Tuesday, 17 March 2015

Should destruction of cultural heritage be a war crime? Or maybe it already is ...

Art & Artifice is pleased to bring readers another guest post from our friend Kevin Winters, looking at the concept of the war crime in connection with art and cultural artefacts.  This is what he writes:
In a recent article in the Wall Street Journal, it was said that there was a need for the destruction of cultural heritage to be deemed a War Crime.  This followed the reported destruction of a number of statues and relics of the Assyrian empire by extremist organisations in Iraq.  The article advocated a change in the legal regime governing War Crimes, and for the destruction of cultural heritage to result in charges being brought against perpetrators before the International Court of Justice.  
The discussion in the article throws into the spotlight an obvious question: what is the law regarding the destruction of cultural property?  It is the responsibility of different countries to decide how much importance they wish to attach to cultural property, and to legislate accordingly.  The situation is slightly different in the international sphere.  
Cultural heritage has been recognised as being protected under international law for quite some time.  In "Intentional Destruction of Cultural Heritage and International Law" Thesaurus Acroasium XXXV (2007) 377-396. available here, Professor Vrdoljak demonstrates that both international tribunals and organisations have expressly recognised the importance of the protection of cultural heritage.  There are in fact several instruments that advocate the protection of cultural heritage including:
  • Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954;
  • Convention on the Protection of Natural and Cultural Heritage 1972;
  • Convention for the Safeguarding of Intangible Cultural Heritage 2003; and
  • Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005
In its widely cited 2003 Declaration, UNESCO, having noticed an increase in the number of instances where cultural heritage was being intentionally destroyed, stated that:
“The International community recognizes the importance of the protection of cultural heritage and reaffirms its commitment to fight against its intentional destruction in any form so that such cultural heritage may be transmitted to the succeeding generations.” 
The full text of the 2003 Declaration is available here.
It is quite clear that there is a great deal of international law that recognises a need for the preservation of cultural heritage.  The only remaining question to be determined is how these legal rules are enforced.  It is incredibly important to understand that there is no ‘police force’ in international law.  The principal subjects in the international legal regime are States themselves, and by extension, they are the most powerful enforcers of international law.  In the context of enforcing the rules of protection of cultural property, a number of international tribunals have been very active, particularly the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC).  This post will focus on the ability of the ICC to enforce international law given that the former tribunal was designed to deal with international crimes that took place at a particular point in time.  
 The ICC has jurisdiction to investigate and prosecute some of the most grievous crimes ever imagined.  It is interesting to note the prominence that the protection of cultural heritage is given in the Rome Statue (the governing treaty for the ICC which sets out its jurisdiction, its procedures and the mechanisms by which States interact with it).   In Article 8(2)(a)(iv) the Rome Statue defines  ‘War Crimes’ as the
‘Extensive destruction and appropriation of property, not justified by the military necessity and carried out unlawfully and wantonly’
Furthermore, the Rome statue goes on to give more detail on the substance of a War Crime as including at Article 8(2)(b)(ix):
‘Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives’.
The full text of the Rome Statue is available here.  
From a reading of the Rome Statue it appears quite clear the destruction of cultural heritage does in fact already constitute a War Crime.  The issue for many may be the nature of the regime under which the protection of cultural property operates.  
International law is a consensual regime (States must agree to be bound by it), which some may view as a flaw of the system.  It is suggested however that this is inaccurate, as this is how the system was designed: States cannot be bound by international law e.g. treaties unless they have agreed to be so bound.  The same can also be said of the jurisdiction of the ICC in that States must implement the Rome Statue and invite the ICCs and its Prosecutors jurisdiction.  There are however other means through which the Prosecutor of the ICC may investigate and prosecute crimes regarding the destruction of cultural property:
  • Either a State which is not a party to the Rome Statue may accept the jurisdiction of the ICC under Article 12; or
  • The Security Council of the United Nations may refer a matter to the ICC for its determination under Article 13.
Notwithstanding the avenues that may be pursued to bring a matter before the ICC, many may feel that this is not sufficient to adequately protect cultural heritage.  This may be for a number of reasons:  the consensual nature of international law; or as has been argued by other commentators, the law as it stands is not sophisticated enough to be of real benefit.   It is beyond the scope of this blog article to enter into these debates. 
The point however is to illustrate that, contrary to what has been reported  international law does classify the destruction of cultural heritage as a War Crime.  Further, there is machinery to deal with these infringements as and when they occur.  Whether or not the regime is satisfactory however, remains subject to debate.    

