Thursday, 26 November 2015


This is just a quick post to say “goodbye”, now that I’m retiring from active involvement in intellectual property.  I have enjoyed my job of providing “back page” support for Art & Artifice and wish the blog team the very best for a productive and successful future.  Thank you, readers, too for the chance to share some fascinating insights with you and to learn more about the legal side of the art trade than I imaged to exist when I first became involved.

Thursday, 15 October 2015

Museum directors agree protocols to provide safe havens for endangered antiquities

Amidst armed conflicts in Syria and Iraq, the Association of Art Museum Directors (AAMD) has announced the release of protocols to help safeguard irreplaceable works of art and archeological materials that are currently in danger of destruction or trafficking.

The Protocols for Safe Havens for Works of Cultural Significance from Countries in Crisis provide a framework for museums to provide safe havens for works at risk from violent conflict, terrorism, or natural disasters.

In a press statement made earlier this month, the AAMD states that the Protocols allow owners/depositors whose works are at risk of damage or destruction to request safe haven at an AAMD member museum, where the works will be held until they can be safely returned. All deposited works will be treated as loans, preventing any issues of title ownership arising at a later date. Details of those works will also be made publicly available on a new section of the AAMD’s online Object Registry, ensuring transparency.

The Protocols consider the preservation of a work’s physical integrity as well as its safety, its provisions covering transport and storage, scholarly access, legal protections, exhibition, conservation issues, and the safe return of endangered works to the appropriate individuals or entities as soon as is feasible.

The AAMD has strongly encouraged its 240 members in the US, Canada, and Mexico to adopt these Protocols, and has invited museums around the world to use the Protocols in their efforts to protect endangered works.

Whilst not legally binding, these Protocols are indicative of the shifting attitudes towards the importance of international cooperation and intervention in protecting cultural heritage, and their release coincides with the first prosecution of cultural heritage destruction as a war crime.

“The scale of human suffering and loss of life that is taking place in Syria and other afflicted areas is devastating, and is compounded by the loss of unique works that are the record of different cultures and our shared humanity,” said Johnnetta Cole, President of the AAMD, and Director of the National Museum of African Art, Smithsonian Institution.

“The level of destruction and the intentional damage is deplorable and an attempt to eradicate cultural identity in tandem with the murder and repression of individuals. We stand with the international community in condemning these reprehensible acts of violence and brutal vandalism, and believe it is vital that we do everything in our power to help save endangered works for all people and for future generations.”

The AAMD’s press statement can be read in full here.

The full Protocols can be downloaded here.

Friday, 9 October 2015

Cultural heritage destruction prosecuted as a war crime for the first time: Islamist militant appears before ICC

In the first case of its kind, an alleged Islamist militant accused of destroying ancient monuments in Mali appeared last week at the International Criminal Court (ICC) charged with damaging humanity’s cultural heritage. It is the first time cultural heritage destruction has been prosecuted as a war crime; the ICC has traditionally focused on atrocities committed against individuals.

Ahmad Al Faqi Al Mahdi appears at the ICC in the Hague, Netherlands (Image: Robin van Lonkhuijsen/AFP/Getty Images)


Ahmad Al Faqi Al Mahdi is charged with war crimes of directing attacks against historic religious monuments and buildings, including nine mausoleums and one mosque in Timbuktu, Mali.

Al Mahdi, from the Ansar Tuareg tribe, was allegedly an active personality in the context of the occupation of Timbuktu, a ‘zealous member’ of Ansar Dine, a Tuareg extremist militia with links to al-Qaeda, and the head of the Hesbah (known as the ‘Manners' Brigade’), which enforced strict Islamist law in Timbuktu during civil unrest in Mali in 2012 and 2013. He is also charged with implementing the hardline Sharia law rulings of the so-called Islamic Court of Timbuktu, in particular the destruction of the nine mausoleums and the Sidi Yahia mosque.

