From provenance chain to blockchain
The arrival of UK and EU art market regulation under the EU Fifth Anti-Money Laundering Directive (5AMLD)1 has focused attention on due diligence into the buyers and sellers of art. However, due diligence into the art itself is also developing and has been subject to debate, notwithstanding its long pedigree.
Three legs of attribution
The process of art attribution has been compared with a three-legged stool, with the respective legs being connoisseurship, provenance and scientific analysis, each varying in importance depending on the circumstances of the item under consideration. Provenance has always been key, but recent advances in non-invasive scientific analysis have tended to overshadow the more traditional skills of the connoisseur and reliance on the ‘expert’s eye’. However, as the England and Wales High Court noted in the Cardsharps case of Thwaytes v Sotheby’s,2 scientific analysis can be more useful in demonstrating who did not paint a painting than who did; it is, therefore, more helpful in identifying modern forgeries than with attribution of unknown works.
For these, provenance and the connoisseur’s eye remain key for the art appraiser or auctioneer, and the judgment in Sotheby’s provides a useful description of the process of attribution through connoisseurship, hitherto so difficult to describe to the non-art expert.
An expert eye
In practice, the attribution process varies depending on the item being sold. The Portrait of Ellen Maurice by Marcus Gheeraerts the Younger, sold from the contents of Glyn Cywarch for Lord Harlech in 2017, demonstrates how the judgment of the connoisseur, underpinned by the provenance of the work, is key to the successful attribution of old master paintings. The portrait had passed through the sitter’s family by descent but was identified by specialists as by Gheeraerts the Younger only just prior to the sale. With the provenance underpinning expert and market acceptance of the attribution, the resulting hammer price was almost five times higher than expected.
In evaluating a work such as Femme au Béret Mauve, painted by Picasso in 1937, provenance and formal authentication were key. Connoisseurship was employed to quantify potential value by ‘grading’ the work in relation to others from Picasso’s oeuvre. In this example, the following factors underpinned the USD10–15 million estimate:
- the importance of the sitter (his lover, Marie-Thérèse Walter);
- the date (1937, the same period as his masterpiece Guernica);
- the fact that it was a painting he kept in his possession until his death;
- that the chain of ownership for the painting since the artist’s death is well known; and
- the existence of the painting’s certificate of authenticity from the artist’s estate.
Modern art and blockchain
Slightly different challenges and opportunities arise with the attribution of more contemporary works. With the availability of artists’ and their estate’s verification facilities, the authenticity certificate becomes key. Works by Banksy, such as the five prints sold for record sums at an auction in London in February 2021, require a certificate of authenticity from the Pest Control Office, which operates on the artist’s behalf. This protects a buyer against acquiring an inauthentic work and allows the Pest Control Office to ensure that only works intended by the artist for public sale are sold; certificates will not be available for items previously created in public spaces for public enjoyment. The certification application form requires details of previous transfers to assist the authentication process, but provenance without certification would be insufficient for a successful sale of a Banksy.
This is where blockchain technology comes in, some argue. Blockchains are effectively databases on publicly available networks, comprising a series of data inputs that are individually identifiable by their intrinsic information as well as their links to other data inputs (forming ‘the chain’). This means that once the data input is created, it becomes incorruptible on account of the unique nature of its embedded links with other data simultaneously accessible in many places.
Were an artist or their dealer to put the details of a work and its first sale on the blockchain, and successive owners were to follow suit, there would be a transparent and apparently reliable record of both ownership and authenticity, materially simplifying the due diligence for contemporary works. The implications of the blockchain for the art world go further, in the creation of unique and apparently incorruptible digital codes stored on the blockchain, called non-fungible tokens (NFTs), which can be traded and sold for significant sums. The market for NFTs nevertheless remains uncertain and the process leading to their creation gives rise to many questions concerning ownership, accessibility and intellectual property rights, which are only now being identified.
The immutability of blockchain information is more of a problem for older works, however; what if previous information proves to be incorrect, or scholarship and attributions change? Attribution of older works will always rely on connoisseurship and, therefore, the exercise of expert opinion. It may transpire that similar expertise (albeit with a more digital background) will be required to analyse blockchain transactions. It seems that, for the foreseeable future, the long-standing three-legged stool for attribution will continue to hold sway, with reference to known and trusted expertise remaining the best advice.
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