“What’s in a Name?” Peter Paul Biro v. Condé Nast for Defamation
Read: Article on Biro from the Center for Art Law
Date: May 20, 2013
By Irina Tarsis, Esq.
“Sticks and stones may break my bones
But names will never hurt me.”
19th Century English nursery rhyme
It is hard to believe that there ever was a time when name calling was innocuous. In 2011, Peter Paul Biro, a Canadian citizen filed a libel Complaint against David Grann, a writer and a journalist, and other Defendants, for defamation and injurious falsehood resulting from Grann’s article that appeared on the pages of The New Yorker magazine. In 2012, District Judge J. Paul Oetken dismissed parts of the Complaint, finding that Biro may not sue on most of the statements contained and flagged in Grann’s article. However, J. Oetken held that four statements were actionable, although he was uncertain of the incremental reputational harm from these statements alone.
On May 17, 2013, J. Oetken heard oral arguments from all parties as to the remaining actionable statements but withheld his judgement as to whether the case would proceed to discovery and trial. In general, to recover for libel (injury to one’s reputation from a written expression), Biro will need to establish five elements outlined in Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 176 (2d Cir. 2000) :
(1) a written defamatory statement of fact concerning the plaintiff;
(2) publication to a third party;
(3) fault (either negligence or actual malice depending on the status of the libeled party);
(4) falsity of the defamatory statement; and
(5) special damages or per se actionability (defamatory on its face).
Biro, is an art authenticator who looks for fingerprints impressions in works of art work, among other things, to determine authorship. In fact, he is credited as being the “first authenticator of art works through fingerprinting.” Thanks to the Grann’s reportage, he may be the last such authenticator as well.
In the late 2000s, David Grann visited Biro in his workshop in Montreal and interviewed him about “forensic provenance.” In the first half of the resulting article, Grann describes how Biro became involved with “placing an artist at the scene of the creation of a work.” While the first half of the article is a benign narrative of the Grann-Biro interviews, with some striking attention paid to the spirits imbibed by Biro at various times, half way into the article, the tone changes, and Grann turns from the subject of art authentication to the subject of the art authenticator, and examine Biro under a microscope. But to what purpose? news? entertainment? something else? A discovery would go long ways to shedding light on the reporter’s reasons.
Following, are some of the “plot thickens” quotes and findings from Grann’s article:
- “…with this final flourish, the glittering portrait of Peter Paul Biro was complete: he was the triumphant scientist … But, somewhere along the way, I began to notice small, and then more glaring, imperfections in this picture. … One of the first cracks appeared when I examined the case of Alex Matter…”
- “Reporters work, in many ways, like authenticators. We encounter people, form intuitions about them, and then attempt to verify these impressions. I began to review Biro’s story; I spoke again with people I had already interviewed, and tracked down other associates. A woman who had once known him well told me, “Look deeper into his past. Look at his family business.” As I probed further, I discovered an underpainting that I had never imagined.”
- “During the eighties and early nineties, more than a dozen civil lawsuits had been filed against Peter Paul Biro…I found other cases that raised fundamental questions about Peter Paul Biro’s work as a restorer and an art dealer.”
- “Elizabeth Lipsz, a Montreal businesswoman who had once been close to Biro, and who won a lawsuit against him for unpaid loans, described him to me as a “classic con man.” Her lawyer told me that Biro “was so convincing. He was very suave, soft-spoken, but after a while you catch him in different lies and you realize that the guy is a phony.”
- Another lawyer who litigated two suits against Biro, G. George Sand, was liberally quoted including a statement that “[Sand] he told me he was amazed that Biro’s history had not tarnished his reputation and that he had reached such an exalted position.”
- “Biro was either a shyster or a con man, and had found [aging art collector] an easy mark.”
- “By the time that Biro took on “La Bella Principessa,” his reputation had become so solid, and the public appetite for forensic solutions had become so strong, that he no longer seems to have worried about watermarking his evidence or presenting a perfect match.”
- “Perhaps Biro’s father had lacked that divine spark of originality, or perhaps he had sacrificed it while inhabiting the skin of immortal artists.”
Ultimately, Grann’s article casts a distrustful light on Biro’s business initiative and insinuates that traces of pigments and various fingerprints found on canvases Biro examined were forged. At least one individual approached by Grann who declined to malign Biro’s work was relegated to the category of art owners “reluctant to bring charges” because “art crimes are often difficult to prosecute.”
The Biro unmasking is bookended on both sides by the story of “La Bella Principessa,” a drawing that generated much attention in the art field as to its relationship to Leonardo Da Vinci. Read: La Bella Principessa Decision (Not So Pretty).
At oral arguments last week, J. Oetken was particularly interested in the third elements of the Celle v. Filipino test. He questioned counsel for both sides as to what constitutes a “public figure” for the purposes of defamation, whether Biro is a “public figure” as a matter of law, and whether art authentication is of “public concern” sufficient to merit a higher pleading requirements from Plaintiff.
The counsel for Biro, Richard Altman, argued that his client is no more a public figure than a socialite with a public divorce or an attorney defending his client in a public statement and that while art authentication is ‘newsworthy’, it is does not rise to the level of a “public controversy” as, for example, the debate on gun control does. The counsel for Defendants repeatedly argued that Biro is a public figure and thus his claim fails because Grann had no malice when he published his article. According to David Schultz and other defense lawyers, there were either no known falsehoods in the published account or that Grann and others did not recklessly disregarded the truth when they insinuated that Biro’s work was suspect.
With the Court’s decision imminent, it seems clear that Grann’s article does expose Biro “to public … shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or…induces an evil opinion of one in the minds of right-thinking persons, and…deprives one of…confidence and friendly intercourse in society.’” Karedes v. Ackerley Group, Inc., 423 F.3d 107, 113 (2d Cir. 2005) (quoting Celle, 209 F.3d at 177).
Procedural History: Peter Paul Biro, Plaintiff v. Condé Nast, a division of Advance Magazine Publishers Inc., Defendants, 11 Civ. 4442
Source: New York Law Journal; The New Yorker; Biro v. Conde Nast, 11 Civ. 4442 (2012).