Is it a sign of the times? On October 5, the New York Sun updated yet another art authentication controversy that’s been simmering since earlier this year. Like the better known Pollock Matter Affair (see past posts in Fuse Flash and Anonymous Sources), this one involves a filmmaker, art work that may or may not be by a famous artist, a dispute over authenticating it, and a New York-based charitable foundation set up in the name of the same artist.

This time the artist in the game is Andy Warhol. Some of the players are different but the basic scenario seems oddly familiar. Parts of it are not dissimilar to the controversy over a group of Jackson-Pollock-like paintings that filmmaker Alex Matter found in his late father’s Long Island storage locker five years ago. The two cases are also linked by a long legal thread that winds back more than thirty years.

A single lawyer, Ronald Spencer, an attorney with the Wall Street office of Carter Ledyard & Milburn LLC, represents the Warhol authentication board, the former Pollock-Krasner authentication board, the Pollock-Krasner Foundation (a key player in the Pollock Matter Affair), as well as several other artists’ estates, foundations, authentication boards, and catalogue raisonnée projects, according to the law firm’s website.

Last summer, news stories appeared in Reuters, The New York Times, and other media outlets about filmmaker Joe Simon-Whelan and an apparent Warhol self-portrait he bought in 1989. According to court papers, the work was authenticated at the time by the executor of Warhol’s estate and Vincent Fremont, the estate’s exclusive sales agent.

Alleged Warhol portrait in the Simon-Whelan case

But when Mr. Simon-Whelan decided to sell the painting in 2001, he claims, an authentication board set up by the Andy Warhol Foundation for the Visual Arts rejected it and stamped the painting “denied.” The painting was rejected again in 2003, despite the fact that its owner presented documentation of its provenance from close Warhol associates Paul Morrissey and Billy Name and from the Andy Warhol Museum in Pittsburgh in the form of an interview transcript with Warhol himself.

According to the Times, Mr. Simon-Whelan “contends that the foundation has waged a 20-year conspiracy to bend the art world to its will and, by way of ‘enforcers,’ ‘secret meetings’ and doctored files, has tried to win ‘total domination’ of the Warhol market.” The foundation and the Andy Warhol Art Authentication Board, the Simon-Whelan suit claims, “have colluded in a ‘deeply corrupt enterprise’ to drive up the value of the works the foundation owns by denying the authenticity of numerous works that purport to be Warhols.”

The Sun’s Kate Taylor writes that “[a]mong the striking aspects of Mr. Simon-Whelan’s suit is his assertion that the authentication board represents a ‘monopoly,’ in violation of New York State’s antitrust law.” The legal reasoning in the Simon-Whelan suit apparently draws in part on another well-known authentication suit, Vitale v. Marlborough Gallery, The Pollock-Krasner Foundation et al, 32 U.S.P.Q. 2d 1283.

The narrative alleged in the Vitale suit is even stranger than that claimed by Mr. Simon-Whelan. Joan Vitale, an art dealer, bought a purported Jackson Pollock at an auction in 1969. When she had the purchase appraised at Parke-Bernet Gallery, she was told that, in order to sell the painting, she would have to have the approval of Lee Krasner, Pollock’s widow.

When Ms. Vitale arranged to meet Krasner at New York’s Marlborough Gallery, which represented the Pollock estate at the time, she was asked to leave the painting and return the next day. When she did so, three men, identifying themselves as representing the Manhattan District Attorney’s Office, took possession of the painting, claiming it was needed in a criminal investigation.

The painting was not returned to Ms. Vitale for five years. In the meantime, the Marlborough Gallery and its owner, Frank Lloyd, had themselves become embroiled in a major scandal and lawsuit over the gallery’s management of the estate of painter Mark Rothko.

Rothko, like Pollock, a major abstract expressionist, committed suicide in 1970. He left behind some 800 unsold works in his estate, almost all of which were sold or consigned for sale to Marlborough. The suit, brought by Rothko’s heirs, accused the gallery and its directors of “conspiracy and conflict of interest in selling and consigning works.”

