Art and Artifice

Public Art Funded by Law

2012-03-06T14:22:00.005Z

Having just returned from a break to the US, which included some time in San Francisco, I was interested to learn how a number of the city's public artworks are funded. It seems that there is a great piece of legislation that requires all developers of projects over 25,000 square feet in downtown San Francisco spend at least 1% of the construction costs on onsite art that can be viewed by the public for free. Further, a new bill has now been introduced that would require developers of all large developments citywide to pay the 1% "art fee" and also create a public art fund overseen by the San Francisco Arts Commission to which developers could donate instead of having to commission the art themselves.

Now if we can just get Boris to propose similar legislation for London….

Some public art in San Francisco:

In London:

Source: The Huffington Post, 27 February 2012, San Francisco image: Flickr, Lorianne DiSabato, London image: Flickr, Jeff Van Campen

Ugly Renaissance Babies and My Daguerreotype Boyfriend

2012-03-05T21:21:00.005Z

I may as well admit from the outset that this blog post has only the most tenuous connection with the law. I recently stumbled upon a brilliant website dedicated to Renaissance art… Ugly renaissance babies pretty much lives up to expectations. WARNING: It is a dangerously distracting blog.

Not a fan of the Renaissance? Need something a bit more modern and up to date? My Daguerreotype Boyfriend offers an alternative take on early photography and similar hours of amusement.

In an attempt at adding a legal perspective to an otherwise frivolous blog post, I hereby reopen the debate as to whether a photograph of a painting (or other art work) can ever constitute a separate copyright work. In other words, if one of the submissions to either website is made by someone other than the photographer – is that person (or the website) potentially infringing copyright? It is worth noting that most images on both websites do appear to have been taken by the submitter (and in most cases the copyright has expired).

Luckily, many of these issues have already been considered by Francis Davey in relation to the NPG’s case against a wikipedia administrator who was accused of downloading approximately 3,300 high resolution images from the NPG’s database. This case (presumably) settled - a quick website trawl does not show much happening after the initial C&D letter (but any updates from readers in the know would be appreciated). In essence whilst the position is fairly clear in the US (a photograph of a painting does not attract copyright protection – Bridgeman v Corel), it is less clear in the UK. Rather than rehash the entire article, I refer interested readers to Francis Davey’s excellent blog.

For those less interested in such copyright intracacies, I hope you enjoy one or both of these irreverent takes on old art.

Finally, my haphazard internet browsing has unearthed WIPO’s photographer orientated (& user friendly) summary of the “legal Pitfalls in Taking or Using Photographs of Copyright Material, Trademarks and People”. Enjoy.

Wedgwood museum in danger of closure

2012-03-01T00:55:00.000Z

A High Court judgment has left the Wedgwood Museum, rated by UNESCO as one of the UK's top 20 cultural assets, in danger of closure.

Wedgwood's instantly recognisable style
Photo: Lionel Allorge

A Birmingham court held that the museum's collection was an asset of Waterford Wedgwood Potteries, the china and glassware company which went into administration in 2009. The struggling firm had debts of millions, and the judgment means that the museum's collection can be sold off to pay that deficit.

The collection was separated from the trading arm of Wedgwood in the 1960s and gifted into the care of a trust company, in order to protect it from just this sort of commercial risk. But pensions legislation passed in the 1990s (in response to the Robert Maxwell pensions fund scandal) has had an unexpected effect: it means that the Wedgwood museum company, as the last solvent company among all the insolvent Wedgwood group companies, takes legal responsibility for the entire debt owed by the group's employers - in this case, all £134.7m of it.

The whole Wedgwood collection is estimated to worth only a fraction of this deficit (somewhere between £11m - £18m). It includes paintings by British masters Reynolds, Stubbs and Romney; two rare Portland vases, valued at £1m each; an archive of over 100,000 documents and manuscripts; and of course a world class collection of chinaware.

In giving his judgment the judge said that this was 'a sad conclusion for those who are concerned to preserve a collection which is, as everyone recognises, part of our cultural heritage and of immense importance'. However, a campaign has been set up to save the museum following the controversial judgment and the museum itself has said that it will 'strive for a solution which will save the Museum's Collections for the nation and keep them on display'.

Would Germany and France find the red bus photo infringed?

2012-02-27T00:28:00.003Z

You will be relieved to know that this is my last post, for the time being, on the red bus case...

France and Germany - moving towards both politcal and copyright law unity
[I've run out of red bus photos]

Again the inspiration for this post comes from the 1709 blog organised red bus seminar last week. Brigitte Lindner provided a fascinating comparison of the way the German and French courts would have approached the red bus problem. A very general summary of her talk is below.

Subsistence
France follows a fairly similar approach to the UK. A photograph attracts copyright protection if it is original and carries the “imprint of the personality” of its author. What this means in practice largely accords with the principles applied in Temple Island i.e. the court will look at a combination of the exposure, lighting, composition etc to determine whether a work is original.

By contrast Germany has a two-tier approach to photographic protection. A mere “photograph” i.e. any old photo with no creativity or artistic quality is treated as a “relative right” and protected for 50 years from the date of publication. The title of “photographic work” is awarded to “personal intellectual creations” which are similar to the French original photographs (angle, focus, colour etc are all important in this assessment).

Whilst Brigitte considered that the Claimant’s red bus photo would be protected as a photographic work in both France and Germany, she noted that it would definitely have been protected in Germany as a photograph at the very least. [Or would it, if the heavily manipulated image was arguably a collage?].

Infringement
France has only one very broad test for infringement which includes making adaptations and is general enough to encompass not just unchanged copying but cases where “characteristic and original elements” have been taken.

Germany has two types of infringement (1) reproduction – which covers unchanged copying and (2) adaptation – which covers alterations of an existing work.

A defence of “free use”?
Although Brigitte considered that the defendant’s images would have infringed in both France and Germany, she considered the potential for the Germany “free use” defence to apply.

Not to be confused with “fair use” (US) or “fair dealing” (UK), free use is essentially a freedom of expression defence. In order to qualify for the defence the new work must be so separate from the original that the first work “fades” in comparison. [This surely incorporates a judicial assessment of aesthetic quality]. Birgitte considered that the defendant would have needed to move further away in order to qualify for this sort of protection and could not rely on the defence in Germany.

