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8/18/2019 (Strafrechtelijke en Criminologische Onderzoekingen) H. Van de Waal, Th. Würtenberger, W. Froentjes (Auth.)-Aspe…
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ASPECTS OF ART FORGERY
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STRAFRECHTELIJKE EN CRIMINOLOGISCHE
ONDERZOEKINGEN
onder
redactie
van
PROF.
MR. J. M
VAN BEMMELEN
PROF. DR. W FROENTJES
PROF. MR. W H.
NAGEL
PROF. DR. D WIERSMA
NIEUWE REEKS
ZESDE
DEEL
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ISBN
978-94-017-5841-3
ISBN
978-94-017-6302-8 (eBook)
DOI 10.1007/978-94-017-6302-8
Copyright
1962 by
Springer Science+Business Media Dordrecht
Originally published
by
Martinus Nijhoff, The Hague, Netherlands in 1962.
Softcover reprint
of
he hardcover 1st edition 1962
All
rights reserved, including the right to traslate or to
reproduce this book
or
parts thereof n any form
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FOREWORD
Art forgery is, as far as I am aware, not listed in any criminal
code as a crime "sui generis." AsWürtenberger shows in his article
in this book, it is generally regarded as species of fraud. The
Netherlands Criminal Code, which in 1912, in Art. 326
bis
in
cluded the forging of the signature on or in a work of literature,
science, ar t or industry as aseparate crime, has in fact gone further
than many
other codes. Nevertheless, only a small section of
art
forgery has thereby been made a punishable offence. Proceedings
against
art
forgers are - as pointed
out
more
than
once in
the
following articles - relatively rare in proportion to the large num
ber
of forgeries.
Hence relatively little attention has been
paid
to this type of
fraud in the literature on both penal law and criminology.
It
was for this reason that the Institute of Criminology at Leiden
organised a symposium on this subject, which was addressed by
Professors H. van de Waal, Th. Würtenberger
and
W. Froentjes.
Why is it - one may ask-
that
art forgery does not constitute a
separate crime, like the counterfeit
of
money, documents
and
goods? There are three reasons for this: 1. historical; 2. social;
and 3. practical,
1. The historical reason is
that
forgery, falsum, was recognised
as a crime only relatively late in the development ofRoman Law.
The
lex Cornelia de faIsis,in which the forging ofwills and coinage
was made punishable as falsum, did not appear until the last
century B.C. A number of cases were
added
later as "quasi falsa,"
but the crimes offorgeryand fraud were neverproperly distinguish
ed from one another,
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V
FOREWORD
The adoption of
Roman
Law in Western Europe passed this
ambiguous situation on to
modern
law,
and
the result has been
disagreement about the extent ofpunishable falsum . Somejurists,
such as Jousse and Muyart de Vouglans in France and August
Leyser in Germany, proposed that any form of alteration to or
suppression
ofthe truth
should be regarded asfalsum.
The
"natu
ra l
rights" movement at the end
ofthe
eighteenth century argued
that there was a right to the truth. However, the legislators of
the nineteenth century were generally unwilling to go quite so
far, and they confined crimes of forgery to a few cases,
drawn
within narrow limits. For a forgery to be punishable, it was in
the first place necessary
that
the offence should to a certain extent
constitute
a
danger to the community" and a
threat
to the pub
lica fides." It was not recognised that this could also be the case
with
art
forgery,
and
aIthough Würtenberger assurnes - probably
correctly-
that
it would be of great benefit to the community at
large to make
art
forgery
aseparate
punishable offence, it is also
understandable
that
the legislators of the various countries have
not yet proceeded so far,
This isrelated- even ifthe.legislators are perhaps unaware of this
- to the social
and
practical reasons which, it
may
be assumed, have
to the present
day
prevented
art
forgery being made punishable.
2. The social factor which has contributed to this situation lies
in the nature of artists as a group.
It
is a fact that an artist only
very rarely becomes rich from his
art
during his lifetime. He is
not a businessman, and he generally has no social status.
Only
after his death do the products of the creative artist acquire a
rarityvalue that makes it worthwhile to imitate them fraudulently.
The man who is in the first instance injured by the forgery, viz
the
man
whose work is imitated, is thus no longer alive. He will
therefore derive no benefit 'from criminal proceedings, and he is
not in a position to institute a civil action. However, even living
artists whose work is fraudulently imitated take only a slight inter
est in this. Sometimes - and it is alleged that this is the case with
Picasso - they find it more amusing or even flattering.
Imitation
is the sincerest form of flattery." Thus the person imitated has
either no interest whatsoever in criminal proceedings, because he
is already dead, o r - ifhe is still alive - often remains unconcerned
at the act of forgery.
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FOREWORD
VII
Again, the community generally does not have much sympathy
for the victims
of
forgeries.
The man
in the street finds
i t
sheer
madness
that
such ridiculous sums are
paid
for works of
art,
Those
who feel a little more deeply about it feel sympathy more for the
artists who are no longer there to see how much their work
is
in
demand
than
for the immediate victim of a forgery.
The
violent contrast between, for example, the poverty in which
Vincent
van
Gogh lived
and
the ridiculous amounts now offered
for his work does to a certain extent provide a just motive for not
having much sympathy for those who find they have bought a
forged Van Gogh.
This social reason can also be approached from another direc
tion . For the great mass of the population real art, especially
painting and sculpture, remains a closed book. The plastic arts
are regarded as a luxury, and in so far as they allow themselves
this luxury, the masses buy the most awful rubbish. It is necessary
just
to look at the displays in the windows of so-called ar t dealers
to see what sort of'journey-work is sold there wholesale. It would
of course be impossible for there ever to be really good ar t hanging
in every working-class horne. The most that can be expected is that
a
number
of middle-class hornes will contain good copies ofworks
by great masters, instead ofthe innumerable moorlandpaths- with
birch-trees, windmills and Italian harbour scenes that are now
displayed on the walls of so many houses as "genuine paintings."
Little enthusiasm can thus be expected from the majority of
the population for vigorous action against ar t forgery. On the
contrary, they experience a certain pleasure whenever rich col
lectors fall into the trap and discover
that
they too have bought
"imitations."
The
"thinking section of the population" are also satisfied
that
only the most serious cases of art forgery are qualified as fraud
and
punished accordingly;
but
they also have the feeling
that
the
destruction of taste brought about by the ar t trade cramming the
public with tenth-rate pictures and figures is at least as serious a
social evil as ar t forgery proper.
Only when, with Würtenberger, one considers
art
forgery as
something that will "obscure the true general picture of the
art
of
anation
"
(p,
37) can one understand why he, with Albrecht
Dürer, wishes to brand this "despicable work" as "criminal and
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vm
FOREWORD
evil." Even then, however,
it
is a question whether
ar t
forgery as
such should be made aseparate crime.When this question has been
asked, the practical reason why this has not yet happened comes
into
view, .
3. This practical reason lies in the fact that not every wrong
can be made punishable without thereby inflicting more damage
than
gain on the community. This is the case with many social
evils.
Prostitution is the most striking example
of
this. In a number of
countries (for example the Netherlands) prostitution as such is
entirely non-punishable. In other countries, where prostitution
does fall under the criminallaw, the maintenance ofthis prohibi
tion gives rise to gross injustices.
The
prostitutes' clients are practi
cally never punished,
and
some ofthe prostitutes are able to escape
prosecution entirely.
