Tuesday, 19 August 2014

The Eagle swoops, the Eye Droops: graffiti goes to court

"Graffiti copyright battles pitch artists against advertisers" is the title of a fascinating piece by this blogger's friend Enrico Bonadio (Senior Lecturer in Law, City University, London), where he teaches Intellectual Property Law and EU Law. Enrico's piece reads as follows, in relevant part (minus links):
" ... A legal row between Miami-based street artist Ahol Sniffs Glue (“Ahol” – or David Anasagasti to his mother) and the clothing retailer American Eagle Outfitters is the latest instance of a growing number of spats. The artist recently sued for copyright infringement in a US federal court after American Eagle began using his work in their promotional material.

Ahol is known for his signature “droopy eyes”, variants of which appear all over Miami. Earlier this year, when looking to support its spring collection advertising with an eye-catching urban touch, American Eagle started using Ahol’s artwork. Droopy eyes popped up on its web adverts, billboards and in-store displays worldwide as well as on Instagram, YouTube and in storefronts across the world. At an opening in Colombia, the store even allegedly hired local street artists to recreate Ahol’s original, complete with American Eagle logo.

One of the images the multinational company used on its billboards depicts a male model wearing American Eagle clothes while standing in front of a legal mural by Ahol named Ocean Grown, after a gallery that commissioned and hosts the work. In the most brazen touch of all, the model carries a spray paint can. Clearly the advertising is not just looking to appropriate the visual effect of the nice background; it’s attempting to grab some of street art’s illicit cool by implying the model had painted the work himself.

... 
Paintings on walls are no different from other artistic works – and they therefore satisfy the requirements for copyright protection, including originality. This it particularly true of legal graffiti works such as the ones created by Ahol in Miami and (mis)appropriated by American Eagle. It would make no sense to deny copyright protection to works that have been legally commissioned.

But still, even illegal graffiti deserves copyright protection. Possible wrongdoings committed by street artists (trespass, vandalism and so on) concern the process through which the works are done: painting on a wall or train, for instance, without the authorisation of the property owner. ...

Street artists thus might find in copyright law an ally, a friend that can help them in giving added value to their works and reacting to “art stealers” and (why not?) making money out of their job, and their passion".
Copyright should be the ally of every artist, and the fact that the graffiti constitutes a criminal act of vandalism or unlawful interference with property should not affect that.  But there is a sense in which unauthorised and uncommissioned graffiti is somehow "public" property too. One can understand why the owner of the wall or other medium (train, truck or whatever) might feel entitled to indulge in some exploitation of a work, commercial or otherwise, if it has been foist upon him against his will -- but why should a third party such as the proprietor of a garment brand be so entitled?

Thanks are due to Chris Torrero for supplying the relevant link.

Wednesday, 13 August 2014

New York art dealer denied tax relief over Beltracchi fake

In 2011, the notorious forger Wolfgang Beltracchi was sentenced to six years in prison for creating and selling “unknown” works, supposedly by various master artists, to unsuspecting art dealers.

One of these dealers was New York based Richard Feigen. The New York Law Journal (NYLJ) reports that in 2004 Feigen sold a painting which he believed was by the Surrealist painter Max Ernst for US$2.5 million. Having sold the piece, the dealer then duly paid sales tax of US$215,625 to the tax authorities.

One of Beltracchi's fake Max Ernst paintings
When the Beltracchi scandal broke and Feigen found that the Ernst was a skilful fake, he bought the painting back from its new owner at the same price for which he had sold it. In turn, the French gallery from which Feigen had bought the painting gave the dealer back the same sum he himself had paid.

However, this still left Feigen short of the US$215,625 sales tax that he had paid in respect of the aborted sale of the Ernst. So in June 2011, following Beltracchi’s trial, Feigen applied for a credit against, or refund of, that sum.

Unfortunately for the dealer, such refunds are permitted only within a three year window and that window had expired, at the latest, in early 2008. “Public policy does not favour the granting of refunds beyond the allowed period of time,” the tax authorities stated. “Anything less than this degree of certainty would make the financial operation of government difficult, if not impossible.”

It is entirely understandable that such limits should be applied in the majority of cases. But in a case where the taxpayer himself was subject to fraud and took prompt steps to correct his tax position once that fraud became apparent, the result appears harsh. 

