Art and Artifice

Mandela, daughters -- and lawyers -- tussle over art collection

2013-05-20T10:27:00.003+01:00

From the Sowetan Life, "Mandela daughters sue father" (here), it appears that iconic former South African President's Nelson Mandela's daughters are suing him "for the rights to his artworks and control of his millions". Citing The Star, Sowetan Live reports that

" Zenani and Makaziwe Mandela intend fighting an April 2004 Johannesburg High Court order which gave Mandela the right to instruct Ismail Ayob, his then lawyer, to stop managing his financial, personal and legal affairs. The court order barred Ayob from selling any of Mandela's artworks.

The Star reported that Mandela's current lawyer, Bally Chuene, filed an affidavit last week in response to a lawsuit brought by the sisters, who are represented by Ayob.

Last month the sisters filed papers asking for Chuene, George Bizos SC and Human Settlements Minister Tokyo Sexwale to remove themselves as directors and trustees of the Mandela Trust and as directors of Harmonieux and Magnifique (Pty) Ltd with immediate effect.

In his replying affidavit, Chuene reportedly said he, Bizos and Sexwale had, in 2011, refused to release the trust's money to the daughters without a legal justification.

The Star reported that Chuene was adamant Ayob was behind the women's court action".

The precise legal basis upon which the rights in the former President's artwork are contested is not spelled out, but a post on Public News Hub adds that

"The affidavit also exposes the fact that Ismail Ayob is yet to respond to the ailing leader’s request for complete information about his art collection. Madiba requested this information for the first time in 2004 but it has yet to land at his desk".

Art & Artifice hopes to report on this matter in greater detail when more information about the legal issues is available.

Art by Nelson Mandela here

A Dictionary of Intellectual Property Law (A review)

2013-05-19T10:42:00.001+01:00

Peter Groves recently* published the Dictionary of Intellectual Property Law. This book is an extremely useful compendium of all the mysterious IP terms which are commonly used by lawyers, in contracts, in judgments and in government consultations in the UK, Europe and USA. Each concept has a pithy description including cross references to other terms where this would be useful.

The dictionary even covers things you might not, at first glance, associate with IP law such as AdWords and zoetropes. Naturally, the IPKat gets a special mention!

If you want a second opinion here are some of the (publisher selected) comments on the book when it was first published:

‘Confused between community patent review and community patents? Lost in a thicket of dockets, rocket or otherwise? Let Peter Groves’ Dictionary of Intellectual Property Law be your guide. Filling almost 500 often lighthearted, occasionally acerbic, but invariably fact-packed pages, the book takes you from the ActionAid Chip and the Air Pirates case through BIRPI, Cognating, Dockets, Evergreening; Jepson, Pedrick’s cat and Simkins; PHOSITA, Trundlehumpers, the verb “to Uncopyright” and X-Patents, all the way to Zwart maken. Essential reading.’ – David Musker, Partner, RGC Jenkins & Co.

‘Do not be put off by the word “dictionary”. This is a fascinating, witty and erudite little volume, packed with interesting and useful information on the whole gamut of intellectual property. It leaves one (this one anyway) hungering for more and wanting to delve more deeply into fields that have nothing to do with earning one’s daily bread.’ – Tony McStea, Senior Patent Attorney, Global Patents, Givaudan Schweiz AG

If you bought the book and it’s missing a key term or the definition hasn't helped to untangle to confusion, fear not. New definitions are suggested and refined on the IP Dictionary blawg (www.dictionaryofiplaw.blogspot.co.uk) where users can even suggest new terms for inclusion in the next edition.

This book should be of use for everyone interested in the world of IP law from the aspiring student, to the lawyer. It is written so clearly and comprehensively that it is hopefully also useful for artists seeking to better understand and enforce their rights.

The paperback edition is available online for around £20. The author, Peter Groves, amongst many other things, writes for the Ipso Jure blog (www.ipsojure.co.uk).

*OK, so not that recently, Feb 2011. But the paperback edition is much more recent!

Street Art Conference in Gaeta

2013-05-18T08:46:00.000+01:00

Today and tomorrow will take place in Gaeta a Street Art Conference where art bloggers, art critics, art historians, curators and I as art lawyer will discuss on street art. The Conference is part of Memorie Urbane street art festival that for the second year is invading two beautiful cities as Gaeta and Terracina.

Street artists as Lucamaleonte, Martina Merlini,Sam3, Faith47 and Daleast, just to name few, are realizing their amazing works in many points of the cities on the coast near Rome.

You can find more information here

New book coming out on legal dimensions of art collecting

2013-05-10T16:20:00.000+01:00

The Art Collecting Legal Handbook, edited by Bruno Boesch and Massimo Sterpi, has just been published by Sweet & Maxwell. Art & Artifice looks forward to reviewing this title in due course, not least since this blogger is a great admirer of Jacobacci Avvocati partner Massimo Sterpi -- a tireless visionary and enthusiast who currently serves on the Council of MARQUES, the European trade mark organisation. In this venture Massimo teams up with Bruno Boesch, a partner in the Swiss law practice of Froriep Renggli and an expert in the highly specialist area of long-term art collection care. The editors have put together an impressive team spanning the best part of 30 countries, including both those in which famous collections are built up and those from which many collectables originate.

This is what the publishers say about this work, which is published at the end of May:

Collecting, preserving and promoting cultural goods, whether fine art, archaeological objects or decorative arts, is now global. Oddly, rules and practices have remained very local, save for ICOM’s efforts at the institutional level and UNESCO’s endeavours to help preserve national cultural heritage and combat illicit trafficking.