Another example is the providingofopportunities for gambling,
which is forbidden in a
number
of countries (for instance the
Netherlands)
but
which nevertheless re-appears there in all sorts
of forms and is either openly regulated or quietly tolerated. With
this crime, as with prostitution, the demand for this opportunityof
giving expression to certain desires is so great
that
it
is practically
unfeasible to punish effectively those who offer such an oppor
tunity. This is also the case, mutatis mutandis, with quackery,
abortion
and
pornography. Here the legislator provides, in most
cases, an opportunity for prosecution,
but
he knows that he will
never effectively combat the evil in this way. There is always
such a large dark
number
that the few prosecutions produce prac
tically no effect.
Art forgery can be compared very well with prostitution, gam
bling
and
quackery.
The
forger prostitutes his artistic talents. He
knows that there are a large number ofpeople who wish to satisfy
their artistic feelings
but
do not possess the necessary ability
and
knowledge to distinguish the false from the genuine. He takes
advantage of this by providing a substitute without real love. The
forger likewise speculates on the need of his fellow-men to make
a large profit quickly, at one stroke. He provides an opportunity
for this by organising a lottery containing nothing
but
blanks (i.e.
forgeries). Nor
can
it be denied that he is a quack. He feigns
powers he does not in fact possess. This is the case even when a
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FOREWORD
IX
able and good painter - such as
Van
Meegeren - imitates an
old master.
But a proposal to make
art
forgery punishable as such runs up
against difficulties as great as in the case of prostitution, gam
bling and quackery. It would undoubtedly be possible to make
this punishable.
One
can envisage a provision parallel to
the
articles on counterfeit of documents and money. But where does
forgery begin
and
imitation end? Is it forgery for an artist to
paint a picture in the style of a fellow artist? Unquestionably,
no, even if he himself normally paints in a completely different
style. Is it forgery ifhe copies a painting by another artist
and
does
not sign it? Is it forgery
ifhe
deliberately produces craquelure in
the painting in order to give it the
outward
appearance of an old
painting?
One
can have doubts even about this,
ifhe
does it only
because he feels that the picture is more beautiful this way
and
that this is more fitting for a picture in an
old
style.
It
becomes
forgery only when - as also in the counterfeit of documents - he
does it witha view to allowing it to pass as a genuine old painting
and to use it as such" (i.e. to seIlit as such). Would it be punishable
if he
did
it to present it to a museum or
art
collector? Ought it
to be punishable in every case, if he
donated
the forgery as
a genuine old painting? These examples show how difficult it
would be to make the forging of works of art punishable as such.
Forgery ought to be punishable as soon as it becomes a means of
inducing another person to buy the product;
but
in this case it
falls under fraud or attempted fraud. As long as the forgery does
not serve this purpose, it is extremely difficult to prove
that
this
was the forger's intention, much more difficult than with counter
feit
of
documents or money. Nobody - except in exceptional
cases - will imitate another person 's handwriting for his own
pleasure, certainly not in a legal document, without the very
contents of the document revealing
that
his intentions were dis
honest.
The
same applies to the forging
ofmoney.
But producing
paintings and statues in the style and manner
of
another artist
does not necessarily reveal any evil intention whatsoever.
However
much
Würtenberger thus has right on his side in
urging that
art
forgery be
made
punishable, this will
run
up
against great practical difficulties.
The true artist produces art for the sake of art, The way to
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x
FOREWORD
abuse is opened as soon as ar t becomes commercialised.
f
it were
possible to protect the true artist effectively by making forgery
punishable, there would be everything to be said for this. But
in fact this will protect the true artist only slightly, if at all.
The
most serious excesses
can
also be countered effectively with the
aid
of the existing provisions - particularly i f more coutries were
to follow the example
of
making the forgery of a signature a crime.
For the rest, we must expect -
and
we can expect - that a thing
of
beauty is ajoy for ever, that it thus has an etemal value
and
that,
sub specie aetemitatis, history will be able to give judgement and
separate the grain from the chaff.
J.
M
VAN BEMMELEN
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PROFESSOR
DR.
H.
VAN DEWAAL
Forgery as
a Stylistic
Problem
Why isit that art-historical investigations to determine whether a
work of ar t is fake or genuine (so often) take an unexpected or
undesirable course?
To answer this question, we must realize that a forgery, like a
genuine work of art, is subject to certain laws which form the
fie1d of study of historical style criticism or historical style ana
lysis.
What is this field,
and
on what are its methods based? I shall
answer the second question first: historical
style
criticism,
or
historical styleanalysis, is based on the hitherto totally unexplained
fact that all the works of art produced in the same cultural circ1e
in the same time by artists of the same generation have certain
formal characteristics in common. Moreover, this influence of
time isnot limited to works ofart, but applies to all forms ofhuman
culture. t affects the visual forms of culture (such as handwriting
and fashions in clothes and hair styles) as much as the auditive
forms (such as the pronunciation ofthe language). Even mathe
matics is influenced by this general law.'
Jurists also know
that
the same holds for law. I would
add,
en passant, that the man of science generally knows these phe
nomena in his own
fie1d
but that neverthe1ess eachone be1ieves
that
they are not inherent in other disciplines, until he notices
that these parallels are a universal phenomenon which pervade
all the forms ·of expression of a generation.
1 It
was recently
argued
in an inaugural address at Leiden
that
the garment . ..
warn by [mathematics],
the
form
in
which it appears to us ,
[is]
dependent on
time
and
occasion." A. C.
Zaanen,
Het kleed
der
UJiskunde, Amsterdam 1957.
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2
PROFESSOR
DR. H.
VAN DE W
AAL
Art-historical analysis of style is based on these phenomena.
This
field
of
study embraces a world
of
scientific investigation,
such as the problem
of
the unity of style within various arts
and
the processes
of
succession
and
interpenetration
of
the "generation
styles";
and
then there is also the exciting pattern
that
these
"horizontal," chronological constants form in combination with
the "vertical," psychological constants, as the various typologies
reveal
them
to
us.
Through this enormous complex of investigation, which I like
to think
of
as a mass of mountains, we must
now
forcefully drive
a tunnel to emerge on the shadow side
of
this
mountain
range
of
man's
creative activity: the world offorgery.
Using the methods
of
style criticism, how does one recognise a
forgery? Above all by defects in its organic unity, such
as
failures
in spontaneity, lack
of
balance, a discrepancy between the more
or
less slavishly copied forms and the uncomprehended content
or function,
and
so on.
The
true work of
ar t
grows through various stages towards its
final form; the forger, on the
other
hand, proceeds from the final
result; he tries to reach his goal in a forced
manner
- from behind
as it were - so
that
in
many
respects a forgery is
noth
ing
more
than
a facade, In both art-historical and scientific investigations the
argumentation is often determined according to whether or not
the disputed work is
as
insubstantial as one
of
Potemkin's villag-
es.
What
do people forge? Whatever is held to be of value and is in
short supply. This is why we so often see individuals (and
nations) who feel a lack ofhonours, recognition or prestige seizing
on forgery as a
method
of
acquiring
what
they lack.
National priority documents, in whatever field, are apparently
among
the most passionately desired objects in the world;
and
we repeatedly see this rivalry occurring in the field where the
highest aspirations
of that moment lie,
Thus
our
present age has not only its sports events
but
also its
sputniks and luniks as pawns in this deadly serious game. And so
in
our
own time a favourable climate hads already been produced
for forgeries in the field
of
space travel.
In the nineteenth century, the period of colonisation, compe-
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FORGERY AS A STYLISTIC
PROBLEM
3
tition between explorers was one
ofthe
fields in which this struggle
went on,
and
forgers were not unknown. Another characteristic
of
the nineteenth century was its historico-romantic ideals. These
explain the importance that was attached in this period to
forgeries in the historical sphere, as title deeds to historical priority
rights, We find such forgeries particularly among the national
minority groups of
that
time, where they are rooted in
the
resulting cultural frustration.
