Art fraud and market failure in the art market : A need for multiple approaches

Abstract

The ‘financialisation’ of art has transformed art from an object of aesthetic expression to an instrument of increasing wealth, in turn increasing the likelihood of forgery. Art fraud harms artists, purchasers, museums, and society at large. Ultimately, the integrity of the art industry is at stake. The culture of secrecy and questionable auction practices widen the information asymmetry contributing to market failure in the art market. Multiple approaches are needed to address these challenges. The criminalisation of art fraud faces evidential difficulties of proof beyond reasonable doubt. The more accessible threshold of proving misleading conduct under s 18 of the Australian Consumer Law has been successfully invoked by artists against the forger, a purchaser against an auction house, and the Australian Competition and Consumer Commission obtaining pecuniary penalties and restraint orders against art offenders. Besides imposing presumptive liability on auction houses, authentication boards and a Code of Conduct for Art Merchants will promote transparency in the art market.