Aspects of Violin and Art Fraud and the Criminal Law

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L C Coetzee & Jan-Hendrik van Rooyen

`[H]istory is ... agreed-upon myth. The violin world, like the public, likes a good story and doesn't particularly care if truth gets in the way.'

1 DEFINING AND ILLUSTRATING THE PROBLEM

In South Africa, any person with an active interest in violins sees fakes regularly -- and also the disillusionment and often heartache caused by such falsehood. Fake Stradivarii and other `old Italian master' violins are seen regularly, sometimes in tragic circumstances. In the random examples that follow, names and places have been changed where appropriate to preserve privacy.2

• Miss de Villiers, aged 82, phones from Harmoniehof, a Pretoria retirement centre. She has a Guarneri del Gesù in damaged condition. Would the Professor care to come and look at it? On arrival, he is welcomed cordially by a very frail and shaky old woman, invited in for tea, and finally handed a black plastic container in which there is a very old faded `Premier Mills' flour bag. In the bag is a violin in seven pieces. It bears a facsimile Guarneri label. The author immediately recognises the violin as cheap Czechoslovakian factory-made, dating from the 1920s. At the time such an `outfit' (violin, bow, case, cloth and rosin) cost about one pound sterling compared to a real Guarneri which would then have fetched in excess of two thousand pounds. At present, a good genuine Del Gesù would fetch more than a million pounds. A wreck would still make five figures if genuine. A modern brand-new Czech outfit of the same quality as Miss de Villiers's can today be bought for R1 500. Miss de Villiers explains to the visitor that her father gave her the violin when she was a child; he had bought it from a travelling peddler. It was very, very valuable -- a treasure, an investment against future hard times. To her everlasting regret, she had disobeyed her father when she was twelve years old; instead of putting the violin back into its case (now long lost), she put it on a sofa and someone sat on it. She made a vow to have it repaired. She now feels that death is near and she still has not found someone to repair the violin; she has been haunted day and night and has had no rest for her soul. She has moved house some twenty times in the course of her life; she has always personally carried the bag with the broken violin close to her heart. Can the violin be repaired? Yes, Miss de Villiers, wood is patient; anything can be repaired, but it is really not worth it; the bag of scraps is practically worthless. It is not a true Guarneri; it is a cheap fake. To repair it would be a huge undertaking. After the initial shock and many tears, Miss de Villiers asks whether the Professor would not please still undertake to repair the violin, for the sake of her conscience, so that she could die in peace. He agrees, but not soon; it would have to be a labour of love which he would do during some future holiday. But by then she might be dead already; won't he please buy the bag of scraps and then do the repairs at his leisure? Yes, but for how much? Well, only the black ebony parts have any intrinsic value, perhaps R10. But he offers her R20, plus the required solemn undertaking. Then, trembling: Is the Professor quite certain it is not a genuine Guarneri? Yes, regrettably, he is quite sure, he has no doubts whatsoever. She wraps up the pieces, puts them back into the flour bag, holds the bundle like a baby to her breast, shivers, and asks with tear-filled eyes, `Do you think the Lord will now forgive me so that I can die in peace?' Peace at last, after seventy years. (Except for the Professor, who now has it on his conscience to repair the violin!)

  

  This broken Guarneri fake made a woman suffer almost all her life. Fully restored, the violin may be worth around R900,00. If it were authentic, it would have been worth millions.

• Mr Smith keeps his fake Stradivari in a Chubb safe. It smells musty, but has quite a nice, mellow sound. It was probably made in Mittenwald around 1880 and is varnished in typical `German brown'. In 1959 the second author, then still a high school pupil, played various pieces on it, accompanied on the piano by the late Attie Badenhorst; this was taped on a Philips reel-to-reel tape recorder for the owner. Today Mr Smith still listens to the tape in awe and occasionally takes out his heirloom to buff and admire it. He refuses to believe that it is worth no more than R2 000. It lies unplayed, slowly deteriorating. It would make a very serviceable student instrument, much better than any new equally priced Far Eastern violin. Many such instruments are around, while South Africa's young people are crying for affordable decent student violins -- the authors call this `the curse of Stradivari', or, rather, the curse of South Africa's thousands of fake Stradivari. If someone brings in such an instrument for evaluation in order to sell the instrument, the second author always makes it clear that he cannot offer to purchase the violin, for fear of being thought a crook. And so another potential student violin disappears into a closet or safe to lie mute, deteriorating as time passes.
• Not all `victims' deserve our sympathy, since some have unclean hands such as Mr Jones of Verwoerdburg who bartered his Mercedes-Benz car for a `Strad'. He came to the second author for an evaluation of the violin, to sell it through Sotheby's. He really looked bad when he got the news. He had thought that he was ripping off the other person!
• Two final histories: first, in the 1950s the second author's Amon Bilmark violin (made in Durban in 1937) was sent to a firm in Johannesburg for adjustment. It was returned sans label. The maker in Durban fortunately could identify the violin and inserted another label. Now there is, of course, somewhere a violin which, through insertion of the stolen Bilmark label, has been `promoted' (Afrikaans `gepromoveer' -- a recognised term for this fraudulent but frequent practice in the violin trade) to a `better' (read: more expensive) instrument. Second, the second author once bought three extremely low-quality Chinese violins at a liquidation sale, simply to get their cases. He then advertised the violins in the `Under R50' classified ads column of a local newspaper as decorative wall-hangings; they were definitely not `musical' instruments. A dentist bought two for his consulting rooms; a Mr X bought the other one (for R50); the second author had his three violin cases. A year later a Pretoria violin teacher sent a violin to the author to see if its terrible sound could be improved through adjustment. It transpired that it was the third Chinese violin, now sporting a disguising coat of dark varnish and a modern German label! The pupil had purchased it from Mr X for R1 500. The author could identify it positively inter alia by a hidden secret serial code which he always inserts in instruments. One phone call plus the threat of immediate criminal action led to a prompt refund.

