A federal judge has declined to dismiss all claims brought by an art authentication expert who insists he was libeled in a July 2010 article in The New Yorker.
While Southern District Judge J. Paul Oetken rejected the majority of claims filed by art authenticator Peter Paul Biro against writer David Grann and Conde Nast, which publishes the magazine, he ruled that Biro could plausibly argue that some of the statements in the piece were libelous.
The 16,000 word article, “The Mark of a Masterpiece: The man who keeps finding famous fingerprints on uncelebrated works of art,” describes the practice of art authentication and Biro’s role in the process, and the advanced equipment and techniques he uses to analyze artworks. Grann also reported on challenges to Biro’s work as well as Grann’s trip to a Montreal courthouse to search for records of past lawsuits against Biro.
In Biro v. Conde Nast, 11-cv-4442, Oetken ruled that Grann’s statement that Biro “knowingly sold fake art” to one client and that he intentionally switched a work purportedly painted by Renoir and sold it for a “substantial sum of money” were not conclusively supported by the documentation presented in the motion to dismiss.
Oetken said the substantiation offered by the defendants—an affidavit from a lawsuit in Canada from an art investor who claimed he was defrauded by Biro—was not in itself sufficient to show the statements in Grann’s article were privileged.
“The Court cannot take judicial notice of the accuracy of the Article’s description of the trial or the court’s judgment without any documents of which to take such judicial notice,” Oetken wrote.
Among the other claims kept alive by the judge were those describing a business venture Biro put together to buy works of uncertain origin in hopes that some would turn out to have been painted by masters and Biro’s analysis of paintings purportedly done by Jackson Pollock.
Oetken, however, ultimately dismissed all but four of Biro’s claims challenging about two dozen passages in Grann’s piece as libelous.
Many involved Grann’s recitation of legal disputes involving Biro and art investors in Canada.
Oetken said he agreed with the defendants that Grann accurately reported the outcome of the litigation in Canada without relating unsubstantiated charges stemming from those cases, which are not admissible in U.S. courts.
Oetken dismissed the contention by Biro that, “taken as a whole, the Article is a devastating and utterly false attack on Plaintiff’s reputation.”
He noted that the U.S. Court of Appeals for the Second Circuit has held in Herbert v. Lando, 781 F.2d 298 (1986), that the “overall impact” of an article “does not in itself constitute a cause of action” in a libel case.
Nonetheless, Oetken said there is “little question that a reader may walk away from the Article with a negative impression of Biro, but that impression would be largely the result of statements of fact that Biro does not allege to be false.”
The judge continued, “The Article as a whole does not make express accusations against Biro, or suggest concrete conclusions about whether or not he is a fraud. Rather, it lays out evidence that may raise questions, and allows the reader to make up his or her own mind.”
Biro gained prominence in the art world by using fingerprints purportedly found on paintings or their frames that he was able to match against authenticated fingerprints of master painters.
More recently, he said he has been working on the use of DNA—a hair found encased in the paint of a Pollock work, for instance—to link paintings with their purported artists.
Richard Altman represented Biro. “I look forward to proceeding to determine the merits of this case,” Altman said.
David Schulz of Levine, Sullivan, Koch & Schulz argued for Conde Nast.
Conde Nast said in a statement it is gratified that the judge dismissed the bulk of Biro’s claims and was confident it will prevail.
@|Joel Stashenko can be contacted at firstname.lastname@example.org.