5/14/2014 11:10:00 AM,
Jeff D. Gorman
(CN) - Colorado art dealers who were likened to Mozart's "man in black" were not defamed because the reference was too highbrow, the state appeals court ruled.
The case concerns online statements in which Lou Lou Goss contended that Paul J. Zueger, American Design Ltd., Red Lodge Publishers Inc. and Singleton-Biss Museum of Fine Art Inc. made and sold unauthorized reproductions of the work of her deceased husband, Native American artist Earl Biss.
Zueger and the other plaintiffs sued for defamation over the 15 statements, including, "The company is comparable to the 'Man in Black' for Mozart."
A witness in the Denver trial explained that the "Man in Black" was a mysterious character who kills the legendary composer in Aleksandr Pushkin's play, "Mozart and Salieri."
The court found all of the statements defamatory and listed the remarks in instruction No. 9 to the jury, saying the should determine only if Goss published the statements and, if so, whether the statements caused actual damages, subject to the affirmative defense of "absolute truth."
Finding in favor of the plaintiffs on that claim, the jury ordered Goss to pay $10,000 for defamation. The jury also found that Goss owed $86,000 for intentional interference with prospective business advantage.
In a partial reversal Thursday, but the Colorado Court of Appeals agreed with Goss on Thursday that the Mozart comment was not defamatory per se.
"Therefore, we must reverse the defamation verdict and remand for a new trial on this claim," Judge David Richman wrote for a three-member panel. "We make no determination as to whether the other statements included in Instruction No. 9 are actionable."
The six-page opinion finds the reference too esoteric to be defamatory.
"Plaintiffs suggest that the audience to whom Goss' statements were addressed was a sophisticated group of art connoisseurs who would recognize the literary reference," Richman wrote. "However, even to the extent that a person reading the statement online would understand its literary meaning, as plaintiffs urge, to say that plaintiffs are 'comparable' to a literary character cannot reasonably be understood as an assertion that they were repsonible for killing Biss."
The statement should be more properly construed as a constitutionally protected expression of opinion.
"Because we can't discern from the record which of the statements the jury relied upon in finding liability, and because it may have relied on the 'Man in Black' statement, a new trial on the defamation claim in necessary," Richman wrote.
In affirming contractual interference finding, Richman said that the plaintiffs relied on ample testimony from expert witnesses "to support their contention that sales by plaintiffs of Biss' work declined as a result of Goss disparaging them online."