This story begins where most people end. In late April, father and daughter — Erwin Bankowski and Karolina Bankowska — pleaded guilty in federal district court in Brooklyn to selling counterfeit works attributed to artists such as Banksy, Pablo Picasso and Andy Warhol, which were produced by an artist in their native Poland that they commissioned. More than 200 of these counterfeits were sent to auction houses in the United States, achieving total sales of about $2 million. The pair are due to be sentenced in August and are likely to spend time in prison before being deported to Poland.
The question is what will happen to those more than 200 paintings. Will they be destroyed? Will they be kept in government evidence vaults? Is there a chance for them to return to the art market? The court’s plea agreement with Pankowska stipulates that she “disclaims any ownership…right, title or interest” in any previously sold artworks, and that she will “turn over to the government” any forgeries remaining in her possession. What the government will do with these items — and what buyers of these counterfeits will do with the plates they purchased — remains unclear.
Todd A. said: Spodek, the New York City attorney who represented Karolina Pankowska, told the Observer: “I expect the items in government custody to remain there at least through adjudication and resolution of any forfeiture or restitution issues.” And then he doesn’t know. “Some works may be returned with documentation reflecting their connection to the case. Other works may be retained for evidentiary or archival purposes. It is also possible that some works may be confiscated or destroyed.”
But the more likely outcome is that these counterfeits, like fakes in other cases, will simply be returned to the people who spent good money on them. “It’s their property,” explained Jane Levin, a former member of the U.S. Attorney’s Office who worked in the Art Crimes Division between 1996 and 2006 and is currently managing partner of The Art Risk Group. “It’s not illegal to keep it.” In fact, many buyers keep fake works of art, perhaps as evidence of civil lawsuits against the individuals or companies that sold them these fake works, or simply because they make an interesting conversation piece.
There have been 10 civil cases filed against the Knoedler Gallery, which closed its doors in 2011 after it emerged that nearly 40 paintings sold as being by Willem de Kooning, Robert Motherwell, Jackson Pollock, Mark Rothko and others had actually been painted by a Chinese artist who produced the works in his garage in Queens, New York, and sold them to the gallery through an intermediary. All 10 cases were settled out of court, so there was no court ruling on what should happen to the counterfeiters. (“I had six or seven fake Knoedler paintings hanging in my office — they were Pollocks and Rothkos — but I returned them to my client a few years ago,” Luke Nicas, a Manhattan lawyer who represented the last Knoedler gallery director, Anne Friedman, told the Observer.) Those litigants may have destroyed them. At least one of the Knoedler forgeries, purported to be a painting by Robert Motherwell, was stamped on the back of the painting to identify it as They are faked by the Dedalus Foundation, which owns the copyright to the artist’s works.
Labeling the back of forgeries was standard FBI practice in the 1980s, according to Jim Wynn, a partner and founder of The Art Risk Group who worked on the federal agency’s art theft squad for 30 years. “Sometimes, they put a mark with a fluorescent pen on the back to indicate that it is evidence in a criminal case,” he told the Observer. Anyone with an ultraviolet light or black light will be able to see the fluorescent mark, raising an alarm that the artwork in question is fake. Such labels appear to be less common today, based on the assumption that experienced buyers and sellers have greater access to information about works of art—for example, through an artist’s catalogue, a compilation of all known works by a particular artist that lists when and where they were created, exhibited, and sold. Works not included in the raisonné catalog are presumed to be non-original. Some artists’ estates maintain authentication committees, composed of art experts and other experts who judge works of art brought to their attention to be authentic.
Another consequence of works identified as fake by law enforcement is that they are kept in evidence vaults forever. “You can’t simply put art back on the market,” Wynn said. But when fakes and counterfeits are returned to the people who paid for them, there’s no guarantee they won’t end up being sold again, with or without a disclaimer. The original buyer may not try to present it as an original, but “when that person dies, the children or grandchildren say: ‘Wow, look at that Picasso!’ The label on the back may have fallen off, and the seal may have faded.”
One thing that doesn’t usually happen – at least officially – is destruction; Many works of art that don’t initially appear to be “authentic” (the art world’s term for something that may be distorted, misattributed, or outright forged) are later found to be authentic, based on new study. “Many paintings that were originally thought to be by Rembrandt were later attributed as having actually been painted by one of Rembrandt’s followers or Rembrandt’s student,” Arthur Brand, a Dutch art investigator, told the Observer. “But opinions change all the time, and some paintings that were downgraded to not by Rembrandt were later changed to paintings by the artist. You don’t want to destroy something that might turn out to be important.”
The BBC TV program ‘Fake or Fortune?’, hosted by Fiona Bruce and British art dealer Philip Mold since 2011, invites people to submit works of art for evaluation and have witnessed the phenomenon first-hand. In 2017, the statue, which the two hosts described as “worthless”, was later identified as an authentic work by Swiss sculptor Alberto Giacometti and was sold two years later at Christie’s for £500,000. However, when another British owner brought home a Marc Chagall painting for which he had paid £100,000, the exhibition producers sent it to the Chagall Authentication Committee, which declared it a fake and destroyed it. French law allows those in charge of an artist’s estate to destroy works they consider to be forgeries, a ruling that prompted the British owner to file a lawsuit against the show’s producers.
Similar laws exist in China, Greece and Italy, but “other countries are reluctant to impose penalties on the destruction of works of art,” Brand said. “Experts may be wrong. Something that doesn’t seem true may turn out to be true.”
Unlike the FBI, U.S. Customs and Border Protection is making a concerted effort to ensure that counterfeit and counterfeit products do not return to the market. According to a CBP spokesperson, “Counterfeit goods, including works of art, encountered by CBP are detained until the authenticity of the item is determined. If the goods are determined to be counterfeit, the goods are seized and forfeiture proceedings are initiated. The goods are stored until the seizure process is complete, after which all counterfeit goods are destroyed.”
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