The situation in Mali was referred to the ICC by Mali’s government in 2012, and following an investigation a warrant for Al Mahdi’s arrest was issued in September 2015. Al Mahdi was arrested by the authorities of Niger and handed over to the ICC shortly afterwards.

Timbuktu’s cultural heritage

Timbuktu, a UNESCO World Heritage site known as the ‘city of 333 saints’, was an intellectual and spiritual capital and a centre for the propagation of Islam throughout Africa in the 15th and 16th centuries. The mausoleums of Timbuktu have long been pilgrimage destinations for the people of Mali and neighbouring countries. As shrines to Timbuktu's founding fathers, who were venerated as saints by most of the city's inhabitants, they were widely believed to protect the city from danger. But fundamentalists considered this practice blasphemous. Of the city’s 16 mausoleums, some dating as far back as the 13th century, 14 were destroyed during Ansar Dine’s occupation of the city in 2012, along with mosques and approximately 4,000 ancient manuscripts.

Destruction of mausoleums and mosques during Timbuktu’s occupation (Image: AFP)

What next?

Following the defendant’s appearance before the Pre-Trial Chamber last week, a hearing is scheduled for 18 January 2016, where the Court will determine whether there is sufficient evidence to proceed to a full trial.

This case is a watershed moment in the field of cultural heritage protection, and it has been suggested that the Court consider investigating the Islamic State's destruction of ancient archaeological sites in Palmyra. However, as neither Iraq nor Syria is a member of the ICC, the Court is unable to intervene without a mandate from the UN Security Council.

Meanwhile an initiative to reconstruct Timbuktu’s mausoleums led by the Malian government, UNESCO and international partners is nearing completion. “Here we have our response to extremism,” said UNESCO’s Director-General, “an example of the successful integration of culture in peace building and we must continue along this road.”

Reconstruction of Timbuktu’s mausoleums nears completion (Image: CRAterre/Thierry Joffroy)

The ICC’s case information sheet for The Prosecutor v. Ahmad Al Faqi Al Mahdi can be found here.

More information on Timbuktu’s cultural heritage can be found on the UNESCO World Heritage Site page here.

Thursday, 8 October 2015

"God Hates Renoir": A grass roots art critic speaks out

A strange tale of grass roots art criticism has unfolded in Boston this week. 

An Instagram account started by one Max Gellar, entitled Renoir Sucks at Painting, was taken onto the streets of Boston. Protestors (reportedly, about six of them) stood outside Boston's Museum of Fine Arts (MFA) carrying placards proclaiming that 'God Hates Renoir', 'Renoir Sucks', and the snappy 'ReNOir'. Their demand: MFA should take down its Renoirs, replacing them with other works kept in its storage vaults.

Photo: Lane Turmer /AP

'Why do so many people think he’s good?' the Guardian reports Gellar as asking. 'Have you looked at his paintings?' They are, according to him, 'empty calorie-laden steaming piles', the decision to hang which in public galleries 'represents an act of aesthetic terrorism'.

It is not clear how serious the protest is. The Huffington Post reports Gellar as saying it is 'meant to be taken more ironically than literally', but Gellar's more genuine point appears to be the question of who is entitled to decide what deserves space in national galleries. 'Curators,' he is reported to have said, 'lack the courage to say, ‘Hey, wait, everybody’s been wrong this whole time.’ They’re not looking at the paintings.' 

Either way the story is reminiscent of another, more famous instance of an art critic attacking a painter's work: Whistler v Ruskin, the 1878 libel case in which J M Whistler sued the famous critic John Ruskin over his published letter commenting on some of Whistler's paintings, in particular the impressionistic Nocturne in Black and Gold: the Falling Rocket. Ruskin, in a pithy comment worthy of Gellar, wrote that Whistler's work was like 'flinging a pot of paint in the public's face', enraging Whistler until he finally took the matter to the courts - rather to the amusement of the public, which was impressed neither by Ruskin's over-personal critique nor Whistler's arguably over-sensitive reaction.

