Porcella v. Time, Inc.

• Decision Date: 28 February 1962
• Docket Number: No. 13389.,13389.
• Citation: 300 F.2d 162
• Parties: Amadore PORCELLA, a citizen of the Republic of Italy, Plaintiff-Appellant, v. TIME, INC., a New York corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

300 F.2d 162 (1962)

Amadore PORCELLA, a citizen of the Republic of Italy, Plaintiff-Appellant, v. TIME, INC., a New York corporation, Defendant-Appellee.

No. 13389.

United States Court of Appeals Seventh Circuit.

February 28, 1962.

C. A. Caplow, Rudolph A. Visalle, Paul M. Smith, Jr., Chicago, Ill., for plaintiff-appellant.

Don H. Reuben, Howard Ellis, George D. Newton, Jr., Chicago, Ill., Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Ill., of counsel, for defendant-appellee.

Before SCHNACKENBERG, CASTLE and KILEY, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Amadore Porcella, a citizen of the Republic of Italy, plaintiff, appeals from a judgment of the district court granting the motion of Time, Inc., a New York corporation, defendant, dismissing plaintiff's cause at his costs, on the ground that his complaint fails to state a claim upon which relief may be granted.

The parties are in agreement that the substantive law of Illinois governs in this case.

According to his brief, plaintiff, an art expert, brought this action for libel against defendant, publisher of Life, a weekly magazine, to recover damages resulting from an article published in the issue of December 7, 1959, wherein allegedly libelous language concerning plaintiff in his professional capacity as an art expert imputed to him lack of skill and competence, as well as dishonesty, trickery and misconduct, to the injury and damage of plaintiff's reputation as an art expert.

The court ruled that the language is not libelous within the meaning of the innocent construction rule, and that the language complained of constituted fair comment.¹

According to plaintiff, the article pertained to the discovery of certain paintings in California which were attributed to certain old masters by plaintiff in his capacity and profession as an art expert.

In the interest of complete accuracy we set forth the article:

WHAT IS SO RARE AS A RARE FIND?

California produces the latest reasons for viewing "Old Masters" suspiciously

The news item from California was a rarity even in that land of overnight fairy-tale fortunes. Ten paintings, owned by Italian immigrants in Pasadena, were said to be Old Masters worth millions of dollars — "the greatest art find of the century!" This was the latest of a long line of "fabulous discoveries" that have burst upon the art world in recent years. The California canvases had long been in the Naples family of Maria and Alfonso Follo. When Maria married a GI, she brought them to her new home in Pasadena and tucked them away in a closet and under a bed.

A year ago Alfonso Follo, a TV repairman who had come to live with his sister, dropped in at the neighborhood electrical supply store of Charles and Jay di Renzo and invited them to come up and see the family paintings some time. The Di Renzos came, saw and promptly made a deal with the Follos to help sell the art. Their first step: to find an expert to identify the paintings. They telephoned one Amadore Porcella, an Italian who had just authenticated a Raphael in Chicago.

Hurrying out to Pasadena, Porcella took one ecstatic look at the paintings and pronounced them masterpieces. One, he said, was a long-lost painting (above) by the 17th Century Italian master, Caravaggio, and he valued it at more than $1 million. Porcella then called in his friend, Alexander Zlatoff-Mirsky, a Chicago art restorer, for some heavy work. After a few weeks of working with "powerful solvents," Zlatoff-Mirsky declared the paintings almost as good as new and ready for unveiling.

Shortly after the "masterpieces" were made public, ominous doubts began to gather about their authenticity. A Pasadena expert said he had seen the painttings several years ago and found them worthless. A New York scholar said the long-lost Caravaggio was known through authentic copies (opposite, top) and bore no resemblance to the Pasadena work. Finally an Italian priest disclosed that the Follos' so-called Caravaggio was in fact a copy of a minor 17th Century painting (center) which hangs in Naples. The California fairy tale was showing signs of being just that.

BUSY TEAM AND ITS THRIVING OUTLET

Discovering a trove of valuable Old Masters would be a once-in-a-lifetime stroke of luck for most mortals. But Porcella and Zlatoff-Mirsky have, as one of their friends observed, a "remarkable talent" for it. Just in the course of the past year they have authenticated more than a dozen "masterpieces."

