Monthly Archives: August 2013

Defamation In The Art World: The Case of the Authenticator

Are you ready for a defamation case begging to be turned into a Dan Brown book?

Allow me to introduce you to Mr. Paul Biro. A Montreal native and renowned art authenticator, Biro is known for his quest to transform the science of art authentication. You see, Mr. Biro favors a more C.S.I. approach to authenticating artwork, as opposed to esoteric methods; while Biro thinks fingerprints are the way to identify “orphaned” fine art, his opposing contemporaries insist it’s all a matter of art history knowledge and something more ethereal, a “gut feeling.”

The New Yorker Article About Paul Biro That Launched A Defamation Lawsuit

Secrets of the Art World

Did you know that the world of art authentication is as clandestine as S.P.E.C.T.R.E? Since it is often difficult to identify the provenance of an artwork, the worth of many pieces is solely reliant on the opinion of an expert who primarily deals in the realm of hermeneutics. In fact, art authenticators fear “product defamation” lawsuits so thoroughly that it is often difficult to get them to commit to their reasoning for labeling one piece a treasure and another trash.

Mr. Peter Paul Biro sued the New Yorker magazine and author David Grann for defamation. You see, Mr. Grann investigated “cutting-edge” art authenticator Biro and wrote a captivating piece of journalism about the aforementioned. Suffice it to say, the work raised questions about Biro’s place in the art authentication world, not to mention his character.

A classic case of old school v. new school, right? Well, that is what David Grann must have thought, and like any good investigative journalist he got down to the business of sniffing around the art world. The result was a 2010, highly entertaining, seemingly well-researched 16,000-word piece in The New Yorker entitled,“The Mark of a Masterpiece.” In it, Grann skillfully detailed Biro’s family background, raised germane tales of Biro’s dad, Geza, who started “Center for Art Restoration” and called himself a doctor despite not have the credentials. Grann also raised some interesting questions about the reliability of fingerprint evidence when authenticating art.

Is Biro Famous or Not? It Matters When Filing a Defamation Lawsuit

The first hurdle Biro had to clear was the issue of status. Was he or wasn’t he a public figure? Under United States defamation law, different rules apply for private citizens and public figures. In short, public figures must provide a higher preponderance of evidence to win a slander or libel suit. If Biro was able to argue, successfully, that he was a mere private citizen, than he would only have to prove that the New Yorker and Grann printed the article with “reckless disregard for the truth.” In other words, they didn’t do enough research before green lighting.

What, Exactly Did Grann Say?

So, the big question is, “what did Grann say in his article that prompted Biro to stomp to the court house in high dudgeon?” Basically, Grann raised questions about Biro’s past, namely his association with another art dealer — who supposedly defrauded Jack Nicholson — and the pair’s attempt to start a business selling “orphaned art.” The article also shed light on a series of lawsuit brought against Biro and his father in the 1990s and Biro’s unwillingness to let the scientific community conduct a double blind study of his “historical fingerprinting detection” techniques.

But U.S. District Judge J. Paul Oetken ruled that Biro, by virtue of injecting himself into documentaries and other media offerings concerning art authentication, “advanced himself” as a “leader in the art authentication field.” As such, Biro is beholden to the standard of actual malice. So, in order to win the defamation suit, Biro would have to prove that both Grann and the New Yorker purposefully lied in a pre-meditated attempt to damage Biro’s reputation.

In the end, Judge Oetken sided with the New Yorker and Grann, reasoning the author did not act with actual malice and that Biro did not show sufficient evidence that Grann intended to harm the plaintiff by publishing the story. Particularly, the judge opined that Grann’s essay was “bereft of express accusations, but rather lays out evidence that may raise questions and allows the reader to make up his or her own mind.”

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New Tech Tax In Massachusetts

internet-taxesListen up tech industry people in Massachusetts! Your state government recently passed a new tax that directly affects your business. In order to fund statewide transportation upgrades, the standard 6.25% sales tax will now be required on most computer software services, including website development.

A cabal of tech industry and taxpayer associations has banded together to fight the tax, but lawmakers seem intent on sticking to their decision.

Why The New Massachusetts Technology Tax?

Why is Massachusetts adding a new tax? State representatives say it’s all about mending the ailing transportation system. And since transportation upgrades usually involve technological advancements, legislators buried the tax in a recent transportation bill – a statute most tech folks didn’t notice.

Lawmakers estimate the new tax will bring in $160 million in revenue for the state. Opponents to the tax think it will bring in $500 million – way more than the state needs for their stated goals.

Why Is The Massachusetts Technology Tax a Potential Nightmare For The Industry?

Opponents to the new levy have a simple yet powerful argument: a new tax threatens the state’s financial growth since technology is a booming sector of the economy. Moreover, anti-tax spokespeople point out that since the bill is so poorly written, more businesses will be subject to the tax than politicians think.

