How Does the Law Address the Notions of 'Original' and 'Counterfeit'?
Every work is genuine in its own way. However, often there is ambiguity. And that provides ample material for criminal law and copyright.
Do you, dear reader, treat the original the same way you treat pornography? An American judge once laconically remarked about it: "I know it when I see it." However, in both cases, it's not as simple as it may seem at first glance. And not even at second glance. The difficulties start on a purely factual level, namely the problem of unequivocally proving whether something is an original or a forgery. It's not uncommon for expert opinions brought into dispute to contradict each other diametrically.
In an extreme case, there were five expert opinions affirming an original and an equal number denying it. And what did the judge do in this dilemma? He relied on his gut feeling and ruled it was a forgery. Legally, this resulted in the duped buyer being allowed to return the respective painting in exchange for a refund of the purchase price. In legal terms, depending on the interests involved, one could theoretically hold one expert or the other accountable. However, they usually protect themselves with the formula "to the best of their knowledge and belief" against claims for damages.
The mistake with the signature
Furthermore, it should be considered that every painting is genuine, perhaps not a genuine van Gogh, but maybe a genuine Beltracchi, the forger of the 20th century, for example. By the way, if Beltracchi had not signed his forgeries, of which he had only admitted 14, with the respective artist's signature, he could not have been touched because he did not copy/fake existing paintings but created his own works "in the style" of artists such as Max Ernst. "Styles" are not legally protected.
However, because he always presented his creations as genuine paintings, for example by Max Ernst, he, along with his wife and accomplice, was sentenced to long prison terms for fraud and forgery of documents. Beltracchi was criminal law. Copyright, on the other hand, comes into play, for example, when someone makes copies of a protected work without permission. Or when someone modifies a protected work and stays too close to the original. The art movement of Appropriation Art, where artists partially and deliberately copy one-to-one from other artists, consciously plays with the tension between original and copy. The most prominent example is probably Andy Warhol's "Flowers," which he had "borrowed" exactly from a photograph by Patricia Caulfield at the time. And thereby established his own copyright.
