A handful of suggestions and a survey!
We ( at Flynn & Giovani Art Provenance Research) spent the month of November researching a painting from the 17th century. Its first known public sale was in London in 1973 at one of the major auction houses. No listed provenance existed for the painting between when it was created and its sale as “Property of a Gentleman” in 1973.
We reached out to multiple departments within the auction house concerned to request help in identifying the consignor, exactly fifty years ago. The auction house’s legal department eventually decided that the identity of the consignor could not be disclosed due to the house’s “ongoing duty of confidentiality to the seller”. The only information we managed to retrieve is that the anonymous consignment emanated from Switzerland, the address for which was now fifty years old. It is reasonable to conclude that the vendor consigned nothing else to this auction house during the ensuing half century, or the details on file would be more recent.
Is the vendor still alive today? The duty of confidentiality applies to those of us still alive and does not legally apply in perpetuity, nor does it pass to descendants. Are we to conclude that the duty of confidentiality never expires?
In the past, various time frames have been suggested for when transaction details can be disclosed. However, it now seems that this is judged on a case-by-case basis and transaction details can be kept private for as long as a hundred years. The introduction of GDPR has made the calls for transparency even less tangible. Thus the question arises: whose interests do the auction houses really serve? And how far are they willing to go to prove their commitment to good faith and due diligence in practical ways that go beyond conferences and champagne receptions?
Arriving at a dead end on issues like these is the norm in the art market, and in many cases it marks the end of a research trail. As fellow researchers know only too well, there are few worse things to encounter in a provenance listing than the dreaded words, “Private Collection”… save, of course, for “Swiss Private Collection”.
Today, well into the 21st century, in arguably the most technologically advanced era for humanity, and having achieved things we couldn’t have imaged even a decade ago, there still seem to be no acceptable solutions to the art market’s transparency problem. It is remarkable that we have managed, finally, to compel sellers and buyers into disclosing the origin of their source of funds, but we are prohibited from asking important questions about the origin of their art collection.
To progress the research on the above 17th century painting, and in an attempt to be both proactive and to show good faith, we suggested to the auction house that we agree and sign an NDA, in order to allow them to disclose, in confidence, the identity of the consignor in 1973. We undertook not to share the name with our own client (who had already agreed to this suggestion) and that the information would be used solely in order to pursue the provenance trail back to pre-World War II. (In most cases it is overly ambitious to attempt to take ownership histories as far back as the time of creation — in this case 1636, even though we have managed to achieve this many times in the past). Furthermore, we offered to share our research findings with the auction house so that in the future, if the work were to come under the hammer again, it would be with an improved provenance, thereby obviating the need to repeat research that has already been done.
As you may have guessed, even this suggestion was not enough to obtain the required information. We therefore found ourselves in the peculiar position of having to return to our clients with a bigger problem than the one they initially brought us. This was by no means an obscure, newly discovered or newly attributed work of art, it is well documented in the 50 years since the sale.
Is this yet another instance of the auction houses refusing to collaborate, just because they don’t have to? They are also bolstered by the legal bodies that govern them, which are webbed in such a way that allows them to operate to whatever standards they themselves deem acceptable, seemingly oblivious to outside criticism or constructive feedback.
Or could this perhaps be a case of the auction houses concealing information they deem to be potentially problematic? One of our clients raised both these questions. The answer to both might be yes. The various teams addressing provenance and due diligence issues in the big auction houses cannot be held accountable for the historical lack of due diligence in their places of work. Tradition weighs heavily in the art world. However, they do appear to lack any decision-making power, since today it seems that everything has to be signed off by legal.
So is there really nothing to be done but throw our hands in the air and file our continuing exasperation under the heading “It is what it is”?
Not today.
Below I make a handful of suggestions, the implementation of which could facilitate and improve the process of provenance research and make due diligence more efficient. I will be adding a survey at the bottom of the page as it would be useful to know which are collectively seen as the most useful. Hopefully, this might improve the odds of them actually happening!
