From Zueger v. Goss (Colo. Ct. App. May 8, 2014) (some paragraph breaks added):
Defendant, Lou Lou Goss, individually and d/b/a The Estate of Earl V. Biss, Jr., appeals the judgment entered on jury verdicts in favor of plaintiffs, Paul J. Zueger, American Design Limited, Red Lodge Publishers, Inc., and Singleton-Biss Museum of Fine Art, Inc., on their claims for intentional interference with prospective business advantage and defamation….
Goss is the widow and personal representative of the estate of Earl Biss, a renowned Native American artist who died in 1998. Plaintiff Zueger is an art dealer, and the other plaintiffs are entities through which he purchases, sells, publishes, promotes, preserves, and exhibits artwork by Biss and other artists. Goss and Zueger had a dispute stemming from Goss’s contention that plaintiffs were making and selling unauthorized reproductions of Biss’s artwork, prompting Goss to make disparaging statements about plaintiffs on the Internet….
Over Goss’s objection, the trial court determined that fifteen “complained of” statements she allegedly made in reference to plaintiffs were defamatory per se as a matter of law, and so instructed the jury in Instruction No. 8. All fifteen statements were listed in Instruction No. 9, including the following: “The company is comparable to the ‘Man in Black’ for Mozart.” …
We do not see how the “Man in Black” statement contains or implies a verifiable assertion of fact, or how it could reasonably be understood as stating an actual fact about plaintiffs.
A reader would understand the statement only if he or she was familiar with the literary character referenced in it. At trial, plaintiffs had a witness explain to the jury that “Man in Black” was a reference to the “slimy,” mysterious character who kills Mozart in Aleksandr Pushkin’s play, Mozart and Salieri.
Plaintiffs suggest that the audience to whom Goss’s statements were addressed was a sophisticated group of art connoisseurs who would recognize the literary reference. 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 responsible for killing Biss. Thus, the statement lacks an underlying, verifiable factual assertion needed to support a defamation claim.
More likely, the reasonable reader would understand simply that the maker of the statement had an unfavorable opinion of plaintiffs. However, an expression of belief or opinion that does not imply the existence of a false and defamatory fact is constitutionally privileged. See Keohane, 882 P.2d at 1300 (noting that the Supreme Court [has deemed] “‘imaginative expression’” and “‘rhetorical hyperbole’” worthy of constitutional protection). None of the circumstances surrounding the publication of this statement suggests that it was intended as an assertion of fact rather than an expression of a subjective judgment. Thus, we conclude that the statement is not defamatory per se.
UPDATE: D’oh! Commenter Alex_K reminds me that, in Pushkin’s play, Salieri poisons Mozart; the Man in Black doesn’t:
“At trial, plaintiffs had a witness explain to the jury that “Man in Black” was a reference to the “slimy,” mysterious character who kills Mozart in Aleksandr Pushkin’s play, Mozart and Salieri.”
Not a reliable witness if you ask me. In Pushkin’s play, it’s actually Salieri who kills Mozart by poisoning his wine. The “man in black” is a mysterious (although not “slimy”) figure who calls on Mozart to order a Requiem and never comes back. He captures Mozart’s imagination so the composer pictures the “black man” at the table next to himself and Salieri. A harbinger of ill fate, perhaps, but not a murderer.