The Vermeer and Modigliani Frauds

by Jamison Koehler on October 30, 2009

In researching forgery and fraud laws in Washington, D.C., I was reminded of two of my favorite stories.  I tell the stories now not just because I find them entertaining, but also because I think they illustrate the differences between the modern day criminal offenses of forgery and fraud, at least as the two offenses are defined in D.C.

I recite the first story from memory because it was an old story I saw in a magazine once, and I am not able to find it on the Internet.  According to legend, the Italian sculptor Amadeo Modigliani was working in his studio one day on some sculptures.  The artist supposedly became dissatisfied with some sculptures he was working on and, in a fit of frustration, threw the unfinished sculptures out into a canal next to his studio.  The sculptures were never recovered.

A half century or so later, local authorities were excavating the canal next to Modigliani’s workshop when they recovered a couple of unfinished sculptures that bore a striking resemblance to Modigliani’s style.  The authorities consulted leading art experts, including some who specialized in Modigliani’s work.  The experts confirmed that, because of the unique style, the sculptures could only have been done by the great artist himself.

At this point a couple of Italian art students came forward.  They said that they had heard the legend about Modigliani and the sculptures he threw out into the canal, and when they read in the newspaper that the canal was being excavated, they decided to play a little prank.  They made the sculptures imitating Modiglianoi’s style.  They then buried the sculptures in the canal one night for the workmen to uncover the next morning.

This, however, was not the end of the story.  The experts refused to retract their earlier claims of authenticity, even when the art students produced a videotape showing themselves throwing the fake Modiglianis into the canal.

I heard the second story on an NPR interview with Edward Dolnick, author of The Forger’s Spell.  While Dolnick tells the story much better than I ever could, it involved a failed artist named Han van Meegeran who made a fortune by forging works supposedly done by Dutch painter Jan Vermeer.  And, like the students in the Modigliani story, he succeeded by relying on the arrogance of the art experts.

After his own artistic career failed shortly before World War II, van Meegeran began to forge artwork he claimed had been painted by Vermeer.  There may have been several reasons van Meegeran picked Vermeer.  First, Vermeer was very famous and his works could be expected to fetch a lot of money.  Second, there were not many Vermeer paintings in existence, leading some experts to speculate on missing or lost artworks.  Third, there had been some discussion among experts about the direction Vermeer’s art would have taken had he lived longer and produced more works.

Van Meegeran listened to the experts and he obliged them.   In what Dolnick describes as the “uncanny valley,” van Meegeran didn’t try to imitate Vermeer too closely.  That would have drawn suspicion.  Instead, he took Vermeer’s work in slightly new directions – doing religious work, for example – while imitating Vermeer in more subtle ways.

Again, the experts validated the artwork, and that of course made it easier to sell new forgeries because the new forgeries were similar in style to the other “newly discovered” Vermeers.  Nobody seemed to question the fact that, although it had been hundreds of years since the last Vermeer had been discovered, suddenly a new piece would appear every 6 months or so – and sold, of course, for a large sum.

Van Meegeran was doing fine until one of his forgeries ended up in the hands of Herman Goering, the number two man in Nazi Germany at the time.  After the war, the Dutch authorities were investigating Nazi collaborators in Holland.  They wanted to know why Van Meegeran was selling national treasures to the Third Reich.  Since the penalty in Holland for this crime was death, it didn’t take long for van Meegeran to claim, hey, I’m not a traitor, I’m a forger.  Look how I fooled Herman Goering.  The experts, of course, were convinced of the authenticity of the paintings by this point, and van Meegeran was forced to prove his painting skills from his jail cell.

I tell these stories not just because I think they are interesting (although I do), but also to illustrate the difference between forgery and fraud.  Would the Italian art students and van Meegeran be guilty of either forgery or fraud had their actions taken place in D.C.?

A person commits forgery in D.C. when he or she (1) makes, draws, or utters (2) a forged written instrument (3) with intent to defraud or injury another person.  To “utter” means to issue, authenticate, transfer, sell, present, display, use of certify.  As Black’s Law Dictionary puts it, it means to put the instrument into circulation in some fashion.  A “written instrument” includes a check, stamp, letter of credit, stock certificate, money order, or traveler’s check.  In a sense, it can be any document or paper that reflects commercial or legal relations between two parties.

The first and third elements have clearly been satisfied in both cases.  The art students and van Meegeran made the phony art pieces and launched them into circulation.  That satisfies the “uttering” requirement.   And they clearly intended to defraud others.

The question thus becomes whether or not the prosecution could make out the third element of the crime; that is, the “written instrument” part.  There is no “written instrument” in the case of the art students.  The statute makes no mention of any physical property in the statute; only documents and papers that represent ownership of property.  In the case of the art students and forgery, the verdict is thus not guilty.

Van Meegeran presents a different story.  The forged paintings themselves do not qualify as “written instruments.”  Like the sculptures in the Modigliani case, they are pieces of physical property that are not covered by the statute.   The difference, however, is that in selling the forged painting to unwitting customers like Goering, van Meegeran would inevitably have passed ownership papers.  That paperwork, fraudulent in claiming authenticity of the property it represented, would qualify as the required “written instrument.”  Van Meegeran would thus be guilty of forgery.

How about fraud?  According to D.C. law, a person commits fraud when he or she (1) engages in a scheme or systematic course of conduct (2) with intent to defraud or to obtain property of another by means of a fraudulent pretense, representation, or promise (3) and thereby obtains property of another or causes another to lose property.  Fraud is, in fact, a broader category of criminal offense that would encompass forgery.

Applying this definition to the Vermeer case, van Meegeran should be found guilty.  His fraudulent scheme was carried out over a multi-year period.  He intended to fool people into thinking that the art they purchased was done by the great Vermeer.  And he made millions of dollars off the forged paintings.

But what about the art students?  Their prank was certainly part of a scheme, and they did intend to fool people.  What’s still missing, however, is the third element.  How did they either obtain property or cause others to lose property?

I suppose you could argue that by eventually exposing the fraudulent scheme they themselves had concocted, the art students rendered the pieces of stone they fashioned into fake Modiglianis worthless in the hands of the people who possessed them.  However, but for the students’ prank, the pieces of stone were worthless to begin with.

You might also argue that, by embarrassing the experts, the art student damaged the experts’ reputations and thus their livelihoods.  But, really, any damage done to the experts’ reputations was self-inflicted.

No.  The art students might be guilty of criminal mischief or some other minor offense.  Maybe they were guilty of having too much time on their hands, and they probably wouldn’t win any model citizenship award.  But they were not guilty of either forgery or fraud.