Back in 2013, this blog covered the dismissal of a libel case against the New Yorker over its portrayal of an art authenticator. The Second Circuit has now affirmed that decision, signaling the likely end of this dispute—even as the art world continues to struggle with the complex problem of authentication.

Our previous post has the details, but to recap, the offending article, published in July 2010, profiled Peter Paul Biro, an art expert who uses forensic techniques to try to authenticate artworks.  The story discusses Biro’s beginnings as an art restorer and his eventual transition into art authentication, in which he claims to use forensics and fingerprints to determine whether a specific artist created a specific work.  The article discussed a handful of specific works Biro has examined and attributed to major artists (from da Vinci to Pollock), and positioned Biro’s work as a departure from the traditional connoisseurship-based model of authentication.  But it also raised questions about Biro’s past, motives, and methods, as well as some of his attributions.

Biro, displeased with the magazine’s characterization of him and his work, sued for libel, naming as defendants the writer, David Grann; the New Yorker’s parent company, Condé Nast; and a handful of other publications that published follow-up coverage of the original article.  In 2012, a federal judge dismissed 20 of the 24 counts in Biro’s complaint; in 2013, the same judge granted a series of motions that defeated Biro’s remaining claims.  The trial court held that Biro, as a limited purpose public figure, was required to plead “actual malice” in order to proceed with his libel claim.  It further held that he had not plausibly suggested that Grann or the New Yorker had the requisite state of mind to meet that standard; that is, he had not sufficiently alleged that they either (1) knew that their statements were false or (2) “had serious doubts about their truth and dove recklessly ahead anyway.”  The court called Grann’s article “”even-handed” and “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 had interviewed Biro and provided him an opportunity to respond “to nearly every suspicion raised by the article.”  Overall, the court held that, while the piece overall “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.”  The court also held that, given the article’s thorough approach and the New Yorker’s reputation, it was not plausible that the other media outlets covering the story had serious doubts as to the truth of the article or awareness of its probable falsity.

Biro appealed, but this week, three federal appellate judges from the Second Circuit sided with the defendants and affirmed the trial court’s decision.  The Second Circuit emphasized that, as a limited public figure, Biro had to plead “plausible grounds” to infer actual malice by alleging enough facts to raise a reasonable expectation that discovery will reveal evidence of actual malice.  (Actual malice can mean either knowledge that the statements were false, or reckless disregard as to their falsity).  The appeals court then concluded that most of Biro’s allegations against the defendants were impermissibly conclusory in nature, and that any remaining non-conclusory allegations still fell short of raising a plausible inference of actual malice.  The court noted that, of the allegedly defamatory statements in the article, none were based “wholly” on information from unverified anonymous sources, and Biro had not alleged facts that would have prompted the New Yorker defendants to question the reliability of any sources at the time of publication.  The court also clarified that the author’s decision to focus on Biro’s controversial authentications, while ignoring his other authentications and satisfied clients, was not enough to plausibly suggest that Grann “entertained serious doubts as to the truth of his publication.”

Beyond its clarification of the pleading standard for libel and defamation claims (a not-insignificant holding for the art world, which has its share of libel and defamation lawsuits), this case is also of interest for its connection to many of the issues involved in art authentication.  As we mentioned in our previous post, the very fact that Biro’s work has garnered such attention, and that he has become, at least for limited purposes, a public figure, is a symptom of the fact that the art market and the general public are very interested in the issue of art authentication.  Indeed, the conversation has only grown louder since the 2010 New Yorker article on Biro.  In the intervening years, the Knoedler scandal (and its attendant litigation) exploded, in a dramatic reminder that forgery can be a market-shaking reality.  Meanwhile, many prominent artists’ foundations have stopped providing authentication services, leaving buyers with no definitive source for authenticating works by Warhol, Haring, Basquiat, and other important artists.  Some have attributed that trend at least in part to a desire to avoid the costs of litigation; indeed, as this blog has discussed, authenticators may risk lawsuits whether they authenticate a work or not (i.e., they may be sued by an owner who believes a work has been wrongly denied authentication, or they may risk lawsuits if they stand behind the authenticity of a work that later turns out to be inauthentic).  The market is still in the process of filling the void left by foundation authentication boards; for example, one longtime art dealer recently began offering his services, for a flat fee, to examine and verify works by Andy Warhol.  Proposed legislative efforts to provide authenticators with some degree of insulation from frivolous litigation have thus far prompted much discussion but no finalized changes to the law.

This case also highlights that, as of now, despite the importance of authentication to market confidence, and despite the fact that an expert’s opinion can make or break the value of a work, there is no real consensus about what an ideal authenticity inquiry process should look like.  As the New Yorker article makes clear, art authentication has never been an exact science, but rather might involve both objective analysis (of everything from brushstrokes to composition) and the subjective instinct of a connoisseur.  The Biro story is emblematic of the increasingly important role of technology in authentication; Biro’s methods focus on forensic fingerprinting, but an authenticator might look to a variety scientific tools in examining a work (for example, chemical analysis of pigments used in a work, or x-ray analysis of the paper or canvas on which the work was made).  Others concerned about authenticity are exploring technological tools to prevent forgeries in the first place.  But the art market may still be skeptical of what the New Yorker called “the desire to ‘scientificize’ connoisseurship,” and after all, technology can also be used by forgers to strengthen the believability of their work.

As an intriguing coda to this story, it’s worth noting that one of the works discussed in the New Yorker article—a small portrait that has come to be known as “La Bella Principessa,” which Biro identified, based on fingerprint analysis, as the work of the legendary Leonardo da Vinci—is still a topic of controversy.  In fact, just last month, a convicted art forger claimed that the piece was his work.  A French laboratory has already challenged that story, but the work’s attribution to da Vinci continues to be contested.

Thorough diligence prior to a sale or transfer of artwork can protect buyers and sellers to some extent.  Comprehensive sales contracts with appropriate representations and warranties can help allocate the risk of an incorrect authentication or attribution.  But the Biro case serves as a reminder of the continuing conversation about the importance and difficulty of obtaining and relying on art authentications.