Does anyone have experience of French or German law and can offer an insight into how this approach to photographic subsistence and infringement applies in practice? I noted a recent case in France (reported by TechDirt and the BJP) where the Le Corbusier Foundation appears to have successfully sued Getty for stocking some photographs of Le Corbusier chairs without its permission. Any information on that case would be of particular interest.

Is a cropped photo always a "substantial part" of the original image?

2012-02-26T20:28:00.001Z

Publish Post: A red bus yesterday

The Red Bus case spawned a dedicated 1709 blog seminar at Olswang last Tuesday. The panel of speakers consisted of Michael Edenborough QC who represented the successful claimants, Brigitte Lindner, an expert in civil law and Sam Ricketson, an Australian academic.

One of Michael Edenborough’s more interesting arguments was that a cropped photo is, by its very nature, a substantial part of the original photograph. Whilst there is a logic behind such a presumption it is unnecessary and potentially misleading to incorporate it into the test for what is a “substantial part”.

Is the photo on the right a substantial part of the one on the left?
[Almost certainly].

But does it follow that the photo on the right uses a substantial part of the photo on the left?
[?]

This proposition was taken a step further by Edenborough who suggested that the cropped photo (i.e. a substantial part of photo 2) would [inevitably] infringe photo 1 (on the left, above). I'm not convinced that such a solution is helpful or even sensible and incorporates a measure of distance from the original copyright work which is not envisaged anywhere in the legislation or case law. In my opinion (and based on my understanding of Designers Guild) a substantial part of photo 1 could very easily be an insubstantial part of photo 2.

It would be interesting to better understand the reasons and motivations for cropping photographs in the first place. If the photographer readers out there (Tom Ang, I'm particularly talking about you) could provide some insight, it would be much appreciated.

The New Economy of Art

2012-02-24T09:24:00.000Z

Artists need new business models, not hand-outs:
how best can lawyers help them?

On Wednesday 14 March a debate is to be held at Conway Hall, 25 Red Lion Square, London, WC1R 4RL. The title of the debate is "Market Matters" and it's the first in a series of events under the banner of The New Economy of Art -- a collaboration between Artquest, the Contemporary Art Society and the Design and Artists Copyright Society (DACS). According to the promotional information,

Market Matters will explore the complex and overlapping motivations behind various kinds of ‘art market’ from commercial galleries, private dealers and auction houses to art fairs, online selling and gift economies. The debate will provoke thinking about how artistic practice intersects with and creates its own economies.

Speakers Louisa Buck, Kate MacGarry and Matt Roberts will set the scene before an open dialogue with the audience.

This debate is part of The New Economy of Art – a series of open discussions that focus on the economic developments and opportunities in the cultural sector that impact on artists. It will share knowledge and provoke action to enable artists to influence the future ecologies and economies in which they operate".

The debate runs from 6.30pm to 8pm and is followed by drinks. Admission is for the very modest fee of £4. For more information click here; to book online click here.

Given that lawyers have such an important part to play in helping to transform "opportunities in the cultural sector" into some sort of income for artists and designers on one hand and commercial purchasers and licensees on the other, it's hoped that there will be plenty of them in attendance.

Will a lawsuit prevent Land artist Christo from draping the Arkansas river?

2012-02-23T21:35:00.000Z

Wolfgang Volz's photograph of a 1992 drawing from Christo's
"Over the River" project for the Arkansas river in Colorado

Christo and his wife, Jeanne Claude, requested twenty years ago to U.S. Federal Authorities to realize their project called “Over the River”, which consists in draping with aluminum-coated fabric approximately 10 km over 67 km stretch of the Arkansas river in Colorado.

The project website overtheriverinfo.com shows that plans are to display the fabric for two weeks by August 2014. In order to cover the cost of this project, which will be around USD 50 million, the artist intends to pay for it through the sale of original artwork linked to the exhibition.

This project is strongly challenged by an environmental group called “Rags over the Arkansas River” which filed a lawsuit on February 1, which targets the U.S. Bureau of Land Management, which approved the project. The plaintiff argues that this project would mostly benefit outsiders and diminish Colorado’s wild life and nature: indeed, for at least two years, there will be drilling holes in the canyon to place rock-bolts and anchors to hold the drape in place, with potential negative effects on animals as: bats, birds and sheep. Therefore, the organization deems the project must be considered and valued as a massive resource extraction plan under federal law rather than as a work of art.

On the other hand, Christo’s lawyers counter argue that the project will be entirely financed by Christo and would promote Canon City, a part of Colorado where economy is still bad.

British Land artist Chris Drury, who has constructed similar art installations involving nature, questioned Christo’s motivations behind “Over the River" saying that “Any work of art that adversely affects a whole ecosystem has to be utterly thoughtless, ego-driven statement which I would condemn, Land or Earth art can effectively question how we live and relate to our fragile planet. I am not sure that such questions have ever concerned Christo”.

What do you think? Do you think that potential harm to wildlife and nature outweighs the artistic benefit of Land art?

When the chips are down (or lost) the courts can still award compensation

2012-02-19T10:38:00.001Z

In a recent German case, first reported on the IPKat here, an artist was awarded €2,000 for the loss of some 22 year old chips (known elsewhere in the world as "fries" (French or freedom). The chips were used as the basis for "pommes d'or" (a golden cross made from two chips).

An alternative to the golden arches?
Photo: Stefan Bohnenberger

The golden chips were the work of artist Stefan Bohnenberger. Mr Bohnenberger argued that both his Golden chips and the more biodegradable template were works of art and that he was entitled to compensation from the gallery for the loss.

The Higher Regional Court of Munich (OLG München, case reference: 23 U 2198/11) agreed with the artist but refused to rule on the question of whether or not the fries were art (presumably if they were, they would be a sculpture). Instead the court awarded €2,000 on the basis of the chips' economic value. Key evidence appears to have been given by an art collector who said she had offered to pay €2,500 for them. However, as the artist had only asked for €2,000 in compensation, that was the amount the court awarded together with an order that the art gallery pay 90% of the artist's costs.

The award was made on the basis of the gallery's breach of its contract to store the chips securely. It is worth noting that this was an appeal from a lower court ruling which held in favour of the gallery on the basis that it could not see any loss to the artist.

Can a mouldy bit of potato be art? Where should the line be between what the public/artistic community considers to be art and what the courts treat as art? It is worth returning briefly to Lucasfilm v Ainsworth which did not made any hard and fast definitions of sculpture but endorsed the view of Richard Meade QC (in a different case - Metix v Maugham that “a sculpture is a three-dimensional work made by an artist's hand” [35].

