What Artist Found His Work of Art Questioned in a Court Room About First Ammendment Rights
This essay volition briefly examine the nature of the stance about actuality we are proposing to protect. In most circumstances it is expressed by an good—usually an art scholar, who is expressing his ideas in the form of scholarly judgment, evaluation, deduction or (even) theorize based on fine art-historical information and tangible physical facts about the fine art, and upon the connoisseur'south informed visual perceptions. When the recognized connoisseurs take the same idea (more or less) nigh the identity of the artist who created the work in question, the scholarly art community, and then the art market place, will usually accept the piece of work every bit "authentic."
• • •
The Authentication Procedure
Of course a determination of authenticity does not proceed directly from ideas in the head of a scholar or connoisseur. Indeed, iii lines of research are basic to the determination of authenticity in art: (i) the provenance of the work, (ii) the application of connoisseurship to a work's visual and concrete aspects, and (iii) scientific testing to make up one's mind the work's physical properties. The courts, as well every bit the fine art market, take accepted the importance of these three lines of inquiry.1
Connoisseurship is informed visual perception, based upon a trained scholar or other art expert having looked long and difficult at hundreds, maybe thousands, of works by the artist in question—and absorbing their salient characteristics into visual memory—combined with an agreement of the artist'south method of working (known every bit "facture"). This informed visual perception (supported by provenance and any available information on the work's concrete properties) is expressed in an expert judgment, usually referred to as expert opinion on actuality.
Information technology is the expression of this expert stance, in essence, the expert'southward idea, based on connoisseurship, which today is at risk (or "chilled") from a proliferation of legal claims, or perceived threats, over the hallmark of visual art.
Protecting the Skilful's Idea
It is the well and truly held view that an thought tin can never consequence in liability for the person who expresses information technology, because ideas are so personal and subjective and considering society should protect ideas as inherently beneficial, even if sometimes wrongheaded, and, indeed, negligently so. In art attribution this unexceptional view of the value of ideas is equated with an "opinion."ii
Experts who make up one's mind the authenticity of a work of art, whether in the context of the publication of a catalogue raisonné, curating an exhibition, a sale or purchase, an appraisal of the value, or a scholarly essay, almost always draw their conclusion as their opinion on the authenticity or attribution of the work.3
Of grade, they use the term opinion because that is the nature of what they are rendering: their judgment, evaluation, or deduction, based upon an interpretation of existing facts which they have collected and analyzed, and to which they have applied their learning and feel.four
In 1984 a US federal Courtroom of Appeals attempted to describe the nature of opinion in Ollman v. Evans and Novak (a example involving a defamation claim against two journalists, where the defense was that their published argument was constitutionally protected opinion):
At one end of the continuum are statements that may appropriately exist called "pure" opinion. These are expressions which are commonly regarded as incapable of being adjudged true or fake in any objective sense of those terms.
… Perhaps far more common … are statements that reverberate the author'south deductions or evaluations merely are "laden with factual content". The credible proportions of opinion and fact in these "hybrid" statements varies considerably.
Hybrid statements differ from pure opinion in that most people would regard them equally capable of denomination as true or false, depending upon what the groundwork facts are revealed to be. At the aforementioned fourth dimension, they generally are not propositions that a scientist or logician would regard as provable facts. The difficult question is whether these kinds of statements, which both express the writer's judgment and point the existence of specific facts warranting that judgment are inside the absolute privilege for opinion.5
In light of the Ollman assay, a statement by an practiced about the authenticity of a painting, fifty-fifty if preceded by the phrase "I retrieve," "I believe," or "in my opinion," is, not "pure stance," but is at to the lowest degree, "hybrid" opinion, in that it implicitly suggests the existence of specific underlying facts and conveys the author's judgment upon, or interpretation of, those facts. Of course, there often is also an intimation of personal aesthetic taste with respect to the fine art, but there can exist no question that the judgment is based, in large role, on express or implied facts which can exist proven true or false (and being so provable, the stated judgment could be actionable equally negligence, defamation, production disparagement, etc.).
