The rules on fake art

The Philippine art market has been flourishing continuously for 20 years now. The number of artists, art galleries, and collectors have increased tremendously in that span of years. At least nine art fairs are now held yearly in Metro Manila and several provincial cities. Two major auction houses, and several upstart ones, have established a thriving industry in the art trade. With these developments, prices have skyrocketed for the works of highly-sought-after artists.

Before this art boom, the profile of art collectors was mostly limited to professionals and businesspersons who have achieved financial security. Nowadays, there are many young collectors who, while only starting out in their careers, are already crowding out the art market. Word is also going around that because stock market brokers and investors have discovered higher and more assured returns in the art market, they have shifted portions of their funds by investing in art pieces.

By reason of the booming art market, there are those who are taking advantage of the high demand in art by riding on the popularity of in-demand artists, through means that are either legal or illegal.

Those who take advantage through legal means are those who mimic the style, colors, and subjects (but not exact duplicates) of highly popular artists, but who sign the artworks in their own names. These are imitation art pieces and they are deemed legal in our free market economy because there is no misrepresentation that the works are creations of the original artists. They’re also legal because artists don’t have monopoly of ownership over art style, colors, and subjects. The law does not give copyright ownership over these three art elements, the reason being that, to give exclusivity of ownership over said elements will stifle further innovation and suppress derivative creativity. After all, many of today’s current art are built on, copy elements from, or are derivative versions of, all previous art.

However, even though legal, artists and serious collectors consider imitation art as unfair because the imitating artist unreasonably rides on and takes advantage of the visual imagery uniquely “invented” by the original artist. These imitation art pieces are largely treated as decorative pieces that do not appreciate in value. The works of Fernando Amorsolo, Vicente Manansala, Hernando R. Ocampo, Ang Kiukok, and Benedicto “Bencab” Cabrera are some of those that are imitated by enterprising artists.

On the other hand, those who take advantage through illegal means make fake copies of the works of renowned artists. They copy particular works of the original artist to the minutest details, and affix the signature of the original artist. These artists engage in fraudulent conduct because they deceitfully pass off their works as those of the original artists. They commit the crime of estafa or swindling which carries a penalty of up to 20 years of imprisonment if convicted.

The imitated artists earlier mentioned are also victims of forgers who peddle fake copies of the artists’ artworks. In addition, fake works of Onib Olmedo, Juvenal Sanso, Nena Saguil, and even mid-level artists like Elmer Borlongan, Emmanuel Garibay, and Ronald Ventura are also being sold. The fraudsters have become brazen because they publicly sell these fake artworks in online platforms like Facebook and Instagram.

Buyers should not accept at mere face value certificates of authenticity because even these documents can now be faked. Because computer manipulation of photographs can now be done easily, even pictures of the original artist posing with the offered artwork should not be taken as conclusive proof of authenticity. When buying works of deceased artists, buyers must investigate by asking seasoned collectors, reputable galleries, authenticators, and the artist’s family. There may be costs involved, but think of it as no different from paying insurance coverage for a major property acquisition.

Forgers and their sellers are not the only ones criminally liable. Buyers should be extra careful because their possession of fake artworks violates the copyright of the original artist. They could be made criminally liable for violation of the Intellectual Property Code (IPC) because their possession may be considered as “aiding and abetting” the forgers. A buyer cannot blindly plead ignorance because the IPC punishes buyers who “ought to know” that what they bought is an infringing copy of the original work. The IPC imposes a penalty of up to nine years of imprisonment and up to P1.5 million in fine, for multiple violations of copyright infringement.

Buyers should exercise prudence and diligence by making sure they’re not acquiring a fake work of art. Instead of scoring a prized purchase or gaining a huge discount, they may end up acquiring a worthless piece and paying for detention time in prison.

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