J M Whistler
Nocturne in Black and Gold: The Falling Rocket,
The Detroit Institute of Arts 

Luckily for Gellar, Renoir, who died in 1919, is not around to follow Whistler's lead and sue - it is a general principle that the dead cannot be defamed. But even if he were alive he might be put off by the outcome of that historic trial. The painter won, but instead of the £1000 he had claimed, poor Whistler was given just one farthing in nominal damages, leaving him in heavy debt due to paying his own costs.

Meanwhile, the MFA shows no signs of bowing to public demand, and Renoir's works remain on view to offend or delight, as the case may be. 

Wednesday, 16 September 2015

Anish Kapoor sued for leaving racist graffiti on his sculpture at Versailles

The British artist Anish Kapoor recently announced that right wing Versailles municipal councillor, Mr Fabien Bouglé, had filed a lawsuit against him and the president of the Palace of Versailles, Catherine Pégard, for choosing not to remove some racist graffiti from his sculpture "Dirty Corner".
Dirty Corner by Anish Kapoor
The complainant, Bouglé, said that the vandalized artwork now incites racial hatred and insults and should be cleaned.
The sculpture was installed last June in the gardens of the French Palace of Versailles and has since been vandalised twice. The first time, the artwork was cleaned after being splattered with yellow paint a few days after its installation, but, after the second attack, the artist decided to leave the anti-Semitic messages on the sculpture's exterior. 
Although Kapoor strongly condemned the racist messages, he decided to leave them on the sculpture as a reminder of the intolerance and hate in the society. "I had already questioned the wisdom of cleaning it after the first vandalism. This time, I am convinced that nothing should be removed from these slurs, from these words which belong to antisemitism that we'd rather forget" Kapoor told le Figaro.
His choice has opened a public debate. On one side, the French President, François Hollande, expressed his support for the artist, agreeing with Kapoor's decision. Likewise, the French Culture Minister, Fleur Pellerin, said she respected Kapoor's choice, and said that the public debates surrounding Kapoor's decision were "extremely interesting and raise the question of creative freedom".
On the other side, Kapoor's choice was criticised by Jonathan Jones of the Guardian. Jones believes that Kapoor should reconsider his decision and clean the work, thereby not offering the vandals any publicity. According to the British journalist, the sculpture should be properly protected by the French Police and become a permanent addition to Versailles: that would be the true victory for culture over barbarism. 
For the moment, notices explaining the vandalism to visitors have been installed next to the work, while the French lawsuit against Kapoor is ongoing.  
Photo: Francois Guillot/ AFP Le Figaro

Sunday, 13 September 2015

Art Buff returns to Folkestone

Art Buff
"Banksy artwork set to return to Folkestone after lengthy legal battle" is the title of this item, reported a couple of days ago in the Guardian. It reads, in relevant part, as follows:
A Banksy artwork ripped from a wall in Folkestone and shipped to the US is to be returned to the seaside town after a lengthy legal battle, in the first example of a Banksy being returned to public ownership. A British judge ruled on Friday morning that the mural, titled Art Buff, was to be returned to the place where it was originally daubed by the elusive graffiti artist during the Folkestone Triennial last year.

The artwork, which depicts a woman looking at an empty plinth while listening to headphones, appeared overnight last September. It was verified by the elusive artist on his website, with the words: “Part of Folkestone Triennial. Sort of.” The piece attracted hundreds of visitors but just weeks after its appearance the owners of the amusement arcade on which it was painted chiselled it out of the wall and sent it to a gallery in New York – which valued it at almost half a million pounds. It was later sent to an art fair in Miami where it failed to sell.

The legal challenge to return the artwork to Kent was launched by Folkestone-based arts charity the Creative Foundation, with the financial backing of a benefactor, who felt that Art Buff belonged to the people of Folkestone and not to a wealthy collector.  ... 
The piece, he said, had been cut out under the supervision of art dealer Robin Barton who trades under the name of Bankrobber and specialises in Banksy pieces.