Tuesday, 10 March 2015

The Welfenschatz: will the US court take jurisdiction -- and will it make any difference?

Here's a post composed by Kevin Winters, an enthusiastic member of the Scottish IP community and something of a guest blogger on the IPKat.  It addresses yet another art ownership claim arising from Europe's tragic mid-20th century history. Let Kevin explain in his own words:
Last month, a complaint was submitted to the Washington courts, arguing that the surviving heirs of a Jewish consortium of art dealers should be allowed to recover a treasure trove that was sold in Germany over 70 years ago. While many in the art world will be familiar with the story of the Guelph Treasure, or Welfenschatz, a brief overview is called for as the facts of the dispute are complicated. 
What is the background? 
As the Guardian recently reported here, the Welfenschatz is one of the largest collections of medieval religious works that the world has ever seen. Most of the collection was amassed following work on the Braunschweig cathedral, and many of the artefacts are known to be at least 800 years old.  The history of this treasure trove is intertwined with one of the darkest phases in European history.   
The Welfenschatz eventually came into the possession of a consortium of Jewish art traders, when they purchased it from an aristocrat in 1929.  Difficulties arose with the onset of the Great Depression, meaning that the consortium was unable to sell the collection as quickly as they would otherwise have expected.  The facts, as they are reported, are that at some point in 1935 the consortium sold the remainder of the collection to the German state of Prussia.  By this time, Germany was under the rule of Adolf Hitler and the Nazi regime Prussia itself was governed by a leading figure in the Nazi regime, Herman Göring. 
What is the dispute? 
The surviving heirs of the Jewish consortium, one American and one British citizen, claim that the sale of the treasure currently estimated to be worth US$226 million was illegitimate, owing to the presence of duress on the part of the Nazi regime resulting in an unfair price being paid.  The collection is currently housed in the Bode museum in Berlin.  
This dispute has already been brought before the municipal authority in Germany that are responsible for the administration of all German museums, the Prussian Cultural Heritage Foundation.  The complaint was subsequently passed to the German Advisory Commission in connection with the return of Nazi-confiscated art, especially Jewish property’, for a non-binding recommendation on the dispute.  Both the Foundation and the Commission, having applied the applicable law and the Washington Principles (a set of guidelines relevant to claims regarding Nazi-confiscated art that was agreed in the Washington Conference on Holocaust-Era Assets in 1988) found that there was no legitimacy to the heirs claim. The press release from the Foundation is available here, and the decision of the Advisory Commission (in German) is available here

While the Heritage Foundation is the responsibility of the German Federal Government and the German states, it cannot be described as a judicial body.  The Advisory Commission on the other hand was created with the express purpose to hear cases of disputes concerning the seizure of cultural property during the Nazi regime.  While the Commissions recommendations are non-binding, they do tend to be respected by other bodies, as reported here.     

The dispute has since been brought to the US against both the Federal Republic of Germany and the Prussian Cultural Foundation.  The complaint lodged with the court in Washington is available here.

What is next? 
The claim is currently before the Washington courts.  The German authorities have recently recognised the collection as a piece of immense cultural importance, meaning that it cannot leave the country without the permission of the German culture minister as was reported here.    
The legal representatives of the surviving heirs cite the US Foreign Sovereign Immunity Act of 1976, the text of which is available here, in support of their claim that the US courts have jurisdiction to hear the dispute.  The legislation normally excludes any action from being raised in the US where the defendant can prove that it is a foreign state. However, there is an exception to this rule: the commercial exception, which provides that the US courts have jurisdiction to hear a dispute

  •          in which the action is based upon a commercial activity carried on in the United States by the foreign state; or
  •          upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or
  •          upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States;
The German state is linked to the Foundation through the membership of its controlling body, which is composed of German Federal Government representatives, and through its being a creation of German law.  Legal representatives of the surviving heirs have argued that the activities of the Prussian Cultural Heritage Foundation, in partnership with many American museums the loaning of collections of art, publishing of books for sale etc meets the commercial exception.  As  yet, neither Germany nor the Foundation has entered a defence. 