Is The New Technology Tax Effective Immediately?

The new tax is not en force yet, and a group of concerned and invested entities has joined forces to oppose the tax. The Massachusetts Taxpayers Foundation, Massachusetts High Technology Council and other groups are working to have the tax added as a referendum on the 2014 ballot. Serious about their efforts, the group has hired a high-end public relations team to further their cause.

For their part, politicians say they will consider narrowing the scope of the tax if revenues exceed their $160 million estimates.

Are you a tech company in need of a lawyer? Get in touch with Kelly Warner Law. We focus on all things Internet law related.

Patient v. Doctor Online Defamation: Copyright Contracts?

online defamation copyright contractsAre copyright contracts, which confer online review rights to doctors, legal? Many have tried, but it looks like those contracts aren’t holding up well in court, and doing even worse in the court of public opinion.

Take, for example, a recent story featured on Ars Technica. (Medical professionals, pay heed: in the end, the patient prevailed. Take it as a warning to be wary of boiler plate online confidentiality agreements; they can get you into more trouble than they’re worth. And if you want to sue a patient for online defamation, be sure to find an attorney that understands both cyber libel and medical practice statutes.)

The Dentist & The Patient: A Tale of Trying to Prevent Negative Online Doctor Reviews

In 2010, a man was experiencing escalating levels of dental discomfort. So, like any good HMO recipient, off to his insurance provider’s list he went.

“Here: Sign This Copyr….I mean Confidentiality Agreement.”

But before Dentist and Patient got down to the business of teeth debugging, Doctor asked Patient to sign the “Mutual Agreement to Maintain Privacy.” Brass tax, the copyright contract was an attempt to control post-visit online commentary of his experience.

The agreement — brain child of a company called Medical Justice — covered both online and print publications. An arguably ingenious idea, the contract supposedly rendered all comments about her services the copyright of the dentist.

Apparently This Don’t Go Perfectly

Now, if patient and dentist (in this instance) saw eye to eye, you wouldn’t be reading this. So, what happened? Long story short, Patient ended up giving Dentist a 1-star rating on Yelp. A barrage of unflattering remarks followed suit.

And sure enough, believing the Medical Justice contract was legally sound, Dentist Office contacted Yelp, explained that it “owned” the copyright to Patient’s commentary and asked that it be pulled from the website. Also per the contract, Dentist began billing Patient $100 a day for copyright infringement.

Copyright Contracts Class Action?

Unwilling to comply with Dentist’s demands, Patient hired a lawyer. A class action request quickly followed. The goal? Nullify doctor copyright contracts. The argument? Such agreements violate business laws and professional dental ethics.

A Patient Victory

Before long, the dominoes started to fall. Medical Justice washed their hands of the situation and discontinued the issuance of the copyright contract. Dentist boarded her office windows and allegedly couldn’t be reached for comment.

Patient is seeking financial reimbursement for medical and legal fees. But ultimately, Patient hopes that the public, as well as private companies, take notice of these doctor copyrighting contracts and debate their validity.

Contact An Attorney Who Has Successfully Handled Online Review Cases

Are you involved in a medical defamation situation? Do you have questions about copyright contracts? Kelly Warner is an experienced legal team that has successfully dealt with a multitude of online review cases. Contact us today to begin the conversation.

Environmentalist v. Conservative Media: Defamation or Opinion?

Penn State climate scientist Michael Mann has been at war with the Competitive Enterprise Institute (CEI) and the National Review since July 2012. After attempts to get the disparaging material removed from various online publications, In October 2012, Mann filed a defamation lawsuit against the two organizations. The defendants attempted to have the case dismissed, asserting that it met the SLAPP (strategic lawsuit against public participation) definition of an attempt to silence critics and that Mann’s claims fell short of the standards of defamation of a public figure. The motions were denied. The case survived.

Mann first attracted criticism after his publication of the “hockey stick” graph, which showed that global temperatures increased dramatically during the twentieth century after having remained relatively stable for hundreds of years. In the 20-plus years since the graph’s publication, numerous studies have produced similar results. Additionally, government organizations and universities in the US and the UK have concluded that Mann’s work and conduct are scientifically sound. The CEI column at issue, as well as the National Review one that followed it, indicated that Mann was clearly guilty of scientific fraud. They accused Mann of “data manipulation” and “scientific misconduct,” calling his claims “intellectually bogus.”

The court found that Mann was a public figure, which means he must prove the defendants made their statements with “actual malice.” This standard is met if they acted “with knowledge that [a statement] was false or with reckless disregard of whether it was false or not.” Both asserted that they were using hyperbolic language and that Mann could not establish that either had exhibited a reckless disregard for the truth. The court disagreed, stating that the columns contain “not pure opinion but statements based on provably false facts.” It also noted that both defendants had called for Mann’s investigation on numerous occasions, which could be construed as a reckless disregard for the truth.