The Scot Macpherson, with his songs of Ossian, which were to
pluck the crown from Homer 's head, was the first to appear as
a pre-Romantic in 1760. We also find the Czech Vaelav Hanka,
who likewise "published" a volume of ancient poetry
and
who,
after his appointment as Librarian in Prague in 1818, had ample
opportunity to add the signatures of Czech artists made up by
hirnself to the old, genuine miniatures of a different origin under
his care.
In
addition to this Scot
and
the Czech, I would mention
the Frisian foreman shipwright Cornelis Over de Linden, who
- driven by pride in his Frisian ancestors - discovered
(i.e,
in
vented) an ancient family chronicle, the Oera Linda Bok.
National resentment
and
personal frustration - perhaps even
more
than
the desire for material gain - form the actuating
motives which impel the artistic or scientific forger.
What do people forge? Whatever is held to be of value and is in
short supply, Thus the Middle Ages had its forgeries in many
fields: false relics, forged charters, fraudulent imitations ofprecious
stones, but no forgeries ofworks
ofart
in our meaning ofthe word
"forgery," since the Middle Ages had no concept of artistic
individuality (I do not say
that
this
did
not exist).
However, in all cultures in which we find collectors for
whom artistic individuality exists as a concept, we also find
forgeries in
our
sense of the word: we find them in Rome, China,
India and Persia long before the Middle Ages.
There is always a elose relationship between viewson plagiarism
and
on forgery. There is an obvious similarity between them: in
both
cases we are dealing with secret borrowing;
but
the plagiarist
issues the work of others as his own, whereas the forger tries to
bring his own work into the world under false colours. It should
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4
PROFESSOR
DR. H.
VAN DE
WAAL
be
noted that own
" work in forgery is generally limited to the
material
and
craft aspects.
It
is generally known that previous centuries took a
broad
view
ofplagiarism. In
1512 astranger was selling prints in front ofthe
Town
Hall
in Nuremberg, fraudulently copied from Dürer and
bearing
his monogram.
The
town council summoned him to
appear before them and made him swear to remove the signatures
and not to sell work of
that
kind
there again. Non-compliance
would
lead to confiscation. Destruction ofthe forgeries, as plaintiff
had
demanded,
was
not
allowed: he should
regard
it as an
honour
for
bis
work to be
imitated.
Conclusion: the
monogram,
the
master's
mark,
was protected,
but
not
the spiritual property. Views on artistic
production
were
characterised by guild relationships.
In the second halfof the seventeenth century an Italian artist,
Luca
Giordano,
painted aChrist healing the lame man,
with
Dürer's
monogram
placed in a conspicuous position,
while
his
own signature was written so small along the left edge ofthe
picture
that it was hidden by the frame,
Then what was to be so often the case happened: the painting
was sold, it was praised on all sides
and
finally
the
forger
made
himself known,
not
without pride. A lawsuit followed; but the
decision was: no
one
can blame our
Luca
for painting as well as
Dürer,"
Not until the seventeenth century did the idea appear that
borrowing in the artistic field might be something
improper.
Only
in 1735,
at
the insistence
of the engraver Hogarth,
was a law
passed in England forbidding the copying of prints."
For Van Mander, at the beginning ofthe seventeenth century,
forging
still referred exclusively to
the
use
ofbad,
defective material,
and even for
Van
Hoogstraten (1678),
with
a
play
upon words
referring to the compiling
method
employed by so many artists
"rapes, provided
they are
well cooked, make a good SOUp. i That
1
O.
Kurz
,
Fakes, a
handbook
for
collectors
andstudents,
London 1948, p. 106. None
of
the more recent books on this subject reaches the scholarly level of this study.
A general survey
ofthe
l iterature in this field can be found in : R . G. Reisner, Fakes
andForgeries
in
the
fin«
arts, New York 1950.
I
Kurz
, p. 35.
I nu
pp. 106/107.
, H . van de Waal, Drie
eeuUJen
oaderandsche geschied-uitbeelding 1500-1800, The
Hague 1952, I p. 75.
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FORGERY
AS A STYLISTIC PROBLEM
same year, however, saw the appearance of Malvasia's history of
Bolognese art, in which such borrowings, which
had
hitherto been
current, were branded as thefts.'
What
has this to do with our present subject?
The
fact
that
the
individuality
of
the artist was seen as something too minor to
merit respect
meant
that old copies could be produced in a whole
range of possibilities, and without any evil intent.
In the listing below, running from "copies that are honest to
frauds that are not," an attempt has been made to distinguish
some of these types,
It
should be noted
that
in most cases the
boundaries between these types cannot be drawn very distinctly,
while combinations
of
some of the types distinguished below
may
also occur.
A Original
1 replica by artist 's own
hand
2 studio copy
3 old copy
(documentation)
(instruction)
B Weak
original
1 weaker master
2 bad preservation
3 radical restoration
4 partial alteration
C
New
work
1 modern copy
2 pasticcio
3 new work with so-called "original"
invention
4 falsification "without model"
(imitating no one particular type)
With regard to Group B (weak originals) we should not forget
that even the great masters are not without their bad days. Max
Liebermann had this fact in mind when he advised his colleagues:
Let us honour the art historians.
It
is they who williater purify
our
oeuvre by rejecting less successful works as 'certainly not by
the artist's own hand '
1 H. Tietze, "Psychologie und Ästhetik der Kunstfälschung",
Zeitsehr
. für J stheliJc
27 (1933),
p.
229.
• After EI Greco 's death, according to the inventory
drawn
up by his son, hisstudio
conta
ined
four or five replicas, in various dimensions, ofmost of his paintings. Some
were expressly distinguished by the words "Th is isthe original." Kurz,
loc.
cit., p. 56.
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6
PROFESSOR
DR. H.
VAN DE
WAAL
For the rest of our investigation we shall limit ourselves to
the type given
under
e3
-
new work with so-called 'original'
invention - since this reveals a
number
ofmost remarkable points.
As
an example of this type we may take the portrait busts that
were acquired by the Louvre, the Victoria and Albert Museum
in London, etc. in the period between 1860
and
1870 as master
pieces ofthe Italian Renaissance,
but that
later proved to be recent
works by Giovanni Bastianini (1830-1868) .1
How can we explain
that
no one noticed the difference between
these busts and Italian Quattrocento portraits? Bastianini pro
vided something which corresponded, in increased measure, to
the picture
that
people
at
the
end
of the nineteenth century (in
the period of Naturalism) had formed of the Italian Renais
sance.
These and similar cases force us to the remarkable conclusion
that each generation remains
bound
within the general stylistic
forms of its time. If this is so, another inescapable consequence
folIows: that under certain circumstances we shall not be able to
see a difference like that between the Bastianini Quattrocento
portraits
and
genuine Quattrocento portraits, no more
than
we
can observe the movement
of
the Earth. A precondition for this
is
that
the forger's conception
of
the works of ar t to be imitated
corresponds in every respect with
our
own conception of them.
In the days of Bastianini's successes the principle of realism was
still struggling for recognition in the nineteenth-century ar t
world. People believed - in part correctly - that in the artists of
the Italian Quattrocento they could see the precursors
and
harbingers of their own aspirations; the other characteristics of
this style went unnoticed. Thus a super-naturalistic forgery had
the
chance
ofbeing
appraised as a particularly great masterpiece
of the Quattrocento.
