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MODIGLIANI FAKES STRIKE AGAIN: HOW PROTECTING OWNERS’ RIGHTS?

12/01/2018

di Avv. Giandomenico Boglione

It is now a news that reached any corner of the world, not only in the limited ambit of art connoisseurs: almost every canvas showed in the exhibition dedicated to Amedeo Modigliani held in Genoa last year are told to be blatant fakes, according to the expert appointed by the local Criminal Court. Inevitably, a harsh legal fight started, mainly to release the n°20 art pieces that had been seized last July 2017 and at the end of the criminal trial may be eventually confiscated.

Italian Law punishes counterfeiting of art works pursuant to art. 178 of the Fine Art Code that aims protecting not only the copyrights holders, but mainly public faith in commercial transactions and the artistic heritage as a whole.

It is irrelevant that collectors of moderate knowledge could easily detect fakes, as it suffices that ordinary people may be misled.

The criminal offence concerns both national and international works (even contemporary) of painting, sculpture, graphics, objects of antiquity or of historical or archaeological interest and counterfeiting and alteration and un-authorised reproduction is sentenced up to 4 years of imprisonment, plus a fine.

Counterfeiting means the imitation of the item that is sold as original; alteration, the modification which makes the item different from the original; reproduction, the, copy of the original, sold as authentic.  The same rule applies to whom, being aware of the fake, provides an authentication or endorsement.

It is illegal not only the reproduction of works of sculpture and graphics that requires evidence of unambiguous fraud, but also the mere trading of counterfeited, imitated or altered products.

Besides the activities of actual sale and distribution of counterfeit objects, even preliminary activities, such as importation and possession for commercial purposes, are prosecuted whenever committed in relation to professional business in the field.

Finally, and more interesting for the recent Modigliani saga, Italian criminal Law will punish who, being aware of the fake, will accredit or contribute to endorse the fake item with statements, reviews, publications, stamps or labels or by any other means.

Increase of criminal liability will apply to persons who carry out commercial activities, by banning them from trading, whilst the judgment shall be published in three major Italian newspapers.

Serious consequences may be caused even to people not directly involved in the criminal proceedings and in particular to owners as false works may be confiscated, and in some case even destroyed, unless it is established they belong to people who are not involved in the crime. Thus, owners should carefully consider appearing before the competent Criminal Court and clarify their position in order to have their piece of art back.

In the unfortunate case restitution is denied, the chance of recovery remains little, as the forged pieces of arts may not be auctioned or re-sold by the authorities.

It should be carefully noted that, being a question of public policy, confiscation is affirmed even in case the criminal proceedings be struck out and not concluded with final judgment.

On a different – not less serious - degree, it is worth noting that, even if final judgment is not issued, the criminal Court may order that the fake object be stamped with a clear heading attesting the false origin, so irretrievably depriving it from any commercial value.