California resale royalty: Going nowhere?

2012-02-09T20:21:00.000Z

Last year a class of artists filed a lawsuit against auctions houses Sotheby's and Christie's in Los Angeles, California, for failing to collect their artists' 5% resale royalty (reported in Art and Artifice here and here). Then the auction houses fought back, filing a motion to dismiss the artists' case on the grounds that the resale royalty demanded by California law is unconstitutional and therefore unenforceable, which the courts have yet to rule on.

Now, another case suggests that the legal winds may not be blowing in the auction houses' favour. Over a year ago artist Mark Grotjahn sued art collector Dean Valentine for failure to pay the resale royalty on three works of his which Valentine had sold.

Like the auction houses, Valentine had argued that the resale royalty was unconstitutional, and that therefore he did not need to comply by paying Grotjahn. The Federal court had rejected this argument and the case had been sent back to state court, where the case was due to go to trial in less than a month, on 6 March.

Mark Grotjahn's Untitled (Red Yellow and Blue Face 821)

But, after court-ordered mediation, a settlement was reached. The LA Times reports that Valentine agreed to pay Grotjahn US$153,255, a sum which includes the 5% resale royalty on one of the paintings sold, plus legal fees.

Valentine said that the case was stopped because of the expense of pursuing it further, and commented 'It doesn’t change the fact that this is a terribly written law that creates massive problems. Instead of actually helping artists ... it only makes the artistic one-percent richer.'

Nonetheless, the fact that Valentine settled, rather than play out his argument that the resale right is unconstitutional may be telling in the light of the auction houses' current case. Will Sotheby's and Christie's succeed in bringing the resale royalty down - or is the writing on the wall?

Copyright in a murder case

2012-02-06T22:51:00.000Z

Some unusual discussions on copyright infringement were raised last month following the sad case of murdered infant Declan Hainey in Scotland.

Declan’s body was found in March 2010, having been hidden for some months by his mother Kimberley Hainey. In December 2011 Kimberley Hainey was convicted of her son’s murder, and last month she was given a life sentence with a minimum term of 15 years.

Declan Hainey

In reporting the story the BBC wanted to use photographs of Declan which had been produced at trial. However, of the seven photos which the BBC wished to use in whole or in part, all were taken by Kimberley Hainey, who therefore owned the copyright in them. One of the issues surrounding their use was, therefore, that her permission would normally be required to publish them.

The BBC applied and was refused permission from the Scottish authorities to publish the photographs. It applied again, relying on two clauses in the Copyright, Designs and Patents Act 1988 (CDPA). The first was s45, which states:

"(1) Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings.

(2) Copyright is not infringed by anything done for the purposes of reporting such proceedings; but this shall not be construed as authorising the copying of a work which is itself a published report of the proceedings."

Second was s171(3):

"Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright on grounds of public interest or otherwise."

The judge found that the BBC’s intended use of the images for illustrating reports of ‘judicial proceedings’ was legitimate under s45. Additionally it found that such publication was in the ‘public interest’ and therefore that s171 also applied.

However, the judge denied the BBC permission to publish images of Declan with his grandmother Elizabeth Rodden. He stated that in that instance Rodden’s right to privacy under Article 8 of the European Convention on Human Rights must take precedence over the BBC’s Article 10 right to freedom of expression, despite the BBC’s argument that ‘publication of a photograph of the child with his grandmother would heighten legitimate public interest in case’.

Read more about the case on the IPKat blog here.

He who D.A.R.E.’s infringe copyright fails… but what’s the damage?

2012-02-05T13:53:00.000Z

Pictures of drugs can cost a lot of money...
so how much is a picture of drugs and money worth?
Courtesy of Images_of_money on Flickr

There have been a number of recent cases in the Patents County Court for England and Wales which have affected the world of art. The “red bus” decision has attracted the most attention but another case, Hoffman v D.A.R.E, regarding the application of the “innocent infringer” defence and calculation of damages awards for infringement of photographs is, perhaps, of greater practical significance for photography professionals and artists generally.

This was a case where the finding of infringement was relatively straightforward. 19 of Mr Hoffman’s photographs had been used on the defendant’s websites, D.A.R.E did not have Mr Hoffman’s permission to use the images. However, it mistakenly believed that it had a right to use the photographs because they appeared on a Department of Health website and consequently were assumed to be covered by Crown copyright.

The innocent infringer

D.A.R.E claimed that it had not paid Mr Hoffman because it “had not intentionally or knowingly infringed his copyright”. However, the fact that D.A.R.E thought that it had permission is not a defence under section 16 of the Copyright Designs and Patents Act. [Section 16 sets out the various acts that constitute copyright infringement]. By hosting the images on the various websites, D.A.R.E was found to have communicated the works to the public (section 16 (1)(d) as set out in more depth in section 20(2)(b)).

D.A.R.E then sought to rely on section 97 which appears to offer a defence to infringers who are “innocent” of the infringement. As the judgment points out, this is not strictly speaking a defence but rather a bar to damages.

Although D.A.R.E understood that it had the right to use the images, this was not sufficient to rely on the innocent infringer test. As the judgment explains:

“None of this [belief that D.A.R.E had the right to use the images] amounts to a defence under s.97. [D.A.R.E.] understood it had permission under what it understood to be the relevant copyright. This is a very different thing from an argument that the defendant had no reason to believe copyright subsisted at all…. To believe that one had permission under (in this case) Crown copyright is the opposite of a belief … that there is no copyright in existence.” (my emphasis).

This places the requirement for satisfying the innocent infringer test as extremely high and it is hard to think of many occasions where it can be relied upon. Given the low threshold for artistic works, reliance on this defence is likely to only apply where a work is so old that it is reasonable to assume that it has fallen into the public domain.

What’s the damage?

Mr Hoffman assessed his damage as £250 per photograph per year (i.e. £19,000 over the four years that the photographs were on the websites). He also claimed an additional 50% uplift for the use of thumbnails on the websites. This was not the correct approach. Rather “the right sum by way of damages is the sum which a willing photographer in Mr Hoffman’s position and a willing user in D.A.R.E’s position would have agreed upon”.

