From artist's palette to Snoopy's pellets: art that depends on disregard for copyright

Three paintings, described as "rare examples by the Mexican border-artist formerly known as El Hombre Sin Nombre" ("The man with no name", perhaps a nodding allusion to Clint Eastwood's The Good, the Bad and the Ugly persona?), have been found this year.  They are described as " unlicensed velvet art", "low art" or "border pop".  According to John Bear,

" ...no other medium better captures the zeitgeist of the mid-20th century than unlicensed velvet art, though purists will argue that the it is usually painted on felt board.

Also called “border pop,” the medium espouses a high reverence for the television shows and films that helped shape the culture of the ’50s, ’60s and ’70s. Its blatant disregard for international copyright law can be seen as a metaphor for America hegemony in the world. The medium was dominated by artists living along the United States-Mexico border, imparting it with an insider's love for American popular culture but also the critical eye of someone living on the fringe.

Border pop celebrates bright, pretty images and ease of production—that is, a tendency toward long brushstrokes and stripped-down color schemes. This technique not only allows the artist to get 10 more done before dark, but it has had the surprise effect of rendering the paintings highly resistant to the abuse and neglect they usually endure".

“Snoopy Having a Moment of Humble
 Acceptance and Gratitude
in His Time of Darkness”

By way of example, Bear explains the illustration on the right as follows:

"“Snoopy Having a Moment of Humble Acceptance and Gratitude in His Time of Darkness” eschews the stark political undertones usually present in border pop. Hombre chooses here to present a Snoopy as Christ motif. The muted grays of the lovable pooch’s face at first seem overly simple, but they betray a deep spiritual and philosophical pain. Snoopy gazes upon his dish with eyes that ask, “Should I eat my food pellets now or save them for later?” The bluish aura surrounding him suggests a deeply disturbed psyche. The deep black background represents the uncaring world. It is a masterpiece. Hombre works outside of his comfort zone but produces a work that is as beautiful and poignant now as the day it was created.

Snoopy gazes upon his dish with eyes that ask, “Should I eat my food pellets now or save them for later?"".

Can a case be made for this to be transformational use under US law?  Arguably the transformational context is provided by the caption rather than by specific reference to the underlying work.

Source: "Border Pop: Three lost examples emerge in 2010", by John Bear, posted on Alibi, 30 December 2010

€10 art

The world’s first stock exchange for art opens in Paris on 3 January 2011.

Art Exchange will sell shares in contemporary works of art for a minimum of €10(£8.50) and provide an electronic marketplace for trading the shares in the same way as stocks and commodities. Art Exchange says it will be completely transparent, with potential investors able to watch the price of shares fluctuate online.

This piece by Sol LeWitt (Irregular Form") is one of the first artists on the Exchange.

There is still the possibility for owning a work of art outright and once an investor has acquired 80% of a work of art, they are automatically given an option to purchase the remaining 20%.

A&F Markets, the company behind Art Exchange claims that it “offers a simple, clear and familiar model through which other economic players can invest in art.” However, many people, particularly in France, are less than keen at the prospect of art being treated in the same way as oil, gas and equities.

Pierre Naquin, the 26 year old behind the exchange, who has been reported as stating that France must overcome its “psychological barrier” to the scheme. He has pointed out that in English speaking countries art is increasingly seen as a financial asset in addition to offering aesthetic pleasure.

The project is starting with six works provided by various Paris galleries and worth at least €100,000 each. The art market has remained relatively steady throughout the financial turbulence, however, like all tradeable property its value can increase and decrease, often quite spectacularly. For instance, one of Jeff Koons’ pieces recently lost €7.5 million in value, it resold at a mere €12 million.

Source: The Times

ARR comes in for more treatment

Art & Artifice blogger Simone really started something when she published an article in the Entertainment Law Review on the impact (or lack of it) of the artist's resale right on the UK art market.  The 1709 Blog announced its publication and reproduced its abstract, whereupon it soon attracted this piece from a pair of Australian artists, Anne Sanders and John Walker.  How strange it is that there seems to be more debate, more analysis, more financial projection and more concern about the right after the passage of the EU's harmonisation directive than there ever was before it.

