Reactor

A New Law Could Protect Art Historians. What About Journalists?

by Laura C. Mallonee on March 17, 2014

Pieter Claesz, "Still Life with a Skull and a Writing Quill" (1628) (image via Wikimedia)

Pieter Claesz, “Still Life with a Skull and a Writing Quill” (1628) (image via Wikimedia)

There are moments when the discourse on art seems incredibly undemocratic — say, for example, when a historian or authenticator gets sued because a collector doesn’t like his or her analysis of a work.

Last week, the New York State Legislature introduced a new bill that will protect authentication experts from “frivolous” lawsuits by making them more difficult to bring to court in the first place. It’s meant to combat a new trend in which authenticators are increasingly “speaking with silence,” according to Judith Bresler and Dean Nicyper, who began drafting the bill in 2012.

As the Art Newspaper pointed out, in January 2012 researchers at London’s Courtauld Institute of Art cancelled a conference about a group of alleged Francis Bacon drawings because they feared legal repercussions for their opinions. The same year, several artist foundations, including Andy Warhol’s and Keith Haring’s, shut down their authentication boards for similar reasons.

If the new law passes this June, plaintiffs will have to state specifically what errors they believe the expert has committed. They’ll also have to show that the chances of proving such allegations true are higher than 50%. Additionally, if the lawsuit is brought to court and the defendant wins, the bill will allow him or her to recover all legal fees from the plaintiff.

From our vantage point, it seems poised to at least partially fill a gaping hole in a lucratively unregulated market. On the other hand, some collectors believe authenticators are sometimes pawns of the foundations they serve. A lawsuit recently brought by nine collectors against the Keith Haring Foundation claimed the nonprofit had “limited the number of Haring works in the public domain, thereby increasing the value of the Haring works that the foundation and its members own or sell.”

Regardless of who’s right, the objectivity a journalist can bring to an increasingly opaque art world with rampant fraud and forgery is crucial. Back in 2010, for example, New Yorker staff writer David Grann meticulously reported a 16,000-word story about the art authenticator Peter Paul Biro. Grann discovered that Biro may have been planting fake fingerprints into paintings he examined by everyone from Leonardo Da Vinci to Jackson Pollock. The article cast an inescapably long shadow of doubt over Biro’s other authentications.

Biro responded by suing Grann and the New Yorker — known for its fastidious fact checking — for defamation and $2 million in 2011, claiming the article had been “published with malice and an indifference to the standards of responsible journalism.” Naturally, Biro’s claim against the New Yorker was dismissed (though we are told he intends to appeal), but had Grann not had its backing, the cost of litigation would have likely bankrupted him.

In a changing media landscape where freelancers proliferate, will coverage of such stories be affected? Would a freelancer who stumbled on one as remarkable as Grann’s have had the courage to write it? It’s disheartening to note that freedom of the press in the United States plummeted 13 places last year, according to the recently released 2014 World Press Freedom Index.

We need a robust exchange about these issues, and a law that also protects journalists writing about them who may not have a giant mass-media company to back them up.

Correction, 3/18: An earlier version of this article inaccurately referred to plaintiffs as “prosecutors.”

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  • aedes

    Hi Laura, enjoyed your article. Just a small nitpick, its plaintiffs and not prosecutors. Prosecutors only act in criminal cases for the state.

  • Christopher Howard

    Perhaps the author needs to conduct more research into existing defamation and libel laws in the United States. It would be hard to believe such laws aren’t already in place.

    • Laura C. Mallonee

      Hi Christopher, thank you for your comment. I should’ve been more clear in my last sentence in saying that I wished this particular law would also protect journalists, in addition to art authenticators, against the threat of “frivolous” lawsuits since they can also play a role in helping to uncover inauthentic works of art. There are obviously established libel laws that would protect a journalist in an actual court case, but as far as I know (and I’m not a lawyer) there isn’t an umbrella law that protects journalists against the threat of lawsuits intended to keep them silent. And while a defendant can sue the plaintiff for damages if the case is thrown out, those cases themselves can generally take years to be settled as well (you can read about that here: http://bit.ly/PMml3J). If this bill passes the NY State Legislature, then it will hopefully give art authenticators extra assurance to continue doing their job. I think it’s a shame if the threat of a lawsuit — and its potential costs and travails no matter who wins the case — can be used to keep freelance journalists from also doing their job by reporting on authentication in the art world.

      • Christopher Howard

        I’m still not following your logic.

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