January 21, 2020

When fakes and false provenance go hand in hand.

At the end of this month a German dentist from Neuss will answer to allegations of fraud in the Düsseldorf District Court for allegedly trying to pass off twenty paintings as original works by the artist Pablo Picasso (1881-1973).  According to German news, the defendant, is alleged to have arranged meetings with art authenticators at the NH Düsseldorf Königsallee hotel, located in one of the main shopping streets and next to the tourist sites in the western german city. 

At that meeting it is alleged that the defendant presented photographs of the artworks to advisors of auction houses, along with fake certificates of authenticity from the Picasso estate.  It is also claimed that he indicated that handwritten notes, attached to the back of the paintings, were purportedly from the artist's son. 

In Germany, the crime of forgery is not charged unless the forgery (in this case the artworks themselves or the letters attached to their backings) were done with the intent to deceive or with the intent to commit an attempted fraud or larceny.  As no sales transactions occurred at the time of the meeting, the dentist most likely cannot be convicted of fraud under the German Criminal Code (Strafgesetzbuch).  For § 263 (Fraud) and/or § 267 (Forgery) to be applicable the public prosecutor would need to prove that the dentist deceived someone with the intent of obtaining for himself or a third person an unlawful material benefit and to prove fraud, specific intent directed at enriching oneself or a third party is required.   Since the meeting was not in furtherance of conducting a sale this would be difficult to prove. 

That said, should it be determined that the dentist knowingly understood the paintings to be fake, and still electively sought appraisals for the misattributed artwork, using another person's personal data, the court may find him guilty of unauthorized exploitation of copyrighted works and/or for the (intentional) use of fake documents. 

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