Grossman LLP | Judge Dismisses Libel Suit Over New Yorker Story on Art Authentication
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  • Judge Dismisses Libel Suit Over New Yorker Story on Art Authentication
    08/14/2013
    In July 2010, the New Yorker published an article about Peter Paul Biro, an art expert who has made a name for himself by using forensic techniques to authenticate artworks.  Mr. Biro, displeased with the magazine’s portrayal of him and his methods, brought claims for libel (i.e., defamation through written statements) against the writer, David Grann, and the magazine’s parent company, CondeĢ Nast. He also sued several other publications (including Gawker Media and Business Insider) that published follow-up coverage of the original New Yorker article. Last year, a federal judge dismissed 20 of the 24 counts in Biro’s complaint; in a recent decision, the same judge granted a series of motions that serve to defeat Biro’s remaining claims.  According to the New York Times, Biro intends to appeal the matter to the Second Circuit.

    Grann’s 16,000-word article examines Biro’s career in the art world, from his early days as the son of an artist and art restorer, to his work in the family business of restoration, to his emergence as a pioneer in the use of forensics and fingerprints to determine whether a specific artist created a specific work.  The article weaves in the stories of several specific works that Biro has examined and attributed to major artists including Leonardo da Vinci and Jackson Pollock.  The article muses on Biro’s role in challenging traditional authentication techniques, which historically have relied on esoteric and partly subjective judgments by elite art connoisseurs and scholars.  But it also raises questions about Biro’s past, his motives, his methods, and certain of his attributions.

    In dismissing the claims, the court noted that the Grann article “appears, on its face, to be an even-handed product of an extensive degree of research”; it “reports many facts tending to suggest that Biro may not be exactly who he says he is,” but “it also contains extensive interviews with Biro himself, includes Biro’s responses to many of the accusations reported in the [a]rticle, and quotes many third party sources with complimentary things to say about Biro.”  Overall, the court held that the article’s approach, combined with the New Yorker’s reputation for accuracy and thorough fact-checking, made it implausible that any of the republishers had serious doubts as to the truth of the article or a high degree of awareness of its probable falsity.

    As to Grann and the New Yorker, the court focused specifically on the four passages in the article that had survived last year’s ruling, and held that none of Biro’s allegations, even taken together, plausibly suggest that the New Yorker defendants either (1) knew that their statements were false or (2) “had serious doubts about their truth and dove recklessly ahead anyway.”  The court noted that Grann’s article “appears to be the product of an enormous amount of careful and diligent research,” such that it was “implausible that Grann’s publishers would have reason to suspect that” it contained falsehoods.  The court also found it noteworthy that Grann’s article expressly included interviews with Biro in which Biro had an opportunity to respond “to nearly every suspicion raised by the article.”  Overall, the court held that, although the piece “may reflect an unflattering portrayal of Biro,” it stopped short of express accusations; rather, it “lays out evidence that may raise questions, and allows the reader to make up his or her own mind,” and this “style of reporting is far from what might be expected of an author acting with actual malice.”

    For a number of reasons, this case holds some fascination for followers of the art business.  First, the very fact that Biro’s work has garnered the attention of mainstream media outlets, documentary films, and news reports shows that the public is interested in the issue of art authentication.  Grann’s article speaks of “public’s distrust of the cloistered art world,” and describes Biro’s methods as combining “the forensic triumphalism of ‘C.S.I.’ with the lottery ethos of ‘Antiques Roadshow.’”  The court’s holding that Biro is, at least for limited purposes, a “public figure” illustrates that those who engage in art authentication are not simply academic or technical experts whose opinions only impact a small and insular group of stakeholders.  Rather, art authenticators are central figures in a larger conversation about specific works of art and about art generally—and the public is paying attention to that conversation.

    Second, the case underscores the inherently complex and even controversial nature of art authentication.  As Grann’s article observes, authentication analyses “can help a painting become part of the world’s cultural heritage and be exhibited in museums for centuries, or cause it to be tossed into the trash… [they] can also transform a previously worthless object into something worth tens of millions of dollars.”  Yet authentication is not an exact science; it is often an exercise in both objective analysis (of everything from brushstrokes to chemical composition of pigments used) and subjective instinct—and there are plenty of cautionary tales about the problems that can arise.
    A respected expert can be tricked by a forgery; multiple experts can reach contradictory conclusions about the same work of art, throwing the work’s value and marketability into question; and experts can rely on facts or methods that are later discredited, to the detriment of those who have bought or sold the work in the meantime.

    Thorough due diligence in advance of any sale or transfer of artwork can protect buyers and sellers to some extent; but transaction contracts can also be drafted to better address and allocate the risk of an incorrect authentication or attribution.  The Biro case serves as a reminder of the inherent difficulties and risks in trying to authenticate art, or in relying on those who do.