'Lott ... was virtually alone among copyists to thoroughly assimilate the style of {Guarneri} del Gesù. to the point that he made original fakes rather than duplicates. In the world of fine art, the most successful forgers have always thoroughly steeped themselves in the techniqes, execution , and compostition of their chosen target, and then created new works, rather than meticulously copying an existing work ... Lott was quite successful in reproducing the classic Cremona {undercoat and varnish} finishes; it is only when his work is seen next to the real thing that the forgery becomes apparent.'3

`One must remember that violin shops are service enterprises; if a shop doesn't give its clientele what they want, it won't survive. Violins are antiqued because musicians like them that way. Although all violin makers may not agree with this practice, most will not argue that it is easier to sell an old-looking fiddle.'4

Crimes of deception and dishonesty are often regarded with a degree of awe, rather than with disapprobation; the faking of a violin or artefact is often seen as an art in itself -- `the art of the forger'. Very few cases of these crimes ever find their way into courts. If they do, the prosecution often finds that such cases present considerable stumbling blocks, making it difficult to obtain a conviction. It is justifiable to ask whether the conventional criminal justice approach is an effective mechanism for restraining the incidence of violin and art fraud.

A few remarks on the terminology used are necessary. In this study, we use the term `fraud' in a wide, lay sense; in it we include most of those acts of dishonesty and misrepresentation which experience has taught us are prevalent. We use `fake' and `faking' in a similar sense. When we use the terms `fraud', `forgery' and `uttering' in a narrow, legal-technical sense, it should be apparent from the context.

The second author removes misleading labels from his violins as a matter of policy. The miniature fiddle is worth R150,00 - more than many fake Stradivari's!

2 THE HISTORY OF ART AND VIOLIN FRAUD

Introduction: why fake?

It seems to us that the key to understanding the phenomenon of art forgery lies in the concept of `collecting', with all the historical and cultural ballast that the word contains. Works of art have been forged for as long as they have been collected. The connection between art forgery and art collection is explained by Merryman and Elsen:6

`Either activity presupposes an enhanced appreciation of specific objects beyond their functional value. As long as a stamp is used only for dispatching a letter, its value is determined by the postal regulation. But as soon as stamps are bought not for mailing letters, but to complete a collection, their price will go up, especially if the stamp wanted is no longer in use. And when the demand surpasses the possible legitimate supply, the unobtainable commodity will be illegally produced, that is to say forged. It is exactly the same with works of art. As long as such works served only their immediate purposes, such as the satisfaction of religious or magical needs, or the decoration of bodies, abodes or sacred buildings, forgery did not exist. But as soon as such objects were sought for their aesthetic merits and as collectors' pieces, they were forged when the natural supply was exhausted. '

At present, great (and sometimes not-so-great) art from all periods, past and present, is being forged.

During the Middle Ages, when the church occupied a central position in society, the main art collector was the church. Artist were seen as craftspersons and, while the religious content of their work was admired, their artistic personality was of little significance and they retreated behind their work in anonymous seclusion. Since art had a mainly religious function, the motive to copy great foreign artistic models (like the Greek sculptures) was lacking; it is therefore not surprising that the phenomenon of art forgery as we know it in the modern world did not exist.

With the Renaissance came the dawn of a new spirit of individualism. The artist's personality was freed from the anonymity of religious art; the human talent of creating a fine work of art, that is the genius of the artist, was greatly admired. An important development was the use of a signature, which had been introduced by the painters' guild to facilitate distinguishing between foreign and local paintings. Later it became a sign of authenticity per se. A corollary of the glorification of the artist's personality was the idea of originality which became an important criterion in the judging of a work of art and in determining price.8 Original masterpieces acquired great value. Consequently, human nature being what it is, many artists resorted to dishonest copying and forging of works of art.

