In 1857 a British court ruled in R v Closs that a painting could not be "forged" and subsequently chose to let defendant Thomas Closs go, even after he had painted an artist's name on some crude rendering and tried to pass it off as a genuine original. Only documents can be forged, the court said, and a painting was not a document.
Given we share a catalogue of legal precedents with the UK, this decision sparked a long and proud tradition of allowing art fraudsters to escape punishment in Australia. This could change with the pending prosecution of Melbourne art dealer, Peter Stanley Gant, who allegedly made millions passing off candy-coloured fakes as genuine Brett Whiteleys. But we'll get to Peter in a moment.
Today, copying a painting is perfectly legal. So too is the act of creating new works in the style of old artists. In fact, art students are encouraged to do this as a way of honing their craft, which is often how fraudsters get started. And given there's only been a handful of successful art fraud prosecutions in Australia, many will see a high return for relatively low risk.
Dr Pamela James of the University of Western Sydney is an art lecturer whose research centres on art crime in Australia. She also advises the NSW Police in issues surrounding art fraud, theft, and forgery. According to her, all it takes to make a tidy living out of fake art is some semblance of talent and a lack of scruples. "It's not difficult," she says. "If you're clever, you don't forge the great artworks. You work up to it. If you're selling something for $100,000 people are more careful."
But if you are aiming to pass off big ticket fakes, Pamela explains the key is in distribution. Some painters are happy to sell their fakes from the boot of their car at vintage markets, but the real money involves hooking up with art dealer, who then connects you to hundreds of commercial galleries around the continent.
At their shadiest, art dealers are the pawnshops of the art world, just with fewer regulations. Those in the primary art market generally deal with living artists, while those in the secondary market buy and sell the works of deceased greats. These are who you go to with your convincing story about a great aunt who was an art student but a total recluse and died in possession of a masterpiece.
Some, like disgraced Sydney dealer Robert Close, may be brazen enough to take a story like this on face value. Most however will ask for proof. English forger John Drewe realised this in the mid-80s when he first commissioned a freshly-divorced artist named John Myatt to paint fakes. Drewe then forged the documents proving they were real and placed them into archives for researchers to find. Myatt's works were sold at some of the greatest auction houses in the world and many consider him to be the most successful art forger of the 20th century.
Ask yourself, would you deliberately devalue your investment, or just sell it on at the first sign of trouble?
A simpler method, favoured locally, is to place a fake in a small auction house. If it's bought, that's a win. If anyone questions its authenticity, it can be pulled from sale. The beauty is, either way the work has appeared in a print catalogue. After this it takes a short cooling off period, before it's sent to a different auction house, with the catalogue as proof of its legitimacy.
Needless to say people do get fooled, and when that happens, those making the fakes find themselves protected by an industry that operates with a code of silence to rival the Russian mob. Then there's the fact that victims are often reluctant to admit publicly they've been had, lest the value of their $100,000 knock-off drops to the price of Ikea kitsch. Ask yourself, would you deliberately devalue your investment, or just sell it on at the first sign of trouble?
This is part of why it's been so difficult to prove art fraud, according to art fraud expert Ken Polk. Successful prosecutions are rare and not every unverifiable work out there is a fake. Many are just "problematic," and estimates suggest 10 percent of the Australian art market is made up of problematic works whose origin cannot be proven.
Another difficulty is that "fraud" is a specific legal term that needs a prosecutor to prove the work was created to deliberately deceive. "Those conditions are extremely restrictive," Polk says. "Most often a person who sells a work says, 'well, I didn't know!' and from then on its not fraud."
In the late 90s Australian amateur painter and furniture dealer William Blundell admitted in open court he had painted at least 162 "innuendos" in the style of famous artists and many others, although he strongly denied ever knowing they were to be used to commit fraud.
This claim worked because Germaine Curver, the eccentric art dealer who had commissioned Blundell and sold his works as those of top gun artists for a 2000 percent profit, had passed away in 1995, making it Blundell's word against a dead woman's. Blundell walked.
Toorak couple, the Libertos, weren't so lucky in 2007 when they were sentenced to three years for ripping off the artwork of Aboriginal artist Rover Thomas and selling it through a major auction house in a landmark prosecution.
Their case stands out as one of the few to get a successful conviction, though it's possible they may soon be joined by Peter Gant. Gant has been ordered to stand trial for allegedly enlisting Ballarat-based conservator, Mohammad Aman Siddique, to recreate three Brett Whitely paintings which he then sold for a combined $3.6 million.
Gant has a reputation for making a long and storied career out of ripping off national treasures and in 2010 he was caught selling a low-quality fake preparatory drawing in the style of Robert Dickerson for $10,800. After a $300,000 civil suit lead by Dickerson's stepson Stephen Nall, the drawing and two other fake works in the style of Albert Tucker were burned. To this day, Nall loathes the man.
"The guy is a thief, a liar and a fraud of the worst kind in terms of commercial life," Nall says. "It's a numbers game—if he sells 10 fakes, one will pay out."
And why not? Until something changes, it is a glamorous career where the returns are high and the law has been letting forgers and dishonest art dealers go since 1857. All it takes is an amoral attitude and a gap in the market. Buyer beware.
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