What is Defamation? Learn How to Avoid It
Have you ever been tempted to post a rant against an art dealer or gallery or maybe another artist or photographer? While an angry tweet or Facebook post might relieve some frustration at the moment, you could be creating a new problem for yourself: defamation. What is defamation? It encompasses slander and libel and amounts to making malicious or false claims about another individual. While the First Amendment protects free speech, defamation is illegal. Learn the difference between slander and libel and how to avoid both in Daniel Grant’s article “Defamation: Avoiding Slander & Libel in the Digital Age.” You can read an excerpt of the defamation article below. Find the complete article in the 2015 Photographer’s Market, 2015 Artist’s & Graphic Designer’s Market or on ArtistsMarketOnline.com.
Keep creating and good luck!
Defamation: Avoiding Slander & Libel in the Digital Age
We all get annoyed with some person or institution now and then, and occasionally we might say something more for effect than based on a rational assessment: “So-and-So is worse than Hitler” or “(fill in the blank political scandal) makes Watergate look like child’s play.” Cable television and AM talk radio are filled with this sort of thing. But there is a legal line that cannot be crossed, when such talk becomes defamation.
Defamation is a malicious and false claim that comes in two varieties, slander (an oral statement) and libel (a written statement). Both have the potential of harming the reputation of an individual or business and exposing the person or company to ridicule, hatred, or financial loss. Penalties for both libel and slander are similar, although libel tends to be easier to prove since documentary evidence exists in the written words, while, in the case of slander, one or more individuals may be required to recall what was said, and memory can be imperfect.
Case Study #1: Nathan vs. Klein
When Paul Klein, a career advisor to fine artists, claimed that Chicago art gallery owner Ann Nathan had “cheated” a painter she represented through an “unethical” policy of deducting framing costs from the proceeds of his sales, he crossed a legal line. His claim is currently the subject of a defamation case filed by the art dealer.
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Klein’s rant against Nathan began when an artist she represented, Amy Lowry, showed him a copy of an invoice that the gallery had given her following the sale of some of her paintings in 2006. (At the time Klein published his article about Nathan, Lowry was taking his business-of-art course.) The invoice showed that one of those paintings, Chili Peppers, had sold for $9,500. With a previously agreed-upon 50 percent commission to the dealer, Lowry was to receive $4,750, although the dealer also deducted from the artist’s portion $1,900, which was the gallery’s cost of framing five of the paintings in that exhibition, leaving Lowry with $2,850.
Klein was outraged at the dealer’s actions, writing later in his newsletter that the “policies/behavior revealed here are hogwash and unethical.” He claimed that the transaction described in the invoice “is a horrible business practice!” and that the gallery “‘cheated’ [Lowry] out of $1,710!” Perhaps so, but Klein neglected to mention that the consignment agreement with the gallery, which the artist had signed, specifically stipulated that all costs for framing would be borne by Lowry and that the artist had continued to consign her work to the gallery for years after this 2006 exhibition and sale. After Klein published his remarks, Lowry terminated her relationship with the Ann Nathan Gallery.
The dealer sued Klein for making false statements that suggest “the gallery lacks integrity as a purveyor of art,” which “caused other artists to refrain from selling their artwork through the Ann Nathan Gallery, thus depriving the gallery of the monies that it would have generated from the artwork’s sale.” Klein, the complaint states, “acted with actual malice in that [he was] aware of the falsity of [the] statements, or failed to investigate the truth….”
Nathan noted, “I’ve been in business in Chicago for 34 years, and I run a very good gallery. There never was so much screaming and hollering about what sort of gallery I run until that article appeared.” Klein apologized to her (without mentioning the dealer’s name) on his website, but Nathan has not accepted the apology as she looks to make an example of him for others who might choose to make intemperate remarks aloud or in print or online.
Defamation and the Arts
Defamation isn’t a subject we usually associate with the arts since artwork itself is a form of protected expression, and opinions about art (e.g., art criticism) are also protected. An opinion isn’t correct or incorrect, just arguable, and the U.S. Constitution looks to promote speech rather than stifle it. However, when opinions are stated in a public arena as matters of fact, they may prove injurious to someone’s reputation, making them “actionable” according to Robert D. Sack, chief judge on the United States Court of Appeals for the Second Circuit and author of Sack on Defamation (Practicing Law Institute).
Sack explains, “If I were to say, ‘That dealer is a thief,’ that is a defamatory allegation, and I could be sued and lose, unless I had evidence to support my claim that the dealer actually had committed theft.” He continues, “On the other hand, if I were to say, ‘I don’t like the way that dealer does business,’ that is simply an opinion and I am entitled to my opinion.” Similarly, one might say, “I wouldn’t work with that dealer” or “Don’t deal with that person” with little fear of losing a defamation lawsuit because each statement represents an opinion, presumably said in good faith to protect someone else.
Defamation lawsuits (like all other types of lawsuits) abound. Thirteen states have “food disparagement laws,” which have resulted in lawsuits in Texas against Oprah Winfrey when she spoke about mad cow disease on her talk show and in South Dakota against ABC News after it reported on a beef filler that critics call “pink slime.” This type of lawsuit is somewhat more rare in the arts. Yet such lawsuits exist and have a history.
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Defamation in the Digital Age
The opportunities to defame someone have increased with communication technology such as e-mailing, text messaging, blogging, or social networking on sites such as Twitter, Facebook, MySpace, and YouTube. These opportunities can result in charges of both slander and libel. An individual may rush to his cell phone to text his immediate thoughts in the heat of the moment, while in the past he might have sat down to write a letter, which might be torn up the next day after he’d cooled down.
It is the ease of announcing one’s grievances to the world that has some artists’ lawyers concerned. “You have to be careful when disseminating information that disparages someone’s reputation,” says Chicago attorney Scott Hodes. New York lawyer Donn Zaretsky notes, “Let me put it this way: If one of my clients was upset with her dealer and was considering blogging or sending out an e-mail blast, I would strongly advise against it. Too risky.”
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Defense Against Defamation
Not every claim of defamation can be won in a court of law, however. “Truth is the best defense to the charge of defamation,” Hodes says. If an art dealer actually had sold a counterfeit painting to a collector, announcing that fact by spoken word or written text is neither slander nor libel. However, it may cross the line into defamation if the collector claims without some measure of proof that the dealer knew the painting was a fake.
On the other hand, Michael Salzman, a lawyer in New York City, states that offering an opinion is protected by the First Amendment to the U.S. Constitution: “If a dealer is late in paying his artists, it isn’t actionable to say that money owed to artists tends to stick to his pocket.” An artist calling his or her dealer a “jerk” or a “moron” also would likely be protected speech in oral or written form, and it would protect the collector purchasing the counterfeit, who says that the dealer should have known better.
Calling a dealer a “crook” edges into a more troublesome area because it implies wrongdoing, but the term suggests hyperbole and “puffing,” which would tend to prohibit a defamation lawsuit. Calling a dealer a “thief,” on the other hand, or asserting that the individual stole money, is a statement of fact, which would need to be supported by facts. Not being paid promptly may feel like being the victim of a robbery, but the difference is consequential in the law.
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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 a person in hot water. If your dealer 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, and, as Salzman observes, “the temptation to hit the ‘send’ button for an angry text or e-mail is very great.” Smarter is to follow the older prescription of writing it down and tearing it up later, or just sleeping on it.
Daniel Grant is the author of several books including The Business of Being an Artist and The Fine Artist’s Career Guide (Skyhorse Publishing).