The ‘Heroes and Monsters’ Exhibition: Conspiracy in Cultural Institutions?

September 25, 2024

By Jessica Mellen

Followers of art news are likely well aware of the headlining FBI raid of the Heroes and Monsters exhibit by the Orlando Museum of Art (OMA). In early 2022, the exhibition claimed to display twenty-five newly discovered and never before exhibited paintings by Jean-Michel Basquiat. The former Executive of Operations and presiding force over the exhibition, Aaron De Groft, is now a named defendant in an ongoing civil lawsuit filed by the museum, which claims De Groft and a collection of owners knowingly tried to exhibit forged pieces for financial gain. In the complaint, OMA argues that De Groft was almost single-handedly running this scheme for his own gain at OMA’s expense. The complaint aptly states that the story of how the exhibition came to be is “a truth stranger than fiction.”

But what are the legal allegations in this case? Whether due to his ignorance of the paintings’ true provenance, or to conspiracy and greed, the director felt safe in proclaiming the paintings to be legitimate and staking OMA’s reputation on this, and he maintains his opinion of their authenticity. How exactly did the defendants break the law, and what consequences are on the table, should a jury find them guilty? What is OMA’s goal in filing the suit? What damages are claimed? In the civil suit OMA filed, their goal is not to prosecute De Groft, but, as is the goal in civil disputes of this nature, to be “made whole” after the losses.

OMA asserts that De Groft is at fault for the entire debacle and is seeking to recoup their damages. The damage claim arises from OMA not only spending hundreds of thousands of dollars mounting the exhibit but also the impact on their reputation and the fact that they have been placed on probation by the American Museum Alliance following an FBI raid. Currently in over half a million dollars in debt, the museum is in dire financial straits, ^{and any attempt to recoup money will likely be thwarted by their probation and their unstable footing in the Orlando art community and donors.}

One could compare the legal basis of the suit to an auto accident case: OMA and De Groft are together in a vehicle owned by the museum, and De Groft is driving. The vehicle crashes into an object off the road. OMA and De Groft, are all injured as a result of this crash. OMA files a lawsuit, coming after De Groft for the damages. They must prove that De Groft is at fault by determining there that there was a breach of duty, and that De Groft’s negligence was the legal cause of their loss. To prove that De Groft breached his duty to OMA, they must prove he knew the paintings were forgeries and pushed the exhibition based on their authenticity anyway.

The Art

Well-known and ever-growing in importance, Jean-Michel Basquiat was a prolific artist of American street art. Many view him as having been an integral link between painting and street art, “bridging the gap” between historically high and low-brow mediums. ^{He created work from 1981-1984, and died at the age of 27, having made an indelible mark on the canon of art history. Basquiat is one of the best-selling artists on the market, with pieces regularly selling for tens of millions at auctions. The colorful, expressive, and vaguely crude style of his work makes it appear easy to imitate. This, along with the consistently high value of his work, makes him a great target for forgeries.}

The twenty-five paintings in question, according to the FBI, are not by Jean-Michel Basquiat. In the FBI’s investigation, this is proven by the confession of Micheal Barzman, the auctioneer who originally sold the works. According to a press release by the U.S. Attorney’s Office, Central District of California, after admitting that he was originally dishonest with the FBI regarding the origin of the works, Barzman confessed to having painted them himself along with an accomplice. ^{There also exists a myriad of physical evidence against the works’ legitimacy. A particularly damning piece of evidence is the FedEx label on the back of one of the works on cardboard, dating two years after Basquiat’s death. An independent brand expert who has done work for Fedex claims the box couldn’t have been made before the year 1994. The estimated date for the paintings in question is 1984, and Basquiat died in 1988. If the expert is correct, the cardboard did not exist, so there was no feasible way the artist could have painted on it. This opinion, too, is contested by the defendant and proponents of the collection (most of whom have a financial stake in the works, creating a conflict of interest).}

Stylistically, the paintings in question are unconvincing to many art historians. Historians who worked with Basuqait himself identified visual elements that clashed with Basquiat’s style. According to a questioning piece by the New York Times in early 2022, “One dealer who personally worked with Basquiat and saw photographs of the paintings said, ‘the way Basquiat places elements in the composition has an interior logic which is missing in these images.’” ^{Many of those familiar with the artist’s work are left with a sense that they do not quite fit into the artist’s oeuvre. Below is a comparison between one of the (questionably) attributed works displayed at OMA and one of Basquiat’s highest selling paintings.}