The difficulty with this claim - should the US courts decide to hear it - is that there does not appear to be any new evidence to  hear.  The German authorities found that there was no historical evidence of a forced sale of the treasure as a result of Nazi persecution, and the US courts will presumably hear the same evidence that was the subject of the Associations decision.  One does wonder how different any decision of the US courts would be compared to that of the German authorities, on the same evidence.      

The Guelph Treasure is one of the largest collections of religious works to have been reported in recent history.  How will the US courts approach the issue of jurisdiction, and will their decision add anything to the debate about how courts handle similar claims in the future? It is not merely the Guelph Treasure but the methodology for determining the validity of historical claims that is at stake.

Sunday, 1 March 2015

UN ban on export of antiquities targets Islamic State funding

On February 12 the UN Security Council unanimously adopted Resolution 2199 to respond to the threat posed by the insurgent group Islamic State and affiliated terrorist entities. The resolution condemned any trade with the IS, and set out sanctions aimed at undermining their ability to raise funds through the trade of antiquities, as well as from the trade of oil, hostages, arms and receiving donations.

In relation to the looting of antiquities, the Resolution:
  • condemned the destruction of cultural heritage in Iraq and Syria (whether incidental or deliberate), including targeted destruction of religious sites and objects;
  • noted with concern that the IS, Al-Nusrah Front and Al-Qaida affiliates are generating income from the direct or indirect trade in looting and smuggling of cultural heritage items, which is being used to bolster their recruitment drive and operational capabilities;
  • reaffirmed an existing ban on the illicit trade of antiquities from Iraq, which was first imposed in 2003 during the Iraqi War and calls upon Member States to take preventative action in relation to such trade; and
  • extended this ban to the illicit trade of antiquities from Syria.
The text of the resolution was co-sponsored ‘in a rare display of unity’ by all 15 Security Council members (in contrast to deadlock over Syria’s civil war and the Ukrainian conflict), and the news was welcomed by representatives of Russia, China, the UK, the US and Jordan, as well as UNESCO’s Director-General, who called it “a milestone for enhanced protection of cultural heritage in Iraq and Syria."

The ban follows intelligence obtained in 2014, 2 days before the capture of Mosul by extremists, that revealed the IS had cash and assets of around $875m (£516m). After the fall of Mosul and consequent looting of banks and capturing of military supplies, this is estimated to have risen to about $2bn. The link between terror financing and stolen antiquities is one that has been widely-reported, although it has been difficult to estimate exactly how much revenue has been generated by IS from the trafficking of antiquities as well as the proceeds from taxing looters. An Iraqi intelligence official said, "They had taken $36m from al-Nabuk alone [an area in the Qalamoun mountains west of Damascus]. The antiquities there are up to 8,000 years old". 
"Before this, the western officials had been asking us where they had gotten some of their money from, $50,000 here, or $20,000 there. It was peanuts. Now they know and we know. They had done this all themselves. There was no state actor at all behind them, which we had long known. They don't need one."
Meanwhile, the BBC has just released a report on the trade of antiquities from Syria through Turkey and Lebanon to Europe, featuring firsthand accounts from some of the men involved in the trafficking of cultural objects for the IS. It is interesting to note that at a local level the tide is turning against the smugglers:

‘Mohammed is still involved in cross-border trade, but no longer in antiquities. “Anyone caught with it gets severe punishment,” he says. “They accuse you of being IS.”’

Monday, 23 February 2015

Picasso's electrician on trial over art treasure

It all started with a box. A box with a huge treasure: 271 Picasso works, including six oils on canvas, 28 lithographs, and some rare cubist collages and sketchbooks, dating from 1900 to 1932. The total value of the treasure trove is estimated at between 60 and 80 million euro.