After investigating the matter, lawyers acting for the Creative Foundation discovered that the Godden family, who had ordered the removal and sale of the Banksy, only owned the leasehold – not the freehold – of the arcade where Art Buff had been drawn. An injunction against selling the artwork was taken out in early 2015, and on Friday morning judge Richard Arnold ruled that the tenant had “no reasonable prospect of establishing that it was entitled, let alone obliged, to remove the mural” and ordered its return to Folkestone. ...

In the past Bansky has condemned the removal and private sale of his artworks as disgusting. In April last year 10 of Banksy’s most expensive murals, all of which had been removed from public spaces, were sold at auction in London for between £100,000 and £500,000 each.

Upton said he hoped the case, which was the first example of a Banksy being returned to public ownership, would inspire others in the future. “People should fight to keep these works in the public realm,” he said. “That’s how they came about and where they were intended to stay – not that I have any idea what Banksy’s intentions are.”
While it's good to see that this piece of artwork has been saved, it is worrying that the fate of a piece of art should be made to hinge on something as arbitrary was whether the wall upon which it was painted was held by a leaseholder or by the freeholder.

Tuesday, 18 August 2015

The Art of Protecting Design

We are lucky to have another guest post from the wonderful Molly Torsen Stech: Knowing that other attorneys gracefully bridge the different bodies of intellectual property law more often than I, I recently found a post on the 1709 Blog very interesting; it considered the various ways in which interior design might be protected by intellectual property laws. In particular, it considered copyright, design rights, and trademark rights; and it generated some interesting comments.

Of course, “interior design” can comprise a wide array of meanings. Is it the totality of the look and feel of a single room in a home or is it a hotel’s overarching color scheme and atmosphere, complete with floral arrangements, wallpaper, and furniture style and placement that comprise interior design? Given that Serbia has recently amended its design law, Israel is considering a new design law, the European Commission may publish the results of an evaluation of the legal and economic aspects of its design protection in early 2016, and given the fascinating designs on view at the ongoing Expo in one of my favorite cities, some esoteric musings on the nexus of IP laws are perhaps warranted.

In struggling to understand the term “interior design,” it is also useful to spend some time parsing the term “industrial design” (and even just “design”), in an effort to understand how to differentiate design from art; and art from commercial identification, and so on. Needless to say, none of this is straightforward. As McKenna and Strandburg note, “[p]roduct design lies at the intersection of the patent, copyright, and trademark regimes. Useful articles often have both utilitarian and aesthetic aspects, and at times their features serve as source identifiers in the marketplace.” The United States handles these amorphous questions under copyright law, design patent law, and/or sometimes trademark (trade dress) law.

Unlike the European Union, and other intellectual property regimes, it does not have a sui generis design law under which to protect designs specifically, although the United States did recently implement the procedure-oriented and WIPO-administered Hague Agreement Concerning the International Registration of Industrial Designs. Given the nearly undefinable nature of “design,” and the often patentable or copyrightable objects to which design is affixed or in which it is embedded, it is of course arguable whether a domestic sui generis design law is helpful. The United States Patent and Trademark Office, in its definition of “design,” through the lens of design patents, notes:
Since a design is manifested in appearance, the subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation. Design is inseparable from the article to which it is applied and cannot exist alone merely as a scheme of surface ornamentation. It must be a definite, preconceived thing, capable of reproduction and not merely the chance result of a method.
But to obtain a design patent, the subject matter must be an article of manufacture (a tangible, man-made object); and it must be original, novel, non-obvious, and ornamental; the characteristics of these adjectives have developed through case law. U.S. copyright law does not protect design (with the improbable exception of a vessel hull design) embodied in a useful article (including clothing, furniture, and household appliances) unless the thing is expressed separately from that useful article. Fabric design, for example, can be copyrighted if it is creative enough, but a dress design made of that fabric cannot be copyrighted because U.S. copyright law perceives the dress as a useful article. 

