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Showing posts with label Toby Orford. Show all posts
Showing posts with label Toby Orford. Show all posts

September 30, 2011

Forgery in South Africa: The Story of Frans Claerhout

A 'fake'

by Toby Orford

Higher prices for art are an inevitable sign of emerging market maturity – and also widespread criminal activity. Although art dealers and auctioneers are discreet about the scope of the problem in South Africa, the sales of art attributed to the artist Frans Claerhout on an internet auction site is blatant evidence that art forgery is an ongoing problem that cannot be ignored or, it seems, stopped.

A Belgian Catholic missionary priest, Frans Claerhout, lived most of his life in the Orange Free State. From 1957 onwards – heavily influenced by Flemish expressionism - Claerhout painted a large number of landscapes and figures. Other media included drawings in charcoal, pen-and-ink and crayon.

In 2002 the artist belatedly acknowledged that a close family friend of 45 years had started independently to copy his work, without his knowledge or involvement, and that “hundreds” of forgeries had been sold as originals in well-known Bloemfontein art gallery.

Claerhout died in 2006. Several years later a suspiciously large number of works are being sold on South African internet auction – and private - websites. Anonymous sellers are advertising works at prices in the region of ZAR 3,000 (approx USD 375) to ZAR 7,000 (approx USD 875). As Artinsure (www.artinsure.co.za) has noted, in a clumsy attempt to manufacture credible provenance, paintings are accompanied by a “Certificate of Authenticity” and, on the back, a reproduction of a supposedly original message from the artist. Unfortunately, the pro forma message does not refer to the artwork to which it is attached -  and is also false.

The quality of the work is inexplicably amateurish and inferior, and obviously inconsistent with the artist’s style, technique and imagery. Moreover, buyers have reported that paintings have arrived with fresh, wet – even smudged – paint, on board that only recently became available in South Africa.

Nevertheless, the tactic of selling fakes very cheaply on the internet has been quite successful. It has been reported that more than 30 such forgeries have been identified. The low prices are both a temptation and a warning. It is usually the less wealthy and less experienced purchaser that is deceived. Tempted by greed to “beat the market”, even those who suspect that they have been deceived probably don’t care. Or, for such a low outlay, they are prepared to take the risk – or to turn a blind eye to what is going on.  
Cecile Loedolff, an art curator, said in 2002 that the Absa Bank Collection had decided a long time ago to stop buying Claerhout paintings:

" I don't touch a Claerhout ….. I find it very strange that nobody became suspicious earlier. In the last few years, Claerhouts have been issued at the speed of white light."

People are naturally concerned about the authenticity of anything attributed to Claerhout and this will always be bad news for the value of his art. This may explain why as recently as Monday 26 September 2011 several Claerhout paintings failed to sell at a major fine art auction in Cape Town.

The South African Police are investigating. Previous police investigations have failed and a lack of training, experience and resources means that criminal prosecutions are unlikely. Unfortunately www.bidorbuy.co.za/ is not taking any action, because (it says) it has yet to be presented with any “hard, factual evidence or proof” and has not been contacted by the authorities.

And so, nearly ten years later, the uncertainty, which some lamely predicted would “sort itself out”, continues. The general reluctance to confront and stop such obviously fraudulent activity is surprising.

Privately funded litigation might be the only way to break this vicious circle. Robert Badenhorst is an artist and gallery owner who agrees that Claerhout values have dropped. He is currently considering whether to overcome inertia and to organise a private investigation in order to collect the evidence that is necessary to prosecute the sellers. Civil litigation against them is also a possibility. Although the buyers who have been cheated want to recover their losses, the main objective of any legal action would be to “name and shame” – and stop the forgeries. This is necessary in order to protect Claerhout’s legacy. But it is also necessary to protect the reputation of South African art in general. 

© Toby Orford 2011

September 27, 2011

Tuesday, September 27, 2011 - , No comments

"The Three Elephants" are Fighting For Survival in Court: Moral Rights Through the Prism of the South African Constitution

'Elephant' by artist Andries Botha under construction
Press release issued by Toby Orford, TOBY ORFORD ART LAW, who attended ARCA's Third International Art Crime Conference.

In order to protect his “Three Elephants” artwork – a life-size sculpture at the Warwick Triangle Viaduct in Durban – the internationally respected artist Andries Botha has been forced to institute legal proceedings. The case is brought against eThekwini Municipality and other parties, including the Minister of Arts and Culture, Mr Paul Mashatile. Botha will be represented in the Durban High Court proceedings by the prominent constitutional and administrative law Advocates Gilbert Marcus SC and Max du Plessis.

The dispute has generated much public interest since February 2010 and the dilemma of Andries Botha and “The Three Elephants” has been reported on extensively in the media, in South Africa and internationally.

At the heart of the dispute is the fate of “The Three Elephants”. “If eThekwini has its way, my sculpture, which was approved and commissioned by them, will be torn down”, said Andries Botha. Although eThekwini concluded a contract with Botha to build three elephants emerging from a sea of stones, it changed its mind in June 2010. Having formally ordered Botha to stop working on the public sculpture, eThekwini passed a Resolution which approved the destruction of two of the elephants and the incorporation of the remaining elephant into a new urban design concept consisting of the “Big Five” animals.

eThekwini's about-turn is closely linked to rumours that local ANC politicians are fearful that “The Three Elephants” are too closely related to the official symbol of the Inkatha Freedom Party:

“This is ironic because the elephants were specially chosen – by eThekwini - as an apolitical African metaphor for tolerance, co-existence and due consideration for a vulnerable eco-system”, said Botha.

Botha wants to complete “The Three Elephants” project in the public interest, and to receive payment for the work he and his employees have done. Notwithstanding Botha's efforts to find a solution to the stand-off, eThekwini has refused to give an undertaking to safeguard the integrity of “The Three Elephants” – which means that the elephants may be removed at any time.

Andries Botha says that he has been left with no choice but to seek the court's protection. His legal representative Toby Orford of Toby Orford Art Law has been instructed to lodge application papers at the Durban High Court. Toby Orford confirmed that the papers have been filed and are being served on the respondents. According to Toby Orford, “The purpose of the application is fully set out in the application papers but it is no secret that it is an application for a declaration to confirm Andries Botha's rights, a review of eThekwini's decision and an interdict prohibiting eThekwini (and others) from modifying, altering or destroying “The Three Elephants”. Andries also has separate claims in contract and delict against the contractors involved in the Warwick Triangle project.”

Botha's case is that eThekwini's decision to remove two of the elephant figures is a decision to destroy, mutilate or change a work of art. eThekwini's decision amounts to censorship and interference, which violates the artist's freedom of artistic expression which is guaranteed by the Constitution.

Above all, eThekwini's decision is a breach of the moral rights of an artist. Toby Orford explained further:

“Moral rights are known in copyright law as the author's “moral right” and are closely derived from Article 6 of the Berne Convention, 1886. An artist's moral rights (as set out in section 20 of the Copyright Act) are infringed when without his approval his right of paternity in the work is not acknowledged or (as in this case) an unjustifiable distortion, mutilation or other modification of the work takes place or is threatened.”

It is time that the moral right of the artist is upheld in South Africa, as seen through the wide-angle lens of section 16 of the Constitution:

“Art and artists have clear rights. Unfortunately, it appears that the only way to protect those rights and the public's interest in The Three Elephants is by recourse to the courts. This decision has been taken only after careful deliberation and unsuccessful efforts to broker a compromise solution”, said Toby Orford.

Toby Orford can be reached at toby@tobyorford.com OR www.tobyorford.com.