VAT man makes light of Flavin tube claim to art

Installation art from B&Q, taxable at the same VAT rate as Dan Flavin's works

Writing for The Guardian ("Call that art? No, Dan Flavin's work is just simple light fittings, say EU experts", 20 December 2010), Maev Kennedy reports on a ruling that will delight tax lawyers everywhere, though it may cast clouds of gloom over the art world.  She writes:

"...  When the lights were switched on at a Dan Flavin retrospective at the Hayward Gallery in London, critics were entranced. "Beautiful," Laura Cumming wrote in the Observer in 2006. "You wonder how it is possible that so much pleasure could emit from such a dismal source: the cold fluorescent tubes of strip lighting."  But the European commission has taken a less poetic view. Brussels has ruled that the work of the American artist, who died in 1996 after half a century of creating pioneering sculpture, should be classified for tax purposes as simple light fixtures. His work, they said, has "the characteristics of lighting fittings … and is therefore to be classified … as wall lighting fittings".

The ruling overturns an earlier UK customs tribunal verdict, and was denounced by one lawyer specialising in arts cases as "extraordinary".

This is no mere academic view. It means Flavin works imported by any museum or gallery from outside the EU are liable to full VAT, which rises to 20% on 1 January [er, not quite, says A&A: the taxman, who is on holiday till 3 January, says the new rate starts on 4 January]. As sculpture the pieces would be subject to only 5% VAT.

The ruling also affects the work of Bill Viola, another American, who became the first living artist to have a major exhibition at the National Gallery in London, and whose video pieces, filmed in extreme slow motion, moved many viewers to tears.

Not the commission, which found: "It is not the installation that constitutes a 'work of art' but the result of the operations (the light effect) carried out by it."

St Paul's cathedral could be among the first victims of the ruling. It has commissioned two altar pieces from Viola, due to be unveiled next year, which could become dramatically more expensive [A&A doesn't think so: St Paul's Cathedral appears to be VAT-registered since it charges VAT on its guided tours.  This being so, it should just offset the extra VAT against the sum it is liable to pay anyway].

... Whether florescent tubes are ultimately ruled rubbish, hardware or the skeletons of magical art remains to be seen.  Meanwhile the ruling should be a great satisfaction to "Barney", one of the few dissenting voices over the Hayward's Dan Flavin exhibition, who posted on artistsandmakers.com: "It was like walking around the lighting department of B&Q".

Scrap metal or art?

A collection of stolen art worth millions of pounds which was stolen from a warehouse in Madrid back in September has been recovered.

Spanish police were reportedly tipped off after one of the thieves tried to sell a steel sculpture by Spanish artist Eduardo Chillida worth at least £675,000 to a scrapyard for 30 euros.

The collection, which also included works by Pablo Picasso, Antonio Saura and Fernando Botero belonging to galleries in Madrid, Barcelona and Cologne, was then recovered just a few miles away.

The works had only just returned from being exhibited in Germany when they were stolen in September. Indeed, they were all still stored in the lorry which had been transporting them, which was taken. Accordingly, at the time, it was suspected that the robbery was an inside job.

However, with the attempt to sell the Chillida sculpture for scrap, and the subsequent recovery of all the works within a short distance, it now appears to police that the robbers were merely amateurs who chanced upon a lorry full of valuable art works.

Scrap metal?


Source: BBC 21 December 2010

Recovering more Lost Art

Despite this bad news, as we have previously noted here and here, there are a number of other organisations dedicated to locating and returning lost and/or looted art to its rightful owners.

One such organisation is the Commission for Art Recovery, which was established in 1997 to assist efforts to restitute art that was seized, confiscated, or wrongfully taken as a result of the policies of the Third Reich. The Commission deals with governments, museums, and other institutions internationally to encourage and help museums and governments to research, identify and publicise works in their possession that may have been stolen during the years of the Third Reich in order to facilitate the return of these works to their rightful owners.

Another is the Lost Art Database which is run by the Koordinierungsstelle Magdeburg - Germany’s central office for the documentation of lost cultural property. This database was set up jointly by the Government and the Länder of the Federal Republic of Germany, and registers cultural objects which as a result of persecution under the Nazi dictatorship and the Second World War were relocated, moved or seized, especially from Jewish owners.

