This story begins where most would end. In late April, a father and daughter—Erwin Bankowski and Karolina Bankowska—pleaded guilty in Federal District Court in Brooklyn to selling counterfeit works attributed to such artists as Banksy, Pablo Picasso and Andy Warhol that had been produced by an artist in their native Poland whom they had commissioned. More than 200 of these fakes had been consigned to auction houses in the U.S., netting a total of around $2 million in sales. The pair will be sentenced in August, and are likely to serve time in prison before being deported to Poland.
The question is what will happen to those 200-plus paintings. Will they be destroyed? Will they be kept in government evidence lockers? Is there a chance they may find their way back into the art market? The court’s plea agreement with Bankowska stipulates that she “disclaims any ownership…right, title or interest” in any artworks previously sold and that she will “turn over to the government” any remaining fakes in her possession. What the government will do with those items—and what the buyers of these fakes will do with the paintings they purchased—remains unclear.
“I expect the items in government custody to remain there at least through sentencing and the resolution of any forfeiture or restitution issues,” Todd A. Spodek, the New York City lawyer who represented Karolina Bankowska, told Observer. After that, he doesn’t know. “Some works may be returned with documentation reflecting their connection to the case. Others may be retained for evidentiary or archival purposes. It is also possible that certain works could be forfeited or destroyed.”
But the most likely outcome is that these forgeries, like fakes in other cases, will simply be returned to the people who spent good money on them. “It is their property,” explained Jane Levine, a former member of the U.S. Attorney’s Office who worked in the art crime division between 1996 and 2006 and currently is managing partner of The Art Risk Group. “It’s not illegal to keep it.” In fact, many buyers do keep forged artwork—perhaps as evidence for civil lawsuits against the individuals or companies that sold them the fakes or simply because they make an interesting conversation piece.
There were 10 civil cases filed against Knoedler Gallery, which closed its doors in 2011 after it came to light that approximately 40 paintings it had sold as being by Willem de Kooning, Robert Motherwell, Jackson Pollock, Mark Rothko and others had actually been painted by a Chinese artist who produced these works in his garage in Queens, New York and sold them to the gallery through an intermediary. All 10 were settled out of court, so there was no judicial ruling as to what should happen to the fakes. (“I had hanging in my office six or seven Knoedler fakes—they were Pollocks and Rothkos—but I returned them to my client some years ago,” Luke Nikas, a Manhattan lawyer who represented the Knoedler Gallery’s last director, Ann Freedman, told Observer.) Those litigants may have destroyed them. At least one of the Knoedler forgeries, purportedly a painting by Robert Motherwell, was stamped on the back of the canvas to identify it as a fake by the Dedalus Foundation, which owns the copyrights to the artist’s works.
Labeling the back of a forgery was standard practice for the FBI in the 1980s, according to Jim Wynne, a partner and founder of The Art Risk Group who worked in the federal agency’s art theft squad for 30 years. “Sometimes, they put a fluorescent pen mark on the back to indicate it was evidence in a criminal case,” he told Observer. Someone with a UV or blacklight would be able to see that fluorescent mark, raising an alarm that the artwork in question was a fake. Such marking appears to be less common today, based on the assumption that experienced buyers and sellers have greater access to information about artworks—for instance, through an artist’s catalogue raisonné, a compiling of all known works by a particular artist that lists when and where they were created, exhibited and sold. Works not included in a catalogue raisonné are assumed to be inauthentic. Some artists’ estates maintain authentication committees, comprised of art and other experts who rule on which artworks brought to their attention are authentic.
Another outcome for works identified as fakes by law enforcement is to be held in evidence lockers in perpetuity. “You can’t just put the art back into the market,” Wynne said. But when fakes and forgeries are returned to the people who paid for them, there is no guarantee they won’t eventually be sold again, with or without a disclaimer. The original buyer may not try to pass it off as authentic, but “when that person dies, the kids or grandkids say, ‘Wow, look at this Picasso!’ The label on the back may have fallen off, the stamp may have faded.”
One thing that doesn’t tend to happen—at least officially—is destruction; many artworks that don’t initially seem “right” (the art world’s term for an object that may be misrepresented, misattributed or an outright forgery) later turn out to be authentic, based on new scholarship. “A lot of paintings originally thought to be by Rembrandt were later reattributed as actually created by a follower of Rembrandt or a pupil of Rembrandt,” Arthur Brand, a Dutch art investigator, told Observer. “But opinions change all the time, and some paintings that were downgraded to not being by Rembrandt were later changed back to being by the artist. You don’t want to destroy something that might turn out to be important.”
The BBC television show “Fake or Fortune?,” hosted by Fiona Bruce and British art dealer Philip Mould since 2011, invites people to submit artworks for assessment and has witnessed this phenomenon firsthand. In 2017, a sculpture the two hosts called “worthless” was later identified as an authentic work by Swiss sculptor Alberto Giacometti and sold two years later at Christie’s for £500,000. However, when another British owner brought in a painting by Marc Chagall for which he had paid £100,000, the show’s producers sent it to the Chagall authentication committee, which declared it a fake and destroyed it. French law permits those in charge of an artist’s estate to destroy works they deem to be forgeries, a provision that led the British owner to file a lawsuit against the show’s producers.
There are similar laws in China, Greece and Italy, but “other countries are reluctant to sanction the destruction of artwork,” Brand said. “Experts could be wrong. Something that doesn’t seem right might turn out to be authentic.”
Unlike the FBI, U.S. Customs and Border Protection makes a concerted effort to ensure that fakes and forgeries don’t find their way back to the market. According to a CBP spokesperson, “Counterfeit goods, including artwork, encountered by CBP are detained while authenticity of the item is determined. If the goods are determined to be counterfeit, the goods are seized and forfeiture proceedings begin. The goods are stored until the forfeiture process is completed, after which all counterfeit goods are destroyed.”