This book is designed to help the collector and their advisers navigate the maze on an international level. Each chapter of The Art Collecting Manual addresses a number of issues from the perspective of a different jurisdiction to help collectors making errors that could be potenitally illegal. The format of the chapters follow a question and answer style thus enabling readers to make quick and accurate comparisons in multiple jurisdictions covering property law, insurance, customs, tax, inheritance, intellectual property and more.

A collectable in itself, this title crosses the line between highly functional and aesthetically pleasing, the perfect addition for anyone who works in international art dealings".

Apart from this, there's some further information as to what the book covers:

• Cultural Heritage and Art Market: regulations; legislation features and treaties; data about art and cultural property market: trade volume; dealers

• Purchase and Export: due diligence, local law features; remedies in case of fake, forgery or counterfeit; VAT/sales tax; artist’s resale right; export restrictions; “free ports”

• Peaceful Enjoyment: import customs; protection against claims; restitution assistance; repatriation of illegally exported cultural property; anti-seizure guarantee

• Sale: due diligence; temporary import for sale; remedies against a defaulting buyer

• Art Philanthropy: rules and practices; private foundations and museums

• Tax: wealth tax; capital gain tax; inheritance tax; tax breaks; taxation of private foundations and private museums

• Practical information/references

Bibliographic details: hardback, ISBN 9780414026933. Price: £80. Book's web page here.

Exciting news: our very own Angela Saltarelli has co-authored the Italian chapter of this book together with Massimo Sterpi.

Did Doig do it?

2013-05-06T22:50:00.002+01:00

A claim has been filed in the US Federal Court against Scottish artist Peter Doig, Doig's art dealer and Doig's lawyers seeking a declaration attributing this painting to Doig.

The Plaintiff, Robert Fletcher, claims that this painting, that he owns, is an early Doig painting worth millions, but that Doig refuses to acknowledge it as his work.

The Complaint explains that Fletcher was a correctional officer at Thunder Bay Correctional Facilities in Ontario in the 1970s. At this time, an individual called Pete Doige became an inmate. Fletcher became friends with Pete Doige who then sold him the painting which he had painted in his art class at Thunder Bay.

The Courthouse News Service reports that it is also alleged that:

Fletcher claims he helped Doig apply for parole, and was assigned as his parole officer.

Fletcher helped Doig in his search for employment, and helped him to obtain employment through the Seafarers Union in Thunder Bay...

Fletcher also encouraged Doig to pursue his artistic talent, and accepted Doig's offer to sell the work to Fletcher for $100.

Since that day in or about 1976 and to the present, Fletcher has owned the work.

He claims that "many years later, a friend staying with Fletcher commented on the work hanging in Fletcher's home, mentioned that it might be by Peter Doig, and began doing research on the artist and the painting, which was later continued by Bartlow [the Second Plaintiff] on Fletcher's behalf."

But VeneKlasen, on behalf of Doig, denied that the painting was by Doig, and denied that Doig had ever been to Thunder Bay.

Back in November 2012, a HuffPost article on the dispute noted that Fletcher just wanted to establish the truth. Seeing as he is now seeking punitive damages for interference with prospective economic advantage, it seems that he now has his eyes on a greater truth.

Read more here and here.

See some Doig paintings here.

Source: Courthouse News Service, 2 May 2013. Photo of painting by Peter Bartlow.

US Court of Appeals reverses the previous decision on Prince v. Cariou. A victory for appropriation art?

2013-05-02T09:06:00.001+01:00

Richard Prince "Graduation" (2008)

The Court of Appeals for the Second Circuit on April 25 reversed the decision on the Prince v. Cariou case in favour of fair use.

As already exposed here, in 2011 Cariou sued Prince and the Gagosian Gallery alleging that Prince's works and exhibition catalog infringed his copyright. Indeed, the famous appropriation artist Richard Prince altered and incorporated the Cariou's Yes Rasta photographs, creating a series of paintings and collages called Canal Zone, that he exhibited in 2007 and 2008 first at the Eden Rock Hotel in St. Barth's and later at the New York's Gagosian Gallery.

In the first instance, the US District Court for the Southern District of New York held Prince's works infringed Cariou's copyright, not recognizing any fair use. In order to be qualified as transformative, the Court required a new work of art in some way to comment on, to relate to the historical context of, or to critically refer back to the original work. Since Prince did not intend to appropriate the photos for the required puposes, the Court rejected the defendant's fair use defense.

But the Court of Appeals reversed the previous decision finding that "the law does not require that a secondary use comments on the original artist or work, or popular culture" to be considered transformative and may constitute fair use even if it serves other purposes than those included in the Statute preamble of the 1976 US Copyright Act (criticism, comment, news, reporting, teaching, scholarship and research). The Court affirmed that copyrighted images can be used as raw materials for new works of art, even when the artist has nothing to say about the images he altered.

The Court held that twenty-five out thirty Prince's artworks constituted fair use of Cariou's copyrighted photographs, while the remaining five works presenting closer questions will be judged again by the district court according to the four fair use standards, as interpretated by the Court, and namely:

(i) the purpose and the character of the use

This first factor requires considering whether the allegedly infringing work has a commercial or non profit purpose and, usally, only the latter purpose is considered as fair use. But the Court, though commercial, found Prince's artworks much transformative, then it held that the other factors should be considered more important in determining fair use than this one.