Belittling Similarity in Evaluations of Bail Creditworthiness and Art Authenticity
The frequent garden variety evaluation by fiscal analysts of the credit-worthiness of bonds seems analytically similar in process to an evaluation of actuality of fine art. Financial analysts evaluating the credit-worthiness of a company's bonds are deciding upon the relevance of "facts" about the company's concern, market share, forcefulness of competition, etc., and the company's financial structure, and the relative weight to be given these "facts". (Although the analysis of residential mortgage-backed bonds presumably took the class of an examination of the underlying security for the bond, numerous, perhaps thousands, of residential belongings mortgages.)
Of course, in evaluating the actuality of art, the "facts" deemed relevant by an art skillful and their relative importance are quite unlike from those examined past a credit annotator. Thus, most of the of import "facts" which the art proficient identifies and weighs are his visual perceptions, that is, his verbal articulation or description of what the trained connoisseur'southward middle "sees." Other facts include the provenance, that is, the chain of title and possession and public exhibition history of the piece of work from the artist to the current possessor. Both the credit analyst and the art expert are analyzing facts and, after applying their historical experience, arriving at conclusions or judgments, which they both choose to call opinion.
Fearfulness of Legal Claims Causing Connoisseurs to Stop Authentication Activities
Every bit is well-known, many fine art hallmark boards and committees are ceasing their authentication activities over concerns about legal liability for their decisions, the most well-known example being the cessation of activities in 2011 of the Andy Warhol Art Authentication Board. Of class private fine art scholars are concerned about liability also. Theodore Stebbins, Jr., Curator of American Fine art at the Harvard University Art Museums, quotes Dr. Abigail Gerdts, director of the Winslow Homer catalogue raisonné, pointing out the financial and personal risk to today'south art expert, "The stakes are simply also high. I believe we should all become out of the opinion giving business".half dozen And, as Rachel Cohen recently wrote in The New Yorker,
When a painting could be worth $100 million, what happens to the experts who accept to say whether the work is authentic? Lately, they get sued. …The threat of these suits has begun to bear on the state of available scholarship. …Prices could non accept risen then loftier…without confident, creditable attribution. Now these astronomical sums are driving away the specialists who made them possible in the offset place.seven
Fear of legal claims is likely the reason that contempo catalogues raisonnés no longer have extremely useful sections dealing with "False Attributions" (as found in Book four of the 1978 Jackson Pollock catalogue raisonné) or even an innocuous, "Bug for Study" department (as constitute in the 1995 Pollock Supplement) which independent a subsection, "Unresolved Attributions," for which in that location was "not sufficient bear witness" to attribute works to Pollock. (A piece of work listed in the "False Attributions" section of Volume four was the subject of a 1994 lawsuit against the Pollock-Krasner Authentication Board).8
The Experts' Fear of Legal Claims is Not of Contempo Vintage: information technology Goes Back at Least to 1929.
In the famous example of Hahn v. Duveen 9 Sir Joseph Duveen looked at a photograph of a supposed Leonardo da Vinci painting owned by Mrs. Andrée Hahn, and told a newspaper reporter that it was just a copy, the "real i" beingness in the Louvre.10 Mrs. Hahn sued Duveen, saying that equally a consequence of Duveen's disparagement, she could no longer sell the painting for its real value. After a trial, and before the jury rendered its decision, Duveen settled out of court, paying Mrs. Hahn United states of america$lx,000, "forever establishing in the minds of many people that opinions are dangerous things to give."xi
Legislation, Unlikely to Protect Scholars and Other Experts
This author has ofttimes been asked by fine art scholars, museum curators, authors of catalogues raisonnés and art dealers whether protection for their opinions might be somehow possible through some clever new federal or land legislation. But the prospects for such legislation seem remote, at least because many other professionals, such as doctors, lawyers, accountants and, civil engineers, amidst many others, render important opinions upon which people rely, and would demand this same legislative protection sought past art experts.
