Attribution on a Work of Art,the Author,Identity and the Self in the Courtroom: the Case of Thwaytes v. Sotheby’s

I. Introduction

In the UK High Court (Chancery Division) case of Thwaytes v. Sotheby’s, ¹ a case related to the attribution on a work of art alleged to be by Caravaggio, Justice Rose found herself in the novel position of making assessments in relation to authenticity normally reserved for art experts – and thus whether a particular artwork was indeed by Caravaggio himself or simply a replica – instead of just reaching a judgment on whether the respondent in question (the auction house Sotheby’s) had been negligent (which she also had to do). This made the case all the more fascinating, and amongst other things, exposed in intricate detail the nuances and potential problems that art experts encounter when reaching decisions related to attribution. This article, consequent to a contextualization into the background and facts of the case, will argue that the case of Thwaytes not only provides a highly useful pedagogical prism through which to learn the minutiae of the authentication process of artworks and the problems that arise through that process – it also leads to the opportunity to examine in more depth the nature of the author, identity, the self, and the work of art itself. In so doing, this article will draw upon the work of Jacques Derrida related to criticisms of the stable, unitary author, let alone a stable, unitary self and identity – to problematize attribution on works of art, as well as to offer an understanding of art that is grounded upon the argument that attribution is not always unproblematic or straightforward, and that therefore, anyone interested in the attribution of artworks must learn to become comfortable with a degree of uncertainty.

II. Background and Facts of the Case

In the collection of the Kimbell Art Museum in Fort Worth, Texas, there is a painting by the Italian Baroque ² artist Michelangelo Merisi da Caravaggio (known as Caravaggio), entitled The Cardsharps (or I Bari in Italian; hereinafter “Cardsharps”). The painting depicts three men grouped around a table playing cards. On the left side of the painting is a young man (or the dupe) dressed in a velvet doublet. Behind him and to his left is an older, bearded man (the old sharp), and opposite to the dupe, to the left hand of the old sharp, is a young man (the young sharp). The old and young sharps are in league against the dupe, and the old sharp is underhandedly looking over at the dupe’s cards and signaling to the young sharp with the fingers of his right hand what cards the dupe holds. At the same time, the young sharp is concealing two additional cards behind his back, one of which he is removing. It was accepted by the parties in the dispute that the Cardsharps is an autograph painting – that is to say, painted by Caravaggio himself.

However, the painting which was the subject of the dispute is another painting (hereinafter the “Painting”) of the same scene, with the exact three characters depicted in the same positions. The Painting used to be owned by the claimant in the proceedings, Mr Thwaytes. In 2006 Thwaytes entrusted the painting to the defendant, the auction house Sotheby’s. On December 5, 2006, the Painting was sold by Sotheby’s for £42,000 plus buyer’s commission, or the additional charge that must be paid in addition to the hammer price to cover the auctioneer’s expenses. The painting was bought by Ms. Orietta Benocci Adam on behalf, at least in part, of Sir Denis Mahon – a lifelong Caravaggio scholar and an experienced collector of Baroque paintings. Consequent to the acquisition, Mahon conducted extensive investigations into the Painting, including having it cleaned and restored. In November 2007, Mahon announced that the painting was an autograph replica – that is to say, a replica painted by Caravaggio himself – and was supported in this attribution by the Italian scholar Professor Mina Gregori. As a result of this, Thwaytes brought an action against Sotheby’s in negligence and for breach of contract, alleging that Sotheby’s experts had failed to adequately research the Painting and failed to notice certain features of it that should have indicated to them that it had “Caravaggio potential,” ³ and that it might therefore be a replica painted by Caravaggio rather than a copy. Crucially, Thwaytes did not assert that the Painting was actually by Caravaggio. Rather, he alleged that had Sotheby’s performed their duties toward him properly, he could have either sold the Painting for a much larger sum of money, or he would have decided to not sell the Painting at all – and thus be in possession of an artwork of much higher value than what he actually received on its sale. As per Justice Rose, the key question to be answered was whether Sotheby’s had been negligent in that no reasonable auction house could have concluded on the basis of quality that the painting could not be by Caravaggio. Justice Rose held that Sotheby’s had not been negligent in its assessment of the Painting, with Rose further endorsing Sotheby’s view that the Painting was a copy and not an autograph replica by Caravaggio.