(ii) the nature of the copyrighted work

The Court found that the Prince's creative works of art had a substantially transformative purpose and, therefore, a different nature when compared to Cariou's ones.

(iii) the amount and sustantiability of the portion used in relation to the copyrighted work as a whole

This factor involves considering whether the quantity and the value of the original artwork are reasonable in relation to the purpose of copying. The Court interpreted such third factor saying that the inquiry must take into account that the extent of permissible copying varies with the purpose and character of the use.

The peculiarity was that many Prince's works copied the entire source photograph. Contrary to the District Court - which affirmed that Prince's taking was substantially greater than necessary - the Court concluded that the law does not require that the secondary artist may take no more than is necessary, affirming that Prince transformed those photographs into something new and different in twenty-five works out thirty.

(iv) the effect of the use upon the potential market for the value of the copyrighted work.

Contrary to the District Court, the Court of Appeals affirmed that the question does not focus on the damage to Cariou's derivative market, but rather whether the secondary use usurps the market of the original work or not. The more transformative the secondary use is, the less likelihood that the secondary use substitutes for the original. Since the Prince's works are very transformative, the Court found that they did not usurp the market of Cariou's works.

***

Only one Judge of the Court expressed a dissenting opinion arguing that all works, and not only the five ones which were too aesthetically simalar to Cariou's ones, should be turned back over to the district court admitting that " I am not an art critic or expert, I fail to see how the majority in its appellate role can "confidently" draw a distinction between the twenty-five works that it has been identified as constituting fair use and the five works that do not readily lend themselves to a fair use determination".

The Dresses of Ellsworth Kelly - Considering Legal Protection in Fashion

2013-04-30T17:54:00.000+01:00

Méditerannée, 1952 - Ellsworth Kelly

While flipping through the pages of Vogue's latest U.S. issue, I came upon an article about two dresses designed by world-renowned painter Ellsworth Kelly. The New York Times also features an informative piece on the the Kelly dresses. As clothing, or as a artwork, I think they are fantastic, and it's also a great opportunity to blog about legal protection in fashion, a topic I just spoke on last week. The new dress, designed by Kelly and created by Francisco Costa of Calvin Klein is basically a remake of a dress that Kelly originally designed in France in 1952. Kelly's original dress was made using brightly colored cotton that he purchased in the South of France. Kelly used some fabric for a five-panel painting in cloth. He gave the remaining fabric to a friend, Anne Weber, asking her to make the dress to his specifications (although in the end he was very bothered that she left the bottom blue panel so long). The dresses feature color blocks that evoke Kelly's paintings.

One dress, created in France, and another (presumably) created in the U.S., receive different intellectual property protection. Clothing designs are allowed far greater intellectual property rights in Europe. At this point there are two layers of protection, that offered by individual nations and that offered by the EU Directive on Legal Protections in Design. In France, where the first dress was made, fashion designs are classified as "works of the mind" and enjoy copyright protection.

In the U.S., clothing design receives almost no protection under copyright law because clothing is considered largely inseparable from its utilitarian functions. U.S. copyright law, loath to protect to utilitarian items therefore only protects things likes original designs on fabric, or possibly non-utilitarin features of costumes. While some designers are able to bootstrap their way into some level of protection through trademark and trade dress, clothing is largely unprotected and copycats are free to infringe upon new designs.

Only ten of the new Kelly dresses were made. One was donated to the Metropolitan Museum of Art's Costume Institute, another to the Philadelphia Museum of Art. With dresses and other clothing items gracing the galleries of some of the nation's premier museums, one would think the U.S. might start seeing fashion a little differently, but the fight to obtain greater intellectual property protection in the United States has been going on for over 100 years. For the last twenty years, congressional bills seeking to extend some level of limited copyright protection to clothing have regularly been introduced and consistently died in committee, so it does not appear that change is coming any time soon.

Some have remarked that the dresses are so reminiscent of Kelly's paintings, that they really constitute drawings or sculptures, not just ordinary clothing. Although it might be impractical, I can't help but wonder if these musings could represent an alternative theory for copyright protection of the Kelly dresses in the United States.

Appropriating the copyright symbol: van Roeyen on Scholte

2013-04-24T12:29:00.001+01:00

Via a recent Tweet this blogger found himself browsing through the frames of a PowerPoint presentation by his friend Gino van Roeyen (Banning), an engaging and enthusiastic Dutch IP lawyer with whom one's time is generally spent both productively and enjoyably. By way of introduction to the lecture for which these frames were prepared, Gino explains:

"Although art is generally considered to be the territory of absolute freedom in which creativity should thrive optimal, it can also be the arena of virulent copyright battles. As copyright in a work of art protects against publication and reproduction of that work (including reproductions that cannot be regarded original themselves) without permission of the copyright owner, unauthorized occupation of such a work might be regarded as a declaration of war against the copyright owner. It might ask for forms of retaliation, varying from cease and desist letters to litigation in court.

Of course, the art of retaliation may depend on the gravity of the infringement. Straightforward pirates (copycats) might risk severe measures of retaliation, like destruction of counterfeit works of art and penalties. But what to do with works of art that are not copies of the original, being in one way or another ‘linked’ to the original? So called appropriation art cultivates what already exists into art. This might also involve works of art which are protected by copyright, but also other tangible objects that can be the object of a copyright (like for example the design of a simple household issue like a towel).

