The Trouble With Warhol

A high-profile lawsuit and a scandal over "posthumous" Brillo boxes have brought scrutiny to the methods used by the Andy Warhol Art Authentication Board—and its responsibility to the owners of Warhol works.

Joe Simon-Whelan sued the Warhol authentication board after his portrait of the artist was rejected.

Joe Simon-Whelan sued the Warhol authentication board after his portrait of the artist was rejected.


Andy Warhol once again dominated the contemporary-art auctions last November, racking up hundreds of millions of dollars in sales. At Phillips de Pury & Co., a 1962 silk screen of Elizabeth Taylor, Men in Her Life, fetched more than $63 million, the second-highest auction price ever for the artist. The next evening, at Sotheby’s, the black-and-white Coca-Cola [4] (Large Coca-Cola) sold for $35.4 million.

As Warhols were bringing high prices on the auction block, the New York-based Andy Warhol Art Authentication Board and the Andy Warhol Foundation for the Visual Arts were wrapping up their defense in a lawsuit brought by the owner of a painting purchased for less than $200,000 in 1989. The suit had dragged on for almost three years and cost the board and the foundation $7 million in legal fees.

The board had another problem to deal with. A few months before the auctions, it admitted in a report that it had been misled about some of the artist’s most iconic works. Dozens of Brillo boxes the board had authenticated over the years had to be “reclassified” as posthumous works, the report said, because they were fabricated not in 1968, but in 1990, three years after the artist’s death (see “The Brillo-Box Scandal,” November 2009).

The report shocked and dismayed collectors and dealers. “This seems to be one of the contemporary-art world’s new hot potatoes,” commented a source familiar with the posthumous Brillo boxes. “No one is willing to be accountable due to issues of liability.”

In the 15 years since the authentication board was created, it has frequently come under fire for what some observers have considered secretive, arbitrary, or biased decision making. The lawsuit and the Brillo-box scandal, critics say, revealed detailed information about some of the board’s practices that raises serious questions about its procedures and its responsibility to owners of Warhol works.

The board takes the position that disclosing its methods and explaining its decision making would essentially provide a road map for forgers. Warhol’s often unorthodox working habits futher complicate matters. He enlisted numerous assistants and off-site production facilities to support his prolific output. Many of his works were executed in large editions that were never signed or numbered. As a result, it can be extremely difficult to figure out what constitutes a “true” Warhol.

Last July, after a lengthy investigation, owners of the so-called “Stockholm boxes” received the authentication board’s report outlining its findings. According to the report, Pontus Hultén, the highly respected director of the Moderna Museet in Stockholm, who died in 2006, lied to the board when he told them that an edition of about 105 boxes had been executed in 1968—allegedly with Warhol’s authorization—for a major show at the museum. Based on the false information Hultén provided, the board authenticated 94 of the boxes, and they were included in the 2004 catalogue raisonné.

The board subsequently found that all but about a dozen of those boxes were created in 1990—under Hultén’s direction, in Malmí, Sweden. Hultén “misrepresented the works and falsified their history” to the estate, the board, and the Warhol catalogue raisonné, the report states. The board recommended that the information in the report be included in the catalogue raisonné.

The boxes were widely dispersed into the art market. Between 1999 and 2007, according to auction databases, Sotheby’s and Christie’s offered Brillo boxes purportedly made in 1968, either singly or in groups, on 25 occasions in their New York and London salesrooms. Christie’s sold one for $208,695 in London in 2006 and another at its South Kensington branch in 2007 for $130,486.

Now, according to spokesperson Toby Usnik, Christie’s “is not taking these for sale anymore.” Lauren Gioia of Sotheby’s said that if the auction house were to offer a posthumous Brillo box, “it would be catalogued as ‘After Andy Warhol,’ according to the most recent research available from the Andy Warhol Authentication Board.” Sotheby’s declined to comment on whether it owns any of these Brillo boxes or has any in its inventory.

Patricia Hambrecht of Phillips de Pury & Co. told ARTnews: “The likelihood is that we would not take them for sale, but if we did we would catalogue them in accordance with the guidelines set forth by the authentication board. Obviously the value would be much, much reduced, a fraction of the ’64 boxes,” a reference to the original series created by Warhol for a show at the Stable Gallery in New York.

“The Authentication Board is separate from and independent of the Andy Warhol Catalogue Raisonné, a scholarly project that is documenting all of Warhol’s paintings, sculptures, and drawings,” according to the board’s assistant secretary, Claudia Defendi. There are, however, two overlapping members: Sally King-Nero, curator of drawings and photography at the Warhol Foundation and executive editor of the catalogue raisonné, and Neil Printz, editor of the catalogue raisonné.