III. Analyzing the Evidence and Analyzing the Painting: Caravaggio, Are You in There?

The first thing to note is that what makes the case unusual and even striking is the fact that Justice Rose’s approach contrasted significantly with the prevailing English view that magistrates are not art experts and are supposed to judge the experts, not the art itself. ⁴ Justice Rose’s approach meant that, amongst other things, she examined the quality of the Painting itself in contrast to the Cardsharps to determine whether it was of a sufficient caliber to be deemed an autograph painting. The proceedings were, in simple terms, nothing short of determining whether Caravaggio’s trace could be found in the Painting – and whether, therefore, the painting was a relic of Caravaggio’s physical existence and career as an artist.

Justice Rose considered a number of issues, beginning with the fact that it is generally accepted that Caravaggio painted repetitions of the same subject – that is to say, paintings that deal with the same incident, as opposed to straightforward copies or replicas, where two paintings are instead virtually identical – or variants, where two paintings show the same scene but with considerable modifications, which it is also accepted Caravaggio painted. However, what is more contentious is whether Caravaggio ever painted replicas of his own work. What was not in doubt was the fact that the instant popularity of the Cardsharps meant that high quality copies were made by other painters shortly after Caravaggio completed the work and over the centuries thereafter. There are several dozen copies known to exist.

Justice Rose also had to consider the manner in which a painting is produced. A painting is made up of a number of different layers of paint, with the artist usually first painting a priming layer covering the whole of the bare canvas. A second layer called the “ground” that covers the whole canvas is also generally added, although different colors may be utilized over different parts of the canvas. Consequently, the artist may then sketch out the basic shapes of the picture that he or she intends to paint – with this layer being referred to as the abbozzo layer. The artist will then proceed to paint the items that constitute the artwork’s composition. Further, when an artist is composing the image in paint on the canvas, he or she may change his/her mind and paint over what he/she has already painted to alter the final image – the changes are called pentimenti, or pentimento in the singular. It may be possible to see pentimenti with the naked eye, such as when upper paint layers become more transparent with age. Other pentimenti are only visible through the use of X-ray or infrared imaging. Pentimenti suggest that a painter altered the composition as he/she worked and thus that a painting is an original composition and not a copy, given that they demonstrate reflection and a creative process at work, as opposed to straightforward copying, where one would not expect to see significant pentimenti. ⁵

A number of expert witnesses were called upon in the case, with the expert evidence falling into three categories: art historical evidence and connoisseurship; technical evidence about the Painting and the Cardsharps; and evidence of auctioneering practice and fine art valuation. Art historical evidence and connoisseurship entails calling in experts in the fields of art history and connoisseurs, or those with a trained “eye” for discerning the authenticity of artworks in which their expertise lies. Technical evidence involves the use of chemical analysis (such as testing, for example, the pigments of paints for their chemical composition ⁶ ) and imaging techniques such as X-radiography, ultra-violet fluorescence, infrared reflectography and transmitted infrared – all of which allow for, amongst other things, the penetration through the layers of paint to provide information on things such as underdrawings or alterations made during the process of creating the work. Evidence of auctioneering practice and fine art valuation includes a consideration of, for example, the procedure that art dealers and major auction houses follow when dealing with important works of art – such as obtaining opinions from leading authorities on the artists that they are offering for sale. ⁷ This article will not delve into describing every expert opinion and evidence drawn upon – only the ones relevant to the arguments made in this article.

Amongst others, the claimant called upon Dr. Roberta Lapucci, whose expertise included Baroque art history and who had written her doctoral thesis on Caravaggio. Lapucci also had practical experience of having inspected numerous autograph Caravaggio paintings as well as paintings proposed to be by Caravaggio. One of Lapucci’s doctoral supervisors was Professor Mina Gregori, with whom she co-curated an exhibition of Caravaggio’s work in Florence and Rome in 1991–1992. Further, Lapucci stated that “[…] she has developed as a scholar independent of Professor Gregori with whose attributions she sometimes agrees and sometimes disagrees.” ⁸