In this lecture this phenomenon will be examined and explained closely by means of several examples of copyright battles in the arts throughout the years. Since Rob Scholte -- who can be regarded as an acclaimed and famous supporter of ‘appropriation’ in art -- will be the keynote speaker at the conference, the lecture will also focus on his work, like for example his famous © work, in which Scholte appropriated the © sign, a sign which can be used freely to denote that copyright is claimed for a work. Paradoxically by inserting the © into his own work – or should we say by reconstructing the © into a work of art – Scholte created a work which is protected by copyright'".

Panel Discussion: Legal Protection in Fashion

2013-04-22T18:08:00.000+01:00

For our readers in the Seattle area, I will be participating in a panel discussion on legal protection in fashion this Thursday, April 25. The panel, comprised of attorneys and fashion designers, is presented by Washington Lawyers for the Arts. More information and registration available here.

The "Russian Banksy" Pasha P183 dies aged 29 in Moscow

2013-04-05T10:09:00.000+01:00

Pasha P183's work

According to reports, the prominent Russian street artist Pavel Pukhov, known with the tag of Pasha P183, was found dead under unknown circumstances last Monday in Moscow, aged 29.

Pasha P183 was often compared to the world famous Banksy, since as the British artist or Keith Haring started out painting graffiti in the dead of night and recalled being arrested numerous times by Moscow police.Many of his street works had political undertones and carried an implied reference to a recent wave of massive street protests in Moscow against president Vladimir Putin's role. He was known for leaving artistic installations and politically fueled murals across Moscow, including riot police painted on subway doors and a masked protester holding a flare that caught fire.

Pasha P183's work

One of his most well-known pieces was a pair of oversized spectacles drawn in the snow with a street lamp serving as the open stem, almost an Oldenburg-sized versions of everyday objects.

In a rare interview posted on adme.ru last year, he stated about his work: "I wanted that work to carry the most important message...that a person mustn't sell himself, I made a chocolate bar that can't be bought, using a giant panel of concrete."

Can a collector prevent an artist from making new art?

2013-04-03T22:42:00.001+01:00

William Eggleston's digital print" Memphis (Tricycle)"

The U.S. District Court in the Southern District of New York recently dismissed collector Jonathan Sobel’s lawsuit against the photographer William Eggleston.

The complaint, filed in April 2012 claimed that the photographer diluted the value of Sobel's collection by printing larger, digital versions of some of his best-known works and then selling them for record prices at Christie’s.

The auction house sold in March 2012, 36 poster-size, digital prints of images that Eggleston had shot in the Mississippi Delta more than 30 years ago, besides others based on iconic works, such as the famous work “Memphis (Tricycle).”

The sale was a huge success: the five-foot “Tricycle” came in on top, selling for a record $578,500 (Sobel owns a 17-inch version of that photograph, for with he paid $250,000.)

The success of such sale of Eggleston's new digital works was a problem for Sobel, who owns 190 Eggleston works. The collector accused Eggleston of devaluing his vintage dye-transfer prints by selling new pigment prints of the same images, since the commercial value of art is based on scarcity, then it would become less valuable with new editions.

But the judge disagreed.

The Judge, Deborah A. Batts rejected Sobel's claim affirming that Eggleston was not in violation of the New York Arts and Cultural Affairs Law.

Article 15 of this NY law states that offering a limited edition constitutes an express warranty that no additional multiples of the same image have been produced.

According to such provision, the judge affirmed that by offering a limited edition, an artist is required by the law to disclose the total number of multiples existing at the time of the sale.

In addition, Eggleston could have been held liable only if he had created new editions of the limited-edition works in Sobel’s collection using the same dye-transfer process he used for the originals. But in this case, however, Eggleston was using a new digital process to produce what the judge deemed a new body of work.

This decision confirms that artists who works in multiples have the right to use the images they create and are entitled to continue to work with such images to produce new editions, as long as they disclose how many multiples of a photograph have been produced at the time they are offering a new edition.

U.S. Court Holds First Sale Doctrine Does Not Apply to "Used" Digital Music

2013-04-02T14:00:00.000+01:00

Internet startup Redigi founded its business model on the idea that digital music lawfully purchased through iTunes could then be lawfully resold online. Essentially, Redigi set out to be the used record store of the digital age. Redigi users sell their lawfully purchased songs by uploading them to Redigi's server, where other users then purchase these songs for less than the cost of buying the song "new" from iTunes. When a user uploads a song for sale, Redigi's software runs on the user's computer to confirm that no copy of the uploaded song remains behind on the user's computer or personal devices.

Capitol Records, however, disagreed with the lawfulness of Redigi's business model and sued for copyright infringement in January 2012.

On March 30, 2013 the U.S. District Court of the Southern District of New York ruled on the parties' cross motions for summary judgment and found that first sale doctrine--an affirmative defense to copyright infringement that allows for lawfully obtained copies of copyright protected items to be resold (think used book and record stores)--did not apply to the resale of "used" digital music. The court's ruling necessarily hinges on the idea that the file is not transported from the original buyer's computer to the Redigi server, but instead that the song is "reproduced" onto Redigi's server. The court thus found that each and every upload to Redigi's website constituted an unlawful reproduction of the song. The fact that the original file on the user's computer was deleted was of no consequence because the court considered the file Redigi offers up for sale to be an unlawful copy. Based upon this conclusion, the court found Redigi liable for infringement of Capitol's reproduction and distribution rights, holding Redigi liable for direct, contributory, and vicarious copyright infringement. Basically, this means that Redigi was found liable not just for damages attributable to its own infringing activities, but that it was also accountable for facilitating the infringing activities of others.

