Chalpin v. Amordian Press, Inc.

• Citation: 128 A.D.2d 81,515 N.Y.S.2d 434
• Court: New York Supreme Court Appellate Division
• Decision Date: 19 May 1987
• Parties: , 14 Media L. Rep. 1206 Edward CHALPIN, Plaintiff-Appellant, v. AMORDIAN PRESS, INC. d/b/a Musician, Player & Listener, and David Marsh, Defendants-Respondents.

Page 434

515 N.Y.S.2d 434

128 A.D.2d 81, 14 Media L. Rep. 1206

Edward CHALPIN, Plaintiff-Appellant, v. AMORDIAN PRESS, INC. d/b/a Musician, Player & Listener, and David Marsh, Defendants-Respondents.

Supreme Court, Appellate Division,

First Department.

May 19, 1987.

Morgan Kennedy, of counsel (Ronald Skolar, attorney), for plaintiff-appellant.

Slade R. Metcalf, of counsel (Squadron, Ellenoff, Plesent & Lehrer, attorneys), for defendant-respondent Amordian Press.

Frank R. Curtis, of counsel (Rembar & Curtis, attorneys), for defendant-respondent Marsh.

Before SANDLER, J.P., and ROSS, KASSAL and ELLERIN, JJ.

ELLERIN, Justice.

The issue in this defamation action is whether summary judgment directing dismissal of the complaint was properly granted in favor of both the author and the publisher of an article in which plaintiff alleges he was libeled.

Plaintiff Edward Chalpin is the owner of a recording studio and for over twenty years has managed many recording artists and published their songs and recordings. Defendant David Marsh, a free lance journalist who has written extensively about the popular music field, is the author of the complained of article entitled "Jimi Hendrix--the Voodoo Lives On" which appeared in the October 1980 issue of "Musician, Player and Listener", a small monthly magazine devoted to news and criticism of the music business that is published by the defendant Amordian Press, Inc.

The article described the meteoric career of rock musician Jimi Hendrix who became an "overnight success" in the summer of 1967 as a result of various events that coalesced during that period including an extraordinarily successful tour of England, a widely acclaimed appearance at the Monterey Pops Festival, and the release, and immediate success, of his first single record ("Purple Haze") and his first album ("Are You Experienced"). Hendrix thereafter enjoyed great popular acclaim until his untimely death in September 1970.

In October 1965, at a time prior to his achievement of popular success, Hendrix, then an unknown, signed a contract with plaintiff Chalpin's company, PPX Enterprises, Inc. Under the terms of the contract, PPX was granted exclusive rights to his services for a three year period in exchange for $1.00, plus one percent of the retail selling price of all records sold, and minimum scale for arrangements produced.

Defendant Marsh asserts that the major theme of his article was that Hendrix was underestimated and misunderstood because during his brief period of success, before he died, he never had full control over his artistic career, being impeded by business and personal problems, many caused by "disadvantageous early business deals", including his dealings with plaintiff Chalpin. In that regard, the article contains the following passage:

No one asked about his business, not that Hendrix wasn't so befuddled on a lot of those points that his answers would have been coherent. To record as a sideman with Curtis Knight, he'd been forced to sign a $1 contract with an unbelievably unscrupulous character named Ed Chalpin, who later won two percent of his record royalties and the right to the Band of Gypsies live album in an out-of-court settlement because Hendrix's management controlled lawyers weren't willing to mount a substantial fight.

(Emphasis added)

Plaintiff claims not only that he was defamed by this reference but also that the facts, particularly with reference to his contract with Hendrix, are grossly misrepresented. Defendant Marsh asserts that his primary source for the facts of Hendrix's life and business dealings was an authoritative 500 page biography of Hendrix written by David Henderson and published in 1978. Parenthetically, it may be noted that the Henderson biography includes a verbatim recital of the entire contents of the contract referred to in Marsh's article. Defendant Amordian, the publisher of the article here in issue, alleges that it relied exclusively upon the defendant author Marsh, as an experienced and reliable writer in the field, for the accuracy of the facts in his article.