In our epoch, many factors provide fertile ground for forgery. The growing museum industry has greatly increased the demand for works of art. There is a potent awareness of art as an investment among the public and the number of persons, corporations et cetera, who can afford to buy art works has increased. The number of authentic works of art on the market remains relatively constant while the demand rises, and when the equilibrium tips in the direction of demand, prices soar.9 The forgery business accordingly holds good opportunities for the informed forger who can fill the gap between supply and demand on the art market. Because the art market has become an investors' market, many opportunists with no serious inclination for art have entered the market as `art dealers'. The world of art has to a large extent moved from the hands of knowledgeable, expert art lovers, connoisseurs and collectors into those of mere buyers looking for an investment who lack true critical abilities.

Further examples of violin fraud

As is evident from the examples in the first part of this paper, the mass production of facsimile-labelled violins in Germany is still having repercussions on the violin scene today. The extent of what took place is staggering. The town of Markneukirchen in Germany turned out fifty thousand `factory' (i e assembly- line) fiddles a year during the years before World War I.18 Mittenwald also provides a good example of the mass production of inexpensive violins. This small Bavarian town lies on the main road near the better-known Garmisch-Partenkirchen, between Munich and Innsbruck on the Austrian border. Serving as a stopover on the bustling trade route from Augsburg to Venice, Mittenwald had for centuries been a prosperous town. Mathias Klotz (1656--1743) was Mittenwald's most famous violin maker. Klotz left Mittenwald as a young man to learn violin-making in Vils, Padua and possibly Cremona. He returned in 1683 to a Mittenwald that had, after the Thirty Years' War, lapsed into a very serious depression. Klotz started making violins -- good violins, though never of superlative quality. He had no trouble in finding people to train as apprentices and assistants, since experienced wood carvers (making religious and other artefacts) were plentiful in Mittenwald. Mathias's five sons, and later their sons, also pursued the trade. Besides some forty violin-makers by the name of Klotz or Kloz, Mittenwald had a great number of other violin-makers as well.

Guilds were organised. Salesmen were trained and vended the violins throughout Germany. The local violin business expanded rapidly; soon recourse had to be had to methods of mass production. Artisans began to specialise; some made only bodies, others scrolls, still others chiselled pegs and bridges or cut fingerboards. Assemblers assembled the parts and varnishers did nothing but varnish the assembled violins. In the early nineteenth century almost every household in Mittenwald -- man, woman and child -- partook in the manufacturing of some violin part.

The successors to Klotz imitated the style of Stainer, a great maker from Absam, near Innsbruck in Austria. Some began faking Stainer's labels. Soon other styles and labels were being `copied'. In those days, children were employed to stencil many thousands of facsimile labels -- `Stainer', `Amati', `Stradivarius', `Guarneri' or whatever. The resulting confusion has been sketched above. Here is another, recent, case: On 19 February 1993, soon after the present authors had commenced their collaboration, the following small advertisement appeared in the classified section of The Pretoria News19 under the heading `Musical Instruments':

Antonio Stradivarius: Violin made in 1730.
 Asking price R12 000. Phone G ...after 4 pm.

The researchers made an appointment with the seller and visited him on 25 February. In response to their questions, he `affirmed' that he believed that the violin was genuine, that no-one had ever given him an evaluation of the instrument, and that they were the first to respond to the advertisement. He produced an old Guinness Book of Records to show them just what Stradivariuses were worth. When they asked him why then he was asking so little, he pointed to a crack (badly repaired) below the right-hand soundhole. When asked what his very lowest price would be, he said ten thousand rand.

He recounted the history of the violin (for a violin with a history it was -- all violins have histories!); it had been bought by his grandfather around 1875 in the Eastern Cape. The violin carried a printed label which read:

Antonius Stradiuarius Cremonenfis

Faciebat Anno 1736 *

The violin was a typical German assembly-line mass-produced Stradivarius `copy', probably from Markneukirchen or Sch”nbach (now Luby, Czech Republic), with the table made of fine spruce from the B”hmerwald and the back of good quality maple from Bosnia. The soundholes were typically German with deep nicks, and the small- headed scroll also typically German, with the roughly cut centre ridge not extending down to the pegbox. The colour separations between the neck and scroll, and neck and body, were fairly sharply defined. The purfling was genuine inlaid work. The varnish was a cheap brown spirit varnish on a golden-yellow ground, with traditional `wear' letting the ground show at selected places. The table was very badly worn in the bridge area. In the opinion of researcher Van Rooyen, the violin was probably some hundred and fifty years old, brought to the Eastern Cape by the 1842 German settlers, and in its present condition worth around two hundred to three hundred rand. The cost of complete restoration, acoustical and cosmetic, would be in the order of a thousand rand. Thus the restored violin, with a new low-cost fibreglass bow and a new but cheap case could be supplied to a young player for about two thousand rand. The result would be a much better `outfit' than the currently available `Cremona' factory outfits from Luby, which are of inferior wood and workmanship, with ink-drawn instead of inlaid `purfling' and which cost R1 500. But young South African players would never have the benefit of this instrument -- all because of the fake `Stradivarius' label and the fact that `(h)ope springs eternal in the human breast ... `20 Many of these good violins today are resting in South Africa's cupboards and safes or are stowed away in lofts -- for a labelled violin might just be worth a fortune! And so the `curse of Stradivari' repeats itself.21