In a case that, in the court's words, created a "fundamental clash over culture, policy, and copyright law," is there any hope left for Redigi? As this ruling issued from the district court, appellate review before the Second Circuit Court of Appeals is available. In addition, the court makes a footnote referencing Redigi's 2.0 version in which users' new iTunes purchases are never actually downloaded to their own devices and instead are directed straight to Redigi's servers. This way a song is never "reproduced" between the user and the Redigi server. Because the updated version of Redigi was launched well after the start of the case, the court declined to address whether this new model also constituted copyright infringement.

Also noteworthy in this opinion are the court's frequent calls for Congress to update U.S. copyright law to better address the quandaries of the digital age, the court opining that it could not condone wholesale application of the first sale doctrine to the digital sphere when Congress has declined to do so.

Zorro: The Clash of Trademark Law and the Public Domain

2013-03-29T15:06:00.000Z

A new lawsuit filed this month in U.S. District Court explores the tension between trademark law and intellectual property which has otherwise fallen into the public domain. Generally, new artistic works are subject to copyright protection of a limited duration, calculated by the author's life plus a term of years after the author's death. Once the copyright expires, the work becomes part of the public domain, and it is free for others to use.

However, these issues are not necessarily so clean cut when another party finds a way to assert trademark rights in that material. Trademarks protect brands, and serve to indicate the source of goods and services in commerce. Because trademark rights can be potentially infinite, a party may attempt an end run around the public domain by asserting a monopoly over a famous name or character through trademark law--and such is the case with Zorro, alleges plaintiff playwrite Robert Cabell.

According to Cabell's complaint, he created a musical based on the fictional Zorro character that first appeared in Johnston McCulley's serial story, The Curse of Capistrano in 1919. Under the U.S. Copyright Act in force at the time, the copyright in McCully's Zorro story expired in 1975, and the story became part of the public domain after that time. Cabell's musical, first released as an audio CD in 1996 has since been made in to a stage production and is scheduled to be performed at a festival in Germany this summer. However, Cabell alleges that the defendants named in the case fraudulently obtained multiple U.S. trademark registrations during the 1990's in the Zorro name, and are using those marks to interfere with his ability to perform the play by threatening lawsuits against those intending to the produce the play. Cabell asserts that defendants tortuously interfered with his business relations, and he also seeks declaratory judgment of non-infringement and cancellation of all of defendants' Zorro trademarks.

Whether Cabell's claims have merit is yet to be determined, but it looks like Zorro's next duel will be in court.

Trying to make the MET pay

2013-03-22T11:20:00.000Z

Ever been to the Metropolitan Museum of Art in New York City - better known as the MET? Did you pay to get in? Did you know you didn't have to? I have to admit the first time I went it was not clear that the entrance fee was not compulsory. It was only on a subsequent visit that I was asked what I wanted to pay that I realised that I had a choice. It turns out this is not uncommon. However, some appear to have had a more extreme reaction than myself.

Reuters reports that:

... a lawsuit filed on Tuesday against the museum complains that most museum-goers have no idea that the "recommended" $25 entrance fee is nothing more than a suggestion.

The plaintiffs include a member of the museum, along with two Czech tourists who purchased single-day admissions. They argue the museum employs misleading signs and other techniques to dupe its 6 million annual visitors into believing they must pay to gain access.

The museum's rent-free lease with the city mandates that it open its doors to the public for free on multiple days a week, although it is permitted to ask for a voluntary fee. But the lawsuit says the museum deliberately deceives its visitors into believing that the charge is mandatory.

Signs above the admissions desk that list the entrance fees feature the word "recommended" in small type below the word "admissions" in larger, bold type. The lawsuit also pointed out that visitors are funneled in lines to the admissions desks, where cashiers await to collect the fee.

"MMA has misled, and regularly misleads, members of the general public to believe, on all days of the week during times when the MMA is open, that they are required to pay the Admission Fees in order to enter Museum Exhibition Halls," the lawsuit claimed.

... [The] complaint asks for an injunction [requiring the museum to make its policy clearer to visitors] as well as unspecified damages for all museum visitors who, like the three named plaintiffs, paid to enter with a credit card.

This is the second lawsuit filed against the MET challenging its admission fee. Back in November 2012, two members of the MET (represented by the same counsel as this latest claim) brought a very similar claim for consumer fraud, and for charging unlawful admission fees in violation of New York State law.

A spokesperson for the MET says that the claims are unsustainable. It remains to be seen what the court thinks.

Source: Reuters, 5 March 2013, New York Post, 15 November 2012

Sir Joshua Reynolds' portrait of Omai is a 'wasting asset'

2013-03-19T23:24:00.000Z

The Upper Tribunal has announced that Sir Joshua Reynolds' famous portrait of the South Sea Islander Omai, sold in 2001 for £9.4m, is a 'wasting asset' - and accordingly, that no capital gains tax is payable on the proceeds.

However did they work that one out?

Before its sale, the painting was on display in Castle Howard. The castle had been owned since 1950 by a company which ran a business exhibiting the castle and grounds to the public. But the painting itself was owned by Lord Howard and, at his death in 1984, passed to his estate. First Lord Howard, and later his executors, allowed the company to exhibit the painting on an informal basis, with no lease or licence for its use in place.

Following the portrait's sale in 2001, the executors stated that no tax was payable on the sale proceeds. This, they argued, was because the painting fell into the definition of 'plant and machinery' (or more specifically, plant) for the purposes of section 44 of the Taxation of Capital Gains Act, which in turn meant that it was automatically deemed to be a 'wasting asset' under section 44 - and wasting assets are not subject to capital gains tax.