In 2006, Sotheby’s examined the Painting, with Tom Baring as the person who was in charge of researching and cataloguing it for eventual sale, if the Painting was going to be sold. The examination began with Baring examining the Painting himself using white spirit (to make the surface of the Painting clearer), a torch and ultra-violet light. In the first draft of the catalogue, Baring described the Painting as by a follower of Caravaggio (and therefore a contemporary or near-contemporary of Caravaggio, meaning that it was painted within about 50 years of Caravaggio’s work). At a consequent meeting to discuss the Painting, other experts agreed that the work had been painted by a follower of Caravaggio. After the meeting, Baring called Thwaytes to inform him that Sotheby’s opinion was that the Painting was a copy and not by Caravaggio.

At Thwaytes’ request, X-ray images of the Painting were also taken. Alexander Bell – the Joint International Head and Co-Chairman Worldwide of Sotheby’s Old Master ⁹ Paintings Department – provided evidence that there was nothing in the X-rays that raised questions about the attribution of the Painting, and further, that he did not recall having noticed any pentimenti of any kind. Sotheby’s continued to hold the view that the Painting was a 17th century copy. The Painting was subsequently placed at a Sotheby’s Old Masters Painting auction that took place on December 5, 2006 at Olympia in London. The estimate given for the work was £20,000 to £30,000. Prior to the auction, there was a sale exhibition at the Olympia showroom so that potential buyers could view the paintings and discuss them with Sotheby’s experts. During the sale exhibition, Mr. Baring re-examined the Painting with two Old Masters experts. As Mr. Baring argued: “[…] we kept on pushing ourselves: can we be making a mistake, and it’s the question that we always ask at picture meetings: could this be better than we think it is?” ¹⁰ At the end of the re-examination the Painting was again unanimously regarded as a copy, and therefore that there was no reason to change the catalogue entry.

Consequent to the Painting’s purchase and at a party to celebrate his 97th birthday in November 2007, Sir Denis Mahon announced that the Painting was an autograph replica painted by Caravaggio himself. He also dated the Painting to 1595. Mahon’s attribution was further supported by two Italian art historians, Professor Gregori and Maurizio Marini. The announcement received considerable publicity in the media, with the Painting being argued to be worth potentially up to £50 million. ¹¹ Sotheby’s, however, continued to maintain that in their view, the Painting was a copy and not by Caravaggio. In 2008 the Painting was taken to Italy and exhibited there as an autograph work by Caravaggio. For Professor Gregori, the traces of Caravaggio’s hand could be found in, amongst other places. the pentimenti of the Painting – for example, in the changes to the positioning of the dupe’s head, the detail of his face and the palm of his right hand – that for her were revealed through not only X-rays, but also through infrared images. Her hypothesis was that the Painting, which in her view contained a considerable number of passages of high quality, was in fact the first version of the Cardsharps that Caravaggio painted.

In the course of the case, Justice Rose examined a number of features of the Painting in the same manner in which an art expert would – with Justice Rose therefore answering questions that are generally left outside of judges’ remit. Justice Rose considered a number of other works by Caravaggio to assess his variable technical ability, which may have justified the variability in quality between the Painting and the Cardsharps. Mr. Alexander Bell, one of the five factual witnesses on behalf of Sotheby’s, accepted that Caravaggio’s technical ability might be variable. However, Justice Rose agreed with Mr. Bell’s evidence that “[…] any technical shortcomings in Caravaggio’s work in no way diminish the overwhelming impression that one is looking at a masterpiece of composition and craftsmanship when one looks at Caravaggio’s paintings of this period.” ¹² Justice Rose further refused to accept that if there were passages in the Painting that were “markedly inferior” ¹³ to the quality in the corresponding passages in the Cardsharps, then it was due to Caravaggio’s inability to capture the item in question, given that it was not suggested that the Painting was made substantially earlier in time than the Cardsharps. As Justice Rose argued, “If Caravaggio is able to paint a very realistic ear or pewter plate or lace cuff in the Kimbell Cardsharps, there is no reason why he should not be able to paint an equally good ear, plate or cuff in a replica.” ¹⁴ Moreover, Justice Rose rejected the argument that a number of differences between the Painting and the Cardsharps – with the two major differences being the presence of a black mass behind the right elbow of the dupe that is not present in the Cardsharps, as well as the additional space above the old sharp’s hat that features in the Painting – indicated that the Painting was not a straightforward copy, given that for her, they had no artistic merit or served any particular purpose. Therefore, they did not indicate a creative mind at work. Further, for her “[…] other differences relied on are either non-existent or so minor as to be entirely consistent with a copyist either failing accurately to capture the image or making a few very minor changes of his own.” ¹⁵

