“With all due respect your Honor, that has nothing to do with anything.” OR: What I Learned at the Biro v. Condé Nast Oral Arguments

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The number of defendants has grown since Peter Paul Biro filed his libel complaint against David Grann, a writer for The New Yorker, in 2011. In addition to Condé Nast (parent company of The New Yorker), Biro also seeks to recover from Gawker Media, Jackson Pollock biographer Evelyn Toynton and Yale University Press, and Paddy Johnson, editor of Art Fag City.  All parties appeared before J. Oetken of the Second Circuit for oral arguments on May 17, 2013 regarding the four actionable statements from the article.
In New York, a party seeking to recover for libel must establish five elements, articulated in Celle v. Filipino Reporters Enterprises Inc., 209 F.3d 163 (2d Cir. 2000).  J. Oetken’s line of questioning primarily revolved around the third element; fault, particularly whether the defendants exhibited actual malice.  Biro’s attorney was briefly questioned about the assertion that his client could not be classified as a public figure.  Additionally, all of the defendants questioned the sufficiency of Biro’s complaint at one point or another, leading to some debate over the effects of the Twombly/Iqbal standard (or “TwIqbal” according to J.Oetken, for which he got some laughs).
It was interesting to hear about the varying degrees to which the additional parties are connected to the case.  Attorneys for Gawker Media and Art Fag City argued that the sites simply reposted the original New Yorker article, and the attorney for Yale UP brought J. Oetken a copy of the book at issue so he could see for himself that Toynton did not once refer to the article at issue.  No decision was made on the spot but J. Oetken promised a full opinion providing a full and fair report of his views.  We’ll be keeping an eye out.
Sources: New Yorker ,  ArtNet
In the meantime, here’s a round up of art law related news from over the long weekend:
The Detroit Institute of Arts might sell off some of its art collection to settle some the city’s debts.  People all over the internet are freaking out.
Museums face new issues of repatriation when it comes to human remains.
Ai Weiwei is reconstructing six scenes from his illegal detention for exhibition in Venice. The six fiberglass dioramas were furtively transported out of China and will be available for the public to view this Tuesday.
The alternative artist collective, Silent Barn, may have finally found a new (legal) spot to call home in Bushwick.

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