This argument failed in the First Tier Tribunal (tax). The executors appealed in the Upper Tribunal.

Surprising as it initially sounds, the higher tribunal agreed with the executors' reasoning. There is no statutory definition of 'plant', and so in determining whether the painting was plant the tribunal considered tests set down in case law. These tests required that to be plant, the painting must satisfy:

(1) the 'function test' - i.e. it must be used for the purposes of the trade carried on by the company; and

(2) the 'permanence test' - i.e. it must have a sufficiently permanent place in that trade (this test prevents trade stock falling into this definition).

The Tribunal held that painting was used in the company's trade. It was one of the attractions of the castle and helped bring in visitors. And whilst not owned by or formally leased to the company, it had been displayed in the castle on an indefinite basis and had in fact been in situ from 1952 to 2001. This was deemed to satisfy the test of permanence.

HMRC's main argument against the idea that the painting was plant was based on the fact that the painting was used in the company's trade, while the painting itself was owned not by the company but by the executors - so that the painting was not plant in the executors' hands, and capital gains tax was therefore payable. But the tribunal held that the painting, having satisfied the two tests, was plant; the legislation did not permit a finding that it could be plant in one party's hands and not in another's.

In short, odd as the conclusion seems at first sight, Reynolds' Omai was indeed a wasting asset for capital gains tax purposes and the lucky executors had no capital gains to pay. Anyone selling a valuable artwork which has been used for business purposes (whilst not being stock) may be interested to learn of this wide definition of 'plant' and the unexpected results to which its application may lead.

More legal protection for artists?

2013-03-19T15:09:00.000Z

The director of the United States Copyright Office, Maria A. Pallante, has called for the U.S. Copyright Law to be updated.

In a statement to the Subcommittee on Courts, Intellectual Property and the Internet Committee on the Judicary, Pallante has submitted that the current law, the majority of which was enacted way back in 1976, is outdated and no longer provides effective protection to authors of copyright works.

Pallante says:

It is both possible and necessary to have a copyright law that combines safeguards for free expression, guarantees of due process, mechanisms for access, and respect for intellectual property.

To this end, I would like to state something that I hope is uncontroversial. The issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, they are not a counterweight to the public interest but instead are at the very center of the equation. In the words of the Supreme Court, "[t]he immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good." Congress has a duty to keep authors in its mind's eye, including songwriters, book authors, filmmakers, photographers, and visual artists. A law that does not provide for authors would be illogical — hardly a copyright law at all.

Pallante also points out that Congress will not need to start from scratch, as it has already laid the groundwork for many of the core issues, with reports in progress on a number of topics including resale royalties for visual artists.

Pallante's statement will no doubt raise a lot of debate in both the IP community as well as the art community. It is unlikely, however, that we will see any immediate effects.

Pallante's full statement can be found here.

Commentary from the Copyright Alliance here.

Get your offshore company here: an unusual art project

2013-03-15T23:09:00.000Z

It's not often that taxation becomes the subject of an art project. But Paolo Cirio, an Italian who describes himself as a "contemporary artist and pirate", has based his latest project on the topic of tax havens.

His press release explains that having "set up a company in the City of London as a shield for legal persecution", he has "hacked the governmental servers of the Cayman Islands and stole[n] a list of all the companies incorporated in the country, making it public for the first time". Not only this, but via his website at Loophole4All.com, you too can purchase a (faked) certificate of incorporation for one of these companies for the bargain price of 99 cents. "Finally," the release goes on, "small businesses and middle class people can invoice from the major offshore centres and avoid unfair taxes, legal responsibility and economic disruption in their own indebted home countries".

The Cayman Islands Companies Registry is not impressed by Cirio's artistic output. "Basically," says its senior official registrar Donnell Dixon, "the guy is scamming people." Compass Cayman reports that Dixon is concerned members of the public will purchase such certificates thinking that they are real. Dixon has also claimed Cirio has not in fact hacked the Cayman Islands' registry of company details, and that the details on Loophole4All.com are publicly available – a statement Cirio refutes. Presumably, if Cirio did not in fact hack any servers, he is at a much lower risk of any legal repercussions – without his art project being any the less thought-provoking.

Cirio's project is riding the crest of a huge wave of public interest in taxation, with the news full of tales about multinationals which make millions in the UK but pay minimal UK corporation tax, the Big Four accountancy firms questioned by the Public Accounts Committee, and consumers apparently boycotting those companies they feel are not paying their way. Its commentary on the lack of tax transparency in tax havens will certainly chime with public sentiment, and it's unlikely that many will be feeling much sympathy for the administrative woes of the Caymans Companies Registry.

More UK tax breaks

2013-03-14T15:00:00.000Z

Last month I reported on the UK government's 'acceptance in lieu' (AiL) scheme.

This week, the Department for Culture, Media and Sport (DCMS) launched the "Cultural Gifts Scheme." The Scheme, which will be administered by the Arts Council, will allow UK taxpayers who own art or collections of heritage objects, which are considered to be pre-eminent, to be donated during their lifetime (rather than after their death, as with the AiL scheme) in return for a tax reduction to their tax liability.

Culture Minister Ed Vaizey has said of the scheme that it "is aimed at encouraging gifts and donations of wonderful treasures to the nation, where they can be enjoyed by all."

How will it work?