For this iswhat isspecial about these forgeries: they are accepted
as supreme masterpieces as long as they correspond to con
temporary tendencies in style. After fifteen to twenty years a
discrepancy usually becomes apparent
and
the scales fall from
people's eyes. Forgeries of this sort have to be served hot
A striking proof, more or less a reductio ad
ahsurdum,
can be
given for the sweeping statement
that
we can never escape
1 Kurz,
loc.
cit., pp. 148ff.
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A
f
1
1
T
w
o
p
a
s
o
C
m
m
e
P
y
t
h
m
a
w
h
i
n
1
o
j
a
t
o
A
m
e
c
t
a
R
g
a
p
o
a
l
e
a
c
e
m
p
a
y
j
a
w
T
w
w
i
m
p
e
E
o
a
a
a
p
t
h
a
s
s
j
a
c
e
m
p
a
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f
a
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r
e
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(
a
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w
n
e
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2. " Suprema tie dc la lcmm
c.
Ill u
strat
ion from Alber t R obida, Le
XX
siede,
Pa r
is 1879, a com ic u to pia
laid
in 1952.
Whil
e this b ook co
nt
ains startl ing ly ac
cu r
at e Iorecasts o
ftec hnica
l developmen ts,
th e " fa n tas
tic
f
orm
s of
dr
ess all be
ar
th e
mark
of th cir period of orig in,
despit e the wri ter- il Iust ra tor 's
cf'Iorts
to esca pe from his own time.
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3.
View
01' th e suc ces iv e fashions i n women's dress in th e n ineteenth c
entur
y.
Rob ida's
Ian
tasi es ca n be seen to be inseparably re la t
ed,
in their essential
str u cture, th e 1880 m
odel
(bottom
row
left) (After D e r Kinderen-Besier),
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4 .
Paint
ing in
the
style of
Verm
eer b y H . A. va n M eeger en .
Publish
ed in 1932 by Br
ediu
s,
who
sta ted
that
he was struck a bo ve a ll by
th e
su
bt le ex pressio n of th e yo un g g irl , tim i d a nd yet
inwardl
y wel -pl eased
with herself " ,
H is words in p raise of thc pi eture e nd ed w ith the follo win g prophetic rem ark :
t
is not ort en th at we find such a del ica cy of scnt im cm in a V
erm
eer fac
e .
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FORGERY
AS A STYLISTIC
PROBLEM
7
completely from the historical "field of force" of the style of
our
own, contemporary period.
What happens - we might ask - when the deliberate attempt
to be non-contemporary is directed not towards the past but
towards the future?
What
do illustrations of utopias look like?
Here
the illustrator is forced to make something new, something
entirely different from currently known forms. But he has no
model to follow, unlike the forger, whose gaze is directed towards
the past.
In 1879 the writer-illustrator Albert Robida (1848-1926)
published a comic tale
Le
XXe
siede," which was supposed to
take place in the year 1952. The technical possibilities for the
future offered by such recent
and
sensationa1 inventions as the
telephone (1876) and the phonograph (1877) were from the
beginning so evident that Robida was able to foresee many
features of modern life, such as the spoken morning news bulletin
and
television (which he called "telephonoscope"). For the
technical part of utopias it is sufficient to follow the logical
extension of already visible lines of development. But in the
matter
of the evolution of forms there is no such possibility.
When, in 1879, Robida had to design
dothing
for a date so far
in the future as 1952, he obviously did his utmost to free himself
from the fashions of his own time. The "fantastic" forms of dress
he designed must have seemed as fanciful to his contemporaries
as, for example, the strange idea of a woman commandant
inspecting the troops (Fig. 2). Yet it is possible for us now, after
the event, to date Robida's deliberately a-historica1 creations
accurately to within a few years. His wild fantasies can all be seen
as bearing, willy-nilly, the mark of their period, not only with
regard to their general style of drawing,
but
also in the forms of
the costumes themselves. In other words, in the very field where
the artist deliberately tried to get away from contemporary norms.
What has happened? Robida's fantasies ä la 1952" reflect
precisely the short phase around 1878 when women's dress was
for a few years strongly influenced by male dress. The typical
garment of this period was the "polonaise," with a bodice
and
overskirt in one piece, fitting tighdy at the hips,
and
with a
pronounced diagonal accent at knee-height.
About
1881 this
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8
PROFESSOR
DR.
H. VAN DE
WAAL
manish tendency was already declining, and in the fashion
journals the nineteenth century's second bustle period was
announcing its arrival. All these characteristics of the polonaise
can be found in Robida's drawings ofhis utopia (Fig. 3).
Conclusion: after the passage of time even the strangest, most
bizarre fantasy inevitably reveals itself as what it really is: a
product
of its period of origin. It is evidently impossible for man
to really escape from the historicallaws which act upon him.
The remarkable example I have just given is by no means
an
isolated one. Illustrated utopias are, it is true, not very common,
but similar cases
can
be found in other fields to illustrate that
it must indeed be deemed impossible to escape
the
"pull" of
the
historically and geographically determined forces to which every
human creation is subject.
The J apanese woodcut of Commodore Perry (1852), the
man
who forcibly opened up Japan to American trade (Fig, I) , will
appear to twentieth-century Europeans who are unfamiliar with
Japanese art more as what it is (aJapanese product) than what
it was meant to be at the time (a portrait ofa European). Yet here
too we must assume
that
the artist - who had to operate with a
form which was alien to him (European facial features) - has
done everything possible to state clearly
that
it was his intention
to portray a non-Japanese. For those belonging to his own cultural
circle, he probably succeeded in this,
but
for us, who approach his
work from a totally different standpoint, what matters most is the
unintended stamp of time
and
place of origin. "Nichts ist in
der
Fremde exotisch als
der
Fremde selbst"
(In
a foreign country
nothing is exotic except the foreigner himself).
2
A forger works under similar conditions. It holds equally
for
what
he produces
that
he
may
possibly succeed in conveying
what
he intended to his contemporaries, but that to observers of
later
generations his work will reveal itselfmore and more clearly
as a product of its actual period oforigin.
We are astounded now at the romantic flavour of early nine
teenth-century fakes imitating Flemish primitives. It was for this
very reason
that
they were acceptable to contemporaries.
1 J. H. der Kinderen-Besier, De kleeding onzer voorouders: 1700-1900, Amsterdam
1926, pp. 192/194.
2 E. Bloch, DasPrinzipHoffnung , Frankfurt am Main 1959, I p. 430.
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FORGERY AS A STYLISTIC PROBLEM
9
Thus we see that every attempt to escape from one's own,
contemporary cultural "field of force" is doomed to failure. But
it
also becomes clear to us that,Jor the same reasons,
it
is often im
possible to escape the contemporary suggestions of a contemporary
fake. Optical illusions are always a question
ofpoint
ofview, and
in our opinion, in these questions it is a case of amental optical
illusion on the part of the observer. The laws I have mentioned
apply as much to the receptive sphere as to the creative one.
All
our
creations and re-creations are determined by pre
conceived ideas,
and
these preconceived ideas are rooted in
our
own time. Startingfrom linguistic phenomena, Carryvan Bruggen
described the psycho-sociological side of this involved question
very clearly:
The
supremacy of the preconceived idea explains
'K
öpenick',
After
the event, everyone saw in
the
so-called high-ranking officer
the unshaven, unkempt, shabby plebian, after the event everyone
was ashamed ofhow he had been taken in. It is the same with a
child who even years later is amazed at not having recognised
Santa Claus, with his boots and .trouser legs sticking out from
under his cotton robe, as the uncle who, by coincidence, had
disappeared.