The Courts are the Sole Likely Source of Protection for Connoisseurship
In default of protective legislation, information technology is usual for art experts to obtain a written "no-sue" agreement from an owner/bidder. These agreements take been held legally enforceable since, at least, the year 2000, when the New York Supreme Courtroom, decided Lariviere v. Thaw.12 (An possessor who sues the expert in breach of the no-sue agreement would be liable for damages for breach of contract. The amercement would be the expert'south legal fees and costs in defending the owner'south claim.) Some confusion and consternation, at least amid non-lawyers, arose in 2009 when a federal district court in the case of Joe Simon 5. Andy Warhol Foundation for the Visual Arts et al., immune a lawsuit to go along despite a no-sue understanding. In the Simon case (on a move to dismiss, which procedurally, had to assume that everything the plaintiff alleged was true), the court merely held that the Warhol Foundation's no-sue agreement signed by plaintiff Simon might not be enforceable if the (otherwise legal and enforceable) agreement had facilitated an illegal plan (as Simon alleged, merely never proved) to dispense prices in the market for Warhol paintings.13 The plaintiff later withdrew all his claims.
Thus, protection for expert opinion is unquestionably available by agreement (not to sue) with an art owner/bidder. 2nd, the credit rating agency cases (see below) propose at that place is besides federal constitutional protection available for expert opinion near the authenticity of fine art. And third, another line of court decisions strongly advise there is besides ramble protection available for such expert stance if the expert is able and willing to ready forth the factual information on which the adept relies for his stance (see below).
Rating Agency Cases (Moody'southward Investors, Standard & Poor's, et al.): Matters of "Public Concern" and the "Actual Malice Standard"
The Autumn 2011, Volume 2, No. 2, issue of this Art Law Journal contains an essay entitled, Opinions About the Authenticity of Art, dealing with investor claims confronting bond rating agencies for their ratings (depending upon the pool or "tranche" of mortgage loans beingness rated, oft times AAA, the same rating every bit US Treasury debt!) of bonds backed by residential real manor mortgage loans. The rating agencies' defense (which has been accustomed by the federal courts, as nosotros volition run into below) was that their statements about the creditworthiness of the rated bonds were protected, every bit stance nigh a "matter of public business organization", by the Start Amendment to the The states Constitution guaranteeing liberty of speech. "Congress shall brand no law…abridging the freedom of speech,…"14 Substantially, the rating agencies' defense is that their judgments almost creditworthiness (in the form of the credit rating itself) are akin to unprovable predictions virtually future events.
Equally the Compuware Court said in 2007:
[A] viable defamation claim exists only where a reasonable fact finder could conclude that the challenged statement connotes actual objectively verifiable facts. A Moody's credit rating is a predictive stance dependent on a subjective and discretionary weighing of circuitous factors.15
The Compuware decision regarding "the credit rating itself" relied on Offset Amendment protection of opinions, defined by the Supreme Court every bit opinions that are not provably simulated (in Ollman terms, pure opinion).16
Only, where a statement is provably faux, such as the factual assertions within the Compuware ratings report accompanying the credit rating itself, Outset Amendment protection for a statement about a thing of public concern ways that a plaintiff must show (something very difficult to bear witness, namely) that the defendant made the statement (that is, rendered the opinion) with actual knowledge of its falsity or with reckless disregard of its truth, to wit, the so-called (constitutional) "bodily malice" standard. And reckless disregard is "not measured past whether a reasonably prudent man would have published [ ] or would take investigated before publishing" only past whether "the defendant in fact entertained serious doubts as to the truth of its publication".17
The protection afforded by the actual malice standard for matters of public concern is difficult to overstate. If a argument is of public concern it can exist unreasonable, faux or dead wrong (as the bail ratings in the years 2000—2007 were, in fact), and even negligent, but the agency rating opinion is not legally actionable.
Application of the Actual Malice Standard to Both the Credit Rating Itself and Its Factual Basis
A 2012 decision, Abu Dhabi Commercial Bank et al v. Morgan Stanley & Co. et al 18 in the federal court for the Southern Commune of New York again took up the question of whether credit ratings are opinions and, if and then, what kind. The agencies again argued that their ratings are subjective opinions about creditworthiness (of the mortgage-backed bonds) just like, for example, an opinion in a newspaper editorial about bonds or whatever other subject of public importance addressed past the editorial.
