Under the law in Massachusetts, an “art dealer must pay the artist monies due from the sale of the consigned work within 90 days of receipt of payment. The art dealer incurs fines for payments not made within 90 days, and the penalties increase again after 180 days.” If the dealer doesn’t pay within one or another period, is that person a thief or a crook? That’s quite possible, but saying it to others or publishing a statement to that effect could lead the dealer to bring a lawsuit for defamation.
Defamation is a malicious and false claim that comes in two varieties – slander (an oral statement) and libel (a written statement) – and both have the potential of harming the reputation of an individual or business, exposing the person or company to ridicule, hatred or financial loss. Penalties for both libel and slander are similar, although libel tends to be easier to prove, because documentary evidence exists of what was published, whereas one or more individuals may be required to recall what was said to them when the charge is slander and one’s memory can be imperfect.
The opportunities to defame someone have increased with communication technology, such as text messages, postings on a blog or social networking site like FaceBook, Twitter, emails and YouTube videos (that can result in charges of both slander and libel). People rush to their cell phones to text their immediate thoughts in the heat of the moment, rather than sitting down to write a letter, which might be torn up the next day after they cool down. It is the ease of announcing one’s grievances to the world that have some artists’ lawyers concerned. “You have to be careful when disseminating information that disparages someone’s reputation,” said Chicago attorney Scott Hodes, and New York lawyer Donn Zaretsky noted, “let me put it this way: If one of my clients was upset with her dealer and was considering blogging or sending out an email blast, I would strongly advise against it. Too risky.”
It was through an email blast (a mass online mailing) that British actress Claire Forlani sent out an almost 500-word condemnation of Malibu, California art dealer Paul Rusconi for selling her what she called counterfeited paintings by artists Keith Haring and William Claxton, as well as overcharging her for works by Andy Warhol. Rusconi responded to the “poison-pen note” with a defamation lawsuit in 2009, which was resolved in a confidential settlement.
“Things spread like wildfire over the Internet,” Rusconi said. “People take what they see as fact, rather than as speculation.”
Not every claim of defamation can be won in a court of law, however. “Truth is the best defense to the charge of defamation,” Hodes said. If an art dealer actually had sold a counterfeit painting to a collector, announcing that fact by spoken word or written text is neither slander nor libel; it may cross the line into defamation if the collector claims without some measure of proof that the dealer knew the painting was a fake. On the other hand, Michael Salzman, a lawyer in New York City, stated that offering an opinion is protected by the First Amendment to the U.S. Constitution. “If a dealer is late in paying his artists, it isn’t actionable to say that money owed to artists tends to stick to his pocket.” An artist calling his or her dealer a “jerk” or a “moron” also would likely be protected speech in oral or written form, and it would protect the collector purchasing the counterfeit who says that the dealer should have known better.
Calling a dealer a “crook” edges into a more troublesome area, because it implies wrongdoing, but the term suggests hyperbole and “puffing,” which would tend to prohibit a defamation lawsuit. Calling a dealer a thief, on the other hand, or asserting that the individual stole one’s money, is a statement of fact, which would need to be supported by facts. Not being paid promptly may feel like being the victim of a robbery, but the difference is consequential in the law.
Defamation of products also exists and has arisen in the art world when someone in a position of authority, such as a dealer or museum curator, publicly labels a work of art as a fake, depriving the artwork of much of its value. A number of catalogue raisonne and authentication committees for well-known deceased artists (such as Jean-Michel Basquiat, Alexander Calder and Jackson Pollock) have been sued by the owners of artworks that were not deemed to have been created by the particular artists. The most notable lawsuit in this realm took place in 1920 after international dealer Joseph Duveen answered a question from a newspaper reporter from the New York World that the Leonardo da Vinci painting “La Belle Ferroniere” purportedly owned by a Kansas City, Missouri collector was only a copy of the actual work, which he knew to be in the Louvre in Paris. A trial resulted in a hung jury, siding nine to three with the collector, and Duveen cut his losses by paying a $60,000 settlement instead of risking a retrial. (That collector’s painting, still by an unknown artist, recently sold at auction for over $1 million, and 90 years later the Louvre itself announced that its “La Belle Ferroniere” wasn’t by Leonardo either.)
It may be natural to vent publicly when engaged in a disagreement, “and the temptation to hit the ‘send’ button for an angry text or email is very great,” Salzman said. Smarter is to follow the older prescription of writing it down and tearing it up, “or just sleep on it.”
By Daniel Grant