When the artist died in 1973 the box disappeared. It reappeared almost half a century later in 2010, when Pierre Le Guennec and his wife Danielle asked the Picasso Estate for certificates of authenticity for some of these unpublished works.

Le Guennec had worked as a handyman for Picasso in his villa in Mougins, in the south east of France, where he even installed an alarm system. The couple has always stated that Picasso's wife, Jacqueline, gave Le Guennec the box with the 271 works inside as a present shortly before Picasso's death in 1973. The Le Guennecs claimed to have forgotten it for decades in their garage, at the back of their small house in Mouans-Sartoux, near Cannes.

But the Picasso Administration, led by Claude, one of the artist's sons, dismissed Le Guennecs' story as “ridiculous" and the painter's heirs filed a complaint in 2010 before the Court of Grasse. The box was seized.

The couple recently went on trial accused of possessing stolen goods. The trial, based on witness accounts, suggested that Maurice Bresnu, a longtime driver for Picasso and husband of a distant cousin of Pierre Le Guennec, had helped Pierre Le Guennec to get the job with Picasso. Bresnu allegedly swiped some works, but according to the public prosecutor, all legal actions vanished with Bresnu's death in 1991.

On the other side, Le Guennec's lawyer, Charles-Etienne Gudin, said that Picasso gave the works to his client to thank him for his kindness and he never tried or wanted to sell the works saying "You don't sell gifts".

The verdict against the Le Guennecs will be announced by the Judge on 20 March and if found guilty for concealing stolen goods, they could be sentenced to five years in prison and fine of 375,000 euro or more.

Thursday, 19 February 2015

Code of Best Practices in Fair Use for the Visual Arts

I have just received the following message and, since it seems so relevant to this blog, I thought I'd spread the word.
The College Art Association (CAA) has published the Code of Best Practices in Fair Use for the Visual Arts, a set of principles addressing best practices in the fair use of copyrighted materials based on a consensus of opinion developed through discussions with visual-arts professionals. It will be a vital resource for everyone working in the field, including artists, art historians, museum professionals, and editors. Initiated by CAA in 2012, the multi-year effort has been led by the Code’s authors, Peter Jaszi and Patricia Aufderheide, professors of law and communication studies respectively at American University and the leading experts on the development of codes for communities that make use of copyrighted materials in their professional practices. 
Linda Downs, CAA executive director, said, “The Code is a crucial contribution to the field as a clear statement on best practices in the fair use of copyrighted materials that directly reflects a consensus from the visual-arts community. CAA is grateful to all of the artists, art historians, museum professionals, and editors, among others, who participated in the project so generously with their time and collective knowledge.” 
The Code describes the relevance of fair use in five broad areas of the visual arts field:
  • Analytic Writing: When may scholars and other writers about art invoke fair use to quote, excerpt, or reproduce copyrighted works?
  • Teaching about Art: When may teachers invoke fair use in using copyrighted works to support formal instruction in a range of settings, including online and distance teaching?
  • Making Art: Under what circumstances may artists exercise fair use to incorporate copyrighted material into new artworks in any medium?
  • Museum Uses: When may museums and their staffs invoke fair use in using copyrighted works—such as images, text, and time-based and born-digital material—when organizing exhibitions, developing educational materials (within the museum and online), publishing catalogues, and other related activities?
  • Online Access to Archival and Special Collections: When may such institutions and their staffs claim fair use to create digital preservation copies and/or enable digital access to copyrighted materials in their collections?
The document itself is 22 pages in length (inclusive of covers, credits etc), clearly written and with a couple of well worth while appendices on fair use today and the methodology employed in creating the Code in the first place. There's nothing on the face of it, though, that indicates that it is a Code addressed specifically to the United States. Words like "international", "Europe" and "foreign" could not be found on a word search of the Code's text. There's nothing wrong with the Code being US-based, of course, but this blogger has met, over the years, too many creative souls who assume that what is permitted -- or prohibited -- in one country is permitted or prohibited in all, and he would like Codes such as this to make it very plain for non-lawyers as to where their provisions are likely to be most helpful.

