Standing by Your Man Ray: Troubles with Antitrust Standing in Art Authentication Cases

Abstract

In 1989, Joe Simon-Whelan, an intimate of Andy Warhol, purchased one of the artist’s silk-screened self portraits for $195,000. Fred Hughes, the chairman of the Andy Warhol Foundation for the Visual Arts, signed an authentication of the portrait, certifying that it was genuine. In 2001, Simon Whelan’s investment appeared prescient: a buyer was prepared to part with $2,000,000 in exchange for the painting. However, members of the Andy Warhol Art Authentication Board, an entity created eight years after the Foundation, encouraged the buyer not to purchase the portrait until the Board had authenticated it. After Simon-Whelan eventually submitted the painting to the Board, the Board denied that Andy Warhol had authored the artwork. The Board invited Simon Whelan to resubmit his silk-screen with additional documentation; Simon-Whelan did, and the board denied the portrait’s authenticity a second time.