are sufficient unanswered questions concerning its journey from L’atelier de Chagall to Lang’s home in the English countryside, to make the suspicious attitude of the Committee appear somewhat rational. 

It is purported that between 1909 and 1917 the painting was gifted to a Russian ballerina by the name ‘Kavarska’, friend of Chagall’s first wife. The timeline then jumps to 1970, when Alexander Shlepanov of Phillips' auction house obtained it from a private art collector. In reality, there is no record of any such ballerina existing nor anything that suggests the possible identity of the private art collector. Furthermore, two striking official documents were unearthed. The first is a 2005 edition of Kamensky’s catalogue where the painting was conspicuously missing, having been removed by the publishers. The second is an article published in the Russian newspaper ‘Pravda’ in 2005 attesting that an unnamed Marc Chagall work, auctioned for $650,000 in Minsk, has been deemed a fake. Its description is eerily similar to the nude in question. As Fiona Bruce of the documentary television series ‘Fake or Fortune' points out, the Russian art market is “awash with fakes''[5]. One expert, James Butterwick, estimates the figure to be somewhere around a staggering 90%. This revelation is an unfortunate consequence of the fall of the Communist Regime; following the implementation of Gorbachev’s Perestroika censorship was relaxed and the market was flooded with daring contemporary art which had been hidden for years.

The available information regarding its provenance certainly points towards ‘Nude 1909-10’ being a likely forgery. However, critically speaking the painting has divided artistic opinion. While Dr Libby Sheldon of the UCL Chemistry Department remarked that “there is a confidence about it that is rather charming”[6], ex-art forger Tony Tetra disagreed. He noticed that the application of paint “lacks some Chagallness”[7] in terms of the vivacity of its colour. Chagall is often remembered as a great colourist. His paintings are an explosion of warmth with an ephemeral, child-like quality that is not quite captured by the copyist. Chagall’s brushwork is light and “spontaneous”[8] with a unique frothiness that dances the surface of the canvas. This is particularly evident in his 1961 lithograph print ‘Temple et histoire de Bacchus’ (Fig. 2). In ‘Nude 1909-10’, the paint is heavy, and the colours are dull. There is a contrived appearance around the work, which is unnatural for Chagall, and according to Tetra, the black essential line that traces the contours of her body is far too thick. The series of upside-down square houses, a nod towards those of early 20th century Belarus, are a laboured attempt to introduce the surrealism typical of Chagall’s oeuvre onto an otherwise stale canvas. Though this is simply speculation, the scientific evidence contends. Upon first examination of the pigments, the absence of acrylic was confirmed. Unfortunately for Lang, a Raman Spectroscopy (Fig. 3) revealed the presence of modern green pigments and phthalocyanine blue, the latter of which was produced synthetically only after the 1930s. This would confirm that the dates attributed to the painting during its sale to Lang were incorrect. The Committee staunchly deny the presence of their grandfather’s hand in the work, even given the possibility that he may have produced it later in his life. 

It is clear that there is very little evidence in favour of the authenticity of the work. However, to violently destroy, through an act of arson, a painting that skilfully masqueraded as a genuine piece is an archaic practice and arguably a form of vandalism.[9] It signifies an abuse of the power which such institutions inevitably still hold over the masses. Martin Lang was unfairly faced with an ultimatum: sign for the destruction of his painting or prepare to take the case to court. When he temporarily signed over his property to the Chagall Committee, there was no mention in the contract of its possible destruction. And yet according to Article 10.1 of the EU Directive 2004/48, “measures may be taken by national courts with regard to goods that they have found to infringe intellectual property rights…one such measure is the destruction of the goods.” [10]

Intellectual property rights relate to the concept of ownership after creation, that is the legal right to control, use or give away a creative work under consent. They are rights enshrined to protect authors’ artistic efforts and their remuneration and include the rights of a) attribution b) disclosure c) withdrawal and d) integrity. Physical property rights are much more concrete than intellectual ones, as they do not relate to intangible assets but to tangible ones. An artist’s moral rights fall under this blanket of intellectual property rights. They include the rights of The French courts are bestowed with the power to uphold droit d'auteur in accordance with international law. The Committee successfully argued that there are more than three similar identifiable elements between the supposedly forged nude and Chagall’s genuine ‘Reclining nude’ (1911) (Fig. 4), proving an infringement of intellectual property rights and the basis for their case against Lang. The estate of the deceased artist has a valid copyright claim to the work of art for 70 years after the death of the painter in line with European Copyright Legislation.