Wednesday, 18 February 2015

Transformative use of a building: does it infringe architect's moral rights?

A recent article in the NL Times, here, raises an issue which reflects a popular exam question for copyright students. The article is "Architect sues Leiden museum on copyright charge" by Hanna Daych and it reads, in relevant part (with links added):
Architect Fons Verheijen is planning legal action against the Naturalis Museum in Leiden, whose exhibition space building he designed. He argues that the museum is violating Dutch copyright laws by transforming the exhibition space into a storage facility and office space.

“They’re mutilating the building,” Verheijen told NL Times. “Somebody who creates art cannot have their work mutilated. Transforming my exhibition space into a storage space is mutilation.” ... [H]e plans to begin legal proceedings against the museum in April. His aim is to force the museum to scrap its current plans. ...

“My building is of a high architectural quality; it should not be used for storage,” Verheijen said. He insists that the existing exhibition space should be maintained and recommends the museum instead build an extension onto the current space for the office and storage requirements. “I’m not against another architect designing that,” he noted.

Architect Michiel Riedijk understands Verheijen’s disappointment. “But a client always has the right to make modifications to a building. Our work is a product and not an autonomous work of art, such as a painting. We are articulating his design rather than inflicting an injustice to it,” he said in an article in de Volkskrant. ...
This blogger loves the line about "we are articulating his design rather than inflicting an injustice to it" and wishes he had composed it. Having said that, copyright does not impose a binary system on the outcomes of intellectual creativity. It is open to an initiative to be both an articulation of a design and injustice to it.  Since there is no accounting for taste, no attempt will be made here to predict the outcome of the forthcoming legal proceedings -- though readers will doubtless have their own opinions.

Thank you, Chris Torrero, for this link.

Sunday, 15 February 2015

Near identical photograph - no copyright infringement

A recent story in The Guardian caught my eye.  It was used by Jonathan Jones as an example of lack of the 'amateur delusion of photographic art' but the post about what level of copyright protection should be given for photographs (and whether that should vary dependent on the type of photograph) will have to wait for another day.
Sarah Scurr's photograph of an iceberg off the coast of Chile

This story concerned a photograph of a glacier which was taken by a British language student back in 2006.  Sarah Scurr was on a boat trip around the Patagonian ice fields when she took a photograph of glacier.  She was living in Chile at the time but when she returned to the UK in 2009 she decided to enter it into The Telegraph's The Big Picture photography competition.  The Big Picture competition is explicitly aimed at finding good quality holiday snaps and the prize is currently a £500 Nikon camera.

Last month the photograph came to the attention of another photographer, Marisol Ortiz Elfedt.  She was very surprised to see that the photograph had been published in The Telegraph.  It was an image she was very familiar with and looked very similar to one she had taken in 2006.  She complained to The Telegraph who investigated.  It turned out that the two photographs were taken on the same day and, given the fact they were on a moving boat, likely at more or less exactly the same time.

Marisol Ortiz Elfedt's photograph of the same glacier

Think how many identical photographs there must be of famous landmarks stored on various computers around the world.  As Scurr, when interviewed by The Telegraph commented, it is surprising that issues like this do not arise more often.  Clearly copies like this do not infringe copyright but the position is more complicated when people try to recreate a famous photograph having the photographic image (rather than the scene or object) clearly in mind.

One UK case which springs to mind is Creation Records.  A photograph of an Oasis album cover was taken by a tabloid photographer before the official photograph had been taken (and from a different angle and distance).  There was no copy of an original work - the judge easily found that there was no copying of the photograph (see below) and arguments that the arrangements of props constituted a dramatic work, collage, sculpture or work of artistic craftsmanship all failed.

The relevant paragraph [15] from the judgment is below (emphasis added):

Next, Mr Merriman contended that Mr Seeburg's photograph was itself a copy of the official photograph taken by Mr Jones, regardless of the order in which the two were taken. I do not see how that can be argued. If the subject matter is not itself copyright, in principle two different photographers can take separate photographs of the same subject without either copying the other. Of course copyright subsists in the official photograph and if it were the only source of the scene it would be an infringement to copy that, either by a direct copying process or by the scene being recreated and a fresh photograph taken of that recreation. But it is a basic proposition of copyright law that two works created from a common source do not by reason of that fact involve copying one of the other, however similar they are.