The pair's instinct for art showed up early. Porcella started out to be a painter in Rome. At the age of 17, he explains, he switched to art criticism. Around 1934 he worked briefly at the Vatican gallery (compiling a guidebook of the art collection). Since then he has written a number of books and "authenticated" innumerable paintings. Zlatoff-Mirsky worked as a painter in Russia until the 1930s when he migrated to Chicago and took up the more remunerative profession of restoring art.

In 1958 the two "experts" met for the first time in New York. Soon after, Porcella went to Chicago and settled down in Zlatoff-Mirsky's studio to inspect the paintings which the Russian was restoring. In a short time they identified "millions of dollars" worth of art, tagged with such top-drawer names as Leonardo da Vinci, Rembrandt and Raphael.

The dual role of source and thriving outlet for most of the team's discoveries is played by the Sheridan Art Galleries, a Chicago auction house which specializes in old and modern "masterpieces." For the past 20 years their highly prized consultant and art restorer has been none other than Zlatoff-Mirsky. Recently the gallery's reputation was slightly tarnished when two buyers proved that the paintings they bought there were fakes. The gallery refunded the complainants' money, later sold one of the paintings for an even higher price.

THE INS AND OUTS OF AUTHENTICATING

Active as they are, Professor Porcella and his colleague Zlatoff-Mirsky have not cornered the art "discoveries" market. Rival authenticators continue to turn up, armed with new-found treasures and long-lost masterpieces. Some of them are reputable authorities. Others are "experts" with elusive or spurious credentials. Whatever their background, many authenticators seem to be in the business at least as much for love of money as love of art.

How much an authenticator makes depends generally on the importance of the painter's name and the authenticator's evaluation of the particular painting. An expert is inclined to charge more for recognizing a Leonardo than a Lastman. Often the price of authenticating a painting far exceeds the amount paid for the work. Porcella received $2,000 for authenticating a work that was bought for half that price (left). Professor Erik Larsen received $550 for certifying a painting that originally cost his client $20 (opposite).

To enhance their prestige and give validity to their judgment, authenticators often publish books or articles reproducing their "discoveries." But their talent for writing is apt to show up best in the flamboyant certificates they compose for their "masterpieces."

The more unscrupulous authenticators have found a bonanza in providing income tax outs. A buyer who pays $1,000 for an old painting may call upon an "expert" to evaluate his purchase. For a comfortable fee, the "expert" values the painting at many times its actual worth. The buyer then donates the painting to a museum or some other institution, thereby getting a sizable write-off on his income tax for his charitable donation.

So far in the U. S. there are no legal penalties for such dealings. The quasi experts are not held responsible for their authentications. The auction houses are not required to back up the authenticity of the works they sell. And with the art market currently enjoying its biggest boom, the flood of dubious "masterpieces," both old and new, is sure to continue.

Several photographs and printed explanations appeared with the article.²

1. The question arises in this case as to what extent public comment may be made about plaintiff in the practice of his profession as an art expert, in the course of which, as he alleges in his complaint, he renders "expert counsel, advice, opinions, evaluations and authentications pertaining to paintings, drawings and related works of art, to art museums, art collectors, art dealers and persons possessing such works of art." Plaintiff claims "a reputation for professional skill, competency and proficiency as an art expert in the eyes of the public."

We know of no governmental control of this profession, or requirement that a diploma or other authorization from any seat of learning must have been held by plaintiff.

Certainly plaintiff would be entitled, as any other person would be, to redress against any false statements of fact maliciously published in regard to him. However, in his complaint, as explained in his brief, ante 1, plaintiff's denial of the truth of the statements in the article has been limited to those charging or implying that plaintiff is not a qualified and recognized art expert and those imputing to plaintiff, as an art expert, a lack of skill, competence and fitness, as well as dishonesty, trickery and misconduct.

It is these statements which plaintiff charges defendant "wilfully, recklessly and maliciously wrote, edited * * * published * * *".

In addition to plaintiff's own admission that he occupied a position in a public field, it is obvious that as an expert he was able in the appraising of works of art to not only have an effect upon the market for the paintings and the prices paid therefor, but he also was in a position to appraise art donated by patrons for charitable purposes, who thereby would be the beneficiaries of tax deductions under the tax laws of the United States. In the latter activity he was in a position to leave his imprint upon the federal government's collection of revenue from the public.

Our analysis of the...