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Defamation in the Arts
by Daniel Grant

Under Oregon law, when a work of art is consigned to a gallery by an artist, the “proceeds from a sale of a work of fine art on consignment shall be paid to the consignor within 30 days of receipt by the consignee unless the consignor expressly agrees otherwise in writing.” Failure to pay the artist within that period results in a fine of $100 “plus actual damages, including incidental damages sustained as a result of the violation.” OK, but what if the dealer doesn’t pay within that 30-day 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 or e-mails, postings on blogs or social media sites like Twitter, Facebook 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. 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 e-mail blast, I would strongly advise against it. Too risky.”

It was through an e-mail blast 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 $25 million defamation lawsuit in 2009, which was resolved in 2010 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 US 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 eyes of the law.

Illustrators sometimes get caught up in charges of defamation, most often for their images but occasionally for statements they may have made. A South African cartoonist Jonathan Shapiro, who professionally goes by the name Zapiro, was sued by African National Congress President Jacob Zuma for a 2008 cartoon in the South African Sunday Times that shows Zuma in the process of opening his pants in order to rape the figure of Lady Justice (who is being held down by several of Zuma’s aides). That lawsuit has yet to be heard in court. Last year, the Graphic Artists Guild had a lawsuit for interference with contractual relations (in the collection of “orphaned” reprographic royalties derived from the licensing of illustrators’ work) and defamation against the Illustrators’ Partnership of America and five individuals, including illustrator Brad Holland, dismissed. The defamation claim referred to a statement attributed to Holland that the Guild had taken more than $1.5 million, none of which was distributed to artists, “surreptitiously.” However, a New York State Supreme Court ruled that the statement was true and that true statements cannot be defamatory.
http://image.commarts.com/Images1/1/6/1/5/516180_54_0_NDg0MDE1NTk4LTE4MjA4NzI1MzQ.jpgDaniel Grant
Daniel Grant, a writer, is the author of The Business of Being an Artist and several other books published by Allworth Press. He wrote the Business column.