That
is afterwards, when he
had
seen
it,
And
the
younger child, who remains deceived, is by no means more stupid
- often he is more intelligent,
but
he has
just not
seen it yet.
In
our opinion literally the same thing happens to the expert
who falls victim to a contemporary fake. The remarkable thing
about an optical illusion is that it never involves any doubts.
One
does not imagine one sees something, one does not see
it
in
distinctly or only in part;
it
is in cases of this sort that you are
convinced of
what
you see, and so the
path
to any other interpre
tation is blocked.
Mental
optical illusions, to which we
are
referring here, do not form any exception to this rule.
For
Hofstede de Groot the forged Frans Hals in which he
believed was
not
a Frans Hals but a "genuine
and
extra
ordinarily beautiful" work by the
master.P
He
had
previously
1 Carry van Bruggen, Hedendaag
sfetischisme,
Amsterdam 1948,p . 155.
I C. Hofstede de Groot, Echtofonedü? Oogofchemie? Beschouwingen naaraanleiding
vanhet mansportret door FransHals uit het
proces
Fred. Muller & Co. contra H. A. Haas,
The Hague 1925. Beforejudgement was given
in
this case Hofstede de Groot
u .
still
convinced of the genuineness of the pieture and admiring its extraordinary quality,
bought it for his own collection for the price which he had repeatedly said the pieture
was worth" (p. 10).
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10 PROFESSOR
DR.
H. VAN DE WAAL
made a really quixotic gesture by offering "should I be wrong ...
to present all the works
of art
belonging to me to
our
public
museums, provided that Messrs Frederik Muller
&
Co., should
they
be wrong, also agree to give
one-tenth
of the value of my
collections to these institutions" ; he further wished to bind him
self in the above-mentioned case never to express
another
word,
either in writing or verbally, about the genuinenessofan
unknown
Frans Hals, without however wishing to impose this last condition
on
the
opposing
party
as well" (page 68).
The tragedy
was
that
Hofstede de Groot saw
the
result
of
this
case as inseparably linked with his own
reputation; i f
he were
proved wrong
after
forty years
ofwork
(non sine gloria, I
might
add with Horace) I should have to admit that al l art history
and
stylistic criticism are mistaken
and tha t
there
is
no basis for their
existence" (p. 35).
Any idea of
a possible optical illusion was
foreign to him. He believed
that
because
of the
"inexpertness
of
the experts" he was threatened by an injustice "so enormous ...
that mutatis
mutandis
it could be compared only with that
committed in the Dreyfus case."
Professor W.
Martin, who
was
appointed
by
the court
as an ex
pert
and
who
was violently
attacked
by Hofstede de Groot,
began
his report wi th the following sobering and prophetie sentence:
The painting is the work ofa skilful
painter,
done in the manner in
whichhe
imagined
Frans Hals worked, but not in the manner in which
Frans Hals in fact
painted (quoted
from
pp.
81/82,
our
italies).
In
1927 the specialist on Spanish
art,
August L.
Mayer,
publish
ed seven wooden male busts as apostle figures by EI Greco. We
must
think back to that period when, thanks to contemporary
expressionism, people's eyes were beginning to open
again
to the
outstanding
qualities in
the
work
of
this sixteenth-century artist,
in
order
to be able to
understand
the origin
of the
paradoxical
characteristic feature with
which Mayer attempted
to support
his attributing these busts to EI
Greco:
Thevery modern manner
in which the costume of the apostIes iscarved is most characteristic
of EI Greco."
1 Theart netos
25 (1927), p. 66. A few years later RudolfBeriiner wrote
ofthis
case:
Man
muss Spezialist sein, um He1ena in
jedem
Weibe zu sehen .
Man
muss Spezialist
für Greco sein, um in diesen Machwerken die
Hand
Greco's zu erkennen" (One has
to be a specialist to see Helen in every woman.
One
has to
be
a Greco specialist to
recognize Greco 's
hand
in these fakes), Belvedere 10 (1931), p. 24.
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FORGERY AS A STYLISTIC
PROBLEM
11
When, in 1932, Bredius published his first Van Meegeren, he
began
by
warning
against some
recent
forgeries,
then
went
on:
I could
name
dozens offakes
of
this
kind
but I prefer to rejoice
the
hearts
of
my readers by the reproduct ion
of
a very beautiful
authentie Verrneer which has recently
been
discovered." He
continued
in this tone of genuine enthusiasm: I was struck with
amazement when I first saw the beautiful
thing
(Fig. 4). Why
was Bredius so struck? But the greatest
attraction ofthe picture
lies in the subtle expression of the young girl, timidandyet inwardly
well-pleased with herself. It is not often that we find such a delicacy
ofsentiment
in a Verrneer face."
Arecent
investigation by Professor
J.
H. van
den
Berg seems to
bear out the suspicion that no
better
distinguishing feature could
be given for the physiognomie difference between the
attitude
of
the sitters in modern portraits and those ofprevious centuries than
the
very se1f-assurance which so delighted Bredius in a quasi
seventeenth-century work:
inwardly
well-pleased with herself. "
Seen in this light, these forgeries give us a
remarkable
view into
the processes of interpretation
which
underlie every act of
observation.f
The
ultimate consequence of this is the view
that
whenever we look
at
a work
of
art, read
apoern,
playa
musical
composition or perform a play, we too
are
inevitably
introducing
similar "forgeries." This conclusion seems to attack every fixed
standard.
In
our opinion, the way
out
of this impasse is to be
found in the conclusion that a great work ofart is capable ofmany
interpretations, distinguishing itse1f thereby from less important
works.
Art history can adopt a laconic, wait-and-see attitude to
forgeries of the last
type
discussed. These frauds, and
they are
always
the
greatest successes, inevitably come to light,
ifnot
after
a few years
then
after a few generations.
The legal and social side of the problem is, however, less
reassuring; and, as we have seen, for the same reasons. It is the
reverse ofthe same medaI. Ifwhat we observe is to a large
extent
determined
by preconceived ideas, if artists' creations
are
above
all influenced by what
art
history usually designates with
the
German terms Anschauungsbilder (Fiedler), Sehformen or
Vor-
1 Burlington Magazine 61 (1932), p. 145 (our italies).
2 M. C. Colenbrander, De wegvanhet zien,Amsterdam 1957.
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12
PROFESSOR DR . H. VAN DE W AAL
stellungsformen (WölfHin),ifan entire culture isindeed permeated
byan
"innerer Bildtrieb," as Burckhardt called the phenomena
discussed here, then I see no way, within the limits
of
art-historical
methods of avoiding the chance of being taken in by a con
temporary forgery whose point of departure coincides exactly
with certain modern tendencies which we greatly admire in the
period or the artist in question.
If our views correspond to
any
extent with the complicated
psychological processes underlying these questions, it might be
advisable to have a work of
art
of doubtful authenticity examined
by a number of competent art historians belonging to different
generations
and
with varied general cultural backgrounds.
I have deliberately
not
made any mention whatsoever of
scientific methods of investigation. In the first place because it is
not my subject,
and
in the second because Prof. Froentjes will be
discussing it tomorrow.
Then
doubtless the slides will also be shown which, in view of
my subject, you had probably expected tonight. Slides showing
enlargements
and
Xvray photographs.
I should like to make the following remark in connection with
what
I have already discussed. After my detailed exposition of
the weak spot, the inherent "blind spot" in art-historical in
vestigations, it would be incorrect to conc1ude that scientific
methods
can
offer a greater, or absolute, guarantee.