The present members of the authentication board, in addition to King-Nero (since 1997) and Printz (since 1995), are Gary Garrels, senior curator of painting and sculpture at the San Francisco Museum of Modern Art (since 2007); Judith Goldman, writer, ARTnews contributing editor, and former curator of prints at the Whitney Museum of American Art (since 2005); and Christoph Heinrich, director of the Denver Art Museum (since 2007).

The authentication board states in its report that “no written documentation has been found that would establish that Warhol authorized the Moderna Museet to produce a set of Brillo Soap Pads boxes in 1968. Given the friendship between Warhol and Hultén, it is possible that a verbal agreement existed between the two. The Authentication Board, however, can neither verify nor invalidate Hultén’s claim.”

The board concluded that Hultén produced two different groups of Brillo boxes. The first group was made during the spring or summer of 1968, after the Moderna Museet exhibition. It consisted of a total of approximately 10 to 15 boxes. These have now been designated by the board as “Stockholm-type” boxes and classified as “exhibition-related copies.” The 105 boxes produced in Malmí in 1990 constitute the second group. These have been designated by the board as “exhibition copies.”

Since the board has uncovered no evidence of an agreement between Hultén and Warhol, many observers are questioning why the board has stopped short of labeling the 1990 boxes fakes and, furthermore, why the 1990 boxes are being kept in the catalogue raisonné, albeit with the new classification.

In an e-mail to ARTnews, Printz repeated that the possibility of a verbal authorization by Warhol “cannot be conclusively ruled out.” He added, “As the Time Capsules at the Andy Warhol Museum in Pittsburgh are inventoried… we have been systematically reviewing them for any information that might pertain to these works.” The time capsules are 610 cardboard cartons in which Warhol stored correspondence, old magazines and newspapers, gift
s, business records, and all kinds of ephemera.

The Moderna Museet didn’t wait for the board to issue its report before taking action. After conducting its own research into Hultén’s activities, the museum struck from its collection the six 1990 Brillo boxes Hultén had donated in 1995, according to Lars Nittve, director at the time.

San Francisco collectors Vicki and Kent Logan gave one of these boxes to the San Francisco Museum of Modern Art as a fractional and promised gift. Asked whether the San Francisco museum would follow the Moderna Museet’s example and strike the Logans’ Brillo box from its collection, museum spokeswoman Robyn Wise originally referred ARTnews to the authentication board.

The board “does not provide guidance or advice to individual collectors, museums, galleries, and auction houses,” Defendi wrote in an e-mail.

In response to a second query from ARTnews about the status of the work, Wise wrote, “We have received the report and are still considering it. It will take some time to fully determine our response.”

The authentication board uses a letter system to convey its opinion of a work it examines: “A” designates a work considered authentic, “B” means it has been deemed inauthentic, “C” means that the board is unable to render an opinion. ARTnews asked the board which rating the 1990 Malmí boxes would receive and what the rationale would be.

Defendi wrote: “The Board’s opinions are based on information and research conducted at the time a work is under review…. [T]he Board informs each individual who submits a work that this opinion may change based on new information which may come to light in the future.”

With respect to liability issues for previous Stockholm-Brillo-box auction sales, Christie’s spokesman Usnik told ARTnews that the house was “reviewing everything in light of our limited warranty.” Usnik would not comment on whether any claims have been brought against Christie’s as a result of its sales of Stockholm Brillo boxes.

“We’ll continue to seek guidance from the Warhol Foundation,” Usnik added.

Warhol Foundation president Joel Wachs said: “The Foundation does not provide guidance of this type.”

The question of whether or not Warhol authorized a particular set of works also lies at the heart of the recently settled lawsuit by the London-based documentary filmmaker Joe Simon-Whelan, who sued the authentication board, the foundation, the Warhol estate, and the main sales agent for the foundation, Vincent Fremont, in late 2007. His suit was based on antitrust claims, alleging a “20-year scheme of fraud, collusion, and manipulation” to control the market of Warhol’s works. Simon-Whelan charged that the authentication board is “utilized to remove competing Warhol artwork from the marketplace by falsely declaring it to be inauthentic, thereby raising the value of the Foundation’s own holdings.”

Simon-Whelan’s painting had been authenticated by Warhol estate officials shortly after Warhol’s death in 1987. But the authentication board (formed in 1995) rejected it twice, in 2001 and again in 2003, asserting that it had not been executed by Warhol.