However, Abu Dhabi/2012 does not treat credit ratings as predictions of future events or as "pure statements of either fact or opinion, just as a hybrid of the two (in Ollman terms, a hybrid opinion), that is, a "fact-based stance." Credit ratings are understood to exist "statements of creditworthiness based on an analysis of underlying facts…"
While ratings are not objectively measurable statements of fact, neither are they mere puffery or unsupportable statements of belief alike to the opinion that i type of cuisine is preferable to some other. Ratings should best be understood every bit fact-based opinions. When a rating agency issues a rating, information technology is not just a statement of the bureau's unsupported conventionalities, but rather a statement that the rating bureau has analyzed data, conducted an cess and reached a fact-based decision every bit to creditworthiness.19
Thus, Abu Dhabi/2012 analyzes hybrid opinion in the rating agency context by categorizing ratings as "fact-based" conclusions, which are not afforded the accented protection provided to statements which are not provably false, i.e., "pure" opinions.
Abu Dhabi/2012 requires that a credit rating opinion be (a) supported by reasoned analysis and (b) accept a factual foundation or a basis in fact in club to receive First Subpoena protection as nonactionable hybrid opinion. Without expressly stating so, Abu Dhabi/2012 decided that a credit rating opinion which is non supported by reasoned analysis and a factual foundation could not be defensible under the actual malice standard, i.due east. the rating agency could not take believed its own stance.xx
Private Opinion Which is Non a Thing of Public Concern
But where the rating agency sent its report only to a select group of investors, and did not publicly disseminate its ratings report, the bodily malice standard would non be a adept defense for the rating agency, that is, the plaintiff would not have to prove bodily malice in order to prevail on its claim of actionable misrepresentation.
It is well established that under typical circumstances, the First Amendment protects rating agencies, discipline to an "bodily malice" exception, from liability arising out of their issuance of ratings and reports because their ratings are considered matters of public concern. However, where a rating agency has disseminated their ratings to a select group of investors rather than the public at large, the rating agency is not afforded the same protection.21
Simply such a private stance is precisely what nearly art experts return to owners and buyers. (Although, a catalogue raisonné or an essay published in a scholarly periodical and disseminated to the public would presumably be a matter of public concern, and therefore constitutionally protected.)
Guidance Derived from the Credit Rating Bureau Cases
The rating agency cases leave us with the following rules nigh legal protection for stance: a credit-worthiness rating is an stance, only a sure kind of stance—a fact-based opinion (in Ollman terms, a hybrid opinion which could be proved true or false). As such, in order to receive the "actual malice" protection equally hybrid opinion accorded by the First Amendment, it must be supported by reasoned analysis and based on a factual foundation. Yet, even when then supported and and then based, where the statement is disseminated to a "select group of investors" rather than the public at large, this hybrid opinion is not considered "a matter of public concern" and does not receive First Subpoena "bodily malice" protection.
These courtroom decisions from 1999 onward about credit ratings propose that, for example, a catalogue raisonné published, as it always is, for a public audience would receive "bodily malice" protection every bit hybrid opinion under the First Amendment every bit a affair of "public business concern," but an stance on authenticity delivered to single or a limited number of owners or buyers would not be and so protected (even if supported past assay and based on a factual foundation).
If we wish to find constitutional protection for expert opinion, given privately to a unmarried owner/buyer or express number of persons, we volition need to examine a second line of courtroom decisions.