In reaching the assessment of damage, the judge made the following observations:

“the parties would have agreed a single fee to use an image, having regard to the period of use. I do not doubt the fee would have been larger for a longer period of use but it would not” be the same amount for every year of use.

“it seems to me unlikely that a further fee … would be agreed for thumbnails of the very same image.”

He ultimately reached a figure of £10,000 in damages with interest calculated at 4% (i.e. 1% above the average base rate for the period).

Whilst the exact basis for this sum is unclear, the factors which went into the decision making process are set out above. Finally, it is worth remembering that D.A.R.E was a UK charity [it is now insolvent], this may have influenced the amount awarded.

Are you a photographer? How much would you charge for the use of 19 photographs on two websites? Would that amount change if you were negotiating with a charity? Any other insights into the quantum of copyright are, as always, greatly appreciated.

Originality or author's own intellectual creation? What is the legal test for copyright subsistence in photographs?

2012-01-30T22:42:00.001Z

Is this the red bus that sparked
a thousand copyright debates?

One of the many insightful comments in response to the Art & Artifice debate surrounding the "Red Bus" decision came from Francis Davey.

He wrote in response to my musings regarding the current test for copyright subsistence in photographs:

Does Painer apply? Painer was considering the "own intellectual creation" standard for European Law, but common law protection is, arguably, lower (I'd say - almost indisputably).

Surely recital 16/article 6 of 2006/116/EC preserved the common law level of protection for "uncreative" photographs? The 1988 was not, and could not, be amended to raise that level of protection by a regulations made under the 1972 Act, so the law must, presumably, be the common law. Unless some new, countervailing, principle exists that has never been properly articulated.

My understanding was that there are not two systems that run in parallel for assessing whether a photograph has artistic copyright and that following Infopaq, which was confirmed in Painer, the correct test is now "author's own intellectual creation" rather than the common law approach of originality. However, lacking complete confidence in my convictions, I deferred to a higher authority, namely Dr Justine Pila of Oxford University. She, diplomatically, replied as follows:

I agree with you both.

1. Is the common law originality standard lower than the EU ("author's own intellectual creation") standard?

*If* the common law standard requires "skill and labour" only, and *if* the EU standard requires creativity (as per Floyd J and AG Mengozzi in Football Dataco) then *in principle* yes - and this certainly was the view of AG Mengozzi in that case ("copyright protection is conditional upon the database being characterised by a ‘creative’ aspect, and it is not sufficient that the creation of the database required labour and skill").

2. Does the Term Directive permit Member States to confer copyright protection on photographs which satisfy the common law originality standard but not the EU standard?

I think it does. Article 6 of the Term Directive requires that photographs satisfying the EU standard be protected as literary or artistic works within the meaning of Berne Art 2 - ie, by lit/artistic copyright - without the imposition of any other criteria. And it expressly permits [Member States] to "provide for the protection of other photographs", ie, photographs not satisfying the EU standard. So the only question is whether UK law still recognises the sufficiency of the common law originality standard with respect to photographs.

3. Does UK law recognise photographic copyright in the absence of "creativity"?

I think it does, consistent with Antiquesportfolio.com (2001 Ch).

4. Does it follow that UK copyright only subsists in photographs if they are creative, or that the UK and European tests of photographic copyright differ?

No, I don't think so, because I don't think that Painer requires creativity for photographic copyright. Rather, it requires (a) that the subject matter of a photograph leaves scope for “sufficient formative freedom”, and (b) that the photographer exploit that freedom so as to leave his “mark” on the resulting work (ie, the photograph). (And it held that in the case of a photographic portrait, there is sufficient formative freedom, and thus the possibility of copyright, as "the photographer can determine, among other things, the angle, the position and the facial expression of the person portrayed, the background, the sharpness, and the light/lighting.") In my view this is perfectly consistent with the UK approach as adopted in Antiquesportfolio.com, where the court held that UK copyright will always subsist in a photograph of a single, static non-spherical 3-d object (eg, antiques) on the basis of the judgement involved in positioning the object, determining the angle at which it is to be taken, and determining the lighting and focus.

So I agree with you, that the European and UK tests of photographic copyright are the same, and conform with that adopted in Painer. The critical question in any particular case is whether the subject matter leaves scope for “sufficient formative freedom” which the photographer exploits so as to leave his “mark” on the resulting work. This test seems better captured by the "author's own intellectual creation" formulation than the "skill and labour" one; though in fact UK courts have often expressed the common law originality standard in terms of "skill, labour and judgement", which is arguably not different from the European "author's own intellectual creation" test. And I personally doubt that the EU test requires creativity - it's almost identical to the Canadian test, which was formulated partly so as to underline that creativity is *not* required. (That at least is my memory.)

Do you agree? Where is the line in your jurisdiction? Where do you think the line for copyright subsistence should lie? Please join in the debate using the comments section below.

Note: no weblinks were included in the correspondence. They have been included in this blog for readers' ease of reference.

Red bus suggests copyright law is not black and white: an Italian perspective

2012-01-29T22:23:00.004Z

A red bus in Italy - including a
reference to another
English copyright case

The English case - Temple Island Collections Ltd v New English Teas Ltd - is arising a great discussion not only in England but even in other European legal circles.

As Rosie correctly underlined in her last post on January 24, this English decision could be objectionable since the Judge focused more on the defendant's attempt to sell more tea - thanks to the association to a famous image - rather than on considering whether a substantial part of the original photograph was copied or not. Therefore, the Judge seemed to be more interested in protecting idea rather than the expression of it, going beyond the scope of copyright.

In Italy, as in other civil law countries, the decision would have probably been the same: the red bus photograph would be considered a copyright protectable work according to art. 2, n° 7 of Italian Copyright law (law n° 633, on April 22, 1941), so that the defendants would have committed a copyright infringement taking a substantial part of the claimant's photo.

The level of creativity requested to a photograph in order to be considered copyrightable is quite low in Italy. It is sufficient, according to caselaw, that the author's personality emerges through, by way of example: the selection of lights and their sources, the visual angle, the choice of warm and cold colours, at the end, i.e. when the photograph is not a mere copy of reality lacking of any creative trait.

Nevertheless, in Italy the claimant would have pleaded not just copyright protection but even unfair competition, which can be considered, unlike the English tort of passing off, a general remedy against damaging dishonest practices committed by competitors.