In addition, Justice Rose considered, amongst other things, the quality in the Painting of the dice holder in the middle of the tric trac board at the bottom left-hand corner of the composition, the feather in the young sharp’s hat, the clothing, and the handling of light, and compared them with the Cardsharps – in order to assess whether Sotheby’s assessment of the poor quality of the Painting was unreasonable. In so doing, Justice Rose made a number of aesthetic judgments in relation to the passages mentioned above, as well as of other passages, that indeed positioned the Painting to be of a lesser quality than the Cardsharps, and therefore held that Sotheby’s view had not been unreasonable.

IV. Derrida on the Author/Artist/Creator

Although the issue of the authenticity of the Painting did not revolve around copyright, the dispute did revolve around the true creator of the work. Derrida’s arguments in relation to copyright, and more broadly the author/artist/creator of a work, are therefore relevant here in relation to a consideration of the possibility of definitively being able to attribute the Painting to Caravaggio – and whether, in broader terms, Caravaggio and other artists can be definitively pinned down as the rightful creators of work through the existence of both “original” works and stable, coherent, unadulterated identities belonging to their creators. The analysis below will therefore be related back to the facts of the Thwaytes case, in order to provide a more critical understanding of whether it is possible to locate Caravaggio not just as the creator of the Painting, but whether it is possible to locate and establish him as a wholly independent, undivided, and impermeable artist and individual that created works attributed to him devoid of external influences.

To begin with, it is first necessary to provide an understanding of what a copyright is. As N. Katherine Hayles argues in relation to copyright and the debate between Derrida and John R. Searle that saw Derrida deconstruct Searle’s insistence of using a copyright sign on one of his texts (entitled “Reply”):

A copyright implies that a text can be owned by a person, in this case Searle, and consequently that both the utterance and the person can be localized so as to say that Searle is the author of an identifiable text entitled “Reply.” ¹⁶

In the text of Limited Inc a b c…, ¹⁷ where part of the Derrida–Searle debate plays out, Derrida discusses the emergence of copyright by drawing attention to Searle’s insistence to sign the text “Reply” and seal it with a copyright sign (©) ¹⁸ (Derrida worked from a manuscript of Searle’s critique, rather than the text published in Glyph). ¹⁹ To begin with, and with some humor, Derrida directly questions whether he can be sure that it was, indeed, John R. Searle that wrote the text, even if it is signed by him and copyrighted accordingly. As Derrida argues:

[…] how can I be absolutely sure that John R. Searle himself (who is it?) is in fact the author? Perhaps it is a member of his family, his secretary, his lawyer, his financial advisor, the “managing editor” of the journal, a joker or a namesake? ²⁰

Derrida highlights the fact that Searle acknowledged his indebtedness to a couple of individuals in producing the work (D. Searle and H. Dreyfus); accordingly, the “true” copyright belongs not to Searle as a coherent, individual author, but to a Searle who is already, by virtue of his acknowledgements, “[…] divided, multiplied, conjugated, shared.” ²¹ Further, the second acknowledgment of debt that Searle concedes to is Dreyfus, one of Derrida’s old friends; if, Derrida argues, the two Searles gained an understanding of Derrida partly through Dreyfus, with whom Derrida collaborated and exchanged ideas with, then Derrida also has a stake in Searle’s acknowledgments. As Derrida argues: “[…] I, too, can claim a stake in the ‘action’ or ‘obligation,’ the stocks and bonds, of this holding company, the Copyright Trust.” ²²