There can be little question that the complained of description of plaintiff as "an unbelievably unscrupulous character" is one that would, in terms of its impact upon the average reader, tend to hold him up to contempt, aversion or disgrace or " 'induce an evil opinion of him in the minds of right thinking persons' ", and, therefore, would, if false, be libelous per se. (See, Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 379, 397 N.Y.S.2d 943, 366 N.E.2d 1299; cert. denied 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456; Silsdorf v. Levine, 59 N.Y.2d 8, 462 N.Y.S.2d 822, 449 N.E.2d 716.)

Notwithstanding that the statement is defamatory, the determinant as to whether it may serve as the predicate for an action in damages rests upon the character of the statement--that is, whether it is one of fact or opinion, which is a threshold issue of law to be decided by the court. (Rinaldi, supra, 42 N.Y.2d at 381, 397 N.Y.S.2d 943, 366 N.E.2d 1299.) Determining whether particular words express fact or opinion is frequently fraught with difficulties stemming from the varying subjective perceptions engendered by language and extensive judicial analysis has been evoked in the search for a mechanism that will enable categorization of the elusive (See, e.g., Ollman v. Evans, 750 F.2d 970, where the 11 member court, sitting en banc, issued 8 separate opinions directed toward that issue). However, the alleged defamatory statement here complained of, that plaintiff is "an unbelievably unscrupulous character", is the sort of subjective moral evaluation that readily falls within the ambit of what the average reader would understand to be the author's "opinion" rather than fact, and Special Term was correct in so characterizing it.

It is now well settled that an expression of pure opinion is not actionable because of the constitutional protection accorded to the expression of ideas, no matter how vituperative or unreasonable. (Steinhilber v. Alphonse, 68 N.Y.2d 283, 508 N.Y.S.2d 901, 501 N.E.2d 550; Rinaldi v. Holt, Rinehart & Winston, supra.)

The rationale for this immunity, as set forth in Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340, 94 S.Ct. 2997, 41 L.Ed.2d 789 is that:

"Under the 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". (at pp. 339-340, 94 S.Ct. at 3007)

Toward that end, a defamatory statement of opinion will be accorded complete immunity if it is either accompanied by a recitation of the facts upon which it is based, or, alternatively, if not so accompanied, does not imply that it is based upon undisclosed facts which justify the opinion but are unknown to those reading or hearing it. (Steinhilber v. Alphonse, supra.) In the first instance, the presence of the factual predicate upon which the opinion rests ensures "that the reader has the opportunity to assess the basis upon which the opinion was reached in order to draw his own conclusions concerning its validity" and thus, even if those facts do not support the "opinion", no action will lie. (Silsdorf v. Levine, 59 N.Y.2d 8, 13-14, 462 N.Y.S.2d 822, 449 N.E.2d 716.) On the other hand, a bald statement of opinion, without more, bespeaks its subjective derivation.

When, however, a statement of opinion implies that it is based upon undisclosed facts which justify the opinion--that is, implying that the author knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking--it is deemed a "mixed opinion" and is actionable. (Steinhilber v. Alphonse, supra, 68 N.Y.2d at 289-90, 508 N.Y.S.2d 901, 501 N.E.2d 550; Rand v. New York Times Co., 75 A.D.2d 417, 422, 430 N.Y.S.2d 271; see also Hotchner v. Castillo-Puche, 551 F.2d 910, 913, cert. denied sub nom. Hotchner v. Doubleday & Co., 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95.)

There is yet one further permutation of the fact/opinion dichotomy which commands attention, that is, where the derogatory statement of opinion gives the impression that it sets forth the facts upon which it is based, but those underlying facts are either falsely misrepresented or grossly distorted. This, too, is held to be a "mixed opinion" which is actionable (Silsdorf v. Levine, supra; Rand v. New York Times, supra ), consistent with the recognition that there is no constitutional value in false statements of fact. "Neither the intentional lie nor the careless error materially advances society's interest in 'uninhibited, robust, and wide-open' debate" on public issues" (Gertz v. Robert Welch Inc., supra, 418 U.S. at p. 340, 94 S.Ct. at 3007 citing New York Times v. Sullivan, 376 U.S. 254 at 270, 84 S.Ct. 710, at 721, 11 L.Ed.2d 686).

It was this type of "mixed opinion" which was before the court in Silsdorf v. Levine, supra. In that case, alleged defamatory statements of opinion, contained in a letter distributed in the course of a political campaign, were held sufficient to form the basis for a defamation claim in light of allegations by plaintiff that facts set forth in such letter in support of the opinions were "gross distortions" and ...