A Second Line of Cases More Broadly Protects Opinion (That is, Even When Non a Thing of Public Concern Because the Opinion is Given Privately)
Every bit the New York Court of Appeals said in 1986 in Steinhilber v. Alphonse:
It is settled rule that expressions of an opinion "false or not, libelous or non, are constitutionally protected and may not be the subject of individual damage actions.22
This ramble protection for opinion was established by the US Supreme Court in 1974 in Gertz v. Robert Welch, Inc. 23 and subsequently clarified in Milkovich v. Lorain Journal.24 Nether Gertz and Milkovich, if the statements are held to be expressions of opinion that cannot exist proved truthful or false, they are entitled to accented protection of the Showtime Amendment to the United states of america Constitution by virtue of the Supreme Court's categorical argument that:
Nether Showtime Amendment there is no such thing equally a false idea. However pernicious an stance may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.25
The Steinhilber court went on to say:
The rule to be applied may be simply stated. An expression of pure opinion is not actionable. It receives the Federal constitutional protection accorded to the expression of ideas, no matter how vituperative or unreasonable it may be. …A "pure opinion" is a argument of opinion which is accompanied by a recitation of the facts upon which it is based. An opinion not accompanied past such a factual recitation may, nonetheless be "pure opinion" if it does not imply that it is based upon undisclosed facts. …When, however, the statement of opinion implies that it is based upon facts which justify the stance but are unknown to those reading or hearing it, information technology is a "mixed stance" and is actionable.26
An opinion accompanied by a recitation of the facts upon which it is based is not actionable because, as noted in Justice Brennan'southward dissenting stance in Milkovich v. Lorain Journal Co, 27 a proffered hypothesis that is offered later a full recitation of the facts on which it is based is readily understood past the audience as conjecture.28
Advice to Experts Giving Opinions
Where the good is giving a individual stance, that is, one not published for the public (and, by definition, not a matter of ramble "public concern") these New York cases strongly suggest that, in gild to receive First Amendment protection for their opinions, experts should brand a reasonably total recitation of the facts upon which their opinion is based.
It should not be necessary for the expert to write a detailed essay on why the work is, or is not, accurate. All that should be necessary is a simple recitation of the major facts relied upon by the connoisseur, following the usual three lines of enquiry: provenance, awarding of connoisseurship to the work's visual aspects and the piece of work'south concrete properties (that is, any available forensic analysis).29 (Even if certain of those major facts should turn out to be inaccurate or wrong, it seems unlikely that the courts would involve themselves in weighing up wrong against right facts—so long as in that location is some reasonable basis in fact for the proficient opinion). Since many committees and boards of experts practice not want to provide "roadmaps" for would-be forgers, providing "reasons" or facts to back-up their private opinions is not the usual exercise in art scholarship involving individual opinions for owners. But, information technology appears that giving some "reasons" for their stance is the procedure that will provide experts with a Kickoff Subpoena defense. In that circumstance, an unhappy owner would accept to prove (again, something very difficult to bear witness) that the good acted with bodily malice, that is, did not believe his opinion or had no factual basis, at all, for his stance.
It will be objected (and adequately and so) that these constitutional defenses will all the same non go on experts who accept rendered opinions in skillful faith from being sued. But, quite obviously, the more difficult it becomes for a plaintiff to succeed, the fewer plaintiff claims will be made.
New York, NY
January, 2013
Ronald D. Spencer, Esq.
Carter Ledyard & Milburn LLP
(The help of Alexandra Z. Kleiman, New York Academy, BA Art History, in the grooming of this essay, is gratefully best-selling.)
Notes
one The Proficient Versus the Object: Judging Fakes and False Attributions in the Visual Arts, at 195 (Oxford University Press, New York 2004).
2 ÂId. at 180.
three Id. at 180.
4 Id. at 180.
5 Ollman five. Evans and Novak, 750 F. 2d 970, 1021-022 (D.C. Cir. 1984).
6 Conversation with Abigail Booth Gerdts, July i, 2002, cited in "The Fine art Practiced, the Law, and Real Life," in The Expert Versus the Object at 140.
7 Rachel Cohen, "Priceless," The New Yorker, Oct 8, 2012, at 64.
eight Vitale v. Marlborough Gallery, The Pollock-Krasner Foundation, et al., No. 93-CV-6276,1994 WL 654494; 1994 U.Due south. Dist. LEXIS 9006 (S.D.N.Y. July 5, 1994).
ix Hahn 5. Duveen, 133 Misc. 871, 234 N.Y.Due south. 185 (Sup. Ct. Due north.Y. Canton 1929).
