After being subjected for years to ruinous litigation in suits brought by owners of artworks displeased with authentication opinions unfavorable to the owner’s preferred outcome, art authenticators – including artists authentication boards, authors of catalogues raissonne, and scholars – stopped giving authentication opinions. Even when they ultimately prevailed on the suits, the cost of the litigation was prohibitive. I have previously discussed the dilemma facing authenticators here.

In an attempt to provide art authenticators with some measure of protection, on June 15th, the New York Senate approved a bill entitled “An act to amend the arts and cultural affairs law, in relation to opinions concerning authenticity, attribution and authorship of works of fine art,” S. 1229-A-2015 (the “Bill”). The Bill amends New York’s Art and Cultural Affairs Law to (i) add a definition of “Authenticator,” (ii) heighten the pleading standards for plaintiffs bringing actions against authenticators, (iii) preclude a prevailing plaintiff from receiving legal costs in suits against authenticators, and (iv) authorizes courts to grant prevailing authenticator legal costs, upon a finding of good and just cause.

The Bill defines “Authenticator” as “a person or entity recognized in the visual arts community as having expertise regarding the artist, work of fine art, or visual art multiple with respect to whom such person or entity renders an opinion as to the authenticity, attribution or authorship of a work of fine art or visual art multiple, or a person or entity recognized in the visual arts or scientific community as having expertise in uncovering facts that serve as a direct basis, in whole or in part, for an opinion as to the authenticity, attribution or authorship of a work of fine art or visual art multiple.” The definition of “Authenticator” includes “authors of catalogues raissonne or other scholarly texts in which an opinion as to the authenticity, attribution or authorship of a work of fine art or visual arts multiple is expressed or implied.” But the definition expressly excludes “a person or entity that has a financial interest in the work of fine art or visual art multiple for which such opinion is rendered” other than compensation for an authenticator’s services in providing the opinion.

While the advancement of the Bill is a positive step toward providing art authenticators with modest protections when giving good faith opinions, the Bill is imperfect. It is important to note that it is weaker in several ways from a fundamentally similar bill that was introduced but not enacted last year. The earlier bill not only required plaintiffs to “specify with particularity in the complaint facts sufficient to support each element of the claim or claims asserted” (as the Bill does), but also imposed a higher pleading standard on plaintiffs in such suits. The earlier bill required that the plaintiff “prove the elements of such claim or claims by clear and convincing evidence.” Similarly, the earlier bill included a stronger legal fees provision in favor of prevailing authenticators, stating that “the authenticator shall be entitled to recover his, her or its reasonable attorneys’ fees, costs and expenses if and to the extent that the authenticator prevails in such action.”

While fee shifting provisions may cause a plaintiff with a weak case to reconsider filing suit, prevailing after years of costly litigation and being given an award of legal costs does the authenticator little good if the award proves uncollectable. But that is always a risk with any judgment. The more important provision in the Bill (which was stronger in the earlier bill) is the requirement that a plaintiff meet a more stringent pleading requirement at the outset of the case. The earlier bill’s pleading standard would have helped weed out weak or frivolous suits at an early stage, avoiding both angst and cost.

Whether the Bill will ultimately be enacted (in its current or a modified form), and to what extent the Bill, if enacted, actually provides real protection to art authenticators remains to be seen. The ultimate test will be whether authenticators view the Bill as having sufficiently improved their lot that they are willing to return to the field.