This story begins where most would end. In late April, a father and daughter—Erwin Bankowski and Karolina Bankowska—pleaded guilty in Brooklyn District Court to selling fake work by artists such as Banksy, Pablo Picasso and Andy Warhol that a local Polish artist had commissioned. More than 200 of these fakes were sent to auction houses in the US, making a total of about $2 million in sales. The two will be sentenced in August, and may spend 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 cabinets? Is there a chance for them to find a way back into the art market? The court agreement with Bankowska stipulates that he “disclaims any ownership…right, title or interest” in any previously sold artworks and that he will “surrender to the government” any remaining liens he has. What the government will do with those items—and what buyers of these fakes will do with the paintings they bought—is unclear.
“I expect the items in federal custody to stay there at least through the sentencing and the resolution of any forfeiture or restitution issues,” Todd A. Spodek, a New York City attorney who represented Karolina Bankowska, told the Observer. After that, he doesn’t know. “Some works may be returned with documents showing their connection to the case. Others may be kept for evidentiary or archival purposes. It is also possible that certain works may be confiscated or damaged.”
But the most likely result is that these lies, like the forgeries in other cases, will simply be returned to the people who spent good money on them. “It’s 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 is currently managing partner of The Art Risk Group. “It is illegal to keep it.” In fact, many consumers keep fake paintings—perhaps as evidence in civil lawsuits against the people or companies who sold them fakes or simply because they make for interesting conversation.
There are 10 lawsuits filed against the Knoedler Gallery, which closed its doors in 2011 after it emerged that about 40 paintings it had sold by Willem de Kooning, Robert Motherwell, Jackson Pollock, Mark Rothko and others were actually painted by a Chinese artist who produced the works in his garage in Queens, New York and sold them to an intermediary. All 10 have been settled out of court, so there is no court ruling on what should happen to those fakes. (“I had six or seven fake Knoedlers hanging in my office—they were Pollocks and Rothkos—but I gave them back to my client some years ago,” Luke Nikas, a Manhattan attorney who represented the last director of the Knoedler Gallery, Ann Freedman, told the Observer.) Those defendants may have destroyed them. At least one Knoedler painting, attributed to Robert Motherwell, was stamped on the back of the canvas to identify it as a forgery by the Dedalus Foundation, which holds the copyright to the artist’s works.
Post-forgery labeling was standard FBI practice in the 1980s, according to Jim Wynne, a partner and founder of The Art Risk Group who worked in the federal agency’s criminal division for 30 years. “Sometimes, they put a fluorescent pen mark on the back to show it’s evidence in a criminal case,” he told the Observer. Someone with a UV or black light would be able to see that fluorescent sign, raising the alarm that the artwork in question was a fake. Such marking seems to be common today, based on the idea that informed buyers and sellers have more access to information about works of art—for example, with an artist’s catalog raisonné, a compilation of all known works by a particular artist specifying when and where they were created, advertised and sold. Works not included in the catalog raisonné are assumed to be authentic. Some artists’ venues maintain authentication committees, consisting of art and other professionals who decide which works of art brought to their attention are authentic.
Some of the results of activities identified as false by law enforcement will be stored in evidence cabinets forever. “You can’t just put art back on the market,” Wynne said. But if fakes and fakes are returned to the people who paid for them, there is no guarantee that they will not be sold again, written or without a disclaimer. The real 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 back label may have fallen off, the stamp may have faded.”
One thing that doesn’t usually happen—at least officially—is destruction; many works of art that at first appear to be “correct” (the art world term for something that can be misrepresented, misconstrued or outright fake) later turn out to be authentic, based on new scholarship. “Many paintings that were originally thought to be Rembrandt’s have been reinterpreted as actually being created by a follower of Rembrandt or a student of Rembrandt,” Arthur Brand, a Dutch art investigator, told the Observer. “But opinions change all the time, and some paintings that were downgraded to not being Rembrandt were later changed to the artist. You don’t want to ruin something that might seem important.”
The BBC television program “Fake or Fortune?,” hosted by Fiona Bruce and British art dealer Philip Mold since 2011, invites people to bring in works of art to be examined and experience the phenomenon in person. In 2017, the so-called “useless” sculpture was later identified as an authentic work by Swiss artist Alberto Giacometti and sold two years later at Christie’s for £500,000. However, when a British owner brought in a Marc Chagall painting for which he had paid £100,000, the show’s producers sent it to the Chagall authentication committee, which declared it to be a fake and destroyed it. French law allows those in charge of an artist’s estate to destroy works they deem to be counterfeit, a provision that led the British owner to sue the show’s producers.
There are similar laws in China, Greece and Italy, but “other countries are reluctant to punish the destruction of images,” Brand said. The experts may be wrong. Something that doesn’t seem right may seem true.
Unlike the FBI, US Customs and Border Protection makes a concerted effort to ensure that fakes and counterfeits do not find their way back into the market. According to a CBP spokesperson, “Counterfeit goods, including artwork, found by CBP are impounded while the authenticity of the item is determined. If the goods are determined to be counterfeit, the goods are seized and prosecution is initiated. The goods are held until the confiscation process is completed, after which all counterfeit goods are destroyed.”
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