On 15 January 2010 another federal lawsuit was filed in New York City against the Andy Warhol Art Authentication Board. The first lawsuit was filed in 2007 by a London-based collector, Joe Simon; the recent claimant is a New Jersey-based collector, Susan Shaer: each owns one of a limited edition of a dozen Andy Warhol Self-Portrait silkscreens made in 1964-65.
Simon is aggrieved that the Board denied authentication of the work he owns and he asserts that it is an authentic Warhol. Shaer's grievance is broader and more fundamental: she challenges the lawfulness and validity of the Board's entire standing and operations, in particular claiming that the Board's frequent denials of Warhol's authorship of works creates 'artificial scarcity' and so inflates the market value of the Andy Warhol Foundation's collection. Shaer's claims are unprecedented in the art market. Her lawyers are drawing upon generic--not specifically art--business laws aimed at safeguarding the freedom of the capitalist marketplace: in the US such laws are called 'antitrust and unjust enrichment', and in Europe 'competition', legislation. A significant feature of the case is Shaer's allegation that the Board is unlawfully conspiring and colluding with other key players to control the marketplace for Warhol's works: the Andy Warhol Foundation, the Estate of Andy Warhol and Vincent Fremont, who is the current executor and exclusive sales agent for the Foundation--all of whom have been cited as co-defendants.
The common root of both lawsuits is the provenance of the edition of Self-Portraits. Warhol made an acetate of a photographic self-portrait, which he gave to his friend Richard Ekstract to make the silkscreens as decorations for a party celebrating the premiere of Warhol's first underground video. Warhol gave the pictures to Ekstract in gratitude for his having facilitated the video production and Ekstract, in turn, gave some editions from the print run to partygoers.
Simon bought his silkscreen from the Lang & O'Hara Gallery, New York, in 1988 within a year of Warhol's death, paying 120,000 [pounds sterling]. He claims the work was authenticated several times by the Foundation, by the Estate, by Fred Hughes, who was Warhol's former business manager and sole executor, and by Vincent Fremont. In 2001, Simon proposed to sell his picture for around 1.4m [pounds sterling] and it was submitted to the Board for authentication. It was not authenticated and, as is the Board's normal practice, the picture was stamped on its reverse in black ink with the word DENIED. Simon then researched and found documentation 'demonstrating Warhol's personal role in the creation and use of the Series' in question, and resubmitted his work to the Board together with the relevant documentation. It was again stamped DENIED, hence his 2007 lawsuit.
Shaer claims that the edition in question was created 'at Warhol's direction, through his employee Paul Morrissey, from an acetate personally created and chosen by Warhol', and confirms Ekstract's involvement in its production. She asserts that 'this method of production was typical of Warhol' and that 'in so doing Warhol explicitly acknowledged his authorship'. In 1990 Shaer submitted her silkscreen to the Andy Warhol Estate for authentication (prior to the establishment of the Board in 1995). The Estate's response was that it was 'not able at this time to form an opinion'. Shaer also claims she has a letter from the Estate dated 31 October 1990 accepting that the picture was made from an acetate transparency created by Warhol and that the estate had 'no basis on which to doubt that the silkscreening of the work onto canvas was authorized by Andy Warhol'. Moreover, Shaer claims that in 2004 the Board wrote to her inviting submission of the work for authentication because 'additional information had come to the attention of the Board since the date of the Estate's opinion letter [of October 1990]'. …