Like all other owners who submit works to the Warhol authentication board, Simon-Whelan was required to sign a submission agreement that indemnifies the board from any legal action based on its decisions. Because he couldn’t sue the board based on the rejection of his painting, he sued on antitrust claims, which can be extremely complicated and difficult to prove. The foundation responded by hiring antitrust specialists Boies, Schiller & Flexner, instead of relying on its usual counsel, Carter Ledyard.

In 1989 Simon-Whelan paid $195,000 for the painting, a 1965 Warhol self-portrait depicting the artist against a red background, head tilted slightly back and gazing at the viewer with a blank expression. According to Simon-Whelan’s complaint, and supported by a letter from Paul Morrissey, former Warhol manager and filmmaker, it was one of several created in 1965 at Warhol’s direction through Morrissey, from an acetate created and chosen by Warhol.

The work had been authenticated before Simon-Whelan bought it by the late Fred Hughes, the sole executor of the Warhol estate for 14 years, and by Fremont, at the time alternative executor.

Both Simon-Whelan and Morrissey claim that the series of 1965 red self-portraits, which is known as the “Norgus” series, after the New Jersey-based company responsible for the printing, was executed as part of a trade the artist arranged with publisher Richard Ekstract, who wanted a picture of Warhol to use in his magazine. “Ekstract, under the express authorization and instruction of Warhol and his employees, arranged for this series of self-portrait paintings to be created from the acetate that Warhol provided. This method of production was typical of Warhol,” the complaint says.

Simon-Whelan did extensive research and produced evidence to support his contention that the work is authentic. In addition to Morrissey, he had letters from other associates who had worked closely with Warhol, such as Rainer Crone, author of the first Warhol catalogue raisonné; Sam Green, former curator at the Institute of Contemporary Art in Boston; and Warhol’s friend John Richardson, the eminent art historian and Picasso biographer.

In a letter to Simon-Whelan dated May 2004, the authentication board outlined its rationale for denying the work, noting that each work in Warhol’s original 1964 series of self-portraits “is different from all the others. … To date, ten paintings have been examined by [the board] that are identical to each other and to the work you submitted. The existence of ten identical works is without precedent in the corpus of Warhol’s paintings.”

In his deposition, Fremont testified that Hughes authenticated the first two red self-portraits that were brought to the Factory, Warhol’s studio, after the artist’s death, but that both he and Hughes began to have doubts when a third work from the series appeared. According to Fremont, “that is when we got concerned…. Now there’s three identical paintings.”

Although Warhol didn’t sign Simon-Whelan’s painting, he did sign an identical self-portrait from the “Norgus” series, which is owned by London dealer Anthony d’Offay. It, too, was twice denied by the board, although it bears Warhol’s signature and a dedication to the Swiss dealer Bruno Bischofberger: “To Bruno B Andy Warhol 1969.” D’Offay reportedly repurchased the painting from collector Charles Schwab after the board rejected it in 2003, ruling that it “is not the work of Andy Warhol” while simultaneously declaring that the work “was signed, dedicated, and dated by him.” Printz said in a deposition: “We have a painting that, in my opinion, is not by Andy Warhol.”

An expert report, a copy of which was given to ARTnews, was written by Reva Wolf, a professor of art history at the State University of New York at New Paltz. “It was reasonable for the Board to arrive at the opinion that the existence of the signature in question does not mean that the picture is indeed by Warhol,” Wolf wrote. “Warhol could have made the signature for any number of reasons. For instance, he could have signed and dedicated the picture because it is a picture of Warhol.”

Crone said in a deposition that Warhol himself chose the signed “Bruno B” painting, which was repeated several times, as the cover image of his catalogue raisonné. In her report, Wolf writes that “while it is possible that Warhol did select the image for the cover of Crone’s 1970s book, no firm evidence that he did is known… given his unique sense of humor, Warhol could even have
been making a private joke, to himself, by selecting an image he did not make for the cover of his own book.”

Wolf prefaced that thought: “Here admittedly,” she wrote, “we enter the realm of speculation.”

In a letter to the board from 2003, Richardson wrote, “If Joe Simon’s painting is not authentic, so, it would seem, is most of Warhol’s oeuvre.”

Although the case did not hinge on whether the painting is authentic, both sides explored authentication issues extensively in depositions, evidence production, and expert reports. At the same time, Boies, Schiller attorneys litigated aggressively, attacking Sim
n-Whelan’s character and credibility and challenging virtually every aspect of his suit.