Consequently the claim of copyright infringement failed.  However, had the tabloid photographer recreated the official photograph rather than photographing the scene, he would almost certainly have infringed.

There are two morals to this story.  First, be careful before crying copyright infringement - remember that it may be a coincidental image - is it identical or just very similar?  Secondly, as we know from the red bus case, recreating a photograph can still infringe.  This is theoretically the case even if it is of a famous building or landscape - although the less creative the composition the more the similarity of technique, lighting, effects etc will be important in determining whether a substantial part has been taken.

For those worried about the outcome of the Creation Records case, whilst the copyright infringement claim may have failed, the judge found in favour of Oasis and granted an interim injunction on the basis of breach of confidence.

Monday, 9 February 2015

Islamic State steps up its destruction of Iraqi cultural heritage

Guest blogger Marian Ang, trainee solicitor at Olswang and previously of UNESCO, has kindly written this blog on UNESCO's calls for protected cultural zones in Iraq: 

It has been reported that the Islamic State has stepped up its ‘purge’ of Iraq’s cultural sites over the past month, most recently in Mosul – Iraq’s second city and the largest city currently controlled by the extremists.

Considering ‘culture, civilization and science as their fierce enemies’, IS’s occupation of the city has seen the destruction of dozens of historic sites holding meaning for Jews, Christians, and Muslims alike, including the ancient Nineveh wall, the Citadel Church and the mosques and tombs of the prophets Seth and Jonah. Mosul Museum is now reported to be under the control of IS, with the museum’s prized collection of art and antiquities facing destruction or sale on the black market. Numerous reports point to IS using the looting and trafficking of such antiquities to fund their campaign.

Most recently, Mosul’s Central Library had around 2,000 items, including maps and books dating from the Ottoman Empire, seized and allegedly burned for promoting ‘infidelity’ and ‘disobeying Allah’. Whilst during the Iraq War residents near the Central Library secreted away centuries-old manuscripts to prevent their looting or destruction, IS has declared the penalty for such actions death.

Meanwhile UNESCO has called the protection of cultural heritage in Iraq and Syria ‘a security imperative’, and suggested that protected cultural zones around heritage sites could be created through a ‘bottom up plan of action’, built on locals’ increasing aversion to the violence, bloodshed and suffering. The meeting of 500 delegates at Paris headquarters in December also called for implementation of the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict and its protocols, as well to end impunity against deliberate attacks on cultural heritage, which is a war crime under the Rome Statute of the International Criminal Court.

Read more here and here

Read more about UNESCO's call for protected cultural zones in Iraq and Syria here

Is copyright in a 1980s Michael Jordan photo infringed by the Jumpman logo?

In the run up to the 1984 Olympic Games, Jacobus Rentmeester took various photographs of Michael Jordan for LIFE magazine. The iconic image which he ultimately produced involved a jump which Rentmeester asked Jordan against a plain skyline with freshly cut grass. The photograph that he took is below.

What happened? 

According to Rentmeester's complaint, following publication of his photograph in LIFE magazine, Nike paid Rentmeester $150 for temporary use of two 35mm colour transparencies. The invoice stated that this was “for slide presentation only, no layouts or any other duplication”.

Rentmeester alleges that following receipt of the transparencies, the below photograph was produced and used by Nike as part of an advertising campaign for Air Jordan shoes:

Mr Rentmeester apparently complained about Nike's use of his photograph to create the above image and in 1985 he reached a settlement with Nike whereby, in return for $15,000, he agreed that Nike could use the photograph on posters, billboards etc in North America only for two years.

Rentmeester is now complaining that Nike continued to use the photograph beyond both the term and the territorial restrictions imposed by the 1985 agreement. Significantly, Rentmeester is claiming that Nike's use includes the famous Jumpman logo.  For those unfamiliar with the logo, the complaint includes the following handy comparison of the silhouette of Michael Jordan in the Rentmeester photograph (left) with the Jumpman logo (right).