A UK taxpayer who owns an artwork which is considered pre-eminent, can offer to donate the work to the Arts Council. The offer will be considered by the AiL Panel (the “Panel”). If the Panel considers that the object is pre-eminent and meets the relevant conditions, they will agree a valuation and then make a recommendation to the relevant Minister (either the Secretary of State for Culture, Media and Sport, the Welsh Ministers, the Scottish Ministers or the Northern Ireland Department for Culture, Arts and Leisure). If the relevant Minister agrees with the recommendation, the object will then be allocated by the appropriate Minister to an eligible museum or gallery. Alternatively, where an offer is made with a wish that the artwork be allocated to a particular institution, the Minister can agreed to the allocation and the object will be transferred to that institution. If the Panel assesses an object as not being pre-eminent, it will be rejected. There will also be an annual limit of £30 million for both the Cultural Gifts Scheme and AiL Scheme. The Panel may also reject a donation where acceptance would cause the annual limit to be exceeded.

Upon formal acceptance of a donation, the Arts Council will send confirmation of the donation to HMRC. HMRC will not apply the tax reduction to a person’s tax liability unless and until the Panel has confirmed to HMRC that the relevant conditions for the tax reduction have been met. The tax reduction will only be available against the income tax and capital gains tax liabilities of individual donors or against the corporation tax liability (including liabilities on chargeable gains) of corporate donors.

DCMS have produced detailed practical guidance on how to make an application under the Cultural Gifts Scheme. This can be found here.

Forging Art

2013-03-04T16:40:00.000Z

Need any tips?

A new book by Jonathon Keats (art critic, journalist, novelist and artist) might be right up your street.

"Forged: Why Fakes Are the Great Art of Our Age", which was published last month, is said to "[explore] art forgery from ancient times to the present. In chapters combining lively biography with insightful art criticism, Jonathon Keats profiles individual art forgers and connects their stories to broader themes about the role of forgeries in society. From the Renaissance master Andrea del Sarto who faked a Raphael masterpiece at the request of his Medici patrons, to the Vermeer counterfeiter Han van Meegeren who duped the avaricious Hermann Göring, to the frustrated British artist Eric Hebborn, who began forging to expose the ignorance of experts, art forgers have challenged 'legitimate' art in their own time, breaching accepted practices and upsetting the status quo. They have also provocatively confronted many of the present-day cultural anxieties that are major themes in the arts. Keats uncovers what forgeries--and our reactions to them--reveal about changing conceptions of creativity, identity, authorship, integrity, authenticity, success, and how we assign value to works of art. The book concludes by looking at how artists today have appropriated many aspects of forgery through such practices as street-art stenciling and share-and-share-alike licensing, and how these open-source "copyleft" strategies have the potential to make legitimate art meaningful again."

It sounds like a really interesting read.

No Longer Ironic? Taking another look at Charles Krafft

2013-02-22T15:30:00.000Z

In the United States, the creation of artistic works goes hand-in-hand with the First Amendment rights of individuals to speak. That is, the First Amendment protects the creative freedom of artists to make pieces that may be shocking or politically critical and to openly discuss their works with others.

Seattle artist Charles Krafft is well known for his postmodern ceramics, which often incorporated delicately painted Nazi imagery such as his ceramic Hitler bust tea pots. Common thinking on Krafft's work was that it was ironic, provocative, absurdist, and darkly satirical. Krafft's pieces are held by museums and private collectors alike.

However, more recently, Krafft's public remarks and participation on a white nationalist podcast have led some to conclude that Krafft is a Holocaust denier and Nazi sympathizer. While coverage of the issue began with local Seattle paper The Stranger, larger publications and art blogs also picked up the story. These events have changed the manner in which his works are perceived by some and will likely affect how Krafft's pieces are valued and resold (creating taxation and estate planning issues for collectors). As Phil Campbell wrote in the HuffPost Arts & Culture Blog, "We should be able to judge art apart from the personal politics of the artist, but Krafft's work doesn't allow for that." While the First Amendment protects Krafft's controversial speech, Krafft's exercise of his rights may have a lasting, if not devastating, impact on his artistic legacy.

Inept thief charged with stealing Dali

2013-02-21T15:12:00.000Z

Cartel de Don Juan Tenorio by Salvador Dali

There are widespread reports this week of the case brought by the New York authorities against a Greek man in relation to a bungled attempt to steal this Dalí painting from New York gallery, Venus Over Manhattan.

Last June, in broad daylight, Phivos Istavrioglou walked into the gallery, pulled the painting off the wall and put it in his shopping bag – in front of security cameras and leaving fingerprints in the process. Once photos of him from the security cameras started to circulate, Istavrioglou was scared into removing the picture from its frame, rolling it up and sending it back to New York.

Gotcha!

Unfortunately for Istavrioglou, New York detectives were able to lift his fingerprints from the package, which they then matched to those taken from another shoplifting incident, and were thus able to identify Istavrioglou. As a final step, an undercover policeman posed as an art gallery owner and convinced Istavrioglou to return to New York with the offer of a consultant position. Upon his touch down at JFK, Istavrioglou was arrested.

Istavrioglou has pleaded not guilty to grand larceny. Bail has been set at $100,000 (£65,000).

Source: New York Post, 19 February 2013, The Guardian, 20 February 2013

The Cheapest Caravaggio: Sotheby's sued by former client

2013-02-20T12:42:00.001Z

Sotheby's is being sued in the High Court by a former client over a painting attribution, the Art Newspaper reported last week.