That said, the rights of the Estate are not absolute. Article 10.3 of the 2004 EU Directive provides limitations: “in considering a request for corrective measures, the need for proportionality between the seriousness of the infringement and the remedies ordered, as well as the interests of third parties, shall be taken into account.”[11] The actions of the Chagall Committee were neither proportional nor did they honour the interests of any other parties involved, and their decision is in breach of French physical property rights, that is the rights given to a person over their personal property to buy, use, sell or destroy it. Article 544 of the French Civil Code states that “Property is the right to enjoy and dispose of things in the most absolute way, provided that it is not used as prohibited by laws or regulations.”[12] Article 545 continues: “No one may be forced to assign his property, except for reasons of public utility, and for a fair and prior compensation.”[13]

Is the protection of Chagall’s artistic integrity, undertaken by his grandchildren, a form of public utility? It is difficult to assess the extent to which intellectual property rights can take precedence over physical ones. In French law, “the right of property has never been an absolute one”[14]. That is, they are limited insofar as they do not violate statutes and rules. It is true then that, by owning the fake Chagall, Lang is violating a key provision of the French Code de la propriété intellectuelle. However, it is important to remember that the painting was purchased in good faith. Furthermore, it has not been proven beyond reasonable doubt that the painting is not by the hand of an older Chagall. The Estate holds that it is in the public interest to destroy the work in order to set an example for other active forgers. However, it is questionable whether disposing of the work itself sets a helpful precedent; in fact it removes any evidence of the crime occurring in the first place. A forged painting could be used as a blueprint to help identify potential other artworks posing as Chagalls in the murky Russian market. Perhaps, in order to combat the wider issue of forgery within the art market, committees should aim at destroying the reputation of the forger and not the work they produce. Most notably, this case highlights the waning power of physical property rights in the face of tightening copyright laws. Is it just to, without consent, destroy property purchased in good faith by its owner in order to uphold the moral rights of an author? And is it fair to deny, in such an extravagant fashion, what is arguably the artistic genius of a forger?

Author:

Zoe Storey


[1] Berger, J. (2012) Ways of seeing: Based on the BBC television series with John Berger. London: British Broadcasting Corp.

[2] Davis, K. (2023) Meet the art sleuths using science to find frauds, Science Friday. Available at: Science Friday (Accessed: 18 April 2024).

[3] Bruce, F. and Mould, P. (2014) ‘Fake or Fortune’, Chagall S3 Ep3. British Broadcasting Corp.

[4] Rights of the Author, Copyright

[5] Bruce, F. and Mould, P. (2014) ‘Fake or Fortune’, Chagall S3 Ep3. British Broadcasting Corp.

[6] Ibid

[7] Ibid

[8] Ibid

[9] Term coined in 1794 by Henri Grégoire, Bishop of Blois, to describe the destruction of artwork following the French Revolution.

[10]62021CJ0355. Available at: Eur-Lex (Accessed: 26 April 2024).

[11]62021CJ0355. Available at: Eur-Lex (Accessed: 26 April 2024).

[12] Steiner, Eva, 'Property Law', French Law: A Comparative Approach, 2nd edn (Oxford, 2018; online edn, Oxford Academic, 19 Apr. 2018), doi.org (Accessed 24 Apr. 2024).

[13] Article 545 - Code civil - Légifrance. Available at: Legifrance (Accessed: 19 April 2024).

[14]Rogererrera. Available at: Rogererrera (Accessed: 20 April 2024).