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 true or false (and being so provable, the stated judgment could be actionable as negligence, defamation, product disparagement, etc.).
Analytical Similarity in Evaluations of Bond Creditworthiness and Art Authenticity
The frequent garden variety evaluation by financial analysts of the credit-worthiness of bonds seems analytically similar in process to an evaluation of authenticity of art. Financial analysts evaluating the credit-worthiness of a company's bonds are deciding upon the relevance of "facts" about the company's business, market share, strength of competition, etc., and the company's financial structure, and the relative weight to be given these "facts". (Although the analysis of residential mortgage-backed bonds presumably took the form of an examination of the underlying security for the bond, numerous, perhaps thousands, of residential property mortgages.)
Of course, in evaluating the authenticity of art, the "facts" deemed relevant by an art expert and their relative importance are quite different from those examined by a credit analyst. Thus, most of the important "facts" which the art expert identifies and weighs are his visual perceptions, that is, his verbal articulation or description of what the trained connoisseur's eye "sees". Other facts include the provenance, that is, the chain of title and possession and public exhibition history of the work from the artist to the current owner. Both the credit analyst and the art expert are analyzing facts and, after applying their historical experience, arriving at conclusions or judgments, which they both choose to call opinion.
Fear of Legal Claims Causing Connoisseurs To Cease Authentication Activities
As is well known, many art authentication boards and committees are ceasing their authentication activities over concerns about legal liability for their decisions, the most well-known example being the cessation of activities in 2011 of the Andy Warhol Art Authentication Board. Of course individual art scholars are concerned about
liability as well. Theodore Stebbins, Jr., Curator of American Art at the Harvard University Art Museums, quotes Dr. Abigail Gerdts, director of the Winslow Homer catalogue raisonné, pointing out the financial and personal risk to today's art expert, "The stakes are just too high. I believe we should all get out of the opinion giving business".6 And, as Rachel Cohen recently wrote in The New Yorker,
When a painting could be worth $100 million, what happens to the experts who have to say whether the work is authentic? Lately, they get sued. ... The threat of these suits has begun to affect the state of available scholarship. ... Prices could not have risen so high ... without confident, creditable attribution. Now these astronomical sums are driving away the specialists who made them possible in the first place.7
Fear of legal claims is likely the reason that recent catalogues raisonnés no longer have extremely useful sections dealing with "False Attributions" (as found in Volume 4 of the 1978 Jackson Pollock catalogue raisonné) or even an innocuous, "Problems for Study" section (as found in the 1995 Pollock Supplement) which contained a subsection, "Unresolved Attributions", for which there was "not sufficient evidence" to attribute works to Pollock. (A work listed in the "False Attributions" section of Volume 4 was the subject of a 1994 lawsuit against the Pollock-Krasner Authentication Board).8
The Experts' Fear of Legal Claims Is Not of Recent Vintage: It Goes Back at Least to 1929.
In the famous case of Hahn v. Duveen9 Sir Joseph Duveen looked at a photograph of a supposed Leonardo da Vinci painting owned by Mrs. Andrée Hahn, and told a newspaper reporter that it was only a copy, the "real one" being in the Louvre.10 Mrs. Hahn sued Duveen, saying that as a result of Duveen's disparagement, she could no longer sell the painting for its real value. After a trial, and before the jury rendered its decision, Duveen settled out of court, paying Mrs. Hahn $60,000, "forever establishing in the minds of many people that opinions are dangerous things to give".11
Legislation, Unlikely to Protect Scholars and Other Experts
This author has often been asked by art scholars, museum curators, authors of catalogues raisonnés and art dealers whether protection for their opinions might be somehow possible through some clever new federal or state legislation. But the prospects for such legislation seem remote, at least because many other professionals, such as doctors, lawyers, accountants and, civil engineers, among many others, render important opinions upon which people rely, and would demand this same legislative protection sought by art experts.
The Courts Are the Sole Likely Source of Protection for Connoisseurship
In default of protective legislation, it is usual for art experts to obtain a written "no-sue" agreement from an owner/applicant. These agreements have been held legally enforceable since, at least, the year 2000, when the New York Supreme Court, decided Lariviere v. Thaw.12 (An owner who sues the expert in breach of the no-sue agreement would be liable for damages for breach of contract. The damages would be the expert's legal fees and costs in defending the owner's claim.) Some confusion and consternation, at least among non-lawyers, arose in 2009 when a federal district court in the case of Joe Simon v. Andy Warhol Foundation for the Visual Arts et al., allowed a lawsuit to proceed despite a no-sue agreement. In the Simon case (on a motion to dismiss, which procedurally, had to assume that everything the plaintiff alleged was true), the court merely held that the Warhol Foundation's no-sue agreement signed by plaintiff Simon might not be enforceable if the (otherwise legal and enforceable) agreement had facilitated an illegal plan (as Simon alleged, but never proved) to manipulate prices in the market for Warhol paintings.13 The plaintiff later withdrew all his claims.