Contrarily, the defendant in this case, or his associates, maintain that despite Barzman’s confession to forging them himself, there is no way that such ‘sophisticated’ work could have been made in these circumstances. ^{Pierce O’Donnel, the trial attorney backing the artworks and owner of several of them, is confident that the experts he has received opinions from are correct, despite other experts with different opinions. De Groft has yet to back down on his claim that the paintings are original works by Basquiat, going as far as to say that the confessed forgers simply don’t have the skill to have made the works. Ironically, the artist and his work can be interpreted as overtly critical of capitalistic greed–likely the reason these paintings exist in the first place.}

Red Flags

The fact that such a questionable collection of works was fast tracked to exhibition raises flags of its own – museums have a responsibility to vet the work they exhibit, or in the very least be transparent about the doubts. Whether or not the paintings can be definitively proven to be fake is still contested. Regardless, the exhibition was a colossal failure. The question then, is who is to blame? The owners are (allegedly) guilty of forgery, conspiracy, and breach of contract, but what about the parties who are not apparent ‘insiders’ to the scheme? It is clear that OMA wants the public to believe the narrative that the institution was a victim to the directors scheming, but it is unbelievable that the museum’s internal power structuring allowed for the director to go unchecked, and to ‘silence’ those who voiced concerns.

Attorney Pierce O’Donnell, the aforementioned attorney who is a partial owner of the fakes, is a prominent LA litigator with a history of winning disputes of authenticity in court. He stated that he had a “9.5 out of 10” chance of convincing a jury of their legitimacy, citing a poem discovered in the possession of the fake owner as strong evidence, and ironically stating, “you can’t make up this stuff, you just can’t.” ^{He maintains that what evidence can be gathered to support the works’ authenticity is strong enough to convince a jury, despite the evidence against them.}

While it has become apparent, through the evidence, that this ‘stuff’ very well could be made up, what also remains a question is to what degree each party was aware of that fact. De Groft is innocent until proven guilty, but can he be condemned for failure to halt an exhibition that faced overwhelming doubt from much of the art historical and authentication field at large? The collection had trouble getting any traction with museums before they enlisted De Groft because of the unreliable testimony of the ‘experts’ supporting it. The nearby Mennello Museum turned down an offer to exhibit the paintings, showing their prudence and OMA’s lack thereof. ^{As stated in an article in The Atlantic, the works “bore many hallmarks of forgery, such as relying on testimonials of individuals who were now dead.” The ‘due diligence’ that De Groft and the museum claim to have done involves a $60,000.00 payout to an expert that later rescinded her opinion and received threatening emails from De Groft. The federal investigation into the works, which De Groft kept from the museum’s board, should have been enough to halt Heroes & Monsters in its tracks. A few proponents are simply not reason enough to present these to the public as certified Basquiats, and the museum’s assertion that they did their due diligence in vetting the exhibition is questionable at best. From a logical standpoint, OMA and De Groft should have been swayed to abandon the exhibition long before they began hanging it, based on the overwhelmingly dubious opinion of other art professionals. The AMA’s decision to put OMA on probation is more than reasonable in light of the naivety that was required in organizing Heroes and Monsters, even if it was a scheme by one of their own.}

Aaron De Groft, a former executive director of the Orlando Museum, is now the sole focus of an ongoing lawsuit brought by the institution.Credit…Melanie Metz for The New York Times

Brief history of the Case:

OMA filed suit on August 14, 2023. The full docket is available through the Orange County, Florida clerk of court’s website, under 2023-CA-014410-O: ORLANDO MUSEUM OF ART INC vs. DE GROFT, AARON et al. ^{The case was assigned to Judge John E. Jordan of the 9th Judicial Circuit of Florida. Summons were issued to all defendants. The court then designated the case as both falling under the provisions of Business Court Rules (BPC 5.12), and as a complex case. In November 2023, defendant Aaron De Groft filed an Answer and Affirmative Defense, along with a Counterclaim that the museum was responsible for his defamation. In January 2024, OMA filed a notice of voluntary dismissal releasing all defendants aside from De Groft. In conjunction with this, new OMA board member Mark Elliot released a statement detailing the museum’s reasoning for the action, indicating financial burden of prolonged settlement negotiations as the driving factor. The statement also makes clear their confidence in their claims against De Groft:}

“Importantly, OMA never discussed settling the case against De Groft, given our evidence of the severe harm he has caused the Museum, this community, and the art world.”

