CONDÉ NAST FIGHTS
TO DISMISS LIBEL LAWSUIT
The forensic art authenticator Peter Paul Biro has turned up DNA samples on worn Jackson Pollocks and traced fingerprints on 200-year-old J.M.W. Turner paintings. But now that heís become better known as the bitter subject of a 16,000-word New Yorker exposť, he seems determined to squeeze blood from paper.
Last year, Biro and his attorney, Richard Altman, launched a $2 million libel lawsuit against New Yorker parent company Condť Nast. At a U.S. District Court hearing yesterday, Apr. 23, 2012, Altman suggested the magazine was guilty of more than defamation.
"Why is this man so important? Why is the New Yorker devoting resources to this?" asked Altman at the hearing, which was called to review the defendantsí request to dismiss the case. "I believe there was an agenda here and I want to find out what that agenda was."
Altman has already submitted his basic complaint -- that "instead of looking at whether Biroís work advances issues of attribution or retards them, the article transforms halfway through into a total trashing of Biro" -- but for now Altman is at the point in the legal process where he must convince Judge Paul Oetken that his proposed case is more than a fishing expedition.
So, adding to the fertility of his investigation, Altman fingered the New Yorker and writer David Grann for potential conflicts of interest -- unspecified conflicts that would presumably come to light in discovery. And he wants to add two new defendants to the suit -- Pollock biographer Evelyn Toynton and Yale University Press, who published "defamatory" statements about Biro in the 2011 book Jackson Pollock. (Eight new defendants have already been added since the suit was filed, including Gawker Media and Art Fag City editor Paddy Johnson, both of whom blogged about the original article.)
Condť Nast lawyer David Schulz shot back in response that "[Altman] canít just be curious; he has to have a claim, and he doesnít."
Aside from Altman's new interests, the lawsuit revolves around dozens of now-contested statements in Grannís story, ranging from portrayals of Biroís "fleshy pink" physical appearance and his penchant for lunch-hour wine to more serious characterizations of him as "a classic con man" and a "phony," to quote the words of Grannís sources. Biro also takes issue with the title of the story, "The Mark of a Masterpiece: The Man who Keeps Finding Famous Fingerprints on Uncelebrated Works of Art," which, according to the complaint, "implies that plaintiff finds fingerprints where they do not exist."
But Schulz argued that none of the offending statements are libelous. Of the claims that Biro calls false, not one is prosecutable, he said. Thatís because they involve subjective language, like Grannís saying that Biroís techniques are "radical," or because they take information from old lawsuits, which is material that is not actionable. Other statements cited in the complaint are not called into question for their accuracy, Schulz said, but because they cause something called "libel by implication."
So far, Schulz said, New York courts have yet to permit or deny a libel claim thatís based on an accurate statement with a defamatory meaning. Should the judge refuse Schulzís motion to dismiss the case, it would be "unprecedented," he said, and "would have a devastating impact on investigative journalists."
Altman bristled at the term "libel by implication." Instead, he thinks the article should be considered in the macro sense, in its "gestalt," as the judge put it. Plus, Altman thinks that Grann improperly interviewed parties involved in previous lawsuits with Biro, and quoted them on things that were not in the original suits. "The inference left with readers is that his conduct was worse than it appeared in those court proceedings."
Causing less concern was whether or not Biro was given a fair right of response to negative remarks made about him in the article. Altman didn't raise the question, and the judge pointed out that, "certainly they give Mr. Biroís side. It goes back and forth."
Yet, while Schulz insists that Grannís article was unbiased, he contends that the authorís personal views are irrelevant either way. Even if he openly thought Biro a fraud, Schulz thinks the current case should still be dismissed because that viewpoint would be one based on "true facts," and the authorís "entitled to have that opinion."
The judge, who remained patient and inquisitive throughout, opted not to respond with a decision on the spot. Instead he said he would write a full opinion, adding, "I promise it will be a fair and true report of my views."