Copyright does not protect the mechanical or utilitarian aspects of. . .works of craftsmanship. Copyright may, however, protect any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object. Thus a useful article can have both copyrightable and uncopyrightable features. For example, a carving on the back of a chair or a floral relief design on silver flatware can be protected by copyright, but the design of the chair or the flatware itself cannot, even though it may be aesthetically pleasing.

The Alessi Fior d'Olio
What, then, does a company do with something like Alessi’s Fior d’Olio, designed by Marta Sansoni, for example? What is its protection strategy in the United States versus other jurisdictions, keeping in mind that forms of protection are generally not mutually exclusive?

The Fior d’Olio is essentially an olive oil receptacle, pourer and cap. The cap “fits into the neck of the bottle, allowing you to pour only as much as you need on your food, while controlling the oxidation process that begins as soon as the bottle is opened.” While its description sounds much more functional than it does aesthetic, the Fior d’Olio’s appearance is quite charming and elegant and its lever looks like an olive leaf. Is the leaf conceptually separable from the receptacle so as to achieve eligibility for copyright protection? Perhaps, theoretically, but the leaf piece in itself may not actually cross the threshold to adequate creativity for copyright purposes. Trade dress protection is likely unavailable since a consumer is not likely to immediately recognize the receptacle as an Alessi product (in comparison, consider the shape of a bottle of Dom Perignon champagne, which is recognizable as such.)

This musing is not so timely as it is summertime food for thought. Lawyerly creativity may reach its zenith in creating a strategy for protecting these gems of manufacture that overlap IP regimes, both within a single jurisdiction, and worldwide.

Friday, 7 August 2015

Kindness or Catastrophe? Australia's experience of resale royalty rights

"Artist’s Resale Royalty in Australia: Strong evidence of a catastrophic decline in both sales and prices: Australia's Art Market Down 50%" is the title of an article in AAD (Art Antiques Design) by Australian artist and artists' resale royalty agitator John R. Walker. According to the abstract:
In this article, I shall give an overview of the highly corrosive impact, which the Artist’s Resale Royalty (ARR) has had, and is having on Australia’s Art market. The impact of ARR also appears to have had an entirely adverse reaction on the UK’s Art Market; with trade in a large proportion of valuable secondary market Art works now, quite obviously, taking flight to places like New York, Switzerland and Miami. Below, as you will see, many reputable, and governmental sources have been cited. Due to the implementation of this scheme, we, in Australia, have sadly seen our indigenous Art sector virtually wither away right in front of our eyes since the ARR was introduced back in 2010.

I’m an Australian Artist, I’m not being paid to write this, and the below is an honest appraisal of what we are facing here due to the ARR, and it is written based on my personal experience, and on factual publicly available information.
This article powerfully and persuasively puts the case for taking an urgent look at a scheme which, however well-intentioned its implementation may have been, appears to be in need of careful reappraisal.

To read this article in full, click here

Sunday, 28 June 2015

Web-only art auctions: how will they work?

"Goodman and de Pury launch web-only auctions with promises to keep down fees" is the title of a piece of news from Roland Arkell, writing for the Antiques Trade Gazette ("the weekly bible of the fine arts and antiques industry"), here. According to this piece, in relevant part:
Two senior members of the international auctioneering profession launch separate online-only ventures this week. Tim Goodman and Simon de Pury are embracing the digital revolution, looking to challenge a centuries-old business model with a footloose approach to selling art and antiques at auction.

Goodman's Fine Art Bourse (FAB) hopes to gain traction in the market via an innovative pricing model. Meanwhile de Pury's eponymously titled firm is promising to reduce buyer's fees to 15%.

The headline statistic at FAB is that they will charge vendor's and buyer's fees of just 5% with a 72-hour packing and shipping service - so often a barrier to entry for bidding online - 'free' for both buyers and sellers. They add that transaction charges will be exempt of sales taxes or artist resale royalties, as sales are processed through headquarters in Hong Kong.