Thus, protection for expert opinion is unquestionably available by agreement (not to sue) with an art owner/applicant. Second, the credit rating agency cases (see below) suggest there is also federal constitutional protection available for expert opinion about the authenticity of art. And third, another line of court decisions strongly suggest there is also constitutional protection available for such expert opinion if the expert is able and willing to set forth the factual information on which the expert relies for his opinion (see below).
Rating Agency Cases (Moody's Investors, Standard & Poor's, et al.): Matters of "Public Concern" and the "Actual Malice Standard"
The Fall 2011, Volume 2, No. 2, issue of this Art Law Journal contains an essay entitled, Opinions About the Authenticity of Art, dealing with investor claims against bond rating agencies for their ratings (depending upon the pool or "tranche" of mortgage loans being rated, often times AAA, the same rating as U.S. Treasury debt!) of bonds backed by residential real estate mortgage loans. The rating agencies' defense (which has been accepted by the federal courts, as we will see below) was that their statements about the creditworthiness of the rated bonds were protected, as opinion about a "matter of public concern", by the First Amendment to the U.S. Constitution guaranteeing freedom of speech. "Congress shall make no law ... abridging the freedom of speech, ... "14 Essentially, the rating agencies' defense is that their judgments about creditworthiness (in the form of the credit rating itself) are akin to unprovable predictions about future events.
As the Compuware Court said in 2007:
[A] viable defamation claim exists only where a reasonable fact finder could conclude that the challenged statement connotes actual objectively verifiable facts. A Moody's credit rating is a predictive opinion dependent on a subjective and discretionary weighing of complex factors.15
The Compuware decision regarding "the credit rating itself" relied on First Amendment protection of opinions, defined by the Supreme Court as opinions that are not provably false (in Ollman terms, pure opinion).16
But, where a statement is provably false, such as the factual assertions within the Compuware ratings report accompanying the credit rating itself, First Amendment protection for a statement about a matter of public concern means that a plaintiff must prove (something very difficult to prove, namely) that the defendant made the statement (that is, rendered the opinion) with actual knowledge of its falsity or with reckless disregard of its truth, to wit, the so-called (constitutional) "actual malice" standard. And reckless disregard is "not measured by whether a reasonably prudent man would have published [ ] or would have investigated before publishing" but by whether "the defendant in fact entertained serious doubts as to the truth of its publication".17
The protection afforded by the actual malice standard for matters of public concern is difficult to overstate. If a statement is of public concern it can be unreasonable, false or dead wrong (as the bond ratings in the years 2000–2007 were, in fact), and even negligent, but the agency rating opinion is not legally actionable.
Application of the Actual Malice Standard to Both the Credit Rating Itself and Its Factual Basis
A 2012 decision, Abu Dhabi Commercial Bank et al v. Morgan Stanley & Co. et al18 in the federal court for the Southern District of New York again took up the question of whether credit ratings are opinions and, if so, what kind. The agencies again argued that their ratings are subjective opinions about creditworthiness (of the mortgage-backed bonds) just like, for example, an opinion in a newspaper editorial about bonds or any other subject of public importance addressed by the editorial.
However, Abu Dhabi/2012 does not treat credit ratings as predictions of future events or as "pure statements of either fact or opinion, but as a hybrid of the two (in Ollman terms, a hybrid opinion), that is, a "fact-based opinion". Credit ratings are understood to be "statements of creditworthiness based on an analysis of underlying facts ... ".
While ratings are not objectively measurable statements of fact, neither are they mere puffery or unsupportable statements of belief akin to the opinion that one type of cuisine is preferable to another. Ratings should best be understood as fact-based opinions. When a rating agency issues a rating, it is not merely a statement of the agency's unsupported belief, but rather a statement that the rating agency has analyzed data, conducted an assessment and reached a fact-based conclusion as to creditworthiness.19
Thus, Abu Dhabi/2012 analyzes hybrid opinion in the rating agency context by categorizing ratings as "fact-based" conclusions, which are not afforded the absolute protection provided to statements which are not provably false, i.e., "pure" opinions.