The database is divided into two areas. In one section, it is possible to possible to register cultural objects which were lost by public institutions or private individuals and institutions as a result of Nazi rule and the Second World War, and to request a world-wide search via the Lost Art Internet Database. Conversely, owners or custodians of cultural objects, who are uncertain as to the provenance of those objects can search to determine whether the objects have been sought elsewhere. On the other side, it is also possible to register cultural objects, where it is known that they were taken illegally from their owners or relocated to another place as a result of the war. This part of the database also contains reports on cultural items with an uncertain or incomplete provenance, which suggests the possibility of illegal dispossession or a removal and relocation due to the war. Institutions and individuals who have suffered such a loss can then search whether the cultural objects they are looking for are contained in the list of found objects.

It is reported that with the use of this database, among other things, the reclamation of works lost during the Second World War has recently increased. Indeed, the Berlin State Museums reports that they have recovered more works in the past decade than in the previous several decades.

This is reflected in a current exhibition in Berlin's Alte Nationalgalerie entitled “Loss and Return”, which documents Berlin's most recent attempts to recover works lost during World War II, and which displays a number of works which were lost but have been recovered. One such work is August Wilhelm Ahlborn's "View of Florence" which disappeared during the war after it was loaned by Berlin's National Gallery to the Nazis in 1934 to decorate the Reich Chancellery. This painting, which for decades was thought to be lost for good, appeared out of nowhere in 2009 when a Berlin auction house offered it for sale.

Such stories inspire hope that other artworks, which have been given up as lost or destroyed, or which were sold without the artists' knowledge and promptly disappeared, remain to be discovered and reclaimed by their rightful owners

Source: The Wall Street Journal, 17 December 2010

Grosz v MoMA

More bad news for those seeking to reclaim ownership of a number of artworks which were sold in dubious circumstances during the Second World War.

On 16 December 2010, the United States Court of Appeals, Second Circuit confirmed the decision of the South District Court of New York that the claim was time-barred.The case related to three works of German artist Georg Grosz, which were confiscated by the Nazis, and, by various routes, eventually ended up in the collection of the Museum of Modern Art in New York (MoMA).

>> Poet Max Hermann-Neisse with Cognac << >> Self-Portrait with Model <<

>> Republican Automatons <<

Grosz heirs brought the claim against MoMA following several years of unsuccessful negotiations between the parties. However, the claim was only filed more than three years after the Director of MoMA had sent a letter to Grosz's heir saying that the Museum had voted not to relinquish the art. Accordingly, as it was also decided in the case of Boston Museum of Fine Arts and the Kokoschka painting, the Court held that the action should be dismissed as it fell outside the Statute of Limitations.

See here for the decision of the Court of Appeals.

See here for the decision of the District Court.

Banksy supports Russian art revolt

From one controversial artist to another – news that Banksy is to donate the proceeds from the sales of his “Choose Your Weapon” prints to support the Russian art collective “Voina,” a radical Russian performance group known for their provocative and politically charged works of performance art.

A performance in September, known as “Palace Revolution”, which involved a team of 31 activists overturning police cars in St. Petersburg, has led to the arrest of two of Voina's members. The two are now are now awaiting trial, charged with "hooliganism, carried out on motives of political or ideological hatred or animosity towards a social group," and facing a prison sentence.

It remains to be seen whether Banksy's aid assists his fellow artists in freeing the two member of the collective.

Palace Revolution

Source: BBC 13 December 2010

Blasphemy or religious art? Wojnarowicz revisited

"Wojnarowicz’s Ant-Covered Jesus: Blasphemy or Religious Art?" is the title of an essay by S. Brent Plate, posted here on Religion Dispatches.  It deals with, among other things, the controversy over a work (or works, depending on how you count them) by the late American artist David Wojnarowicz, A Fire in My Belly, which portrayed Jesus covered in ants.  Plate explains that the artist

"... entered the “Culture Wars” in 1989 when the National Endowment for the Arts rescinded funding for a catalog and an exhibition on the topic of AIDS. Wojnarowicz had contributed an essay that attacked several public figures for supporting policies he believed helped the spread of AIDS. The controversy at this time, along with other right-wing criticisms (Senator Jesse Helms led the way) against the artists Andres Serrano, Karen Finley, and Robert Mapplethorpe, brought Wojnarowicz into national media attention beyond the art world.

The following year, Wojnarowicz went on the offensive, and filed a $5 million suit against Donald Wildmon, Methodist Minister and founder of the American Family Association, after the AFA mailed tens of thousands of pamphlets that spoke against the homoerotic themes of Wojnarowicz’s work and included many details from the artist’s photo collages. The suit also included charges of copyright infringement for reproducing imagery without permission. The AFA was ordered to cease all distribution and to publish and distribute a correction. Wojnarowicz was awarded a token $1 for damages. Many saw this as a victory for Wojnarowicz, as no one had taken on such a legal battle before".