Indeed, the defendant's behaviour could theoretically embody two of the three hypothesis of unfair competition provided by article 2598 of the Italian Civil Code. The first hypothesis occurs when the competitor uses names, distinctive signs or makes any act that can create confusion with the competitor's products or activity, whereas the second one punishes the disparagement of a competitor's reputation or appropriation of a competitor's goodwill.

The defendant's behaviour could be considered confusing, besided being deemed as misappropriation of the claimant's goodwill according to the Italian provision on unfair competition.

Motion to dismiss filed by Sotheby's in California resale royalty claim

2012-01-27T09:58:00.001Z

In October 2011, a lawsuit against Sotheby's and Christie's commenced in Los Angeles (reported in Art and Artifice here). The claimants - a class of artists including Chuck Close, Laddie John Dill and the estate of Robert Graham (and, in Christie's case, the Sam Francis Foundation) - are arguing that the auction houses unlawfully failed to collect the 5% artist's resale royalty that California law demands. The state's Resale Royalty Act (CRRA) says that:

'When a work of fine art is sold at an auction or by a gallery, dealer, broker, museum, or other person acting as the agent for the seller, the agent shall withhold 5 percent of the amount of the sale, locate the artist and pay the artist'.

At the time the suit was filed Christie's stated that 'it views the California Resale Royalties Act as subject to serious legal challenges'. Now co-defendant Sotheby's has duly filed a motion to dismiss the artists' suit. Its main arguments are:

that the CRRA 'violates the Commerce Clause of the US Constitution in that it constitutes an impermissible direct regulation of interstate commerce and serves no legitimate local interest' (that is, it violates the constitutional principle that no state may control commerce in any other state);
that the CRRA 'effects a per se taking of private property in violation of the US and California constitutions', i.e. that the resale percentage is an unlawful taking of the auction houses' own property in a sort of legalised theft; and
that 'the Copyright Act of 1976 both expressly and impliedly preempts the CRRA'.

The motion is due to be heard on or after 12 March.

Red bus suggests copyright law is not black and white

2012-01-24T22:14:00.002Z

A recent case in the Patents County Court for England and Wales concerned the nature and scope of copyright protection for a computer manipulated monochrome photograph of a bright red bus going over Westminster Bridge. The photograph may be of a specific subject matter but the case has much wider implications for the worlds of photography and graphic design.

Photo 1

The court considered two main questions (1) is Photo 1 a copyright protectable work and (2) if so, has a substantial part of Photo 1 been copied to make Photo 2.

Has Photo 2 (on the right) copied a "substantial part" of photo 1 (on the left)?

Is photo 1 a copyright work?

Although a photograph is one form of artistic work which is protected under the Copyrights Designs and Patents Act (CDPA), not every photograph is an artistic work. Following the European cases of Infopaq and Painer, for copyright to subsist in a photograph it must be the “author’s own intellectual creation”. Painer went into considerable detail as to what did and did not constitute the “author’s own intellectual creation” but it effectively means that not every snapshot that you take on e.g. your smart phone has copyright protection.

By way of example, the judgment refers to an Austrian decision (O (Peter) v F KG) which related to photos of grape varieties. This found that “what is decisive is that … the [photographer’s] personality is reflected by the arrangements (motif, visual angle, illumination etc).” It is hard to avoid an aesthetic judgment being made under this approach (even though the CDPA explicitly says that '“artistic work” means ... [a] photograph ... irrespective of artistic quality' (s. 4(1)(a)).

The judgment noted that composition is affected by the angle of the shot, the field of view, and computer manipulations which are made in post processing. It ultimately held that Photo 1 is an artistic work as either a photograph or a collage (on the basis that the sky was digitally removed and replaced with white and therefore the image could be an electronic collage).

Does photo 2 infringe the copyright in photo 1?
Answering question 2 isn’t as straightforward as it may sound. It is not a case of what are the differences between photo 1 and photo 2. As the judge notes, it is possible to “reproduce a substantial part without necessarily producing something that looks similar”.

It is a matter of “quality not quantity” i.e. have the features which give photo 1 its artistic quality been copied by photo 2. The judge analysed this quality based on composition and visual contrast.

Although the “images undoubtedly differ in their composition”, the type of bus, direction of travel, presence of people, lack of traffic and amount of sky were identified as both copied and qualitatively important. In terms of visual contrast, the red bus against the monochrome background was clearly copied but the blank white sky was also identified as significant.

Together the composition and visual contrast features were found to be a “substantial part” of photo 1 and to have been copied by photo 2. Although the analysis is quite detailed it is very hard to see how a photo taken at a different angle, with a different foreground, exposure level and perspective could infringe. Arguably all that is really copied is that idea of a black and white photo of the Houses of Parliament with a red bus in the foreground.

The judge noted that “the whole point of this case is that [the defendant wants] lawfully to produce an image which does bear some resemblance to the claimant’s work". This is the heart of the problem. Based on the judgment, there appears to be an attempt by the tea company (defendants) to sell more tea through an association with a popular photograph of a London landscape (photo 1). However, whether that association is legitimate is not a question for copyright law which should only be concerned with considering whether a substantial part of the original photograph has been taken. It is my personal view that a substantial part has not been taken.

Whilst it is clear that not every photo of Westminster Bridge would infringe photo 1. The line as to what inspiration photographers (and other artists) can and cannot take from previous works has become (more) blurred.

Postscript

Photo 3
(a portrait version of the defendant's photo 2)

The court was, post-trial, asked to consider whether the portrait version of photo 2 (photo 3 above) could infringe photo 1. Photo 3 has been substantially cropped so that the bus is even more prominent together with Big Ben.

Again, somewhat surprisingly, the court found that “The cropping has been carried out to discard only the most insignificant parts of the original” and therefore “the cropped portrait version does reproduce a substantial part of the claimant’s work”.

What do you think? This case has aroused a fair amount of controversy in legal circles. We would love to know where would you draw the line.

Is McBanksy at large in Edinburgh?

2012-01-22T23:39:00.000Z

"The mystery of Scotland's secret sculptor", as reported by the BBC here, explains that Edinburgh has its own secret artist who has been strategically depositing a series of delicate sculptures made from books in cultural establishments across the city. Speculation is rife as to whether the artist is operating Banksy-style in order to make some sort of cultural statement or whether the whole exercise is an elaborate con, designed to stimulate tourist interest in the city. One journalist, interviewed in the BBC's video clip, maintains that she knows the identity of the artist but refuses to reveal it.