In 1992 the Vienna Dorotheum fanfaronaded the auctioning of a `rare master violin' in a specially printed flyer accompanying their catalogue, complete with glossy colour pictures.22 The violin was labelled Joseph Guarneri filius Andreae, Cremona 1714. The bidding for this `Altitalienische Meistergeige' was to start at 800 000 Austrian schillings (400 000 pounds sterling), representing one third of its value, and was expected to reach two million schillings (a million pounds).

To confirm the identification of the violin, experts were brought in; all were in agreement -- that is, all but one. Violin-maker Jacob Saunders identified the `1714' old Italian master violin as a new instrument by the hand of British violin-maker Roger Hargrave who specialises in copies. When Hargrave heard about this, he offered to fly over and confirm Saunders's identification. The so-called Guarneri was withdrawn from the auction. It was indeed a modern Hargrave copy of Guarneri; Hargrave himself (of course) had never intended any fraud or deception. Despite Hargrave's testimony, some of the experts remained obstinate in their original confirmation! Unanswered questions remain: What was that label doing there? And why were no criminal charges laid and investigated?

3 THE CRIMINAL JUSTICE SYSTEM

Introduction

In considering the application of the criminal justice system to the present area of concern, it must be kept in mind that it is a complex system, involving many functionaries or parties, such as the public (from whom the complainant usually comes, that is the person who is a `victim' and who lays a charge with the police), the police, the prosecution, the courts, witnesses (including expert witnesses who may give opinion evidence) and, of course, the law, which consists of common law, statutory law and judge-made law. Of importance are substantive criminal law (which defines the various crimes), the law of criminal procedure (which regulates the step-by-step procedure to be followed in investigating and prosecuting suspected offenders), and the law of evidence (which regulates how certain issues in dispute and related matters may be proved). While the criminal justice system empowers the public and the law enforcement officers to prosecute crime, it confers no absolute powers; all powers are limited. These limitations may sometimes constitute formidable obstacles to successful implementation of the criminal law as a method of combatting certain offences. We proceed to expound some principles of substantive criminal law.

In line with Burchell and Milton,23 we define criminal law as that branch of the law which defines certain forms of human conduct as crimes and provides for the punishment of those persons with criminal capacity (i e who are not `insane') who unlawfully and with a guilty mind commit a crime. For our purposes, `crime' and `offence' are synonymous.

South African criminal law has evolved various offences which may be used to deal with art-related wrongdoings. We shall first briefly expound common law fraud.

Fraud

1. Misrepresentation The basic requirement for fraud is misleading or deceiving the victim of the crime. A misrepresentation is made if a person represents to another that a certain fact or set of facts exists which in truth do not exist.27 For example, a person represents that a violin by Carlo Bergonzi is one by Antonio Stradivari, or that a late nineteenth-century `assembly-line' German violin is a genuine seventeenth-century Italian Amati. A misrepresentation may be made by written or spoken word. It may also be made by conduct alone, for example by nodding one's head, 28 or by words as well as conduct, that is verbal and non-verbal (body language) communication. Whether a person's conduct (or conduct and words considered together) amounts to a misrepresentation, is a question of fact and should be established by taking into consideration all the relevant circumstances of the case. A misrepresentation can also be made by an omission, that is non-action -- for example failure to disclose a relevant fact.29 However, failure to disclose a fact will be tantamount to a misrepresentation only if there was a legal duty to disclose that fact.30 A misrepresentation is made by an omission if a person fails to disclose a material fact as a result of which another is induced to act to his/her prejudice.31 No general rules have been formulated to determine when a legal duty to disclose a fact exists; the courts determine this from case to case. If a seller knows or has reason to suspect that a violin has been `promoted' by the switching of labels (for example substituting a Stradivari label for a Bergonzi label), he/she will certainly be under a legal duty to reveal this to a customer. Not revealing this would constitute a misrepresentation by omission.

2. Unlawfulness Not every misrepresentation can be said to be `unlawful'. For instance it is not unlawful for a vendor to extol a work of art or the abilities of the artist concerned in exaggerated or extravagant terms which amount to `puffing'. `Puffing' is an exaggerated laudatory statement made by a vendor about the nature or qualities of his/her merchandise, and is, within bounds, accepted as a lawful practice.32 For instance, a dealer may quite lawfully wax lyrical about the shape of a violin's soundholes, its tone, or even the case in which the instrument comes.

