Judge Peels the Paint Off Art Analyst’s Case

MANHATTAN (CN) - A Canadian art authenticator does not have as strong a case as he thought over an article in The New Yorker that implicates him in fraud, a federal judge ruled.

Peter Paul Biro sued investigative journalist David Grann and The New Yorker magazine in July 2011 over an article titled "The Mark of a Masterpiece: The man who keeps finding famous fingerprints on uncelebrated works of art."

Calling the article a "false and defamatory screed ... written and published with malice and an indifference to the standards of responsible journalism," Biro demanded $2 million in damages.

He later filed claims against Gawker, Business Insider, Louise Blouin Media, International Council of Museums, Georgia Museum of Art, Paddy Johnson of the blog ArtFagCity.com and Theresa Franks of Global Fine Art Registry for articles commenting on the original story.

On Thursday, U.S. District Judge J. Paul Oetken dismissed 20 of the 24 charges in the original suit, finding that Grann's journalistic practice "falls short of the 'hatchet job' that Biro's counsel described at oral argument."

"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 63-page order states. "There can be no claim for an overall defamatory impact from the reporting of true statements beyond the specific defamatory implications that may arise from those specific statements.

"More fundamentally, 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."

Oetken compared Biro's lawsuit with Chapin v. Knight Ridder, in which a news article questioned the legitimacy of a charity benefitting U.S. soldiers.

In that case, the 4th Circuit concluded: "But the mere raising of questions is, without more, insufficient to sustain a defamation suit in these circumstances. Questions are not necessarily accusations or affronts. Nor do they necessarily insinuate derogatory answers. They may simply be, as they are here, expressions of uncertainty."

The same analysis applied to The New Yorker piece, Oetken found.

"At the end of the article, the reader is left genuinely uncertain what to believe," Oetken wrote. "Although the article reports many facts tending to suggest that Biro may not be exactly who he says he is, it also contains extensive interviews with Biro himself, includes Biro's responses to many of the accusations reported in the article, and quotes many third party sources with complimentary things to say about Biro. If anything, the article seeks to draw a parallel between the idea that one can never be wholly certain whether a piece of art is truly 'authentic' (whether through connoisseurship or science) with the idea that it is difficult to fully know the truth about who a person is. This type of inquisitive approach falls short of the 'hatchet job' that Biro's counsel described at oral argument.

"At the same time, there can be little doubt that even a publication that, on the whole, merely raises questions has the potential to have serious consequences on a plaintiff's reputation. Thus, where Biro has alleged an actionable defamatory false statement of fact, or false implication, the court allows the claim to proceed."

Grann may be liable for a portion of the article that describes Biro's investigation of a Jackson Pollock painting, and another portion that describes the business model of Biro's company, Provenance, according to the court.

The title of Grann's story cannot be questioned, however, Oetken found.

"Here, although a reader could conclude from the article that not all of the fingerprints that Biro has found on works of art are genuine, nothing in the language of the headline alone reasonably suggests that conclusion," the order states. "The mere statement that Biro 'keeps finding fingerprints' simply does not suggest anything more than the fact that Biro has repeatedly found fingerprints, which is not itself reasonably susceptible of a defamatory connotation."

In two other instances, the judge ruled that there was nothing wrong about calling Biro's all-black wardrobe "raven-like," or suggesting that his lunchtime glass of wine constituted drinking "early in the day."

The judge appended the original 31-page story to his opinion as an exhibit.

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