The painting in question is very similar to Caravaggio's The Cardsharps, on display in the Kimbell Art Museum, Texas. But Sotheby's considered it to be of lower quality than the Kimbell version and, when it sold the painting in 2006, the auction house described it as being the work of a "follower" of Caravaggio. Imagine the chagrin of its former owner Lancelot Thwaytes when it was bought for a measly £50,400 by eminent scholar and collector Sir Denis Mahon, who then announced it to be a genuine Caravaggio worth an estimated £10m for export licence purposes. Some reports even estimate its worth at up to £50m. Why, Thwaytes must have asked himself, did Sotheby's not realise that my painting was the real thing, thus leaving me over £9.9m out of pocket? It is perhaps understandable that father thinking the matter over in the intervening years, he has decided to sue for damages which, given the discrepancy between even the modest valuation for a Caravaggio and the price Mahon actually paid, could be substantial.

The attribution of a painting is often a matter of expert opinion rather than fact. The identity of an artist may be impossible to prove or disprove. In this case there are Caravaggio experts on both sides of the argument. Sotheby's itself sticks to its original view that "the painting is a copy and not an autograph work by Caravaggio". Thwyates on the other hand is arguing that the auction house did not carry our adequate research to back this position up, and his claim lists several art experts who like Mahon believe the painting to be an original Caravaggio.

The case is one of several in recent years which demonstrate the potential dangers of offering a professional view on the attribution of artworks. "Auction houses have pages of small print and teams of lawyers," the Art Newspaper said in its article The Law vs Scholarship on scholars who fear giving opinions on attribution. "None of this has prevented number of high profile lawsuits".

Whether the painting is a Caravaggio or not, and whether Sotheby's had adequate reason to say it was the work only of a follower in 2006, are not necessarily the same questions.However it may be that the court is required to answer both the latter question when considering liability, and the former questioned determining damages (if liability is established). As always when a court is required to judge the status of an artwork, will be very interesting to see the approach taken when answering both questions.

Read the Art Newspaper's report here.

An examination of protection for opinions on the authenticity of art

2013-02-20T10:55:00.002Z

Protection From Legal Claims For Opinions About The Authenticity Of Art is the title of an excellent article by Ronald D. Spencer, the author of The Expert Versus the Object: Judging Fakes and False Attributions in the Visual Arts (Oxford University Press, New York 2004), on legal protection for expert opinions on the authenticity of art.

The article examines the nature of the opinion about authenticity to be protected, the problem of art authentication bodies ceasing their authentication activities due to concerns about incurring legal liability for their opinions, and the protection available to experts and their opinions. It is well worth a read.

Beatles' first single "Love me do" into the public domain in Europe?

2013-02-18T09:48:00.000Z

The Beatles' first single" Love Me Do / P.S. I Love You" has entered the public domain in Europe.

Under European copyright law, the copyright on recorded music lasted 50 years since a song or an album is first released, while the songwriter's publishing copyright lasts 70 years after the composer's death.

Since "Love Me Do" and its B-side, "P.S. I Love You," were released in 1962, protection for the tracks expired on December 31st, 2012.

To prevent many songs from slipping into the public domain, in the 2000's Cliff Richard, the British pop icon, and others campaigned for a copyright extensions for performers who performed on a sound recording. Then, the European Union passed the so-called "Sir Cliff's Law" i.e. the EC Directive 2011/77, granting an extension from 50 to 70 years of the term of protection for a sound recording.

Such law hasn't yet come into effect since the changes are still being implemented into the laws of each member state across the European Union. The process of implementation will set to be complete by November of this year.

Then, for everything recorded before 1963, they technically fall within the public domain in Europe: the copyright for the song remains, but the licensing fees usually provided to publishers has lapsed, meaning that anyone can distribute the original recordings without permission for the record labels.

In another twist, the EU Term Extension conditions include a 'use it or lose it' clause for anything recorded before 1963, so that labels will have to cede control over its copyright to performers, if it does not market the sound recording containing the performance. Labels and performers shall prove that they were still invested in bringing them to new audiences in the following years.

Then, Sony Music and Legacy recordings are doing that for Bob Dylan's song, since the recording copyright are beginning to expire. For instance, Sony released late last year a very limited, 100-copy, of 50th Anniversary Collection box set, including 86 unreleased Dylan tracks dating back to 1962 and 1963 - or, better said, 50 and 51 years.

Voina recognises the virtues of the law?

2013-02-15T10:22:00.000Z

Our favourite Russian art group is in the news again – but this time it seems they are not protesting the law. Art Info reports that:

Voina (translating to “war” in English) openly rejects the rule of law, yet they have recently taken to the Moscow courts to sue filmmaker Andrey Gryazev for his 2012 documentary about the group, “Tomorrow.”

The film, which reportedly cost just $2,000 to make, follows the everyday lives of the artists as they plot future protests, pee on cars, and shoplift diapers for their youngest member, Kasper, son of Voina leader Oleg Vorotnikov and his wife, Natalia Sokol. The members clearly granted Gryazev broad access, but their lawsuit, filed in a Moscow court in November, claims they were led to believe that the footage was intended for archival use only and that distributing it violates their right to privacy. Voina is seeking about $33,000 in damages.

Voina had sought to prevent distribution of the film in a number all of ways, which were all unsuccessful. Indeed, Gryazev is said to have a contract and on-camera permission from Vortnikov and Sokol. It remains to be seen what the Moscow courts think of Voina's case.

Source: ArtInfo, 13 February 2013