Derrida further disrupts this supposedly unitary author known as John R. Searle when he refers to him as “three + n authors,” ²³ that is to say, John R. Searle, D. Searle, H. Dreyfus, and Derrida himself. Derrida argues that this is a consequence of being unable to identify the “definite origin, the true person responsible” ²⁴ for the article in question, not only because of Searle’s acknowledgments, but also because of the entire historical agglomeration of arguments from which both Searle and Derrida draw upon generally as writers, not to mention the shared symbolic code that they are both indebted to. Thus, this new conglomerate of (three + n) under the Copyright Trust takes on the new name of “Sarl,” ²⁵ which is the acronym for Société à responsabilité limitée, the equivalent of which in Britain would be the Limited (Ltd) company. Thus, far from Searle’s reply being the product of a singular author, the reply is exposed as being the product of a conversation with others, and of being “[…] filled with citations explicit and implicit, overt and covert […] in short, partaking of intertextuality as well as textuality.” ²⁶ It goes without saying, of course, that this argument should not be solely limited to the Derrida–Searle debate or confined purely at the textual level – it applies equally to all authors/artists/creators – inclusive of Caravaggio – the various mediums with which they create, and the associated historical, cultural, and social context in which they work, have emerged from, draw upon, and consequently impact upon.

More broadly, the author/artist/creator is an unstable, fluctuating entity. There is no concrete, unequivocal, unitary and unchanging self to speak of – and the same goes for the man and the artist that was Caravaggio. Continuity and stasis happen only at death. Indeed, complete fullness and self-coinciding with the self means death. In his analysis of a number of arguments made by Jean-Jacques Rousseau and derived from a number of works ²⁷ – Derrida examines, amongst other things, Rousseau’s arguments of writing and masturbation as supplements to conversation and intercourse. Rousseau critiques writing as being only a representation of direct speech, with speech constituting the more immediate expression of the self. The same fetish for presence can be located in Rousseau’s discussion of masturbation versus actual intercourse. On the one hand, masturbation is regarded as being grounded upon “imaginary seductions,” ²⁸ and therefore the substitution of an image for the presence of a sexual partner; therefore, masturbation functions on the basis of absence. On the other hand, fantasizing during masturbation allows for the instant possession of the desired object in one’s imagination, as well as the playing out of scenes and roles that fulfill one’s imaginary co-ordinates of desire, but which may not necessarily ever happen in real life because of, for example, lack of consent on the part of the other party that one is fantasizing about. Or the party/ies that one is fantasizing about may consent to sex, but not to all of the acts that one fantasizes about during masturbation, and furthermore, the sex may not fulfill every element of the fantasy. The fantasy, in any case, always remains much more satisfying than the reality. Here, the complete fulfillment of desire is impossible – once the desired object gets too close, and once the possibility of its full presence is made possible – desire is immediately stultified and even endangered. The space or the limit between desire and its fulfillment is the very condition of the engine of desire – if that space is closed and desire is fulfilled, then desire would be immediately extinguished. In broader terms, if desire itself were to completely cease, if it could be something that could receive direct, unequivocal and eternal satisfaction, then that would equal death. This is without mentioning the proto-Oedipal arguments that Derrida argues Rousseau proposes about the ultimate object of desire – the mother – and the impossibility of the substitution of a mother’s love by any other. As Derrida argues elsewhere:

[…] My own metaphysics of presence, not only cannot be accomplished (meets its limit), but should not be accomplished, because the accomplishment, the fulfilment of the desire of presence, would be death itself […] Necessity […] teaches me […] in a very violent way, to admit that my desire cannot be fulfilled, that there is no presence. Presence is always divided and split and marked by differences, by spacing […] if such [a] limit was erased, then this would be death […] at the end, we know, all this will end very badly. ²⁹