These were among the allegations they leveled at Simon-Whelan: He was not the true owner of the painting, which was stolen property. He had obstructed justice by asking Horst Weber von Beeren, a former Warhol employee, to destroy documents relating to the issues in dispute. They also alleged that invoices Simon-Whelan produced relating to his 1989 purchase of the work were forged and claimed that he was seeking to profit from his case by writing a book about his experience.

Simon-Whelan denied that he had asked von Beeren, a friend of Warhol’s who worked with his printer, Rupert Smith, to destroy documents. According to Boies, Schiller attorney Nicholas Gravante Jr., von Beeren contacted the authentication board “unsolicited” in 2010 and said that Simon-Whelan had “explicitly asked him to delete from his computer and destroy documents relating to the issues in dispute.” In his affidavit, von Beeren stated that he did not comply with the request and instead contacted Fremont and foundation president Wachs.

In an e-mail to ARTnews, Simon-Whelan called this charge “bizarre.” His attorneys believed that von Beeren “had somehow been coerced into signing this false affidavit” and asked to depose him. But, Simon-Whelan says, “the Warhol lawyers replied that they couldn’t produce him. He had vanished.”

Simon-Whelan’s attorneys told the court that they couldn’t locate von Beeren. At one point, Gravante told the court that von Beeren might be traveling in China.

Gravante told ARTnews that a message left on von Beeren’s home phone was promptly returned by the attorney von Beeren had retained in anticipation of testifying at trial. Von Beeren employed his own attorney, Gravante said, “because he wanted to remain neutral.” ARTnews was unable to locate von Beeren.

The charge that Simon-Whelan wasn’t the true owner of the painting when it was submitted to the authentication board in 2001 was based on a personal dispute between Simon-Whelan and another man, Nick Milner, that ended in a contentious breakup in 1990, after which Milner entered Simon-Whelan’s London flat and took the self-portrait, according to transcripts. Simon-Whelan didn’t report the theft, but—unbeknownst to him, Simon-Whelan claimed—a friend entered Milner’s flat and retrieved the painting. Milner reported it as stolen to the police and the Art Loss Register, which Simon-Whelan says he didn’t know at the time. Milner wasn’t called to testify for either side in the dispute, although Gravante said his team went to great lengths to try to locate him in South America.

Simon-Whelan also furnished a copy of a letter, dated December 4, 2001, from former gallery partner Jonathan O’Hara, stating that Simon-Whelan purchased the work through London-based Runkel Hue-Williams Gallery in 1989. Says Simon-Whelan: “At no point did the board, foundation, or its army of lawyers ever contact the dealers who sold me the picture, despite [the dealers] writing directly to the board on my behalf.”

Gravante told ARTnews, “A letter is not worth the paper it’s written on.” Nothing but a sworn affidavit would be sufficient to prove that Simon-Whelan acquired the painting and was its rightful owner, Gravante said. He reiterated that at the time Simon-Whelan submitted the painting to the authentication board, it was stolen property.

By November 2010, the last member of Simon-Whelan’s legal team, which had worked without pay in exchange for a share of a prospective award, was set to withdraw from the case. Simon-Whelan said his attorneys found themselves unable to keep up with the furious pace of motions and potential counterclaims filed by the defendants. He conceded that he lacked financial resources to continue the case and was forced to settle.

The case was officially settled that month. Foundation president Wachs called the settlement a “complete vindication of both the Foundation and the Authentication Board.” He pointed to the express provisions of the court’s orders, whereby plaintiffs “admit that there is absolutely no evidence, nor have they ever been aware of any evidence, of any illegal conduct by either the foundation or the Authentication Board in connection with the sale and authentication of Warhol artwork.”

“The tragedy,” Wachs continued, “is that we had to spend nearly $7 million defending what was nothing more than a blatant attempt to shake down the foundation.” As a condition of the settlement, Simon-Whelan agreed not to pursue further claims against either the Warhol board and foundation members or his own attorneys. The settlement also includes a clause whereby he cannot profit in any way from his legal action—including suing his attorneys for malpractice—and that if he does somehow profit, the Warhol board and foundation would resume their attempts to bring counterclaims against him for the millions of dollars incurred in legal fees.

In an e-mailed statement to ARTnews, Simon-Whelan wrote: “It is with great regret that I have had to end my lawsuit against the Andy Warhol Foundation. I simply do not have the funds or resources available to fight an organization which has acknowledged it is currently spending up to $450,000 per month to defend the case. I had no other choice but to sign a document bringing the case to a close. I wish to stress, however, that I have not agreed to deny the authenticity of the Red Self-Portrait, as originally demanded by the foundation.”

Eileen Kinsella is editor of the ARTnewsletter.

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