“I can’t imagine that New York would want to collect a sales tax on a sale that was cancelled,” the NYLJ reports Feigen saying. “I can’t imagine how they can justify collecting tax on a non-sale.”

Given the scale of the art market in New York, this ruling could raise the suggestion that when buying art work the seller be contractually placed on risk for any resulting sales tax as well as for the value of the work itself, in the event that the work is not what it seems.

Read more here.  

Wednesday, 6 August 2014

Arts Council England strips museums of their Accreditation

The Arts Council England (ACE), through its Accreditation Scheme, sets nationally agreed standards for museums in the UK.

According to the ACE:
"Accreditation is the UK standard for museums and galleries. It defines good practice and identifies agreed standards, thereby encouraging development. It is a baseline quality standard that helps guide museums to be the best they can be, for current and future users." 
"Accreditation enables museums and governing bodies to assess their current performance, and it supports them in planning and developing their services." 
Unfortunately for two local museums, it seems that they were not up to standard. At the beginning of this month, the ACE stripped both the Northampton Museum and Art Gallery and the Abington Park Museum of their Accreditation

The Museums Association Journal explains:
Arts Council England (ACE) announced today that it has stripped Northampton Museums Service of Accreditation following the disposal of the ancient Egyptian statue Sekhemka.
Northampton Borough Council controversially sold the statue for £15.8m at auction last month and will take home £8m of the proceeds. The remaining share will go to Lord Northampton, whose ancestors donated the statue to the museum. 
 
Following a hearing last week, the arts council’s Accreditation panel found that the process leading up to the sale and the sale itself were in contravention of the Accreditation standard.
In a statement today, the arts council said: “As a result of this non-compliance the two museums managed by Northampton Borough Council, Northampton Museum and Art Gallery and Abington Park Museum, have been removed from the Accreditation scheme, effective as of 1 August 2014, and excluded from future participation for a minimum period of five years, until at least August 2019.” 
It is reported that the museums were warned that sale of the statue could lead to them losing their Accreditation status. There were also protests outside Christie's prior to the sale calling for the statue to be returned to Egypt if the Council did not want it. Nevertheless, they went ahead and sold it.

The loss of the ACE Accreditation is likely to affect the museums' ability to apply for future grants and funding. It remains to be seen whether it was worth it.

Source: The Museums Association, 1 August 2014, BBC News 1 August 2014

Tuesday, 5 August 2014

Artist's Estate Sues Chelsea Hotel

The famous Chelsea Hotel in New York has been a setting for many a scandal. The last few years have seen comparatively milder wranglings over the artworks that used to hang in the hotel, prior to its sale in 2011.

The most recent case to be filed is a claim by the Larry Rivers Foundation (representing late American artist Larry Rivers) against the new owners of the Chelsea Hotel seeking recovery of a Rivers' painting that, the Foundation alleges, was loaned to the hotel for exhibition purposes only.

The Courthouse News Service provides further details.
Rivers [had previously] loaned another work in its series, De Kooning's Father: Portrait of Arshile Gorky," to the hotel, which hung prominently in its lobby before being sold to a third party, according to the complaint.
The foundation claims that Rivers loaned, but never intended to donate, "Dutch Masters" to replace that work. " 
After Dutch Masters was installed at the Chelsea Hotel, managers of the Chelsea Hotel asked Larry Rivers to donate Dutch Masters to the Chelsea Hotel and Larry Rivers refused that request," the complaint states. 
After Rivers died in 2002, his foundation received the title to "Dutch Masters."
It was not, however, until the hotel was sold that the Foundation asserted ownership and tried to recover the painting. After several years with no success, the Foundation was left with little option but to bring this recent claim seeking return of the painting and at least $250,000 in damages for conversion and unjust enrichment.

Considering some of the stories surrounding other paintings which went missing at the same time, success in the claim might not necessarily mean recovery of the painting. But let's hope that this piece was not just thrown in the bin.

Source: Courthouse News Service, 31 July 2014

Monday, 4 August 2014

No copyright on milk crate?

On his Facebook page, the Melbourne artist Jarred Kennedy recently claimed that Hany Armanious' new artwork - a giant milk crate - looks similar to his sculpture, the 2005 McClelland Sculpture Prize entry.