It is important to note that despite the accused criminal and tortious actions in this case, there were no arrests made at the time of the FBI raid and no punitive charges were introduced in the complaint. However, according to Florida law, in cases of conspiracy to defraud, “a claim for punitive damages should not be asserted in the initial complaint. A claimant may move to amend the complaint to assert a claim for punitive damages when the evidence is available [Fla. Stat. § 768.72].” ^{Punitive damages toward De Groft may be entered as more evidence comes to light.}

The Claims:

OMA’s complaint initially names nine defendants, De Groft (Defendant) and a number of Owner Defendants, a larger collection of individuals and LLCs involved in the scheme to pass the works off as authentic and collect a profit. The alleged charges are that De Groft abused his position as executive director and broke his contract with the museum, purported information he knew to be false as true, and did so all in an effort for personal financial gain. The complaint’s ‘claims for relief’ are as follows:

• Fraud (all defendants)
• Breach of Fiduciary Duty (De Groft)
• Aiding And Abetting Breach of Fiduciary Duty (Against Owner Defendants)
• Conspiracy (Against All Defendants)
• Breach of Contract — In the Alternative — (Against O’Donnell, BVCG, Burns, and Force)
• Breach of Contract (Against MK Trust)

Following the dismissal of all defendants except De Groft, the claims against him are fraud, breach of fiduciary duty, and conspiracy.

Under Florida law, the elements of of fraud are: (1) a factually false statement, (2) the party making the statement’s knowledge of its falsity, (3) the party who was told the statement’s right to rely on the statement, (4) the statement being made in order to get the other party to act in some way, and (5) for the other party’s reliance on the statement to be the cause of damages [Johnson v. Davis, 480 So. 2d 625 (Fla. 1985)]. ^{If OMA can prove that De Groft was aware the paintings were not really made by Basquiat, they will have proven the charge of Fraud, which in turn make the other two charges easier to prove.}

According to common law tort, breach of fiduciary duty requires proof of the existence of said duty, and the breach of that duty being the “proximate cause of the plaintiff’s damages.” ^{Since the employment contract between OMA and De Groft holds him to the bylaws, and the bylaws explicitly prohibit the CEO from using the museum to benefit himself financially, the incriminating emails alone should be enough to prove this claim.}

In a claim of civil conspiracy, a plaintiff’s burden is to prove an agreement between the parties, it being to do an illegal act, the execution of overt action(s) in service of the conspiracy, and the resulting damages to the Plaintiff. ^{The owner-defendants enlisted De Groft for the exhibition of these works in an effort to get them legitimized and thus primed for sale. If OMA can prove that both parties were aware the works were false, the very act of them working together will likely be enough to convince a jury of this charge.}

The Evidence & Argument:

The difficulty of this case, for the plaintiff, will primarily lie in proving that De Groft knew the paintings were in fact illegitimate. Unfortunately for OMA’s attorneys, it seems as though De Groft (and the other defendants) consistently stuck to their story. De Groft was working closely with Attorney Pierce O’Donnell to make the exhibition happen and fight to control the narrative about the painting’s legitimacy; with legal counsel at his side, it is highly unlikely De Groft left a clear trail for OMA to dig up. Though the evidence in the complaint’s exhibits does seem to prove De Groft’s interest in personal financial gain, which violates OMA’s bylaws, they adamantly stick to the opinion (stated as fact) that the works in question were original artworks by John-Michel Basquiat.

Attached to the complaint, signed by attorney Ginny Child, a leading business litigator in Orlando, are 73 exhibits, many of which are overtly incriminating emails between De Groft and the owner-defendants, in which he states the percentage of profits he expects to receive upon the sale of the paintings following their legitimizing through the exhibit. After detailing this history of the paintings, known as the Mumford collection, the complaint shifts focus onto the defendant. The plaintiff postulates that De Groft’s grand plan, after being recruited by the owner defendants, was to use OMA and its reputation as an established museum to legitimize the works, making them primed for sale, and ultimately to make a huge sum when the works were auctioned off. Not only did De Groft violate his fiduciary responsibilities, he also broke every rule of conduct in OMA’s bylaws.