Further, artists, like all people, change. In Lewis Carroll’s Alice in Wonderland, Alice proclaims that “[…] it’s no use going back to yesterday. I was a different person then.” ³⁰ Relatedly, as Meredith Castile ³¹ argues in relation to the function of a driver’s license, alongside other forms of photographic identity documents, such documents cannot confer identity – they can only serve as a form of identification. Identification does not equate with equivalence and therefore identity – identification can only function as a form of correspondence. Artists also change their style and their materials. They experiment. At other times, as has been argued above in the case of Caravaggio, technical ability varies. Sometimes artists change their minds whilst in the process of creating a painting – as highlighted already through the existence of pentimenti. Others disavow their creations, such as for example Lucian Freud, who denied he painted a portrait that in fact was deemed to be genuine. ³² Others appropriate artworks that are not theirs, whether covertly or overtly. This is not to argue that Caravaggio did not, indeed, paint the paintings that have been attributed to him. Neither is it about trying to conclusively establish whether the Painting is an autograph replica: it may or may not have been painted by Caravaggio. More broadly, such an argument is not intended to discount the notion of an author/artist/creator in general, his/her identity and self, and his/her creation/s completely. Rather, the purpose is to problematize the possibility of absolute, unambiguous, solid boundaries and concrete selves and artistic creations, and to acknowledge that the outside world, or that which is exterior to us, does have a role to play in who we are and what we create. The artist/author/creator does not work in a vacuum – he or she receives inspiration and is influenced from his or her predecessors, his/her context, studies, and his/her life generally, amongst other things. Further, such an argument is also about bringing to light the uncertainty and the risk that will always surround attribution on works of art, and coming to terms with them.

The essence of the self and identity as being predicated upon another other than oneself, and therefore as being dependent on some exteriority, is explored by Derrida in, amongst other places, his critique of Husserl’s Logical Investigations. ³³ In Husserl’s phenomenology, a distinction is made between two senses of the concept of the sign: expression and indication. The difference between the two, as Derrida argues, is functional rather than substantial, with both indication and expression constituting signifying relations, not terms. An expression is a linguistic sign that means something, whereas an indicative sign expresses nothing because it conveys nothing – it merely serves as a pointer for what is yet to come or be presented. The difference, as I understand it, lies with intention – expressions are intended to communicate something, whereas indications are not – they merely point towards something else. In intersubjective communication, expression is always intertwined with indication and therefore always indicates toward something. This is because the listener does not have access to the speaker’s inner thoughts, consciousness and subjective experiences other than through what is communicated to him/her – an element of indication (into someone else’s inner world) is therefore always required.

However, for Husserl, there is a form of expression that is not intertwined with indication, and this can solely be found in solitary mental life. In one’s own inner soliloquy, indications are not necessary, given that interior mental life involves immediate self-presence – there is therefore no gap that needs to be filled in or an absence that one needs to make up for. As Derrida puts it, “Whenever the immediate full presence of the signified is concealed, the signifier will be of an indicative nature.” ³⁴ For Husserl, the interior soliloquy of consciousness therefore constitutes a form of pure expression. As Derrida argues:

If the subject indicates nothing to himself, it is because he cannot do so, and he cannot do so because there is no need of it. Since lived experience is immediately self-present […] the manifestation of the self to the self through the delegation or representation of an indicative sign is impossible because it is superfluous. ³⁵

However, for Derrida, Husserl’s transcendental, self-identical, self-immediate subjectivity as characterized by unadulterated expression is misguided for a number of reasons. For Derrida, self-proximity cannot be purely self-dependent and self-generated – consciousness must also be a consciousness of something, and that something has to be exterior in order to generate the necessary feedback loop for consciousness. As Derrida argues, self-proximity “[…] is not a simple inside but the intimate possibility of the relation to an over-there and to an outside in general.” ³⁶ This over-there, and outside in general, is a particular historical, social and cultural context from which meanings are derived and situated, and each time one utilizes a sign – which itself is contextualized within a pre-existing convention – it is just one instance of its many possible uses. The notion of pure expression therefore cannot stand as expression is once again contaminated by indication of that which is exterior.

In addition, Derrida takes the analysis one step further to problematize the nature of signs in general and the dislocation they cause to self-immediacy. To begin with, Husserl concedes that “One of course speaks, in a certain sense, even in soliloquy[.]” ³⁷ “In a certain sense” seems to imply that this may not necessarily mean directly naming objects or subjects and therefore outright utilizing language – but as I understand it, even if one were apprehending the world without directly naming things and therefore without language, that apprehension is immediately informed by relating the object or subject, amongst other things, to what it is not – with signification therefore operating on the basis of relational differences in which meaning is indicated by that which it is not. Even if one were to construct an entirely new sign to signify something, in order for that sign to function, like all other signs, it would have to be repeatable. The repetition of a sign therefore introduces a gap in immediate self-presence, wherein the repetition of a sign indicates to its earlier meanings. This is without mentioning the meaning that is derived from the differential structure of signifying systems themselves more broadly (light is light because it is not dark, or cold is cold because it is not hot) ³⁸ – what Derrida termed différance. As Derrida argues:

A sign is never an event, if by event we mean an irreplaceable and irreversible empirical particular. A sign which would take place but “once” would not be a sign […] a signifier […] must be formally recognizable […] it must remain the same, and be able to be repeated as such, despite and across the deformations which the empirical event necessarily makes it undergo […] But, it can function as a sign, and in general as language, only if a formal identity enables it to be issued again and to be recognized. ³⁹

Second, absolute proximity to the self entails an instantaneous, immediate self-presence that has a temporal dimension. As Derrida argues, “Self-presence must be produced in the undivided unity of a temporal present so as to have nothing to reveal itself by the agency of signs.” ⁴⁰ Derrida also deconstructs Husserl’s notion of an identity of experience immediately present to itself in terms of the phenomenological form of experience in the form of time, as set out in On the Phenomenology of the Consciousness of Internal Time. ⁴¹ For Derrida, the deconstruction of the temporality of the immediate in experience is powerful enough to threaten “[…] the whole of Husserl’s argumentation […] in its very principle.” ⁴² As Derrida argues, the concept of punctuality plays a crucial role in Consciousness of Internal Time, even though Husserl himself recognizes that “[…] no now can be isolated as a pure instant, a pure punctuality.” ⁴³ Indeed, for Derrida, Husserl himself undermines the possibility of the isolation of a pure instant or pure now, all the while setting out the basis for this “[…] self-identity of the now as point, as a ‘source point’.” ⁴⁴ For Husserl, one reason why there is no need for communication in the internal monologue is because it takes place instantaneously, and meaning is thus immediately present. However, in Husserl’s own arguments on time, time is a continuous movement of retention and protention, or what has gone on in the past and the anticipation of the future respectively. Here it is important to note that retention, which Husserl refers to as a primary memory, and which at one point he calls a non-perception, is distinguished from secondary memory, which for Husserl is characterized by representation. For Husserl, primary memory or retention is the very recent past, which is retained for a short amount of time. Secondary memory, on the other hand, is a past that is not retained, but reproduced in the form of active recollection. Derrida argues that this distinction is arbitrary and untenable, and that Husserl’s arguments in relation to internal time consciousness should be developed to their radical conclusions. As Berber Bevernage argues, this would entail the position that “[…] there is no such a thing as (pure, synchronic) perception; or, put differently, that so-called presentative perception is always already mediated by memories and expectations that do not refer to the present, that all presentation is first of all re-presentation.” ⁴⁵ As Derrida puts it:

One then sees quickly that the presence of the perceived present can appear as such only inasmuch as it is continuously compounded with a nonpresence and nonperception, with primary memory and expectation (retention and protention). These nonperceptions are neither added to, nor do they occasionally accompany, the actual perceived now; they are essentially and indispensably involved in its possibility. ⁴⁶

Therefore, our understanding of the present is shaped and made sense of by what has occurred in the past. In relation to the future, as Derrida argues elsewhere, the anticipation of the future necessarily entails to a certain extent a lack of knowledge of what will occur. ⁴⁷ The future, which is also inevitable (unless one ceases to exist), is thus also to a degree unpredictable and this unpredictably necessarily introduces a priori an alterity that dislocates self-presence. As Derrida argues, “[…] the fact that the future rushes onto me, comes onto me, precisely where I don’t even expect it, don’t anticipate it, don’t ‘see it coming,’ means that the other is there before me, that it comes before […] precedes and anticipates me.” ⁴⁸ Thus, self-presence can appear as such only inasmuch as it is continuously informed by retention and protention. The past in terms of what has already occurred, and the future in terms of the anticipation of what is to come, and thus non-presence, constantly inflect self-presence in the present, and indeed, are its very conditions of possibility. The self, let alone the artist and his/or her identity, are far from entirely and perpetually coherent and impermeable.