1. AML-type due diligence checks.
When anti-money laundering checks are carried out today, as a routine part of a transaction, neither of the two or more parties involved are required to disclose their identity to each other. Checks into the source of funds are carried out independently by a qualified third party or financial institution. While the process of researching the ownership history of a work of art is more complicated and time consuming than carrying out routine AML checks, there are ways of simplifying and standardising the process, by focusing on identifying and addressing risk. Having access to the names of historical buyers and sellers allows researchers to check for red flag names, conduct more thorough database checks and make better recommendations. This can be applied either as an individual one-to-one agreement with professional researchers whose professional indemnity insurance would allow them to take the risk, or by setting up independent third party agency of researchers to perform the task. Sharing with the auction houses any pertinent research outcomes stemming directly from the disclosure of previously unknown names would be widely beneficial. This would allow artworks to have more thorough provenances when they are next transacted in the market while at the same time helping to avoid duplication of work already carried out. As long as researchers are adequately credited whenever their findings are made public, this could be a mutually beneficial practice. On the 27th of November 2023, I sent a letter to the Secretary of State for Digital, Culture, Media and Sport of the United Kingdom with a proposal for this idea. Watch this space.
2. Key information must be disclosed.
It would be beneficial if auction houses and galleries were to list, where available, the last known owner of an artwork prior to WWII as well as the first known post-war owner. This measure may not resolve all possible areas of risk that can arise as far as different periods and mediums are concerned, but it would help address one of the key due diligence issues in the market: the whereabouts of a piece during WWII.
3. Provenance Accountability
Whenever the provenance given is not supported by the necessary documentation, any oral accounts of stories/narratives need to be notarised for added accountability. The intentional distortion of the facts and a proven intent to deceive should be treated with the same gravity, akin to having given ‘false evidence’.
4. Lot updates
There seems to be a recently adopted auction trend by which images of artworks are listed in the lot information before the accompanying factsheet information appears (provenance/bibliography/exhibition history). Where there is little to no information on a lot beyond the image, it makes it harder when advising future buyers prior to them making a purchase. Perhaps the purpose of this practice is to avoid listing any information until it has been confirmed, rather than simply to make it harder for the public to scrutinise the information listed. In any event, it has caused some frustration among the wider art historical and research community and is certainly regarded as a retrograde move.
5. Provenance expert pools
It would be a significant step forward if the auction houses would consider employing a varied network of provenance researchers, art historians and/or historians on a sale-by-sale basis. This would add a further layer of fortification to internal due diligence checks. For example, when preparing for a sale of Latin American art, having on file a list of researchers and scholars working on various periods and mediums of that market sector would add greater depth to the research and offer more assurance to buyers. Employing professionals based on their areas of strength and expertise (similar to CAfA’s approach to the expert pool) )would represent a significant value-add, rather than relying on a handful of individuals to cover everything. It recently came to my attention, that even when auction houses themselves apply for ALR certificates, they do not disclose all the known provenance information that they have on file, as of course the certificate could end up with anyone and previously unknown provenance information would be disclosed. It makes sense in the context of everything we know, and yet it prompts the question: how does this affect the accuracy and the extent of what can actually be checked? This emerged as a key issue during the Art Provenance Symposium back in January, where it was clear that even those offering due diligence services are required to work around an endless litany of the blunt words, ‘Private Collection’ given as provenance information.
Adding independent consultants to the internal vetting process and the ALR checks would improve the reliability of the due diligence process.
6. The Addendum
We have recently been testing the idea of introducing two addendums to the existing consignment agreements. While there is always an assumption of anonymity when selling at auction (unless the publicised ownership can help the sale perform better) nowhere in the consignment agreement is it stated in black and white whether or not someone in the transaction wishes to remain anonymous. However, it could be made as simple as ticking a box:
I wish to remain anonymous.
For how long:
If anonymity at point of sale has primarily become a matter of habit rather than discretion, the addendum initiative might prompt sellers to question why they need to remain an unknown party in the transaction for decades to come.
It is also important to give some power back to the vendor when it comes to the decision as to whether or not to respond, privately, to any provenance-related questions. It is a fair assumption that most consignors would opt out of this, but at the very least it would make clear that the nature of the questions being asked today have changed. Eventually it might play a role in making sellers more comfortable with disclosing this information.
I am open to being contacted with questions about this consignment in the future
Neither of these two tick-box checks would have an impact on the sale itself, no matter the decision of the vendor. But they are important questions to ask.
We are still waiting to hear back from various auction house legal teams as to whether they would be willing to accommodate this suggestion, or indeed part of it.
7. The Blockchain
From day one, the main issue with blockchain has been the quality of information going in. Every piece of relevant accompanying provenance, exhibition and bibliographical information must be accompanied by the relevant supporting documentation as well as time-stamped results from database checks. Missing parts of the documentation should be clearly pointed out and all research reports should be signed by the author and be accompanied by their credentials and contact information.