Abu Dhabi/2012 requires that a credit rating opinion be (a) supported by reasoned analysis and (b) have a factual foundation or a basis in fact in order to receive First Amendment protection as nonactionable hybrid opinion. Without expressly stating so, Abu Dhabi/2012 decided that a credit rating opinion which is not supported by reasoned analysis and a factual foundation could not be defensible under the actual malice standard, i.e. the rating agency could not have believed its own opinion.20
Private Opinion Which Is Not a Matter of Public Concern
But where the rating agency sent its report only to a select group of investors, and did not publicly disseminate its ratings report, the actual malice standard would not be a good defense for the rating agency, that is, the plaintiff would not have to prove actual malice in order to prevail on its claim of actionable misrepresentation.
It is well established that under typical circumstances, the First Amendment protects rating agencies, subject to an "actual malice" exception, from liability arising out of their issuance of ratings and reports because their ratings are considered matters of public concern. However, where a rating agency has disseminated their ratings to a select group of investors rather than the public at large, the rating agency is not afforded the same protection.21
But such a private opinion is precisely what most art experts render to owners and buyers. (Although, a catalogue raisonné or an essay published in a scholarly journal and disseminated to the public would presumably be a matter of public concern, and therefore constitutionally protected.)
Guidance Derived from the Credit Rating Agency Cases
The rating agency cases leave us with the following rules about legal protection for opinion: a credit-worthiness rating is an opinion, but a certain kind of opinion — a fact-based opinion (in Ollman terms, a hybrid opinion which could be proved true or false). As such, in order to receive the "actual malice" protection as hybrid opinion accorded by the First Amendment, it must be supported by reasoned analysis and based on a factual foundation. However, even when so supported and so based, where the statement is disseminated to a "select group of investors" rather than the public at large, this hybrid opinion is not considered "a matter of public concern" and does not receive First Amendment "actual malice" protection.
These court decisions from 1999 onward about credit ratings suggest that, for example, a catalogue raisonné published, as it always is, for a public audience would receive "actual malice" protection as hybrid opinion under the First Amendment as a matter of "public concern", but an opinion on authenticity delivered to single or a limited number of owners or buyers would not be so protected (even if supported by analysis and based on a factual foundation).
If we wish to find constitutional protection for expert opinion, given privately to a single owner/buyer or limited number of persons, we will need to examine a second line of court decisions.
A Second Line of Cases More Broadly Protects Opinion (That Is, Even When Not a Matter of Public Concern Because the Opinion Is Given Privately)
As the New York Court of Appeals said in 1986 in Steinhilber v. Alphonse:
It is settled rule that expressions of an opinion "false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions.22
This constitutional protection for opinion was established by the U.S. Supreme Court in 1974 in Gertz v. Robert Welch, Inc.23 and later clarified in Milkovich v. Lorain Journal.24 Under Gertz and Milkovich, if the statements are held to be expressions of opinion that cannot be proved true or false, they are entitled to absolute protection of the First Amendment to the U.S. Constitution by virtue of the Supreme Court's categorical statement that:
Under First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.25
The Steinhilber court went on to say:
The rule to be applied may be simply stated. An expression of pure opinion is not actionable. It receives the Federal constitutional protection accorded to the expression of ideas, no matter how vituperative or unreasonable it may be. ... A "pure opinion" is a statement of opinion which is accompanied by a recitation of the facts upon which it is based. An opinion not accompanied by such a factual recitation may, nevertheless be "pure opinion" if it does not imply that it is based upon undisclosed facts. ... When, however, the statement of opinion implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, it is a "mixed opinion" and is actionable.26
An opinion accompanied by a recitation of the facts upon which it is based is not actionable because, as noted in Justice Brennan's dissenting opinion in Milkovich v. Lorain Journal Co,27 a proffered hypothesis that is offered after a full recitation of the facts on which it is based is readily understood by the audience as conjecture.28
Advice to Experts Giving Opinions
Where the expert is giving a private opinion, that is, one not published for the public (and, by definition, not a matter of constitutional "public concern") these New York cases strongly suggest that, in order to receive First Amendment protection for their opinions, experts should make a reasonably full recitation of the facts upon which their opinion is based.
It should not be necessary for the expert to write a detailed essay on why the work is, or is not, authentic. All that should be necessary is a simple recitation of the major facts relied upon by the connoisseur, following the usual three lines of inquiry: provenance, application of connoisseurship to the work's visual aspects and the work's physical properties (that is, any available forensic analysis).29 (Even if certain of those major facts should turn out to be inaccurate or wrong, it seems unlikely that the courts would involve themselves in weighing up wrong against right facts –– so long as there is some reasonable basis in fact for the expert opinion). Since many committees and boards of experts do not want to provide "roadmaps" for would-be forgers, providing "reasons" or facts to back-up their private opinions is not the usual practice in art scholarship involving private opinions for owners. But, it appears that giving some "reasons" for their opinion is the procedure that will provide experts with a First Amendment defense. In that circumstance, an unhappy owner would have to prove (again, something very difficult to prove) that the expert acted with actual malice, that is, did not believe his opinion or had no factual basis, at all, for his opinion.