Nonetheless, some art experts are of the view that the physical mark left on a canvas by an artist equates to the artist him/herself, and somehow offers a window into the artist’s identity and genius. Sir Denis Mahon in particular seems to have held that view. In an earlier book ⁴⁹ recounting the quest to find a lost painting by Caravaggio, The Taking of Christ, Jonathan Harr describes why the search for the painting was so important for Mahon (who had not, at that point, and “to his great regret,” ⁵⁰ ever owned a painting by Caravaggio):

Sir Denis believed that a painting was like a window back in time, that with meticulous study he could peer into a work by Caravaggio and observe that moment, four hundred years ago, when the artist was in his studio, studying the model before him, mixing colors on his palette, putting brush to canvas. Sir Denis believed that by studying the work of an artist he could penetrate the depths of the man’s mind. In the case of Caravaggio, it was the mind of the genius. A murderer and a madman, perhaps, but certainly a genius. And no copy, however good, could possibly reveal those depths. That would be like glimpsing a man’s shadow and thinking you could know the man. ⁵¹

Further, there is also the precarity of attribution to consider, a precarity that is compounded when experts change their minds, with a pattern of attribution, de-attribution, and re-attribution, beyond mere misattribution, being possible. ⁵² An expert or a number of experts may decide that an artwork is by a particular artist, only to change their minds, and then change their minds again. For example, The Rembrandt Research Project – which began in 1968 with the aim of producing a comprehensive catalog of Rembrandt’s paintings – has re-attributed paintings that the Project itself had previously de-attributed. In other cases, experts disagree amongst themselves – for example, a painting of sunflowers attributed to Vincent Van Gogh that sold for nearly $40 million in 1987 ⁵³ is now considered by some experts to be a forgery, whilst others are convinced of its authenticity. ⁵⁴ Indeed, as has already been highlighted within the particular context of the Thwaytes case, two of the expert witnesses called upon by the claimant, Dr. Roberta Lapucci and Professor Gregori, both Caravaggio experts and with Professor Gregori having served as one of Lapucci’s doctoral supervisors, had a history of occasionally disagreeing on attributions made. In addition, in the case of the Painting in Thwaytes, Mr. Baring highlighted that attribution is underscored by a certain amount of uncertainty. In the case of the Painting in Thwaytes, there was certainly a considerable amount of reflection and re-examination as to whether the Painting was a copy or not.

Within the context of authenticating artworks, other issues arise, specifically the issue of provenance (or the record of ownership and possession). In the case of Old Masters, provenance is often limited or non-existent – and the search for the “father” of the artwork by tracing its history in terms of ownership and possession is therefore rendered even more complicated. Patchy provenance further impacts upon the artwork’s monetary value. As James Tarmy ⁵⁵ argues, part of the disconnect between the prices commanded by Old Masters and contemporary art (which fetches much more at auctions) is partly a result of provenance, given that very old works of art have very scattered sales records, if at all. Provenance itself can also be forged, or authentic documents related to provenance stolen.

V. Conclusion

The case of Thwaytes involved much more than just the correct attribution of an artwork. To begin with, the case was original due to its departure from a previous legal stance that saw judges refuse to get involved in questions related to the quality of the art itself. In Thwaytes, alongside considering the evidence provided by experts in relation to the Painting, Justice Rose also assessed the Painting itself and its artistic attributes in comparison to the Cardsharps, in order to assess whether Sotheby’s view that it was a copy by a follower of Caravaggio, alongside the procedure by which it reached that decision, could be justified. In the case of Thwaytes, as in the case of attributions in general, there is never a full guarantee that a work can be definitively and wholly attributed to a specific artist – a certain level of uncertainty will always be introduced into the attribution, even if that level of uncertainty resides in the movement of the deconstruction of the full, unequivocal and pure presence of identity and the self. Thwaytes also provided an opportunity to examine in more depth the nature of the author/artist/creator, identity and the self, all issues which further problematize and enrich our understanding of the creation of art and the nature of the self and identity more broadly. Again, such arguments are not intended to entirely discredit the notion that a specific artist did in fact create a particular work, but rather, to complicate our understanding of what is involved in creating works of art and of what constitutes identity and the self. Here, Derrida’s work allows for an awareness of those that have influenced us and our debt to others, as well as the irreducibility of language and the past and the future as a constituent part of ourselves, which militate against the possibility of an unadulterated, insular presence.