   The fact that a complainant knew that a misrepresentation was false is no defence against a charge of fraud. Thus, if an expert is sent by the police to establish that a dealer is misrepresenting an instrument, a conviction of fraud can be obtained against the dealer even though the expert was not deceived.33 Mr G above would be guilty of fraud even though the authors knew in advance that he would be showing them a fake.

3. Prejudice Telling a lie per se is not tantamount to fraud, although the law about fraud has become so wide that a teller of lies runs a grave risk of prosecution. Not a mere lie but actual or potential harm or `prejudice' is required to constitute fraud. In the majority of instances the victim of fraud will suffer actual prejudice. However, potential prejudice suffices. This means that fraud is committed if the misrepresentation, viewed objectively, may (not necessarily did) cause prejudice.34 The risk of prejudice need only be reasonably possible.35 In R v Jolosa 36 Solomon J. said that `it is not necessary to prove actual prejudice, but ... it is sufficient if the act were done with intent to deceive, and if in the ordinary course of things it was calculated to prejudice some person or persons'. The phrase `calculated to prejudice' was subsequently interpreted by the Appellate Division as follows:

   ` It seems to me that when it is said that the act must be `calculated to prejudice', the word `calculated' does not refer to the intention of the doer of the act but is used in the sense of `likely', and the meaning is that the act must be of such a nature as, in the ordinary course of things, to be likely to prejudice.'37

   In R v Heyne 38 Schreiner J.A said that `the use of the word ``likely'' was not intended to convey that there must be a probability as opposed to a risk of harm ...'39 Accordingly, it is not necessary that the potential prejudice be to the representee. It is sufficient if the government or the general public or a third party could have been prejudiced by the misrepresentation.40 Once again, Mr G above would be guilty of fraud.

   If the risk of prejudice is `too remote or fanciful', potential prejudice in the foregoing sense does not exist.41 If the representation is so preposterous that in the ordinary course of events the reasonable person will not be deceived, there is no prejudice, potential or real.42 However, if the representee is so foolish as really to believe a preposterous story and actually acts upon the misrepresentation to his prejudice, then there is actual prejudice and fraud is committed. An instance would be the purchase by an ignoramus of a violin as a genuine Stradivari where the small print at the foot of the facsimile Stradivari label reads: `Made in Czechoslovakia'. The seller knowingly commits fraud.

4. Intention The requirement of `intention' in order for the crime of fraud to be committed, means that the person who makes the representation must know that the representation is false.43 It can be very difficult to show what went on in the mind of another; in court, however, an inference of knowledge of untruth may be drawn from all the circumstantial evidence. If the accused then does nothing to rebut the inference (for instance, he/she refuses to testify), the latter may `harden' into concrete proof (that is proof beyond reasonable doubt). In addition, the legislature saw it fit to include section 245 in the Criminal Procedure Act 44 to alleviate the heavy burden of proving intent that would otherwise face the prosecution. Section 245 reads as follows:

   `If at criminal proceedings at which an accused is charged with an offence of which a false representation is an element, it is proved that the false representation was made by the accused, he shall be deemed, unless the contrary is proved, to have made such representation knowing it to be false.' (Our emphasis.)

   This section creates a `presumption of intent' on the part of an accused, which comes into operation as soon as it is proved that the accused actually made the false representation. The presumption has the effect of placing the onus on the accused to prove on a balance of probabilities that he did not know that the representation was false.45 Someone who does not have an honest belief in the truth of his representation, or who acts recklessly as to whether it is true or false can be said to `know' that his representation is false.46 Likewise, the requirement of knowledge of the falsity of the representation is complied with if a person who, being suspicious of the truth of his representation, intentionally refrains from checking on sources of information for fear of establishing the falsehood of his representation.47 When an ignorant seller of a fake Stradivarius is properly alerted that the instrument may be a fake, and nevertheless continues to offer the instrument to ignorant buyers as a genuine Stradivarius, he commits fraud. Once again, Mr G is guilty.

   For fraud to be committed, an intention to defraud, as opposed to an intention merely to deceive, is required. The difference appears clearly from the eloquent statement in Re London and Globe Finance Corporation Ltd:48

   `To deceive is to induce a man to believe that a thing is true which is false, and which the person practising that deceit knows or believes to be false. To defraud is to deprive by deceit; it is by deceit to induce a man to act to his injury. More tersely it may be put that to deceive is by falsehood to induce a state of mind, and to defraud is by deceit to induce a course of action.'

