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Biro v. Conde Nast

United States District Court, S.D. New York

August 1, 2013

PETER PAUL BIRO, Plaintiff,
v.
CONDÉ NAST, a division of ADVANCE MAGAZINE PUBLISHERS INC., DAVID GRANN, LOUISE BLOUIN MEDIA INC., GLOBAL FINE ART REGISTRY LLC, THERESA FRANKS, BUSINESS INSIDER, INC., GAWKER MEDIA LLC, INTERNATIONAL COUNCIL OF MUSEUMS, GEORGIA MUSEUM OF ART and PADDY JOHNSON, Defendants

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[Copyrighted Material Omitted]

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For Peter Paul Biro, Plaintiff: Richard Allen Altman, LEAD ATTORNEY, Richard A. Altman, New York, NY.

For Conde Nast, a division of Advance Magazine Publishers Inc., Defendant: David A.. Schulz, Amanda Marie Leith, LEAD ATTORNEYS, Levine, Sullivan, Koch & Schulz, LLP(NYC), New York, NY; Lynn B. Oberlander, LEAD ATTORNEY, The New Yorker, New York, NY.

For David Grann, Defendant: David A.. Schulz, Amanda Marie Leith, LEAD ATTORNEYS, Levine, Sullivan, Koch & Schulz, LLP(NYC), New York, NY.

For David Grann, Advance Magazine Publishers Inc., Defendants: David A.. Schulz, LEAD ATTORNEY, Chad Russell Bowman, Levine, Sullivan, Koch & Schulz, LLP(NYC), New York, NY; Julia Catherine Atcherley, Levine Sullivan Koch & Schulz, New York, NY.

For Louise Blouin Media Inc., Defendant: Desmond C.B. Lyons, LEAD ATTORNEY, Diane Boenig Cavanaugh, Lyons McGovern, LLP, White Plains, NY.

For Global Fine Art Registry LLC, Theresa Franks, Defendants: Anthony N Gaeta, LEAD ATTORNEY, Levine DeSantis PC, Millburn, NY.

For Business Insider, Inc, Defendant: David George Keyko, LEAD ATTORNEY, Pillsbury Winthrop Shaw Pittman, LLP (NY), New York, NY; Joseph R. Tiffany, II, PRO HAC VICE, Pillsbury Winthrop Shaw Pittman LLP (CA), Palo Alto, CA.

For Gawker Media LLC, Defendant: David Lawrence Feige, Giskan, Solotaroff & Anderson & Stewart, LLP, New York, NY; Oren Giskan, Giskan, Solotaroff & Anderson, LLP, New York, NY.

For Paddy Johnson, Defendant: Jay Cohen, Lynn Beth Bayard, LEAD ATTORNEY, Danielle Brancato Polebaum, Darren Wright Johnson, Paul, Weiss, Rifkind, Wharton & Garrison LLP (NY), New York, NY.

For Yale University Press, Defendant: Brian T Markley, Catherine Suvari, Floyd Abrams, Rebecca Marie Siegel, Cahill Gordon & Reindel LLP, New York, NY.

OPINION

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OPINION AND ORDER

J. PAUL OETKEN, United State District Judge.

This is a defamation action stemming from a profile of Plaintiff Peter Paul Biro, written by Defendant David Grann (" the Grann Article" ), which appeared in the July 12-19, 2010 issue of the New Yorker magazine, published by Defendant Condé Nast, a division of Advance Magazine Publishers Inc. (" Advance" ). In an opinion and order dated August 9, 2012, this Court examined each allegedly defamatory passage in the Grann Article and determined that four of roughly two dozen passages stated a claim for defamation under New

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York law. The remaining passages were determined to be either not susceptible of a defamatory implication, non-actionable expressions of opinion, or privileged as fair and true reports of a judicial proceeding.

Before this Court at present are the following motions: (1) a motion filed by Grann and Advance (collectively, " the New Yorker Defendants" ) for an order finding Biro to be a public figure; (2) the New Yorker Defendants' motion for judgment on the pleadings; and motions to dismiss by (3) Yale University Press (" YUP" ); (4) Paddy Johnson; (5) Gawker Media LLC (" Gawker Media" ); and (6) Business Insider (collectively, " the Republisher Defendants" ). For the reasons that follow, Defendants' motions are all granted.

I. Background

A. Factual Background[1]

1. The Parties

Biro is a Canadian citizen in the business of art restoration and authentication. He is known for having developed scientific approaches to art authentication through fingerprint analysis. Biro is featured in the documentary Who the #$& % is Jackson Pollock?, which concerns a painting purchased for five dollars by truck driver Teri Horton, which may or may not be an authentic Jackson Pollock.

Defendant David Grann is a citizen of New York and a journalist who has written numerous books and feature stories for publications including the New Yorker, where the Grann Article appeared on July 12, 2010.

Defendant Advance is a corporation with its principal place of business in New York and is the publisher of the New Yorker .

Defendant Business Insider is a corporation with its principal place of business in New York and is the publisher of a business and technology news website, available at http://www.businessinsider.com.

Defendant Gawker Media is a corporation with its principal place of business in New York and is the publisher of numerous blogs, including the technology blog Gizmodo, available at http://www.gizmodo.com.