It seems so simple: we take an X-ray photograph. But it is often
forgotten
that this X-ray photograph has to be read, i.e. inter
preted. Moreover, our criteria for answering the question "genuine
or fake?" are all qualitative in character. On the other hand,
scientific methods can - of necessity - only give quantitative
information. Scientific investigation never gives a direct answer
to the question "Is this paint old or new?" We can get an answer
to the question Is this paint
hard
or soft?"; this is immediately
interpreted by us as: (already) hard or (still) soft. This inter
pretation presupposes, however, the normal processes
ofthe
drying
of paints f the forger follows another method and is able to
harden his paint by means of some still unknown process (as
Van
Meegeren did), then the routine examination will not in the first
instance be able to identify this fraud.
In other words, scientific investigation can, without fail, draw
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FORGERY AS A STYLISTIC
PROBLEM
13
attention to forgeries made according to an already-known
process,
t
is a robot which will without fail - according to
our
instructions - call attention to what is undesirable; but only
according to our own instructions
The process is reminescent of the blind giant Polyphemus
in the Odyssey, who had shut up his sheep
and
his Greek prisoners
in his cavern. He let his flock out to pasture, in the morning
stroking them along their fleecy backs. It was quite simple for the
cunning Odysseus to tie each of his companions under the belly
of a sheep and so to escape.
You would be misunderstanding me ifyou were to think that , by
c1early defining the limits of
our
methods, I wished to imply
that
with the means at our disposal the outlook seems serious.
Moreover, the art-historical
and
scientific methods comple
ment each other in a most fortunate manner. While
arecent
forgery may sometimes be difficult to detect by using
art
historical methods, recourse may in certain cases be had with
success to scientific methods,
and
vice-versa. In short, the contrast
between an art-historical investigation
and
one based on scienti
fic methods is essentially smaller
than
is often thought. It would
be better to speak
of
an
unarmed
and an
armed
eye.
Our discussion of forgery as a stylistic problem would be
incomplete if we were to disregard a remarkable and very un
welcome complication which occasionally disturbs the already
complicated set of relationships in this field. We are referring to
the system of issuing certificates.
In no other field is it possible to take a heap of scrap, tinker
about with it a little
and
then seIl it as a Rolls Royce, covered by
a statement signed by a highly reputed expert, in which the
latter
dec1ares that
to
the best of his knowledge" he considers the one
to be the other.
The
"Winkler Prins Encyclopedie van de Kunst" expresses it
rather neatly in the following terms: The practice has lead to
unsavoury dealings connected with the fact that connoisseurs
differ widely in knowledge and character.
To avoid any misunderstanding I wish to state quite c1earlythat
in this respect our present Dutch officials are above all suspicion.
1
Vo1. I (1958), p. 613.
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FORGERY
AS A STYLISTIC
PROBLEM
This abuse is a remainder from the speculative atmosphere of
the First World
War
.
In
1917
the
ar t
historian Tietze exposed
it
for the first time in a paper : "Sollen kunsthistorische Expertisen
honoriert werden" (Should art-history expertise be paidr) . His
conclusion was: it is desirable for the art
trade
to continue to come
to the official staff of museums for advice. He was thinking of a
service that would charge either a uniform rate or one based on
certain standards relating to the amount of work involved.
In
1928 Tietze
retumed
to this subject, particularly since
Friedländer had meanwhile also given his opinion, seeing the
remedy as lying in educating the
collector."
Tietze riposted
sharply: "This evil is to be fought not by educating
the
collectors
but
by disciplining the art historians. The prejudice of earlier
generations against any form of expertise - whether paid or free
of charge - by scientific specialists has instinctively found what is
right;
and
perhaps the French custom, whereby this form of
activity is left to a separate profession, is the most radical solution:
then at least the trickery takes place outside science, and the latter
is not always running the risk of looking at objects with the eyes
of the ar t market
and
thinking with its mentality.
:
So
much
for this unpleasant question, which will become more
rather than
less
important
as the value of works of ar t
increasest
and
as a larger group of the totally inexpert begin to acquire
works of art as investments.
We have said
that
national resentment and personal frustration
may
motivate the artistic or scientific forger even more strongly
than
simple greed. This does not hold for
the
writer of unjustifi
able certificates. This is not a case of scientific falsification but
of a false declaration, a false testimony, made knowingly and
made
in such a way
that
no impropriety
can
ever be proven.
Formulas such as:
The undersigned eonsiders this picture as an authentie
and eharaeteristie work by .• .
do not offer a single point ofattack from the legal point ofview.
1
Kunstchronik. 23rd March, 1917.
• M
]
. Friedländer,
Echt und
unecht.
Aus den
Erfahrungen
desKunstkmners, Berlin
1929
(first appeared in Kunst undKünstler 26 (1928) pp. 17Iff).
a Die Frage der Expertisen," Kunst undKünstler 26 (1928), p. 382.
&
An interesting survey
ofthe
development
ofthe
value ofworks
ofart
as compared
with other prices can be found in M. Rheims,
La vie etrange des obets. Histoire de la
curiosiu, Paris 1959, pp. 289ff. L'lvolution desprix
and
G. Reitlinger, T r
ecrmomics
of
taste.
T r
rise andfall
of
pieture
prias,
1760-1960, London [1961].
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PROFESSOR DR.
THOMAS WÜRTENBERGER
Criminological and Criminal-law
Problems
of the Forging of Paintings
The nature and importance of art forgery in the modern world
can be grasped fully only if individual branches of science co
operate to the fullest possible extent in an overall review
ofvaried
perspectives
and
in an association of several methods. Glimpses
into the mysterious border-zone between
art
and law, as repre
sented by present-day art forgery, are afforded by the study
of art and the history of human thought, by criminology and the
study of
penallaw, but
also by scientific criminalistics.
It
is for me a special pleasure
and
honour to be permitted to
address a group of experts on a number
of
selected criminological
and criminal lawproblems of artforgery.
r I have to define the special characteristics
of
crimes of ar t
forgery, I shall be paying special attention in my
paper
to those
aspects which
are the
concern of criminology. I shall
attempt
to
explain
under what
contemporary mental and social conditions
the present-day phenomena
of
art forgery have developed, the
extent
and
forms of criminal activity assumed by
art
forging in
the
past
and
in the present, and the type of personality structure
possessed by those who become
art
forgers
and
swindlers. To
complete the picture of these criminological relationships,
reference will occasionally be made to the manner in which
forgeries are produced nowadays and how they can be recognised
as such by experts. Finally, I shall also touch on the purelypenal
law
questions involved in the present-day fight against ar t forgery,
but only in very broad outline, without going into the finer
dogmatic points of
Dutch
or German
penallaw.
5
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16
PROFESSOR DR. THOMAS WÜRTENBERGER
I
The present-day phenomenon of criminal art forgery can be
approached most easily via history. The development
and
form of
the
criminal activities summed up in the words art forgery"
simply cannot be understood without a knowledge of the influence
of certain cultural trends, spiritual
forces
and social changes. Deeds
falling under the heading
of
art forgery" are not, however,
eternal" crimes like
murder
or theft,
but
always occur only
under
the influence of a
particular
situation produced by social
and
mental history.
I t is one of the historical peculiarities of
art
forgery
and art
fraud
that
these criminal activities generally appear and spread in
highly differentiated, late cultural periods. Periods with a
"retrospective" character are particularly liable to these forms of
criminality. Thus in
Late
Antiquity, works of Greek plastic art
were forged; in the Renaissance, works of Antiquity; and in the
Romantic period, Gothic paintings. At the present time, however,
not only
the
artistic models ofthe historie past
but
also all sorts of
works of modern
art
are being forged, and in such enormous
numbers
that
it is now almost impossible to distinguish
what
is
genuine from wh
at
is faked in the art produced.