The New York Times later reported that: “…after four years of litigation involving seven teams of lawyers, and three million words of testimony, Surrogate Millard L. Midonick of Manhattan canceled [Marlborough Gallery’s] contracts [with the Rothko Estate], removed the executors and assessed fines and damages totaling $9.2 million against the executors, Marlborough and Mr. Lloyd.” The Gallery was also ordered to return hundreds of Rothko works to his heirs. Many were later donated to art museums.

The New York State Court of Appeals unanimously upheld the decision in 1977. The court called the conduct of the Rothko executors, several of whom also had interests in the gallery, “manifestly wrongful and indeed shocking.” Later the same year, a Manhattan grand jury indicted Mr. Lloyd on separate charges of evidence tampering during the Rothko litigation. He was convicted on those charges in 1983.

In 1978, the Jackson Pollock catalogue raisonnée appeared, listing Ms. Vitale’s painting as a forgery. But Ms. Vitale didn’t bring her own suit against Marlborough and the Pollock Estate until 1993. By then, Lee Krasner had died and the Pollock-Krasner Foundation had been established by her will.

The Vitale suit was based on several grounds, including violation of antitrust laws, alleging that the close control of Pollock authentication by the Pollock-Krasner Foundation and authentication board constituted monopoly control of the market for Pollock’s work. Given the confined limits of the Pollock market, the judgment recognized the antitrust claim as potentially viable, an important point for the Simon-Whelan claim. But the court dismissed the Vitale suit itself. The plaintiff, it said, had waited to long to bring it to court.

In her Sun article, Taylor writes that a “recent article in the New York Times quoted the Warhol Foundation’s chief financial officer, K. C. Maurer, as stating that the foundation is wholly separate from the authentication board, but that is not true. One of the board’s five members, Sally King-Nero, is also an employee of the foundation. Ms. King-Nero and another board member, Neil Printz, are also co-editors of the catalogue raisonnée of Warhol’s paintings and sculptures, which is being sponsored by the foundation. The editing of the catalogue raisonnée in essence constitutes a separate, parallel process of authentication.”

A similar pattern of close and overlapping relationships connects the Pollock-Krasner Foundation, the Pollock-Krasner Authentication Board (a separately incorporated body which existed from ca. 1990-96), the Jackson Pollock catalogue raisonnée, and two major Pollock retrospective museum exhibitions. Art dealer and museum donor Eugene Victor Thaw, a long-time close friend of Lee Krasner, was the founding president of the Pollock-Krasner Foundation and co-editor of the Pollock catalogue raisonnée. He also has been a dealer in Pollock’s work and served on the Pollock-Krasner Authentication Board.

Thaw’s co-editor on the Pollock catalogue, Pollock scholar Francis V. O’Connor, was another member of the authentication board, as was Prof. Ellen Landau, co-organizer of the Pollock Matters exhibition at Boston College’s McMullen Museum and author of the catalogue raisonnée of Lee Krasner’s work.

Mr. O’Connor had further ties to another former authentication board member, the late William S. Lieberman. The two collaborated on the catalogue for the 1967 Pollock retrospective at the Museum of Modern Art in New York, where Mr. Lieberman was a curator for many years. Yet another former member, the late Kirk Varnedoe, former chief curator of painting and sculpture at MoMA, organized the 1998 Pollock retrospective for the museum.

Mr. Thaw and Mr. O’Connor were the first and most important scholars to speak out publicly against the attribution of the Matter paintings to Jackson Pollock. They have since stopped making statements to the media. Another to question the attribution, physicist Richard Taylor, has been a consultant to both the foundation and the authentication board.

Especially since the release of a Harvard University report that questioned the authenticity of the Matter works on the basis of materials analysis, Pollock-Krasner Foundation attorney Ron Spencer, who also represents the Warhol authentication board, has functioned as a spokesman for the Pollock-Krasner group.

Mr. Spencer has passed information and statements to the media and has publicly criticized the organizers of the Pollock Matters exhibition for reproducing works by Pollock and Krasner without the foundation’s permission. Last spring, he told New York Times reporter Randy Kennedy that Alex Matter had sold an interest in the disputed paintings to SoHo gallery owner Ronald Feldman, information that had not been previously disclosed.