Kennedy's post on his Facebook page

Last Wednesday, three public artworks were revealed by Sydney Lord Mayor, Clover Moore, including Hany Armanious' giant 13.7 metre high milk crate 'Pavilion', which the Sydney council decided to install in Belmore Park, near Central Station.

Armanious, whose giant crate is accused of infringing the copyright in Kennedy's work, is one of Sydney's most respected contemporary sculptors and a globally recognised talent. When Armanious submitted 'Pavilion' for review by Sydney's City Centre Public Art Evaluation Panel, it garnered praise from panel member Lisa Havilah, director of Carriageworks. She said that "Sydney is full of milk crates and there was something wonderfully irreverent about making one 40 times larger that people can enjoy in a park".

Kennedy sent a letter to the City of Sydney and to Amarnious with reference to the alleged copyright infringement. The City of Sydney responded with the statement that a copyright infringement needs some act of copying and Kennedy will have to prove that Armanious had previously seen his milk crate.

While the question of whether Armanious' blue milk crate does infringe upon Kennedy's intellectual property rights remains to be answered, this episode leads to the question of the extent to which the law will protect artistic originality. Adaptation and appropriation of previous works by artists have become increasingly accepted by the artistic community, as we saw already in some posts here and here, for instance, in the Cariou v Prince case.

Where do we draw the line between inspiration and imitation?

Tuesday, 22 July 2014

Print-a-Pony: golden opportunity, or taking artwork for a ride?

Printed in 3D, they may never look the same again
With apologies for the cross-post, there follows the first part of a blogpost from Iona Silverman on the 1709 Blog, "My Little Pony Gets 3D Printed", here, which focuses on some of the copyright issues arising from a fascinating piece of commercial cooperation 
"3D printing is a bit of a buzzword at the moment and its not the first time that this blogger has written about protection of IP rights in the 3D printer world. Rightsholders need to be thinking about how best to exploit 3D printing rather than how to avoid it, and one company that has done just that is Hasbro. 

Rather than targeting creators of fan art to stop them customising the popular My Little Pony range (because, really trying to stop your fans from enjoying your product is not a great business proposition), Hasbro is going to partner with 3D printing company Shapeways to sell fan art.

Five artists will design My Little Pony figurines which can be printed to order. John Frascott, chief marketing officer at Hasbro, describes the process as "mass customisation" - the figurines don't make sense for mass manufacture but enough people will buy them that Hasbro can justify allowing the artists to create and sell them.

It's not clear whether the artists will be employed by Hasbro or whether they are merely granted permission to create fan art (likely the former, for Hasbro to retain control of any copyright created) but it is clear that this is a clear demonstration that we will see more and more customised goods in future, meaning more and more 3D printing. ..."
Iona then goes on to ask a number of copyright-related questions, as one might expect in a piece written for a copyright law blog, and readers can consider those issues at their leisure.  From the perspective of Art & Artifice, however, it would be good to get some reactions from artists and those who represent them as to what this ingenious use of a 3D-based business opportunity might make to them

Monday, 21 July 2014

Fair Use in the Visual Trenches

I've recently been preparing to teach a class on intellectual property to visual artists in Seattle. As I gathered information and images for a slide show, I wondered how to explain to working artists (in the course of a few hours no less) why this is fair use:


And this is not.


Yes, we can talk about the four main factors in a fair use analysis and, of course, transformativeness and parody, but practically speaking how is a working artist to put this to use? If lawyers and judges can't agree, or even explain the concept without discussing how vague and opaque the fair use doctrine is, what is an artist to do?

During my research I located a January 2014 Fair Use Report prepared for the College Art Association. The report addresses concerns that fair use is underutilized by the visual arts community due to confusion and fear about copyright infringement.

Some of the key findings and figures are summarized in the report as follows:
"Visual artists and other visual arts professionals, a term used in this report to include (among others) art historians, educators, professors, editors or publishers, museum professionals, and gallerists, share a common problem in creating and circulating their work: confusion and misunderstanding of the nature of copyright law and the availability of fair use—the limited right to reuse copyrighted material without permission or payment.

Fair use is flexible, available, and even core to the missions of many visual arts activities. 

Members of the visual arts communities typically overestimate the risk of employing fair use, which leads them to avoid it, even in circumstances where the law permits and so doing would not harm personal relationships necessary for their work.