One
may often
feel inclined to believe that Sainte-Beuve was prophesying
correctly when he said, La phase ultime de l'art,je la trouve dans
la falsification" (For me,
the
ultimate phase of
art
is forgery)
If
we look back into the
history ofEuropeon art, then
we see that,
for instance in the Christian
Middle Ages,
when
art
was religious
in function and the artist was fully incorporated in society as a
craftsman, there were no art forgeries in our modern sense of the
word.
The
world
admired
the religious content
of
the altarpiece
more
than
the person of the generally anonymous artist,
Thus any
inducement to copy a great foreign artistic model was completely
lacking. The great change came with the period
ofthe
Renaissance,
when the discovery of the world
and
of man,
the
new spirit of
individualism, set its stamp on cultural life. A decisive change
took place in views on the nature of the artist's personality. In
Italy, in the Netherlands and in Germany
the
artist emerged from
his confinement as a memb er ofthe medieval craftsman dass. The
newage
gran
ted him recognition of his value as an individual, a
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CRIMINOLOGICAL AND
CRIMINAL-LAW
PROBLEMS
17
rise in his social position and the winning of economic power.
The
world stood amazed
at
the great achievements
that
could be
realised by a human talent, genius, in the field of artistic creation.
The value
and
importance of works of art now became more and
more dependent on the strength of the artist's personality. The
artist's special position was indeed often justified with an appeal
to the divine origin
of
his genius.
It
was in this period, which
brought a sort of "glorification" of the personality
of
the artist,
that an idea arose which is nothing ifnot basic for an understand
ing of art forgery : the idea of
originality.
This was recognised to
a greater
and
greater extent as a high criterion, in fact as the
highest criterion in judging a work of
art
.
The
original work
of
art comes into being as something innate; the artist creates it
"from the depths
ofhis
own, unique self." The work corresponds
to the spiritual organism of its creator, it is to a certain extent a
part
of his own personality. Despite his often violent struggles in
the original act of creation, the original creative master remains
in
astate
of perfect equilibrium between his task
and
his ability.
Originality was indeed identified with genius. Thus in the eigh
teenth century the Englishman Young described genius as the
highest attribute, since it is both "moral
and
original." Originality
is divine and hence sacrosanct; any attack on it, no matter
under
what
guise, seems reprehensible. This idealisation of the original
work of art, which has appeared since the Renaissance, is a socio
historical fact
of
major importance. The imitation of foreign
stylistic forms, still so frequent in the Middle Ages, was now
considered objectionable, and the formerly so important branch
of art, the copy, was outlawed. A factor of particular importance
for the development of ar t forgery was
that
the esthetic and moral
value of originality was more
and
more drawn into the
commer
cial way
of
thinking
of the capitalist age and at the same time
raised to the status of an economic category . Only works of ar t
acknowledged as originals - which works had, since the Renais
sance, become the main object of collectors' attentions - obtained
the highest prices in the European
ar t
markets. They had be
come trade commodities, desired on a sides.
The
price of a
picture was determined less by its esthetic effect than by the
uniqueness of the great name, symbolised by the signature.
And
so it has remained to the present day
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18
PROFESSOR
DR.
THOMAS WÜRTENBERGER
While the attention and the possessive urge of wide groups of
society were thus directed towards the original works of the great
masters, mere copyists
and
less-known artists were often scarcely
able to make ends meet, In many members of this layer of society
the resolve thus took firm root to obtain the same high economic
reward as their more fortunate rivals in
the art
market by
deceit,
by
copying
and
forging
original works. Wherever people are
acquiring or disposing
of
works
of
art on the art market as col
lectors, dealers or connoisseurs, swindlers and forgers are also to
be found.
For
ever since works of
art
have been collected and
bought and sold as merchandise of a special quality, there has
been a temptation for countless dishonest elements to make a rich
profit by forgery and deceit, Since then, in modern times, an un
ceasing, rapidly growing flow of spurious or forged works of
art
has poured into the world; every year a large number of people
are swindled into buying fakes, a total of several millions being
lost in this way.
n
The
development
of
acts
of
art
forgery
at
the
present
time
is following the
trend ofthe general movement in criminality, in which a constant
increase in crimes
of
fraud and counterfeiting can be clearly
observed. Fraud has become
the
property offence of the modern
world."
Von
Hentig has justly observed:
The
method of fraud,
ofpushing a false roller
under
someone eIse's will and getting hirn
to do something which seems advantageous to hirn hut
which in
fact harms hirn, has shown itself to he more lucrative and less
risky
than
the old, superseded methods of violence and lightness
of'finger."
For
artforgeries
in particular, as for fraud
and
counter
feiting as a whole, it is, however, almost impossible, to obtain a
reliable picture of the real extent ofcriminality. For almost no other
crime is
the
dark numher of offences committed hut never
discovered or cleared up as large as it is for fraud in all its forms,
Not least among the reasons for this is the attitude which the
victims of the fraud and forgery
can
be frequently observed to
adopt: the victims often fight shy of commencing legal proceedings
for fear ofsuffering ridicule in addition to their loss. Small wonder
therefore
that
art-forgery trials are extremeIy rare events in the
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CRIMINOLOGICAL AND
CRIMINAL-LAW
PROBLEMS 19
field of activity covered by the administration of penallaw. We
should
not
allow ourselves to be
deluded
by
individual
sensational
cases, which we
can
follow almost every year.
Even
a cursory
glance
at the
overall
criminal picture in the field of
art
forgery enables one to say that
the
manner in which such
crimes of
art
fraud and forgery are committed is becoming more
and more differentiated, more and morevaried in form, and hence
more difficult to survey, However, even nowadays, forgery is still
also following
the
old, traditional, well-worn paths, as it has done
without variation ever since the days of Michelangelo,
whom
legend names as
one
of
the
first art forgers of repute. The old
forgers'
and
swindlers' tricks
are
still being used -
burying
faked
works in
the ground
or concealing them in castles or in chapels
and having them discovered there by connoisseurs and collectors.
Originals are still being secretly
and
fraudulently replaced by
copies
of
less value, and unsigned works by unknown painters are
still
having the
signature of a famous art is t
added
and being sold
for fancy prices to
the
gullible as one of
the
latter's masterpieces.
On the
other hand,
in the present overall picture of art forgery
we find many new traits
of
criminal activity, which also prove
that art
forgers
and
art
swindlers
are
able
to keep
up
well
with the
general development of crimes of fraud and forgery.
There
has
been a striking increase in the
number
ofcases in which the forging
of
the
work of art is closely related to the other types of crime,
either masking these offences or making them easier or
at
all
possible. Thus,
for example,
not
very long ago a
band
of thieves
in Bavaria
stole
valuable
old objets d'art from churches, replacing
them
with copies they had
brought with
them, perhaps in the
belief that it would make no difference to the devotion of the
faithful
whether the
revered
picture
of
the saint
was
an
original
or a forgery t is more serious when, as in the last few decades,the
use of generally forged paintings becomes
one
of the means of
accomplishing vast
fraudulent
manoeuvres.
An
art fraud is
now
sometimes even accompanied by a complicated credit or bank
swindle, or is associated with
tax
and foreign-exchange offenees.