Defendant YUP is a department of Yale University, in New Haven, Connecticut. YUP is a book publisher, which has published, inter alia, a biography of the artist Jackson Pollock, entitled Jackson Pollock, by the author Evelyn Toynton (" the Toynton Biography" ).

Defendant Paddy Johnson is a resident of New York, and is the founding editor of the blog artfagcity.com.

2. The Johnson Article

On May 18, 2011, Paddy Johnson wrote and published an article entitled " Making the Mark of a Masterpiece" on artfagcity.com (" the Johnson Article" ). Johnson's article, which concerns Grann's profile of Biro, states in its entirety:

The New Yorker's Mark of a Masterpiece tells me its [ sic ] time to re-evaluate a couple opinions I expressed about that so-called Jackson Pollock I wrote about back in 2006. Thanks to a documentary called Who the #$& % is Jackson Pollock?, I wasted a fair bit of ink on why I thought the International

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Foundation for Art Research should take another look at a garish painting that didn't look much like a Pollock. Forensic scientist Peter Paul Biro had produced fingerprinting identification and matched paint samples though, and that evidence seemed rather compelling. So I pushed aside a few pesky details, namely that it followed the basic rule of forgery: The less plausible the fake, the more involved the narrative and documentation becomes. This one reached absurd levels, with truck driver Teri Horton's big thrift store find and Peter Paul Biro's research even spinning its own documentary.

Now however, David Grann sheds considerable light on some of the forensic scientist's more questionable authentication techniques. From the article:

[Theresa] Franks [of Global Fine Art Registry, a company crusading against fraud] became particularly interested in Biro's methods after Frankie Brown, an artist in California, told her that he had seen a photograph of the Teri Horton painting, in People, and wondered if it might be his own work. Franks hired as an expert Tom Hanley, the chief of police in Middlebury, Vermont, who had more than two decades of experience as a fingerprint examiner. Hanley told me that he approached Biro, who had previously stated about Horton's painting, " My work is (and has been) available for evaluation to qualified experts." Yet Biro declined to share his evidence, saying that Horton had objected to the idea. Hanley was thus forced to rely on bits of information that Biro had posted on his Web site, several years earlier. The online report contains a photograph of the partial fingerprint that Biro said he had found on the back of Horton's painting. In Hanley's judgment, the impression lacked the kind of detail -- the clear ridges and furrows -- that is necessary to make a proper comparison.

After Hanley revealed his findings to Franks, she raised questions on her Web site about the reliability of Biro's fingerprint methodology. Biro then inserted a clarification to his online report. It said:

For security reasons, several images in this report are watermarked in a way that is not apparent to the observer. The fingerprint images have also been reduced in resolution so as to render them unusable except for illustration.

I advise against evaluating the fingerprint images illustrated in this report as if they were the actual source material. Any attempt to do so is pointless.

Biro told me that such secrecy protected the privacy of his clients and prevented anyone from misusing the fingerprint. To Hanley, this was baffling: what forensic scientist avoids peer review and even admits to doctoring evidence in order to prevent others from evaluating it? " If what he found are truly fingerprints, why isn't he sharing?" Franks asked me. In any case, Hanley, unable to examine Biro's evidence firsthand, had reached a dead end.

Then Ken Parker [a man Biro also produced a controversial Pollock authentication for] told Hanley and Franks about his drama with Biro. Parker said that Hanley was welcome to examine his painting. For the first time, Hanley was able directly to observe Biro's fingerprint evidence. He noted several fingerprints on the back of the picture, including two on the wooden stretcher frame, which were

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black, as if they had been made with ink. Looking through a magnifying glass, Hanley focussed [sic] on the most legible fingerprint, which appeared to be covered with a clear finishing coat, like a varnish. Parker said that before giving the painting to Biro he hadn't noticed a fingerprint on it. " I don't know where it came from," he said. He said that Biro had told him he had used some sort of " resin process" to make it more visible. Hanley had never seen a print developed in this fashion. Based on the clarity of the impression, Hanley thought that the fingerprint had to be relatively new -- certainly not from half a century ago, when Pollock was alive.
Those are pretty damning words. I spoke with Peter Paul Biro on more than one occasion during the promotion of the movie, and while he didn't offer a lot of insight on the movie itself he did go to great lengths to explain that his reputation was his livelihood. " This is not a risk I would take if I were not certain," he told me. Foolishly, I believed him.

Biro requested that Johnson remove this article from her website; that request was denied.

3. The Gawker Article

On July 7, 2010, an article entitled " Is This Man the Art World's High-Tech Hero or Villain?" was published on Gawker Media's website Gizmodo (" the Gawker Article" ). The article begins, " This is Peter Paul Biro. Depending on who you ask, he's either using fingerprinting, forensic science, and state of the art spectral cameras to uncover lost art masterpieces, or using that same technology to manufacture them." After quoting a paragraph from the Grann Article, the Gawker Article states:

But Grann quickly began to find cracks in Biro's story, tracing a long history of purported fraud and manipulation of artworks he was employed to restore (his family worked in restoring art before Peter Paul eventually moved into the field of authenticating it). At the end of this tangled yarn comes a striking accusation: Biro had actually planted many of the fingerprints that supposedly verified the authenticity of the paintings he was charged with evaluating. Just like the art he works with, it's hard to pin down the true story behind Peter Paul Biro. But as shown in the New Yorker piece (which you should ...

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