The complaint goes into a lot of detail regarding the creative decisions that Rentmeester made when creating the photograph:

"Mr. Rentmeester wanted to maximize visual attention on an isolated figure of Mr. Jordan, and so the photograph needed to be taken outside, with a background of sky rather than the interior of an auditorium. Mr. Jordan would be depicted in away to express his tremendous athletic ability: he would leap through the sky and appear to soar elegantly. Mr. Rentmeester created the pose, inspired by a ballet technique known as a “grand jeté,” a long horizontal jump during which a dancer performs splits in mid-air.  The pose, while conceived to make it appear that Mr. Jordan was in the process of a dunk, was not reflective of Mr. Jordan’s natural jump or his dunking style.

Mr. Rentmeester further planned that Mr. Jordan would leap with his left leg forward and his right leg behind, and his left hand extended while holding the basketball, so that the basketball would appear to be perched on top of his fingertips, his body open and facing the camera, his limbs extended outward, and his right hand open, showing his fingers."

Given that level of input into the creative process, following Infopaq and Painer, the photograph would be protected in the EU as Rentmeester's own intellectual creation.  Presumably the position is the same in the USA.

Why now? 

The cause of action arose in 1987 – when the licence expired (or possibly sooner if Nike used the photograph/Jumpman logo outside of North America before then). So, why has Rentmeester waited?

The cause of the delay is anyone’s guess – lack of money, time or inclination to do anything about it in the late 1980s, perhaps. However, the reason why he is pursuing the claim now is thanks to Raging Bull, or more precisely, the US Supreme Court’s decision in Petrella v MGM which was decided in May 2014.

The US Supreme Court found that because the US Copyright Act limits retrospective relief to three years before the date of claim, laches does not apply.  Laches is the equitable doctrine that states you cannot pursue a claim if you have unreasonably delayed in bringing a claim - 30 years would likely have constituted an 'unreasonable delay'.   Moreover, the court decided that ‘when a defendant commits successive violations, the statute of limitations runs separately from each violation.’ In other words, every time that Raging Bull is distributed (or Nike sells a pair of Jumpman branded goods) a new three year limitation period starts to run.

It is worth noting that it follows from this that there is no benefit to Mr Rentmeester in waiting until now. If he had pursued Nike sooner, he could have recovered losses based on past infringment and obtained a licence covering future use. As it is, the best Mr Rentmeester can expect is damages for the three years prior to issuing his claim and a licence for use going forward.

Does Rentmeester have a claim? 

At first glance, it is easy to see why many people online are dismissing this as another example of IP law gone crazy.   “It’s Michael Jordan who posed not the photographer” is typical of the general sentiment behind these posts.  However, I’m not sure it is quite so simple.  The pose in the photograph is not a natural one, it was deliberately selected by Mr Rentmeester (together with the plain background which makes the pose stand out even more).  Further, although I am no expert(!) it does not appear that Michael Jordan ever employed this balletic pose when actually playing basketball.  Further, Nike obviously thought that it required a licence when it settled with Mr Rentmeester in 1985.

Should Rentmeester's rights in the photograph extend to the logo? 

The copy of the Rentmeester photograph does appear to have been used since 1987 but it is the translation of the Nike photograph into the Jumpman logo which is where the money (and hence the battleground) lies.  Is this translation into a logo a ‘transformative use’?  Prior to Cariou and Prince, the answer would have been a definite "no".  But now the situation is less clear.  Indeed there is an argument that if Cariou lost to Prince, surely it follows that Rentmeester must lose to Nike.

Does it make a difference if the ‘fair use’ is not to create another artwork but to create a global brand?  Surely this sort of commercial use is sufficiently far from being an art work for transformative use to not apply?  We shall see...

This promises to be a very interesting case and one which I look forward to following – assuming it doesn’t settle…

Postscript: Michael Jordan and the wonderful world of IP 

Whilst researching this post, I found out that Michael Jordan is no stranger to IP litigation. He has had a long running dispute with a Chinese sportswear company, Qiaodan (the transliteration of “Jordan” in Chinese).