The identity of the artist is a matter of legal significance for copyright reasons, if no others, since special provisions govern anonymous works in the United Kingdom and many other jurisdictions.

Woman’s buttocks make an impression on a Clyfford Still Painting

2012-01-15T12:01:00.002Z

Potential peeing target:
Clifford Still 1957-J no.2

On 29 December 2011, the Clyfford Still Museum in Denver was the scene of a rather dramatic display of vandalism (or performance art, depending on your perspective).

A woman, who had apparently enjoyed the alcoholic fruits of the holiday season a bit too much, reportedly pulled her trousers down, leaned her buttocks against against and subsequently slid down an iconic Clyfford Still painting worth more than $30 million. Although the impression of her buttocks caused the most damage, she also punched and scratched the painting and urinated on herself (fortunately the urine does not appear to have damaged the painting). The total cost of the damage to the oil-on-canvas called 1957-J no.2, is an estimated US$10,0000. The woman in question, Carmen Lucette Tisch, was charged with felony criminal mischief.

Clyfford Still was one of the first abstract expressionists who lead the movement after the Second World War. The Clyfford Still Museum opened on 18 November 2011. It constitutes a collection of approximately 2,400 works in a variety of media which were previously sealed off from public and scholarly access following Still’s death in 1980.

Quite apart from the criminal aspect, there is an argument that rubbing your buttocks against, scratching and punching a painting is an example of derogatory treatment and provides a potential moral rights action. Following Confetti v Warner (2003) this would depend on whether there was distortion and mutilation of the painting and “the distortion or mutilation prejudices the author’s honour reputation” (para 150). There is arguably prejudice to Clyfford Still’s reputation by the public nature of the damage (and the subsequent publicity).

Comments from readers, particularly regarding the US position on moral rights would be much appreciated.

Source: The Guardian

Do the Velvet Underground and the Warhol Foundation fight for Warhol's banana?

2012-01-13T00:22:00.003Z

Warhol's cover of the album "The Velvet Underground & Nico"

The Velvet Underground, the legendary New York band, filed two days ago a lawsuit against the Andy Warhol Foundation for the Visual Arts Inc., in New York federal Court, for violating its trademark representing a banana designed by the pop art artist Andy Warhol.

The band worked closely with Warhol in the 60’s and the king of the pop art designed the banana illustration appearing on the cover of their first 1967 commercially released album “The Velvet Underground and Nico ”.

The band founders, Lou Reed and John Cale, claimed that the Foundation infringed the design, by licensing its usage to Incase, which makes sleeves, bags and cases for Apple products. In April 2011, this company announced it had worked with the Andy Warhol Foundation to create a “distinctive collection” of products that carried the artist’s works. Among these works, there is also the Velvet Underground’s album cover design.

Within the complaint, which does not mention Apple, the Velvet Underground claimed that the design could not be copyrighted because Andy Warhol took the banana’s image from an advertisement that was on the public domain.

In addition, the banana design would have become the Velvet Underground’s trademark, though theVelvet Underground did not ever trademark it, since the band would have obtained this right thanks to the exclusive, continuous and uninterrupted association to the band for more than 25 years, so to represent the band’s icon and an important element of its current licensed merchandising products.

The Velvet Underground asked the judge to prevent Incase from selling and creating other products reproducing the banana design. In addition, the band requested monetary damages, besides a judicial declaration that the Foundation holds no copyright to the banana illustration.

To know more see here

Two Forms (Divided Circle): Permanently Separated by Scrap Metal Theft

2012-01-12T22:14:00.000Z

Two Forms (Divided Circle) in its original glory

One of the more dramatic art stories to hit the news at the end of last year was the theft of Barbara Hepworth’s sculpture, Two Forms (Divided Circle), from Dulwich Park in South London.

This bronze sculpture, one of six casts, had stood in the park for more than 40 years. It weathered the seasons and successfully evaded graffiti artists only to mysteriously vanish overnight following an apparently well co-ordinated theft from the park.

The theft was not a traditional art heist but for the purpose of the sculpture's resale value as scrap metal. Indeed, the general media consensus is that it has most likely already been melted down.

Post theft orange tape

Art Theft Central has been regularly reporting on the dangers of scrap metal theft, which has targeted everything from copper railway cables to sculptures including war memorials. Rising prices for copper, lead and bronze coupled with relatively loose regulation of the scrap metal industry have contributed to a nationwide increase in metal theft. By way of example, according to the BBC, last year there were more than 2,500 claims for the theft of metal from churches.

According to the Association of Chief Police Officers, metal theft is estimated to cost the UK economy £770m every year.

There is currently a private member’s bill in the House of Commons (second reading on 20 January 2012). This includes the key requirement that financial transactions be limited to non-cash (traceable) payments. You can track the bill’s progress through Parliament here.

Source: The Guardian

Change coming to US copyright law?

2012-01-12T00:51:00.002Z

Balloon Dog creator Jeff Koons is well known for his
copyright litigation - but he may get company in court

Artinfo reported this week that there are possible changes on the American horizon to the way US copyright claims are conducted. If put into action, these changes could make it considerably easier for artists to claim copyright infringement of their works.

Currently, US copyright claims have to go through the federal district courts (which have exclusive jurisdiction over copyright cases) whatever the value of the claim. The reasoning behind this is that as copyright law is federal law, it's only the federal courts which have the necessary experience to deal with these claims - plus, use of only federal courts will ensure consistency in dealing with copyright cases.

Very sensible, but the (rather large) down side is that copyright cases for claims valued at under US$1m require on average US$350,000 in expenses, according to the Federal Register (which also helpfully points out that 'lawyers charge hundreds of dollars per hour'). So, your average penniless artist naturally isn't queuing up to file their claim forms, no matter how good their case may be.

Congress has therefore asked the US Copyright Office to look into what problems are faced by those who want to bring small copyright claims to court, how far such difficulties are caused by the way the current copyright system is set up, and what can be done to solve them.

The Copyright Office is currently inviting comments on the subject which can be given via an online form. The consultation is open until 16 January 2012.

DIY art career

2012-01-05T08:27:00.004Z

Andrzej Sobiepan's 19 x 20cm work hung for 3 days unnoticed

Young Polish art student Andrzej Sobiepan has become known in the art world overnight by hanging one of his own art works in the Wroclaw National Museum in Poland. The Warsaw Business Journal reports that, while the security guards' backs were turned, he took the chance to put small green and white work on display. Not only did he manage to do so without being spotted, but nobody noticed the addition for three days.