De Groft is attempting a counter suit, in which he claims that “[t]here is not a kernel of truth to this absurd allegation.” ^{The affirmative defenses and counterclaim, filed in November of 2023 and amended May 2024, asserts De Groft’s innocence and seeks to gain damages in excess of $300,000.00 for the defamation and loss of owed wages. Formally, the claims are defamation and breach of contract against OMA. Essentially, he is pointing the finger back at OMA and arguing that he was a victim in the way the disaster unfolded. Exhibit 58 of OMA’s original complaint, an email from De Groft to the private owner of a disputed ‘Titian’ that De Groft ‘discovered’, is described as being “shockingly candid about his illicit motives.”}

While De Groft does not state he knows the works are fake, it does make clear that he is interested intently on the profits he will make from the future sale, contingent upon the success of the exhibition. At the very least, evidence such as this severely questions his fealty to the fiduciary duty he contractually owes OMA.

Issues of Authentication

The FBI raid was based upon the suspicion that the artworks were fake and being sold as legitimate. Forgeries are an increasing issue. In a market with so much money to be made, there are bound to be conspirators ready to take advantage of that. Many deceased artists’ estates have established authentication committees in order to safeguard the legitimacy of works under the respective artists’ names, such as Warhol, Basquiat, and others. However, these committees faced increasingly burdensome backlash in litigation. Due to rising issues of contestability, many artists estates organizations put in place for the purposes of verifying authorship of works were disbanded over 10 years ago.

This represents a major legal issue of free speech—experts are hesitant to give their opinion on the legitimacy of a work because there are potential legal repercussions in the form of litigation. This is probably the primary reason the Heroes and Monsters Exhibition was able to get as far as it did. Experts were too afraid to voice their opinions, and opted instead to silently observe. The ongoing legal battle is proof that this fear is valid. De Groft has maintained throughout the entity of this situation that his opinion is that they are all the works of Basquiat. He is now being sued on the basis of that opinion being false and a clear conflict of interest (his own financial gain as partial owner), but the fact remains that his opinion as an art official is the basis of a lawsuit against him. Aptly stated in a piece about forgeries from Philip K. Howard in 2012 for The Atlantic:

“What’s missing is a core legal value: that people shouldn’t get sued for voicing their honest opinions. The solution is clear: Judges should throw out any such lawsuit, with an explicit legal ruling that, absent a conflict of interest, expert opinions are protected as a matter of law.”

It is certainly worth considering what art experts can do to safeguard themselves from litigation regarding their opinions on any work’s authenticity. With extremely large sums of money often in the balance, it is no surprise that those who purchase a work that later is deemed a forgery are eager to recoup their losses. But is it fair to blame expert opinions, if they are truly based on evidence and knowledge, and free of conflict? In OMA’s case, Basquiat expert Jordana Moore Saggese was paid a sum of $60,000 to review and authenticate the paintings in question (with the exclusion of 9 of the works . . . which should have called the entire collection into question). She later explicitly tried to remove her association from the show, likely realizing the amount of damage that could be done should her opinion (assuming it was honest) prove to be false. ^{Her cooperation with the FBI was no doubt a catalyst for the Bureau to seize the works, as the emails from De Groft to her were explicitly threatening her reputation and can be viewed as deeply incriminating regarding the goal of personal financial gain.}

Ramification for Museums at Large

Unfortunately, it is unclear if OMA will ever live down this debacle. What would “make whole” such a monumental and nationally covered blight and blow to their reputation? Many sources state the need for transparency and honesty. The counter claim suggests that the parties are not in agreement, and that makes a jury trial the mostly likely solution to the case.

The damage that was done to a near century-old museum, purportedly by one man, should serve as a dire warning to museums around the globe. This case is proof that museums in America must be prepared to launch legal defenses in the face of the corruption that may befall them. Though it may seem unimaginably obtuse of OMA to allow this debacle to unfold the way it did, their original error was hiring De Groft under the pretense that he was an ethical museum official who would honor his contractual and fiduciary responsibilities to the museum. It also serves as a lesson to disseminate control over exhibitions more broadly; had there been more checks to De Grofts position, this may have been stopped in its tracks. This speaks to the counter complaints shift of blame to the board of trustees.