   Therefore, the prosecution must show that the accused had the intention not only to make somebody believe something which is false, but also to induce somebody to act upon the misrepresentation to his or her prejudice. Thus the mere telling of lies which the teller does not believe the representee will act upon, does not amount to fraud.49 Bragging to one's friends that a fake Stradivarius is genuine, is not per se fraud. It becomes fraud when the motivation is, for instance, to sell the instrument as a genuine masterwork.50

Forgery

The requirement of misrepresentation for fraud to be committed is, in the case of forgery, met by the falsification of a document. Furthermore all the other requirements for fraud also apply to forgery, such as actual or potential prejudice and intent to defraud.52 The most obvious difference between the two crimes is that fraud is completed only after the representation comes to the attention of the representee, while forgery is completed as soon as the document is falsified. Bringing the document to the attention of others constitutes a different crime, namely uttering. Making (for instance by stencilling) fake `Stradivarius' labels constitutes forgery. Pasting them inside the instrument and offering the instruments for sale to the public constitutes uttering (as well as fraud).

The document Forgery can be committed only in `documents'. Our courts have not yet given an authoritative exposition of the term `documents'. Milton and Hunt 53 explain why:

`In all the forgery cases the forged material has either obviously constituted a `document', or else some other requirement, such as prejudice, has been lacking, with the result that it has not been found necessary to pronounce on the ambit of the word. In any event, the matter is usually not very important in South Africa, as forgery is a species of fraud, and in a borderline case the prosecutor should avoid the difficulty by indicting for fraud.'

`The word `document' is a very wide term and includes everything that contains the written or pictorial proof of something. It does not much matter of what material it is made. If it contains in writing or cyphers proof of some facts it is a document, and the fact that a number of leaves happen to be bound together so as to take the appearance of a book cannot make any difference. If in fact it contains written proof of facts, it is a document.'

`Writing in any form, on any material, which communicates to some person or persons a human statement, whether of fact or fiction.'

The latter corollary has a material bearing on the art scene. Burchell and Hunt 62 (relying on Russell's definition and with reference to Milton and Hunt) contend that since visual and musical art conveys different messages to different people, a painting or musical performance as such is not a `document' and thus cannot be forged. Milton and Hunt's 63 argument is to similar effect because, as they put it, `a drawing or a painting or a sculpture, or a piece of music, does not qualify because it conveys, and is intended to convey, a subjectively variable message'. They continue:

`On the other hand, a code might be written in picture form and it would qualify, and so would a drawing which was meant, objectively, to be merely a substitute for words, such as an architect's drawings.'

Unlawfulness It is not unlawful to sign another's name to a document with that person's consent.66 Thus a master may authorise his apprentice to put his (the master's) signature, seal or brand on an approved instrument. Most of Stradivari's instruments were probably not made by him alone but with the assistance of his two sons and Carlo Bergonzi; if they labelled them with the master's consent, using his labels, they committed no crime.

Falsification A document is not false merely because it contains a false statement or statements.67 A lie does not undergo a metamorphosis and turn into a forgery just because it is reduced to writing.68 A document is false only if it purports to be what it is not.69 The highest incidence of forgery, also in the violin labelling business, occurs when the document tells a lie about the person who made the document or authorised its making.70 Forgery is also committed if a document is a counterfeit or spurious representation of a genuine document (typically facsimile labels),71 or if after alteration it contains information which was not contained in it when it was originally made, information which is of material importance to the transaction underlying the charge.72

A falsification may be effected in a number of ways: alteration,73 endorsement,74 erasure (for instance scraping off with a knitting needle the small-print at the foot of a fake `Stradivarius' label which states: `Made in Czechoslovakia'),75 substitution (for instance `promoting' a Bergonzi to a Stradivari label substitution),76 and addition of particulars (for instance antedating a Collin- M‚zin violin to make it twenty years older).77 Snyman78 submits that the destruction of the whole document is not forgery whereas Milton and Hunt79 take the opposite view, stating that the `removal or execution of the whole thing' is an instance of forgery. We support the latter view.

Falsification of the document may take place through an innocent agent; in nineteenth-century Mittenwald children were used to stencil thousands of fake labels.80 Today, the instigators would be regarded as the criminal forgers, not the innocent children.

Forgery is committed as soon as the false document is `made', a moment which arrives when the document is completed or left in such a condition as to indicate that it was intended to be acted upon as genuine.81 A document that has not yet reached that stage is the object of an attempted forgery.

Intent The intent required to constitute forgery is exactly the same as the intent required for fraud:82 the forger should have the intention of defrauding and not merely the intention of deceiving.83 The forger should at least foresee the possibility that the document may be false and that it may cause prejudice and nevertheless proceed to make it. Section 103 of the Criminal Procedure Act84 makes it unnecessary to allege and prove an intent to defraud a particular person; an indeterminate intent is sufficient to constitute the crime.

