Is this fraud?

[Cynthia Daniel]

I received the following question from someone who shall remain unnamed about an artist that shall remain unnamed. Anyone who has relevant information, please comment:

Let's say a client pays for a commissioned portrait to be done by a famous artist and that artist accepts the commission. Obviously, the client expects that their painting will be done by that artist, right? And how would it work if that artist decides to have someone other than himself paint that painting -- for less or no money -- and is going to try and pass it off as his. In other words, he's not going to tell the client that he had someone else paint it or paint on it.

I know in the distant past there were art studios and several artists/apprentices might work on one piece under the guidance of the master. However, as I understand it, the clients were informed when it was a "studio piece" as opposed to an original by the master. Is that what you recall? But if the master fails to inform the client that the expensive original that they've commissioned to have done by the master is in fact not an exclusive original, isn't that fraud?

[Michele Rushworth]

Sounds like fraud to me. Time to review whatever contract was signed and call an attorney, I think.

[Claudemir Bonfim]

I know some famous artists who employ assistants in their studios in the U.S., South America and Europe, but the main work and the final strokes are made by them and not by their assistants.

At least in my Country an artwork and the signature must be owned by the same person or it is classified as fraud.

[Mike McCarty]

My understanding of the meaning of "fraud" is:

The knowing misrepresentation of a material fact.

Assuming that the contract was silent on the question of using third party painters, it would seem that this scenario would meet the above definition.

he's not going to tell the client that he had someone else paint it or paint on it.

However, the difference between "painting it" and "painting on it" is, as they say, as wide as a church door. If the entire painting was done by someone else it would seem that the client would have cause for some kind of action. If it gets into the realm of "how much" did the third party contribute to the completed painting, then, I would think that the water would become much less clear.

Out here practicing without a license per usual.

[Kimberly Dow]

The law gives leeway to 'intent' - most clients would have no idea (nor most portrait artists I assume) that another artist would be involved in the painting. The intent of the contract would then be that the original artist would be the only painter - so yes it would be fraud. Besides - if you are hiring a well-known artist they are buying the name as well and the possibility of the investment going up in value later - wouldnt that lower the value if an unknown painted part of it?

[Sharon Knettell]

The client, in my opinion is not getting what he paid for and is being defrauded.

Ostensibly, some become artists for the joy, of accepting, accomplishing and getting paid for commissioned work. Their own work.

If the person tires of the business, he can like Sargent retire, or graciously suggest another artist worthy of the commission. If the authorship were later to be questioned, it would not only reflect badly on the artist, but the profession as well.

[Elizabeth Schott]

Cynthia I would consider it not only fraud but immoral, especially if this artist doesn't have a reputation of student/apprentice "studio" artists working under his/her wing.

[George Holmes]

Cynthia:

The question is a classic law school exam question. There is no hard pat answer. Each set of facts will have variables that may change the outcome. The factual scenario you propose creates more questions than "Is this fraud?" It may just be plain old vanilla breach of contract, then again it may not. Even if it is fraud or breach of contract, there is the question of whether the customer received what they paid for? i. e. is the finished product what the customer wanted, as good, or better, than the contracted artist? Also, there are questions of what are accepted standards in the portrait artist industry in general and particular location. What was the wording in the contract, was there a written contract? What was the studio set up? What was the level of participation or supervision of the contracted artist (was it just partly fraud/breach)? Was the original contract artist sick and just trying to help the client? When did the client know about the switcheroo? Prior to final payment? After final payment?

If the customer was not satisfied with the final product, how is this different from the normal situation of a dissatisfied client?

If it is fraud or breach of contract and if the product was not as good as expected, how is the problem cured? Money? How much? New portrait or touch up the first one? Who keeps the first portrait if there is a new one? Who has the "copyright" of the first portrait?

The answer for all the participants here is probably don't farm it out without covering that in your contract. Isn't there a lawyer who writes articles sometimes for one of the artist magazines about art-legal issues? This would be a good article for him/her if someone knows whom and how to contact.