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Defamation in the Arts
by Daniel Grant

A photograph would seem to be true, unless different elements were added in with Photoshop to change the image that the photographer actually saw, but even a straight photograph could be deemed defamatory if it placed an individual in a false light. These photographs, often appearing in a magazine or newspaper, generally are accompanied by a headline, such as “‘Johns’ Arrested in Prostitution Sting” or “Drug Users Take Over Park,” in which an innocent person is included in a picture that suggests an illegal activity.

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 raisonné and authentication committees for well-known deceased artists (such as Jean-Michel Basquiat, Andy Warhol, Alexander Calder and Jackson Pollock) have been sued by the owners of artworks that were deemed not to have been created by the particular artists. The costs of defending these legal actions led both the Basquiat and Warhol committees to disband, letting the traditional arbiters of authenticity—the auction houses and galleries, as well as noted experts around the world—be in charge of determining what is questionable and what is not. 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.)

Artwork itself sometimes has been used to ridicule someone, leading to defamation lawsuits against the artists, but to date these have been decided by the courts in the artists’ favor. In one case, a local judge in the town of Liberty, New York, sued artist Franciszek Kulon for portraying him in the body of the devil, with horns, a tail and one cleft hoof. (Some years before, Kulon had been a defendant in a case presided over by this judge, Jeffrey Albach, and something about the ruling or conduct of the trial must have irked the artist.) The three-by-four-foot painting was called Our Honorable Judge of Liberty (2000) and displayed in the art gallery that the artist had recently opened, and flyers announcing the opening featured this painting. Altbach brought a defamation lawsuit, which was dismissed by another judge who ruled that the portrayal of Altbach represented Kulon’s opinion, which is protected speech, while the painting could not “reasonably be under-stood as describing actual facts.”

Twenty years earlier, painter Paul Georges was sued by two former artist friends, Anthony Siani and Jacob Silberman (Georges had broken with the others over some disagreement about art), for portraying them as assassins—ready to stab to death a barely clad young woman in a dark alley—in a 1976 work titled The Mugging of the Muse. Siani and Silberman brought a defamation suit against Georges, claiming that his painting held them up to public ridicule, portraying them as hoodlums and they won a $30,000 judgment in a lower court, but this was overturned on appeal. In the higher court ruling, the judge concluded that the context of the scene “and the use of the word ‘Muse’” made it clear that the artist was not literally accusing the others of a crime but simply offered his opinion, which while perhaps embarrassing to Siani and Silberman caused them to suffer no injury.

The stylized nature of art and the fact that the ordinary person tends to know the difference between art and real life keeps most parodies and expressions of opinion on the safe side of the defamation line. Intemperate spoken and written words are more likely to land someone in hot water. If your client doesn't pay you within the time period prescribed by the law, take the bum to court. It may be natural to vent publicly when engaged in a disagreement. “The temptation to hit the 'send' button for an angry text or e-mail is very great,” Salzman said. Smarter is to follow the older prescription of writing it down and tearing it up, or he adds, “Just sleep on it.” CA 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.