Jordan claimed that Qiaodan mislead customers into believing that he has authorised the use of his name (and his children’s names – which Qiaodan has applied to register as Chinese trade marks). Meanwhile Qiaodan sued Michael Jordan for $8million in retaliation claiming that his allegations had prevented the company from pursuing an IPO.

Interestingly, Qiaodan chose to use a logo which was more akin to Jordan’s traditional basketball movements (see below).

You can read Rentmeester’s complaint here.   Note: I could not find Nike’s response online - if anyone has a copy (or knows when it will be filed) please let me know.

Sources: NBA and Financial Times

Wednesday, 28 January 2015

Tuymans tussle over alleged parody: no defence, says court

"Tuymans found guilty in copyright case involving political portrait", an online-only piece by Julia Halperin for The Art Newspaper last week, related the tale of Belgian artist Luc Tuymans, who was held liable for copyright infringement by a civil court in Antwerp which ruled that Tuymans’s painting, "A Belgian Politician", this being a heavily cropped image of the MP Jean-Marie Dedecker (shown right), borrowed too heavily from a photograph taken in 2010 by photojournalist Katrijn Van Giel (show left. The article adds, in relevant part, that
The court has forbidden Tuymans from making additional versions of the work; he faces a €500,000 penalty if he does not comply. He must also secure Van Giel's permission in order to publicly exhibit the painting in the future. The ruling, delivered a week ahead of schedule, did not address whether Tuymans owes any additional damages to the photographer. “This may come at a later stage, in separate proceedings,” says Van Giel’s lawyer Dieter Delarue.

Both Van Giel’s photograph and Tuymans’s painting capture the top half of Dedecker’s face. The controversial politician’s brow is furrowed and beads of sweat are collecting on his harshly lit forehead. ...

... Tuymans admitted that Van Giel’s photograph served as inspiration for the painting. But the artist denied he had violated copyright law and claimed that his work—rendered in a characteristically muted palette—was a parody rather than a copy. Tuymans’s lawyers have argued that the painting is a critique of Belgian society’s growing conservatism.
“We are happy that the court was not misled by Tuymans’ argument that his work is a parody. The court followed our argument that the work of Tuymans is not a humorous work, which is the most important requirement for a work to qualify as a parody,” says Delarue, Van Giel’s lawyer.

It is understood that Tuymans plans to appeal.

This is the first parody ruling to come to this blogger's attention since Case C-201/13 Deckmyn [on which you can study an entire oeuvre of blogposts on the IPKat by Eleonora Rosati, here], in which the Court of Justice of the European Union laid down the first set of principles by which defences of parody in copyright infringement actions should be measured. In short, the court ruled that
1. Article 5(3)(k) of Directive 2001/29 ... on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as meaning that the concept of ‘parody’ appearing in that provision is an autonomous concept of EU law.

2. Article 5(3)(k) of Directive 2001/29 must be interpreted as meaning that the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery. The concept of ‘parody’, within the meaning of that provision, is not subject to the conditions that the parody should display an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work; that it could reasonably be attributed to a person other than the author of the original work itself; that it should relate to the original work itself or mention the source of the parodied work.

However, the application, in a particular case, of the exception for parody, within the meaning of Article 5(3)(k) of Directive 2001/29, must strike a fair balance between, on the one hand, the interests and rights of persons referred to in Articles 2 and 3 of that directive, and, on the other, the freedom of expression of the user of a protected work who is relying on the exception for parody, within the meaning of Article 5(3)(k).

It is for the national court to determine, in the light of all the circumstances of the case in the main proceedings, whether the application of the exception for parody, within the meaning of Article 5(3)(k) of Directive 2001/29, on the assumption that the drawing at issue fulfils the essential requirements of parody, preserves that fair balance.
The Antwerp court's ruling looks as though it fits the Deckmyn rules: no humour and no mockery = no parody and no defence.  Coincidentally both this case and Deckmyn concern alleged Belgian parody.