Prejudice The requirement of prejudice is also substantially the same as that for fraud. There is a significant difference as regards potential prejudice, though. In the case of fraud, potential prejudice cannot be inferred before the misrepresentation has been communicated. In the case of forgery this can be done at an earlier stage, namely as soon as the false document has been made with the necessary intent. The document need not be uttered for potential prejudice to arise.85

Uttering

`Putting off' The distinctive requirement for uttering is `putting off' or `passing off' the forged document. This implies that the utterer must communicate 89 the document to another by way of a delivery, offer or attempt to make use of it in some way or other.90 In R v Kolia 91 the court declared its approval of the view expressed in Gardiner and Lansdown that the words `offer, utter and put off' mean that `the accused tendered or attempted to pass or make use of the instrument'. As Milton and Hunt 92 correctly point out, the use of the word `attempt' in quotation should not be understood to mean that completed uttering can take place without the document having been communicated (as is the case when a document is lost in the post). It is their submission that uttering in essence consists in communicating the forged document to another. If the other refuses to take it, the crime is still uttering, but if the document never reaches him there is only an attempt.93 We agree with this view. The document must be uttered on the pretext that it is genuine or authentic. Therefore, uttering is not committed if the document is communicated by a forger to an accomplice who knows that the document is false and who, in turn, has not yet uttered it.94 The forger, however, may still be convicted of conspiring with his accomplice to utter the document. The putting off may be effected through the post or some other (innocent or guilty) person or agent.95 On the violin scene, the crime of uttering will typically involve offering for sale violins with faked labels (or brands or signatures) and faked certificates of authenticity. (Fraud is, of course, also committed in such cases, if all the requirements are there.)

4 CRIMINAL JUSTICE DYNAMICS: THE ACHILLES' HEEL

Now for the antagonist, the forger (and the fraud). The forger becomes more and more cunning as the range of modern technical and artistic resources, skills and knowledge available increases -- racing to stay one step ahead of the authenticators.

The collector, the gallery and the museum director often (unwittingly) play into the hands of the forger. `They often are hesitant in the face of costly advice, huge publicity, and a desire not to besmirch the good name of the art market or their own good names to admit publicly they have bought a forgery and thus fail to cooperate in criminal prosecution.'97 Of course the fear of being ridiculed also has a deterrent effect -- not on the forger, but on the victim, who is too shocked to be willing to go to the police and the courtroom.98 For criminal law to function optimally, the situation must be such that the victim is determined to institute criminal proceedings. Too often in art fraud or forgery cases, the victims fight shy of taking action; victim dealers are afraid that their customers and potential customers will lose confidence in them and that their business may be detrimentally affected; victim collectors are afraid that they may lose the value of their bargain if the fraud or forgery becomes known. So they remain quiescent -- one to preserve his/her supposed integrity and the other to preserve the `authenticity' of his/her purchase. Jurisdictional problems because of the international nature of the art market further frustrates the ordinary smooth(er) course of the legal process.99 If we consider all of these factors, it is not surprising that art forgery and fraud trials are so rare. Würtenberger100 speaks a true word:

`For almost no other crime is the `dark number' of offenses committed but never discovered or cleared up as large as it is for fraud in all its forms ... We should not allow ourselves to be deluded by individual sensational cases, which we can follow almost every year'.

`Scientific analysis is not foolproof and the appraisals of experts are just expressions of opinions which ... judges may not find convincing. The prosecution must prove a connection between the fake and the faker which is costly and many times more difficult because the chain of title or origins of the work often can be difficult to trace. This is further complicated by the international nature of the art market'.101

The Wacker trial Wacker was accused of having brought more than thirty Van Gogh paintings, of which the majority were probably forged, onto the market. A small number of them could possibly have been genuine. The court had the unenviable task of determining which of the paintings were genuine and which were forged. To assist the court in its task, a number of expert witnesses were summoned to give their detailed opinions on authenticity. The German and Dutch experts who were called upon to testify gave contradictory opinions. Worse still, while giving evidence, one witness changed his earlier opinion several times. This trial is an example of how precarious and extremely uncertain the opinions of experts, even those of reputable scholars, may be and consequently of how little evidential value.

The Werro trial Another notorious example of the difficulties inherent in a criminal case is the trial of the well-known and previously highly respected violin dealer and expert Henry Werro in Bern in 1958.103 Werro was accused of fraud in the course of his work committed through the sale of old stringed instruments. He was charged with having sold nineteen violins, one cello and three bows that were either completely or partly fake.

The Italian Chamber of Commerce constituted a commission of experts charged with the investigation of old stringed instruments. The Association of Swiss Violin Makers also formed a commission of experts. The experts of both commissions investigated a number of violins that had been sold for 100 000 Swiss francs or more and that appeared to be fakes. Werro's objections to the experts led the jury to appoint another five experts that had to give `Oberexpertisen'.

One of the highlights of the trial was the performance by one Albert Phillips-Hill, a very famous violin expert of the old and prestigious firm W. E. Hill and Sons in London. (The firm sadly `folded' in 1992.) He stated in court that Werro was a first class violin-maker, trader and expert, and was highly esteemed throughout the realm of violin expertise and trade. Phillips-Hill himself of course also qualified as an expert witness. When asked about a violin that was ascribed to Ruggieri, Hill said that certain characteristics of the instrument pointed to the master. A violin that Werro had sold for 120 000 Swiss francs as a 1716 Stradivarius was acknowledged by Hill to be the work of Stradivarius but subject to the reservation that the top could possibly be of a later date. Another violin which Werro had sold for 80 000 Swiss franks as a violin by Carlo Bergonzi, and which had been labelled a fake by the `Oberexperten', was described by Hill as an original by the master from the year 1732. Hill later admitted that determining the specific year of manufacture in the first place rests on the date on the label!