It will be objected (and fairly so) that these constitutional defenses will still not keep experts who have rendered opinions in good faith from being sued. But, quite obviously, the more difficult it becomes for a plaintiff to succeed, the fewer plaintiff claims will be made.
1 The Expert Versus the Object: Judging Fakes and False Attributions in the Visual Arts, at 195 (Oxford University Press, New York 2004).
2 Id. at 180.
3 Id. at 180.
4 Id. at 180.
5 Ollman v. Evans and Novak, 750 F. 2d 970, 1021-1022 (D.C. Cir. 1984).
6 Conversation with Abigail Booth Gerdts, July 1, 2002, cited in "The Art Expert, the Law, and Real Life," in The Expert Versus the Object at 140.
7 Rachel Cohen, "Priceless," The New Yorker, October 8, 2012, at 64.
8 Vitale v. Marlborough Gallery, The Pollock-Krasner Foundation, et al., No. 93-CV-6276, 1994 WL 654494; 1994 U.S. Dist. LEXIS 9006 (S.D.N.Y. July 5, 1994).
9 Hahn v. Duveen, 133 Misc. 871, 234 N.Y.S. 185 (Sup. Ct. N.Y. County 1929).
10 The "real one" might not have been in the Louvre, but that is an issue for another day.
11 T.E. Stebbins, "Possible Tort Liability for Opinions Given by Art Expert," in Franklin Feldman and Stephen E. Weil, eds., Art Law: Rights and Liabilities of Curators and Collectors (Boston: Little, Brown, 1986, vol. 2, p. 517.
12 Lariviere v. Thaw, Index No. 100627/99, 2000 N.Y. Slip Op. 5000 (Sup. Ct. N.Y. County June 26, 2000) (Goodman J.).
13 Joe Simon-Whelan v. The Andy Warhol Foundation for the Visual Arts et al., No. 07 Civ. 6423, 2009 WL 1457177. (S.D.N.Y. May 26, 2009) (Swain, J.).
14 Forming part of the Bill of Rights, ratified December 15, 1791.
15 Compuware Corp. v. Moody's Investor Services, 499 F. 3d 520 (6th Cir. 2007).
16 See Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).
17 St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
18 Abu Dhabi Commercial Bank et al. v. Morgan Stanley et al, No. 08 Civ. 7508, 2012 WL 3584278 at 1 (S.D.N.Y. Aug. 17, 2012).
19 Id. at 36.
20 On February 4, 2013, the U.S. Justice Department brought a civil action against Standard & Poor's for its ratings of mortgage-backed bonds. The Wall Street Journal on the same date reported the "Justice Department's view that the First Amendment wouldn't protect a ratings firm if it defrauded investors by ignoring its own standards ...", and that the Illinois Attorney General, in a separate state claim, "sought to skirt First Amendment protections by focusing on what the [rating] firm told investors about its rating process rather than actual ratings". Like Abu Dhabi/2012, both the federal and state claims appear to proceed on theory that the rating agency, based on its underlying factual analysis, could not have believed its own opinion, that is, the federal and state government plaintiffs could prove actual constitutional malice on the part of the rating agency.
21 Abu Dhabi Commercial Bank v. Morgan Stanley et al, 651 F. Supp.2d 155 (S.D.N.Y. 2009).
22 Steinhilber v. Alphonse, 68 N.Y.2d 283, 286 (1986); see also Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235 (1991) (applying Milkovich to determine whether a statement is actionable based on it being capable of objective verification).
23 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
24 Milkovich v. Lorain Journal, 497 U.S. 1 (1990) (The constitutional doctrine referred to in Milkovich protects statements that cannot be proved false (which we might call "pure opinion") and statements that cannot be reasonably interpreted as stating actual facts, including name calling, hyperbole, figurative language, and imaginative expression. Milkovich goes on to address how statements that can be proved false are protected by the actual malice requirement).
25 Gertz, 418 U.S. at 339. Vol. 3, No. 3 WINTER 2012/13 PAGE 9 7154982.1
26 Steinhilber, 68 N.Y.2d at 289.
27 Milkovich, 497 U.S. at 26-27.
28 Gross v. New York Times, 82 N.Y. 2d 146, 154
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