However, the devil is in the detail. Alongside the 5% cut, consigners and purchasers will each be billed an additional fixed fee to cover other charges. The 'fixed lot selling fee' of $330 applies for items estimated up to $100,000 and $1000 for items estimated at over $100,000. This covers collection, storage and photography while the 'fixed lot buying fee' at the same rates pays for packing, shipping and delivery.

Sellers will also responsible for paying insurance costs of 1%.  ... the pricing model is designed to reward sellers of higher-priced items, but at lower thresholds it is less attractive.
Goodman believes the traditional auction business model - one where an auction house can take proceeds of up to 50% from the sale of a work of art - is no longer sustainable.

"Something has to give. All we have done is apply digital technology to some of the good old ways and cut costs," he says.  ..."
It will be fascinating to see whether and, if so, how these two new-technology approaches will catch with purchasers who are in many cases both traditional in outlook and idiosyncratic in their habits. Will they take business from the well-established auction houses or will they create and develop new business? And, from a lawyer's point of view, it would be good to know a bit about choice of law and forum for the settlement of any disputes that might arise from the use of these services.

Thanks go to John Walker for drawing my attention to this development.

Friday, 5 June 2015

Dammed if you do, damned if you don't: are sculptors worth more than scalers?

"Hoover Dam artist wins $1.3 million in copyright lawsuit" is the striking headline of an article by Henry Brean in the Las Vegas Review Journal, here. According to the author:
"An artist has won almost $1.35 million in a lawsuit over a sculpture commemorating workers who were paid $5 per day to risk their lives during the construction of Hoover Dam. A jury in Las Vegas federal court ruled last month in favor of artist Steven Liguori, creator of the bronze statue known as the “High Scaler” at Hoover Dam.

In 2011, Liguori sued Bert Hansen, longtime owner and operator of the Hoover Dam Snacketeria and the High Scaler Cafe at the dam, after the artist said he was cheated out of royalty payments and his work was used without permission for merchandise and marketing. According to the lawsuit, Hansen commissioned Liguori to create “High Scaler” for a $166,000 fee and a share of the proceeds from merchandise based on the sculpture as well as the artist’s other dam-related creations.

U.S. District Judge George Foley ordered Hansen to pay Liguori $1.2 million for breaching their agreement and $150,000 in other damages.

The sculpture at the center of the legal dispute is modeled on a photograph of a high scaler, a special breed of Hoover Dam laborer willing to clear loose rock from the walls of Black Canyon while dangling from ropes tied to clifftop eye bolts.

“They were the celebrity laborers on the dam,” said Dennis McBride, director of the Nevada State Museum at the Springs Preserve and a leading Hoover Dam historian. “They’d be sitting in their bosun’s chairs, and over the side they went.”

...  The Las Vegas law firm Hutchison &Steffen, which represented Liguori, announced the final judgment in the lawsuit Thursday. “A jury of his peers found that he just wasn’t treated fairly,” Hutchison &Steffen partner Todd Moody said of Liguori in a written statement. “Not only did they breach the contract they had with him, they also infringed on the copyright he had. And to be awarded the highest statutory amount was kind of the icing on the cake.” ...".
Damages for breach of contract and copyright infringement are nothing new and, by the standards of litigation in the United States today -- especially when compared with the massive damages awarded by juries for patent infringement in the same jurisdiction -- $1,3 million seems almost trivial. However, the juxtaposition of that sum against "$ 5 an hour" makes it sound unfairly large.  There is also the implication that it's somehow unfair for an artist to gain more financially from his art than is paid to laborers who risk life and limb while dangling from ropes, though the truth of the matter is that the supply of monumental sculptors is far more limited than the availability of high scalers, a factor that is inevitably going to be reflected in the contract terms offered to Liguori in the first place.