They pay a high price for copyright confusion and misunderstanding. Their work is constrained and censored, most powerfully by themselves, because of that confusion and the resulting fear and anxiety.”
The report further found that approximately one third of those in the field had abandoned or declined to undertake certain projects due to copyright issues, this includes museums failing to digitize collections, curators declining to do shows where copyright permissions may be an issue, and artists who avoid collage and other types of appropriation art.

While I agree that fair use is flexible and available, it is perhaps the doctrine's over-flexibility that has led to many of these problems. Couple this with copyrights of expansive duration, lack of guidance with respect to orphan works, and at times avid copyright enforcement, and it is no wonder that some artists are avoiding the fair use morass all together. The outcome of these matters is so often unpredictable, and the courts' lack of consistency in application has left us with a hyper-flexible fair use doctrine and vague best practices.

Of course, this is not to say artists should be voluntarily ignorant and fearful of copyright law. Education about copyright serves as an extremely valuable tool in preventing unnecessary self-censorship and allows artists to understand and assess on their own terms the risks associated with particular uses of copyright-protected materials. Indeed artists should have an understanding that they themselves are the beneficiaries (not just the victims) of copyright protection and all the rights and opportunities associated therewith.

Friday, 18 July 2014

A&A at The John Marshall Law School Review of Intellectual Property Law 6th Annual Symposium


I am very pleased to report that on October 24, 2014 I will be speaking at The John Marshall Law School Review of Intellectual Property Law Sixth Annual Symposium in Chicago.  The focus of this year's symposium is the intersection of art and intellectual property.  I will be speaking on appropriation art, in particular legal issues related to art's own self-appropriation.

Thursday, 17 July 2014

In the Washington Post, David Montgomery reports on a fascinating episode in the tale of contemporary art curatorship. In "Corcoran breakup plan backed by District ahead of hearing; critics seek alternative" he explains that the Corcoran Gallery of Art and Design's dramatic plan to dissolve and reorganize itself with new custodians has received support in the form of an endorsement by District Attorney General Irvin B. Nathan. The Corcoran is Washington DC's oldest private art museum but it has been facing severe financial problems in recent years. Its reorganisation proposal -- which would involve transferring its art college operations to George Washington University and passing a sizeable proportion of its 17,000 artworks to the National Gallery of Art has attracted hundreds of pages of court briefs, not to mention submissions from 53 individuals in their capacity as members of the public.

A public hearing is set for 2:30 pm this Friday before Judge Robert Okun, though it is unclear whether he will give a ruling straight away, delay it or order further proceedings.

Thursday, 10 July 2014

Latest from Detroit

When we last caught up on the situation, creditors of the city of Detroit were looking to the Detroit Institute of Arts (DIA) collection as a source of cash, and experts had been hired by the DIA and the City to value the collection.

By the latest report, however, it seems that although the collection may be worth as much as $4.6bn, a sale of the artworks would not raise enough to pay the City's creditors.

The report in question was produced by Michael Plummer of Artvest Partners LLC, who was hired by the DIA to provide an expert opinion on:
  1. The indicative value of the works in the DIA Collection; 
  2. The feasibility and likely effects on the market and value realization of a sale of the DIA Collection under a variety of market and sale conditions;
  3. Creditor-proposed sales of the DIA Collection;
  4. Monetization alternatives described in Christie's report to the City of Detroit; and
  5. Infirmities in any rebuttal expert reports
What Plummer concludes in the report (dated 8 July 2014) is that:
Rather than being a source of cash to creditors or a burden on the current city. In fact the DIA is the single most important cultural asset the City currently owns for rebuilding the vitality of the city. 
In response to the report, a spokesman for Kevyn Orr, the emergency financial manager for Detroit, said "The report makes it abundantly clear that selling art to settle debt will not generate the kind of revenue the city's creditors claim it will."

Whether the report will stop the creditors from chasing is another matter.

We previously reported that the next major stage of this saga is the trial to determine the fairness and feasibility of the restructuring plan submitted by the City, which was scheduled to start on 24 July. According to the Guardian, however, a federal judge overseeing Detroit's bankruptcy has scheduled the next hearing to start on 14 August 2014.

Read the full report here.
Source: The Guardian, 9 July 2014