A few years ago, for example, in the Federal Republic ofGermany,
particularly in Baden-Württemberg,
forged works of art were
the
object ofa
fraud
organised on a gigantic scale, in which a large
number ofGerman industrialists, some of them well-known men,
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20 PROFESSOR DR. THOMAS
WÜRTENBERGER
were involved. These industrialists were offered generally forged
paintings of little value for high prices by the skilful accomplices
of an international band ofart dealers from Paris,
Monte
Carlo,
Rio de Janeiro, Amsterdam, etc., it being suggested to them at
the same time that there were already foreign buyers for these
paintings who would be able to pay even higher prices if the
original buyer wished to sell again
but
who wished to buy only
by private sale, In many cases the swindler won the confidence of
the German industrialists only after acting as the representative
of a foreign government or placing supposed foreign orders,
sometimes for as much as 250,000 dollars, Decoyed in such a re
fined manner, the industrialists bought
the
generally forged pain
tings from the accomplices acting as sellers, in the hope ofmaking
a large profit on reselling the paintings abroad, as arranged. But
neither the sharpers nor the supposed foreign buyers were ever
seen again, and the victims were left with the valueless paintings
for which they had paid so dear, The
totalloss
inflicted by this
fraud was estimated by the criminal police to be more than eight
million DM.
These cases are instructive insofar as they show that , at the
present time, fakes
can
be
the
object of vast fraudulent ma
noeuvres, almost reminiscent of American conditions, involving
many accomplices at horne and abroad, each with his own role
to play. Moreover, these cases show us that forging and swindling
by no means stop now at national boundaries,
but
are organised
largely on
an
international scale, In the past it has admittedly been
known for a statuette, for example, to be produced fraudulently
in Italy, given a deceptive patina in France and finally disposed
ofin
the United States. But the international character ofcriminal
ar t
forgery has now become such
an
important
feature
of
this
crime that even state prosecution can only promise success
if
it
proceeds along the
path
of elose international co-operation against
the
offenders, above all with the aid of Interpol in Paris.
r we ask how crime in the field of ar t swindles and art forgery
can have increased and spread so greatly, we can first of all find,
in the cultural and sociallife of
our
own time, aseries ofcrimogenic
factors, such as the expertise system, auctions, etc., to which I
refer again later. But independent of these - and by no means
least - the spiritual
conditions
of the time,
overall economic
development,
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CRIMINOLOGICAL AND CRIMINAL-LAW PROBLEMS
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the social position ofthe artist and
views
on the nature ofarthave always
provided,
and
continue to provide, powerful impulses for the
further spread ofart forgery. I would mention,
just
in the form of
headings: the growing prosperity of old
and
above all of new
classes of soeiety - as has been visible in Western Germany since
the "Wirtschaftswunder" - who for various motives and often
without any se1ectionor knowledge ofart acquire, collect
and
then
dispose again ofnumerous works; the public and private museums,
at
present real "hornes for the home1ess", in which works retrieved
from churches, castles
and
middle-class houses or acquired on the
ar t market are being accumulated in large numbers; the live1y
trade
in works
ofar t
in the large eities
of
the
Old and
the New
World, where the forger not only enjoys anonymous sec1usion to
carry on his trade,
but
swindling dealers, go-betweens, touts,
auctioneers and experts also find a large cliente1e. The enormous
fungibility of a work of art , in the sense of the phrase "l 'art pour
l'art,
which according to Oskar Spengler means
Art
for the
sake of the art trade , " as a further encouragement to crime,
should not be forgotten either. While the work ofart, as an artic1e
ofmerchandise, has been complete1y tom from its earlier cultural
and
soeial associations, the greedy pursuit
of
money
and
profit of
our
time has often reduced it to an object of pure business specu
lation.
And not least the artist may
join
in this worship of the
Golden Calf, which is gradually destroying the traditional artistie
ethos, depraving the talent of creative minds, even turning
geniuses into criminals.
This short review ofthe conditions governing the origin ofpresent
day ar t forgery, the ways in which it is committed
and
its extent,
will sufficefor the moment. We shall now
turn our
attention to the
fight against diverse forms of art forgery as waged by criminal
justice in the past and at present, with varying degrees of success.
In the history ofEuropeon
penallaw
a long time e1apsed before the
wrong contained in acts of ar t forgery was fully recognised
and
adequate provisions were made in the penallaw.
In
the
penallaw
of
the guilds in the eities of sixteenth-century Germany we find the
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22 PROFESSOR
DR.
THOMAS WÜRTENBERGER
first
penallaw
reactions, when for example the copying ofDürer's
famous monogram on woodcuts or prints was punished with a
fine, As regards the forging of paintings, however, only since the
nineteenth century have the facts constitutingfraud, counterfeit of
documents, forging of
signatures,
urifair competition and the
copyright
lawsoffered usable methods in public criminallaw for punishing
effectively acts in the field ofcriminal art forgery according to the
degree ofguilt
and
dangerousness involved. I should like to touch
brieflyon
a number of legal problems of German
and
Dutch penal
law arising from the application ofthe facts constituting fraud
and
forgery to acts of ar t forgery.
First we have to examine
the
facts constitutingfraud, which
can
play the major role in
penallaw
's fight against ar t forgery.
An art dealer, for example, deliberately and with all kinds of
tricks suggests to a collector that a painting which he is interested
in buying is undoubtedly a genuine Rubens, whereas i t is in fact
only
an
inferior copy.
f
the buyer pays the normal high price for
a genuine Rubens, this can be seen as an accomplished fraud. The
crux of such a fraud lies, in both German and Dutch law, in the
deceiving
and
misleading of the victim of the act. At this point an
essential difference appears between
German and
Dutch law.
According to the Dutch provisions relating to fraud (Art. 326)
the deceitful means are restricted, alternatively and with a
limitative character, to the use of a false name, a false attribute or
the use of deceitful tricks or fabricating a tissue oflies.
In German
law, on the other
hand,
any show
off
alse facts is sufficient § 263).
The distinction between the two systems of penallaw becomes a
practical one with regard to the problem of whether they also
cover a fraud committed by the seller's simple "silence" about the
genuineness or otherwise
of
a work.
In
the Netherlands neither a
simple lie
nor
mere silence in the course of the fraudulent
act
is
regarded as sufficient ground for conviction for fraud. It is quite
different in German law
f
the seller employs no specialoutward
tricks in order to deceive the buyer, but fails to mention, for
example, that
areport
by a recognised expert has declared the
picture to be a fake, then in
German
law the difficult question
arises of whether the seller
did
not have a legal obligation to
disclose to the buyer the entire actual state of affairs, for example
the well-founded doubts as to its authenticity. Such an extensive
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F
i
g
2
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Fig
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Fig. 3.
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Fig .
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CRIMINOLOGICAL AND CRIMINAL-LAW PROBLEMS
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obligation to give
and
reveal information is nowadays accepted,
at
least when special conditions of trust exist between collector
and dealer. This was
put
forward on the basis
ofthe
standards of
mutual
trust" obtaining in commerce, since the art trade is
certainly based on the mutual trust
and
trustworthiness of the
parties involved. The stress placed on such socio-ethical points of
view in business life should not, however, be allowed to go so far
as to drive back speculative interest and the profit motive too far
from their position as the main actuating forces behind present
day art trade. On the other hand, according to current legal con
cepts, the inexperienced person too deserves a certain degree of
legal protection against being taken in when buying works
of
art.
Taking advantage of
an
inexperienced person's mistakes might
appear even more reprehensible
than
iftwo equally expert parties
come face to face.
The second, highly controversial characteristic of the facts
constituting fraud, and one that is often difficult to prove, is the
material
damage
suffered by the victim or a third party. Here too
the Dutch concept of f