The court did not find that either defendant acted with actual malice. Making that determination is a question for the discovery process. The National Review threatened to request access to Mann’s e-mail if the suit advances to discovery, but Mann has simply stated that he is “pleased that the judge threw out [the defendants’] motion to dismiss the case.” There will be ample opportunity for legal jockeying between the parties, as the next hearing is not scheduled until September.

Convicted Killer Sued For Defamation By Crime Writer

ann rule pic from Seattle Weekly
Veteran crime writer Ann Rule is suing a Washington State magazine for libel.
Pic Credit: Seattle Weekly Magazine

A libel lawsuit that will have “Dateline” producers swooning is underway in Washington State. The case involves a troubled marriage, a gun-wielding wife, her pilot husband, a prison romance and a prolific crime novelist.

Dramatis Personae

Liysa Northon – A mother of two sons, surf photographer and aspiring screenwriter married to a Hawaiian Air pilot.

Rick Swart – Editor of the Wallowa County Chieftain – a local Oregon paper – which he owned with his wife.

Ann Rule – Veteran crime novelist who has penned over 30 books in 40 years – most notably a best seller on serial killer Ted Bundy, to whom she was acquainted before he was arrested.

Caleb Hannan –Editor of the Seattle Weekly magazine.

The Killing

In 1996, Liysa King married her third husband, Chris Northon, a pilot for Hawaiian Air. In 2000, Liysa Northon pumped a .38 caliber bullet between her third husband’s eyes during a family camping trip in the remote Wallowa-Whitman National Forest. Mrs. Northon swore it was a matter of self-defense, pleaded guilty to manslaughter, and spent 12 years at the Coffee Creek Correctional Facility in Northwest Oregon.

The Book

Unconvinced by Northon’s account of life-threatening abuse at the hands of her pot smoking husband, veteran crime novelist, Ann Rule, turned her attentions to the 108-pound photographer-turned-prisoner whom fellow inmates called “surfer.”  After months of research and writing, Rule published “Heart Full of Lies,” a novel detailing an alternative theory of Chris Northon’s death. By Rule’s reckoning, Liysa meticulously planned a murder and manufactured evidence of domestic abuse, all in service of insurance money and a lifetime of free flights normally bequeathed to widows of pilots.

The First Defamation Lawsuit

Outraged by the account, while behind bars, Liysa Northon sued Ann Rule for defamation when “Heart Full of Lies” hit bookshelves. Unfortunately for the inmate, a federal judge tossed the case in 2007 and Northon had to fork over $60,000 in attorneys’ fees.

The Article & Prison Love

Enter Rick Swart – a local Oregonian newspaperman who, along with his wife, owned the Wallowa County Chieftain – a small centenarian newspaper. The Northon slaying happened in the Swart’s part of Oregon, making it a top story in the Chieftain.

Fast forward a few years. Liysa was in prison and Ann Rule’s book was published. A freelance writer by that point, Swart penned a piece for Seattle Weekly magazine. In a 10,000-word screed, Swart tendentiously told the story of a strong-but-suffering domestic abuse survivor (Liysa) who was viciously besmirched by a hack crime writer with questionable research ethics (Rule).

When Rule caught wind of Swart’s work, she took to her blog insinuating that Swart left out a major disclosure in his Seattle Weekly piece, the revelation of which would disabuse presumptions of Swart’s integrity.

Caleb Hannan, then editor of the Seattle Weekly, took note of Rule’s quip, dug around and discovered that Rick Swart was inmate Liysa Northon’s fiancé. The two had fallen in love while he was researching the Seattle Weekly piece. Presumably not wanting to sully the Seattle Weekly’s reputation with a journalistic bias scandal, Hannan wrote and published an editor’s note disclosing Rick’s relationship with Liysa. He also highlighted a few minor mistakes in Swart’s article.

The Second Defamation Lawsuit

Unimpressed with Swart’s Seattle Weekly account, it was Ann Rule’s turn to cry defamation. “The article contained innumerable inaccuracies and untruths concerning the testimony and evidence in the trial of Liysa Northon and also included various unfounded personal attacks on Rule,” explained Ann’s lawyer. “At the time … Swart and Northon were engaged, and any meaningful inquiry by Seattle Weekly or Hannan should have discovered this significant source of bias.” The claim goes on to argue that Rule’s ability to make a living is dependent on her “reputation of accuracy to detail” thus rendering Swart’s statements defamatory.

Rule is seeking “reasonable damages.”

Many moons will pass before we learn the outcome of this tragic tale of defamation woe. So if you want to find out what happens next, subscribe to our defamation law newsletter (in the footer) and keep up-to-date on the latest slander and libel law news.