Protection From Legal Claims For Opinions About The Authenticity Of Art

This essay addresses legal protection for expert opinion - opinion which has been the subject of many recent and highly publicized legal claims. These claims, past and current, have "chilled" scholarly expression and driven authentication boards and committees of experts out of existence. In order for robust art scholarship about authenticity in the visual arts — the essence of which is connoisseurship — to flourish, protection is needed for expert opinion rendered by the academic scholars, curators and other specialists. This essay will propose that this protection can be had in the courts (as opposed to legislatures) based on (1) the recent successful defense of claims against rating agencies like Moody's for their ratings of residential mortgage-backed bonds, and (2) a line of court decisions providing First Amendment protection for opinion, so long as the facts or reasoning upon which the opinion is based is fully disclosed. -- RDS

RONALD D. SPENCER is Chairman of the Art Law Practice at the New York law firm of Carter Ledyard & Milburn LLP. He is expert in the legal aspects of art authentication issues and has written and edited The Expert Versus the Object: Judging Fakes and False Attributions in the Visual Arts (Oxford University Press, New York 2004).

First, this essay will briefly examine the nature of the opinion about authenticity we are proposing to protect. In most circumstances it is expressed by an expert — usually an art scholar, who is expressing his ideas in the form of scholarly judgment, evaluation, deduction or (even) conjecture based on art-historical information and tangible physical facts about the art, and upon the connoisseur's informed visual perceptions. When the recognized connoisseurs have the same idea (more or less) about the identity of the artist who created the work in question, the scholarly art community, and then the art market, will usually accept the work as "authentic".

The Authentication Process

Of course a determination of authenticity does not proceed directly from ideas in the head of a scholar or connoisseur. Indeed, three lines of inquiry are basic to the determination of authenticity in art: (1) the provenance of the work, (2) the application of connoisseurship to a work's visual and physical aspects, and (3) scientific testing to determine the work's physical properties. The courts, as well as the art market, have accepted the importance of these three lines of inquiry.1

Connoisseurship is informed visual perception, based upon a trained scholar or other art expert having looked long and hard at hundreds, maybe thousands, of works by the artist in question — and absorbing their salient characteristics into visual memory — combined with an understanding of the artist's method of working (known as "facture"). This informed visual perception (supported by provenance and any available information on the work's physical properties) is expressed in an expert judgment, usually referred to as expert opinion on authenticity.

It is the expression of this expert opinion, in essence, the expert's idea, based on connoisseurship, which today is at risk (or "chilled") from a proliferation of legal claims, or perceived threats, over the authentication of visual art.

Protecting the Expert's Idea

It is the well and truly held view that an idea can never result in liability for the person who expresses it, because ideas are so personal and subjective and because society should protect ideas as inherently beneficial, even if sometimes wrongheaded, and, indeed, negligently so. In art attribution this unexceptional view of the value of ideas is equated with an "opinion".2

Experts who determine the authenticity of a work of art, whether in the context of the publication of a catalogue raisonné, curating an exhibition, a sale or purchase, an appraisal of the value, or a scholarly essay, almost always describe their conclusion as their opinion on the authenticity or attribution of the work.3

Of course, they use the term opinion because that is the nature of what they are rendering: their judgment, evaluation, or deduction, based upon an interpretation of existing facts which they have collected and analyzed, and to which they have applied their learning and experience.4

In 1984 a U.S. federal Court of Appeals attempted to describe the nature of opinion in Ollman v. Evans and Novak (a case involving a defamation claim against two journalists, where the defense was that their published statement was constitutionally protected opinion):

At one end of the continuum are statements that may appropriately be called "pure" opinion. These are expressions which are commonly regarded as incapable of being adjudged true or false in any objective sense of those terms.

... Perhaps far more common ... are statements that reflect the author's deductions or evaluations but are "laden with factual content". The apparent proportions of opinion and fact in these "hybrid" statements varies considerably.

Hybrid statements differ from pure opinion in that most people would regard them as capable of denomination as true or false, depending upon what the background facts are revealed to be. At the same time, they generally are not propositions that a scientist or logician would regard as provable facts. The hard question is whether these kinds of statements, which both express the author's judgment and indicate the existence of specific facts warranting that judgment are within the absolute privilege for opinion.5

In light of the Ollman analysis, a statement by an expert about the authenticity of a painting, even if preceded by the phrase "I think," "I believe," or "in my opinion," is, not "pure opinion," but is at least, "hybrid" opinion, in that it implicitly suggests the existence of specific underlying facts and conveys the author's judgment upon, or interpretation of, those facts. Of course, there often is also an intimation of personal aesthetic taste with respect to the art, but there can be no question that the judgment is based, in large part, on express or implied facts which can be proven...