Sobiepan said that he did not want to 'wait 30 or 40 years' before seeing his work on the museum's walls and so, in emulation of Banksy, he went ahead and put it up himself.

The BBC reports that although the museum's director, Mariusz Hermansdorfer, admitted there had been some security breaches, he also said that Sobiepan's stunt was a 'witty artistic happening'. The student himself isn't too worried about the museum's reactions, since he hasn't taken or damaged any museum property. 'What could they accuse me of?' he asked. 'I do not think that the [museum] rules have anything about bringing in your own artwork.'

Evidently there are no plans afoot to accuse anyone of anything illegal - indeed the work is due to be displayed in the museum again, before being auctioned off in aid of the Great Orchestra of Christmas Charity, which purchases medical equipment for Polish hospitals.

Read more in the Washington Times and the Huffington Post.

Art against the law

2012-01-03T14:02:00.002Z

Happy new year.

While most were probably celebrating the arrival of 2012 in the usual manner, the controversial Russian art group Voina (which we have previously reported about here and here) celebrated the new year with a bang – or more accurately a fire.

As reported by the Huffington Post, "Voina rang in 2012 by setting a police car on fire… The group broke into a police station in St. Petersburg on New Years Eve and used Molotov cocktails to set fire to a police car. Or rather, what they refer to as a 'trash truck' or 'prison on wheels.' The action was a New Years gift to the political prisoners of Russia." Voina's president, known as Bucket Man, expressed the motives behind the piece in a rather explicit statement, which will not be repeated here. However, he is also said to have clarified that the act was not "art" but "beyond art."

So there you have it. Art against the law is ok, as long as it is "beyond art"…..

For those interested, footage of the "performance" can be found on the Huffington Post website. By way of preview, here they are starting the fire:

Source: The Huffington Post, 2 January 2012

New Year – old art enters the public domain

2012-01-01T00:01:00.050Z

As regular Art & Artifice readers will know, New Year celebrations are not just about watching fireworks, dancing, and eating and drinking enough to survive a resolution ridden January. The real point of the New Year is to celebrate the fact that a lot more works enter the public domain. 1709 blog has looked at some of the key literary and musical works which have entered the public domain (particularly the works of Virginia Woolf and James Joyce).

Amongst the artists whose work has entered the public domain, we have the sculptor behind Mount Rushmore, a cubist, an anti-cubist, a “Glasgow Boy”, the most expensive female Indian painter and several photographers and designers.

We have tried to be as comprehensive as possible but if there are any artists who died in 1941 that we have missed, please use the comments section below to let us know.

Simultaneous Windows on the City, 1912

Robert Delaunay was a French artist who cofounded the Orphism art movement (a form of cubism noted for its use of strong colours and geometric shapes).

His later works were more abstract, reminiscent of Paul Klee (whose works entered the public domain last year).

Sources: Art Icons and Wikipedia

Building Mount Rushmore

Gutzon Borglum was an artist with a penchant for carving political figures. He is most famous for creating the Presidents’ heads at Mount Rushmore, South Dakota (and for being referenced in National Treasure 2!). He also created the famous carving on Stone Mountain which depicts three figures of the Confederate States of America: Stonewall Jackson, Robert E. Lee, and Jefferson Davis, as well as other public works of art including a six-ton bust of Abraham Lincoln, and a series of sculptures in Manhattan's Cathedral of St. John the Divine.

In 1916, Borglum was appointed to cut away much of the copper surface of the statue of liberty torch's flame and install glass windows. Snow and rain leaked in through the windows leading to corrosion. In the mid-1980s the old torch was removed and placed in a museum. The replacement torch is covered with gold leaf.
For a gallery of Borglum’s work, see here.
Sources: NNDB.com, Statue of Liberty Blog and wikipedia

Churchill by Lavery

Sir John Lavery, one of the “Glasgow Boys” first entered the world of art through a job touching up photographic negatives in Glasgow. Before long he had developed a considerable reputation. Indeed, his early work was hung next to Manet's Bar at the Folies Bergère at the 1882 salon.

Although appointed an official artist in the First World War a combination of illness and a car crash during a zeppelin bombing raid kept him from fulfilling this role as war artist. He later moved on to portraiture and painted everyone from Winston Churchill to John McCormack. After the war he was knighted and in 1921 he was elected to the Royal Academy.

Sources: Wikipedia and ulsterhistory.co.uk

Three Girls

Amrita Sher-Gil was an eminent Indian painter, sometimes known as India's Frida Kahlo. She is reportedly the 'most expensive' woman painter of India. She had a Eurasian upbringing, born in Hungary, studying art in France but living much of the intervening period in the Punjab. After receiving considerable critical acclaim in France, in 1934, Sher-Gil returned to India and evolved her own distinct style which tended to take Indian villagers and beggars as her subject.
Sources: iloveindia.com and wikipedia

Alexander Sakharoff, 1909

Alexej von Jawlensky was a Russian expressionist painter active in Germany. His work has grown in reputation and price tag. In February 2008 his Schokko mit Tellerhut sold for £9,400,000. Despite having built a strong reputation and made a lot of friends in Germany, when The Great War began, Jawlensky was expelled from Germany due to his Russian citizenship.

Source: wikipedia

1919 propaganda - Beat the Whites

El Lissitzky was a Russian artist, designer, photographer, typographer, polemicist and architect. He was an important figure of the Russian avant garde, helping develop suprematism and designing numerous exhibition displays and propaganda works for the former Soviet Union. His work greatly influenced the Bauhaus and constructivist movements, and he experimented with production techniques and stylistic devices that would go on to dominate 20th-century graphic design.

El Lissitzky developed a suprematist style of his own, a series of abstract, geometric paintings which he called Proun (effectively suprematism in 3D). He took the principles one step further and between 1923 to 1925 developed the idea of “horizontal skyscrapers”. Each proposed “sky scraper” was a flat three-story, 180-meter-wide L-shaped slab raised 50 meters above street level. Lissitzky argued that as long as humans cannot fly, moving horizontally is natural and moving vertically is not.