Eloquently put by a recent article in the Orlando Sentinel, OMA owes it to the public to be forthright about the process of this entire debacle:

“Because other museums across the nation need to know how an organization like OMA can be hoodwinked. Because donors need the confidence that their dollars will translate into beauty that can be shared, not the ugly banality of attorneys’ fees and PR reputation-management firms.”

The potential for massive profits in the sale of major artworks introduces a high risk of corruption, as seen in the multitude of anti-money laundering laws that govern the sale of artworks. The tortious acts in this case were fraud, conspiracy, and breach of contract and fiduciary duty, all things that could take place in any business context. What makes this a matter of art law is the effect this has upon the museum and the example it sets. While it may seem unjust for the OMA to be sanctioned by the AMA for the actions of one tortious director, the AMA is making a point that needs to be made: forgeries and corruption are unacceptable, and responsibility for the same falls on the cultural institution of the museum as a whole. Afterall, they hired De Groft and handed him the reins, allowing him to crash them into disgrace. Whether the blame on De Groft is a clever and well made publicity move for the museum to save its reputation, or he is indeed as guilty as they purport, the museum dropped the ball and went as far as to fully mount the exhibition in the face of waves of questioning and backlash from art experts and the FBI itself. As far as the future goes, Mark Elliott, as the new board chair, announced that OMA is “working with the AMA to remove our probationary status and expect to remain in good standing.”

The case is still in its early stages, and there will undoubtedly be more evidence revealed in the legal battle to come. Whether De Groft’s counterclaim will make any ground is yet to be determined, but their stance thus far and the judge’s determination to make the trial a complex one all point to a lengthy and arduous journey towards a jury trial. As with any civil case, we must allow a jury to hear the evidence and arguments, and determine the legitimacy of the claims.

Additional Reading Suggestions

• Bianca Bosker. A Trove of ‘Lost Basquiats’ Led to a Splashy Exhibition.Then the FBI Showed Up. The Atlantic, January 31, 2024, available at https://www.theatlantic.com/magazine/archive/2024/03/orlando-art-museum-basquiat-forgeries/677171/
• Angelica Villa. The Most Expensive Jean-Michel Basquiat Works Ever Sold at Auction, Art News. March 8, 2021. Available at https://www.artnews.com/list/art-news/artists/jean-michel-basquiat-most-expensive-works-1234585981/9-untitled-1982/
• Brett Sokol. In Orlando, 25 Mysterious Basquiats Come Under the Magnifying Glass. The New York Times. Published Feb. 16, 2022 Updated March 1, 2022, available at https://www.nytimes.com/2022/02/16/arts/design/basquiat-painting-orlando-mumford-museum.html
• Brendan O’Connor, OMA Board of Trustees shares statement on state of museum legal battles, Bungalower. January 19, 2024. Available at https://bungalower.com/2024/01/19/oma-board-of-trustees-shares-statement-on-state-of-museum/
• Brett Sokol, Orlando Museum Drops Legal Claims Against Owners of Fake Basquiats, The New York Times, Published Jan. 19, 2024 Updated Jan. 24, 2024. https://www.nytimes.com/2024/01/19/arts/design/orlando-museum-fake-basquiat-paintings-lawsuit.html
• Philip K. Howard, Is That Painting a Forgery? Don’t Answer, You Might Get Sued. The Atlantic, June 21, 2012. Available at https://www.theatlantic.com/national/archive/2012/06/is-that-painting-a-forgery-dont-answer-you-might-get-sued/258750/
• Daniel Grant, Following Basquiat forgery scandal, Orlando Museum of Art placed on probation by US museums group. Art News. 24 January 2023. Available at https://www.theartnewspaper.com/2023/01/24/orlando-museum-art-probation-american-alliance-museums-basquiat-exhibition-fbi-raid

About the Author:

Jessica Mellen, guest writer for the Center for Art Law, graduated from Boston University in 2022 with a B.A. in the History of Art and Architecture. After working in the legal field for a few years, she is starting her JD at the University of Washington this fall. She is interested in the legal issues surrounding the commercial art world and artist protection. As an Orlando, FL resident, she is particularly interested in this topic.

Bibliography:

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