Later in the trial Hill was heard again. Hill's opinions conflicted with those of the experts appointed by the bench. The experts were of the opinion that a certain violin was a Cappa that had been `promoted' to a Guarneri. Having previously held the opinion that the instrument was definitely a Cappa possessing all the characteristics of an instrument built by the master, Hill could now not remember ever having seen the violin. The so-called Bergonzi was also an object of conflict. The experts appointed by the bench furnished evidence that the violin was a fake; the varnish had been artificially given an old appearance with black dye; the f-holes had been `corrected'; and the bottom showed a superficial and hasty finish, not expected from the meticulous craftsman that Bergonzi had been. The value of the instrument, in their appraisal, would at the very highest be a twentieth of the selling price of 80 000 Swiss francs. Hill persisted that the violin was the work of Carlo Bergonzi.

5 CONCLUSION: WHAT NOW? AND WHY?

The purchaser could buy only from reputable dealers and thus minimise the risk of buying a fake, although even experts can be (and often are) deceived. If the artist is still alive, the buyer could contact the artist to authenticate the artefact. Knowledge is a very important weapon; buyers should become inquisitive and should do their homework before investing in any work of art. The expert, the academic, the dealer, the museum industry and, very important, the media (TV) could all play a major role in the fight against art and violin-related crimes of dishonesty, by informing and educating the public.

Marking artefacts with a special mark or label is often suggested. One suggestion is that artists should mark their works with their fingerprints which are then preserved by chemical treatment.105 Fingerprints would be a safe option because they cannot be forged. There are, however, quite a few disadvantages to this suggestion: a large repository would have to be kept to store all of these fingerprints and some artists might refuse to have their finger-prints placed in such a bank; only local artists' fingerprints would be kept in such a repository; and only artefacts by artists who were alive at the time of institution of such a plan would be provided with such markings. Another suggestion is to mark all known fakes and copies (also legitimate copies) with indelible ink106 or an invisible laser sign107 to prevent them being passed off as originals in future. An art archive could be set up in which contemporary works of art could be registered.108 All living artists could then file certificates of authenticity which could be kept in the archive together with photographs of their works and documentation of the identity of purchasers. These are just a few possibilities that are open for investigation. To us, however, they do not seem realistically workable in the near future. More thinking needs to be done -- plus more moral and other education. Also, more than one approach can be tried to combat evil; it is not a question of either criminal sanctions or other approaches.

Which brings us to the final question: Why do we insist on finding out whether an artefact is original or whether it has been faked or copied, when it sometimes provides (almost) the same intensity of esthetic pleasure for the ordinary person as the original? Why did we bother at all with this study? Many of the `victims' of minor violin frauds are ignorant and gullible; often the economic harm is small. The victim of a major fraud acquires a vested interest in perpetuating the fraud to protect his/her investment; he/she will not expose his/her instrument by `taking it to court'. The criminal justice system does not work, because the harm done by the fraud is either too small or too big. Some fakes are good instruments in their own right. So, why bother, why care?

We think that the answer lies in the realm of the inner person, the innate yearning for truth that is part of our humanness. To be sure, our study has illustrated that our humanness has a parallel darker side. People will also pervert truth; the view that originality is sacrosanct indirectly provoked an increase in the incidence of art-related crimes! Originality in art or in violin- making presupposes a process of delving for inner truth, truth in oneself, on the part of the artist or craftsperson. Just as the quest for originality itself is a manifestation of humanity's search for truth, so is our quest for integrity, for authenticity. We believe that truth and integrity do exist and, contrary to the sentiment expressed in the quotation by McKean at the beginning of this article, we believe that they do matter, despite their elusiveness,109 and that they deserve our care, attention and protection -- also in the context of human creativity and commerce relating to art and violins. Hence our interest in authenticity.110

Notes

1. In any charge relating to the forgery, uttering, stealing, destroying or concealing of, or to some other unlawful dealing with any document, it shall be sufficient to describe the document by any name or designation by which it is usually known or by the purport thereof, without setting out any copy or facsimile thereof or otherwise describing it or stating its value.
2. Whenever it is necessary in any case not referred to in subsection (1) to make any allegation in any charge in relation to any document, whether it consists wholly or in part of writing, print or figures, it shall be sufficient to describe the document by any name or designation by which it is usually known or by the purport thereof, without setting out any copy or facsimile of the whole or any part thereof, unless the wording of the document is an element of the offence.