(Strafrechtelijke en Criminologische Onderzoekingen) H. Van de Waal, Th. Würtenberger, W. Froentjes...

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


4/78


5/78

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


6/78

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,


7/78

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.


8/78

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


9/78

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


11/78

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


12/78

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.


13/78

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-


14/78

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


15/78

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.


16/78

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.


17/78

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.


18/78

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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

e

c

d

n

h

f

a

e

t

o

r

e

s

t

h

s

u

e

a

a

E

o

(

a

g

n

d

w

n

e


19/78

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.


20/78

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),


21/78

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 .


22/78

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


23/78

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.


24/78

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).


25/78

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.


26/78


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.


27/78

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


28/78


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.


29/78

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].


30/78

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


31/78

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


32/78

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.


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


34/78

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,


35/78

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,


36/78

CRIMINOLOGICAL AND CRIMINAL-LAW PROBLEMS

21

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


37/78

22 PROFESSOR

DR.


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


38/78

F

i

g

2


39/78

Fig


40/78

Fig. 3.


41/78

Fig .


42/78

CRIMINOLOGICAL AND CRIMINAL-LAW PROBLEMS

23

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

(Strafrechtelijke en Criminologische Onderzoekingen) H. Van de Waal, Th. Würtenberger, W. Froentjes...

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