10 The "real one" might non accept been in the Louvre, simply that is an issue for some other day.
xi T.E. Stebbins, "Possible Tort Liability for Opinions Given by Fine art Expert," in Franklin Feldman and Stephen E. Weil, eds., Art Law: Rights and Liabilities of Curators and Collectors (Boston: Little, Brown, 1986, vol. two, p. 517.
12 Lariviere five. Thaw, Index No. 100627/99,2000 North.Y. Slip Op. 5000 (Sup. Ct. N.Y. County June 26, 2000) (Goodman J.).
13 Joe Simon-Whelan v. The Andy Warhol Foundation for the Visual Arts et al., No. 07 Civ. 6423, 2009 WL 1457177. (S.D.North.Y. May 26, 2009) (Swain, J.).
14 Forming office of the Nib of Rights, ratified December fifteen, 1791.
15 Compuware Corp. 5. Moody'southward Investor Services, 499 F. 3d 520 (6th Cir. 2007).
16 See Milkovich v. Lorain Journal Co., 497 U.Southward. 1 (1990).
17 St. Amant five. Thompson, 390 U.South. 727, 731 (1968).
18 Abu Dhabi Commercial Bank et al. v. Morgan Stanley et al, No. 08 Civ. 7508, 2012 WL 3584278 at ane (S.D.N.Y. Aug. 17, 2012).
19 Id. at 36.
20 On Feb 4, 2013, the US Justice Department brought a civil action confronting Standard & Poor's for its ratings of mortgage-backed bonds. The Wall Street Journal on the aforementioned appointment reported the "Justice Department'southward view that the First Amendment wouldn't protect a ratings business firm if it defrauded investors by ignoring its own standards …," and that the Illinois Chaser General, in a separate country merits, "sought to skirt First Subpoena protections by focusing on what the [rating] firm told investors about its rating procedure rather than bodily ratings". Like Abu Dhabi/2012, both the federal and state claims announced to proceed on theory that the rating agency, based on its underlying factual analysis, could not have believed its own opinion, that is, the federal and state government plaintiffs could bear witness actual constitutional malice on the office of the rating agency.
21 Abu Dhabi Commercial Bank v. Morgan Stanley et al, 651 F. Supp.2d 155 (Due south.D.N.Y. 2009).
22 Steinhilber v. Alphonse, 68 Northward.Y.2nd 283, 286 (1986); see too Immuno AG 5. Moor-Jankowski, 77 N.Y.2d 235 (1991) (applying Milkovich to determine whether a statement is actionable based on it being capable of objective verification).
23 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
24 Milkovich v. Lorain Journal, 497 U.Southward. one (1990) (The constitutional doctrine referred to in Milkovich protects statements that cannot be proved false (which we might call "pure opinion") and statements that cannot be reasonably interpreted as stating actual facts, including name calling, hyperbole, figurative language, and imaginative expression. Milkovich goes on to address how statements that can exist proved false are protected by the actual malice requirement).
25 Gertz, 418 U.S. at 339.
26 Steinhilber, 68 N.Y.2d at 289.
27 Milkovich, 497 U.S. at 26-27.
28 Gross 5. New York Times, 82 N.Y. 2d 146, 154 (1993).
29 The Expert Versus the Object at 195.
Editor's Notation
This is Book iii, Issue No. 3 of Spencer's Art Law Journal. This winter issue contains three essays, which will become available by posting on artnet starting February 2013.
The first essay (Protection from Legal Claims for Opinions…) discusses constitutional First Amendment defenses against legal claims for expert opinion about art—claims which have driven fine art authentication boards out of existence and seriously chilled public and private scholarly expression.
The second essay (Can Fine art Owners, Consigning or Lending Protect Themselves in Bankruptcy…) addresses the question of whether an owner can go along himself and his art out of bankruptcy court when the gallery goes into bankruptcy, by imposing his arbitration agreement with the gallery on a bankruptcy court.
The third essay (When Is It Likewise Belatedly to Recover Artwork You Own…) addresses the question of an owner's unreasonable delay in claiming art—the very interesting, important, and heavily factual, defence of laches.
Three times a year, issues of this Journal go along to address legal issues of practical significance for institutions, collectors, scholars, dealers, and the general art-minded public.
— RDS
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