Fountain of Naiads, Rome

Mario Rutelli was a Palermo based Italian sculptor. His masterpiece is a Fountain of Naiads on the Piazza della Repubblica in Rome. He dedicated himself to big monuments such as the monument to Anita Garibaldi on Janiculum Hill in Rome.
Among his surviving works are the statue of Goethe at Munich, and a war memorial in Aberystwyth.

Source: Rome Tour

Alice in Wonderland furnishing fabric

Charles Voysey was an English architect, and furniture and textile designer. His early work was as a designer of wallpapers, fabrics and furnishings in a simple Arts and Crafts style. He is renowned as the architect of a number of notable country houses. He was one of the first people to understand and appreciate the significance of industrial design.

Voysey was influenced by the work of William Morris, the Arts and Crafts Movement and Art Nouveau. Unlike most Vicotorian design, he was concerned with form and function i.e. simplicity over the ornamental and decorative.

Sources: The V&A and Wikipedia

Water Rats

Francis Meadow Sutcliffe made a living as a portrait photographer. He is today known for his extensive photographs of the people of Whitby, a town he lived in and knew well.
His most famous photograph, Water Rats, was taken in 1886.

A selection of his photos available here.

Seiki Kayamori was a Japanese photographer who spent the latter part of his life in Alaska. The FBI suspected him of spying. Two days after the attack, awaiting his arrest, Kayamori committed suicide. No credible evidence has ever been produced to indicate that he was a spy. Many of Kayamori's photographs are now kept in the Alaska State Library.

Maximilien Luce was a French Neo-impressionist artist. Luce is best known for his pointillist canvases. Like Pissarro, he was active with anarchist groups in Paris in the 1890s. During World War I, Luce painted war scenes, depicting soldiers struggling against the horrors of the Great War.

The Kolkhoznik, 1931

Pavel Filonov formulated the principles of analytical realism, or "anti-Cubism". According to Filonov, Cubism represents objects using elements of their surface geometry but "analytical realists" should represent objects using elements of their inner soul.

From 1932 onward, Filonov literally starved but refused to sell his works to private collectors. He wanted to give all his works to the Russian Museum as a gift so as to start a Museum of Analytical Realism. He died of starvation on December 3, 1941 during the Nazi Siege of Leningrad.
Source: MOMA

Albrecht Dürer, entrepreneur -- and litigant

2011-12-28T20:37:00.000Z

Dürer liked to stamp his identity
on his works -- but his identifier
ended up on a stamp ...

The Christmas edition of The Economist (17 December) carries a fascinating feature, "Portrait of the artist as an entrepreneur", which you can read in full on The Economist website here. This article chronicles the manner in which Albrecht Dürer commercialised his art works and explains the cost-effectiveness of generating printed engravings and woodcuts in preference to painting in oils: the effort was comparable, but the profitability of selling copies made the non-painting options far more attractive and the publicity and exposure helped expand his reputation far more than one-off paintings which were often viewed only by the commissioning party and his immediate associates.

How did Dürer deal with counterfeits and infringers, in an era in which copyright had yet to be invented? The article explains:

"Dürer twice went to court to defend his sole use of his trade mark, in Nuremberg and in Venice, and twice won the case. The guilty parties were made to remove his monogram from their prints. Merely copying “AD”, however, was not adjudged a crime. The crime was to sell the fake print as an original. From then on, therefore, false monogrammed prints “after Dürer” kept appearing, confusing collectors to this day.

A trade mark was not the only identifier Dürer put on his pictures. He left lines of commentary on the sketches, and gave the finished engravings elaborate marble tablets explaining his subject and his purpose. He wanted to tell the world that he, Albrecht Dürer of Nuremberg, had done this: that it was made, gemacht, with his genius and effort ...".

Curiously, while Dürer was particular to make sure that his initials appeared on his work so that it could be easily identified, the author of this article is apparently anonymous.

Discovering the lost Leonardo?

2011-12-18T22:27:00.001Z

Peter Paul Rubens' copy of the "Battle of Anghiari""The Battle of Anghiari"s project of National Geographic (1603)
Louvre, Paris

The hunt for discovering a lost Leonardo Da Vinci is reaching its climax in Florence, while facing an hard protest by more than 150 prominent art historians, who criticize the destructive but speculative work possibly leading to a masterpiece's discovery.

The search for Leonardo's "Battle of Anghiari" conducted in Florence's Palazzo Vecchio, in the famous Hall of 500, is a project led and sponsored by National Geographic and the University of California.

"The battle of Anghiari" was painted by Leonardo in 1505 to commemorate the 1440 battle on the plain of Anghiari between Milan and the Italian League led by the Republic of Florence, which emerged as the most important power in central Italy. In 1503, the Gonfaloniere Piero Soderini commissioned Leonardo to decorate the wall in the Hall of 500 in Palazzo Vecchio, the seat of government in Florence.

Da Vinci used this commission to experiment a new mural oil techinique which failed miserably, dripping before dried and leading him to abandon his work. Nonetheless, this masterpiece was later called " the school of the world" and was widely copied e.g. by Rubens, whose painting of one scene hangs in the Louvre in Paris.

After the 1555 the Hall was renovated and enlarged, Giorgio Vasari painted six new murals over the east and the west walls and Da Vinci half-finished painting was assumed to have been destroyed in the process.

According to the director of this scientific research, Maurizio Seracini, the 16th century Giorgio Vasari's famous fresco "The battle of Marciano in Val di Chiana" painted in 1563 would hide the lost Leonardo's masterpiece. Probably Vasari, who was loath to destroy Leonardo's work, preferred to brick it up behind a new wall adding his fresco on this, rather than destroying it.

This thesis was strengthened when Seracini discovered that Vasari painted a soldier holding a flag on which is written "Cerca Trova", i.e. "Seek and Ye shall find", which can be a clue for the future generations.

Seracini, one of the world's leading expert in the field of the art diagnostics, used non-invasive technique, such as high-frequency, surface-penatrating radar and thermographic cameras, which confirmed there is an air gap behind the Vasari's fresco. The researcher inserted tiny cameras through seven drilled holes in the visible wall and found a 2cm cavity. On the back wall beyond the cavity, traces of an organic pigment were found.

Work started on November 27, 2011 and full results are expected at the beginning of the 2012. The city's mayor Matteo Renzi claimed " We are finally there - after five centuries we are finally able to solve one of the biggest mystery in the art history".

National Geographic's project "The battle of Anghiari"