The court's ruling in Wojnarowicz v American Family Association and Wildmon can be read in full here.

Tate my Tree

Tate Britain’s Christmas tree has become a staple of the art calendar for many years (see here for the photographic archive). The trees have ranged from the traditional, to the invisible and the unorthodox and now we have the natural.

This year’s tree is an unadorned spruce with an intriguing bull whip wrapped around its base along with several silver flyers. It looks like almost no effort has gone into the creation – precisely the intention says Giorgio Sadotti, the artist:

"If someone says, 'Your work's a bit easy,' then for me that's the perfect compliment. I want something to look like it was no effort because I lose interest if something looks like it was a lot of work."

The tree/art work is entitled Flower Ssnake and the silver flyers at the tree's base are invites to a live action performance on twelfth night, when the tree will be "completed” with the assistance of a woman described by Sadotti as "Fanny from Marseilles".

A quick glance through the Tate’s previous Christmas trees leads one to ponder the definition of art and whether it is more a part of out daily lives than is, perhaps, appreciated. Indeed, as part of the 2010 seasonal festivities many people will have a work of art (natural or artificial, green or otherwise) in the corner of the room; whether it is treated as a work of art is another question.

Art Swap

Despite the recent reports of Italian culture literally crumbling to pieces, they may have found a solution for both maintaining and spreading the influence of their less fragile art forms. The Italian and Chinese governments have teamed up in a five-year, renewable deal. The Chinese government are to operate an exhibition space at Rome's Palazzo di Venezia, while the Italians will operate a space in a wing of the National Museum of China in Beijing.

The culture trade is part of a gradual but steady move by China to establish itself at the centre of the art scene. When questioned about the deal, Mario Resca, the Italian director general of museums and cultural sites, went so far as to state that:

"In the next 100 years, this address [the Italian art site on TiananmenSquare] will be the most important in the world, not Fifth Avenue in New York, not London, but Beijing."

The first show in China's new Rome space is already on view. "The Two Empires: The Eagle and the Dragon," displays 450 similar yet contrasting artifacts comparing the art and culture of the Roman Empire with the contemporaneous Qui and Han dynasties (200 BC-200 AD).

Source: Art Info

Sound recording wins Turner art prize

This week Glaswegian Susan Philipsz became the first sound artist to win Britain's Turner Prize on Monday. The prize-winning entry is Lowlands, a recording of Phillipsz singing three versions of a traditional Scottish folk song.  Could this be the first example of a prize-winning art entry being subject to protection as a sound recording and not as an artistic work under the Copyright, Designs and Patents Act 1988.  The question is not without significance since, while both musical and artistic works are protected as original authors' works, sound recordings are protected by 'neighbouring' rights, have a shorter term of protection and are affected by different exceptions to copyright protection.  The singer also enjoys a performer's right.

The rights of (snow)man

Snow is not the most stable of artistic materials and even if it survives a thaw, there is always the risk that it may get stolen…

There’s been a lot of commentary recently about the stolen snowman of Kent. Most of this commentary has criticised/ridiculed the woman for reporting such a trivial event. However, little thought has been given to the rights which were stolen along with the snow, pound coins (eyes) and teaspoons (arms) which constituted the snowman in question. Was there a more sinister force at work? Why was the snowman taken in its entirety, rather than just the coins and teaspoons, were the thieves in fact after the snowman as a sculpture?

For it was not just the snowman that was stolen but also the potential to exploit the artistic and moral rights in the snowman. Despite the apparent lack of originality, the snowman may well have attracted copyright protection as a sculpture. As it is an artistic work, there is no requirement for recording in order for copyright to protect the work.

The creator does not appear to have exercised her right to object to derogatory treatment of the work and in most reports she has not even been identified as the sculptor. Although there is little that can be achieved in such circumstances

Some doubters have suggested that the snowman melted. But the evidence refutes such a simple explanation. The phone call clearly demonstrates that there was still ice on the road and no suggestion of a thaw. Further the call clearly indicated that someone had stolen the snowman in its entirety rather than simply the pound coins and teaspoons which were arguably the elements of the snowman with the greatest short term resale value.

As the caller commented:

"It ain't a nice road but you don't expect someone to nick your snowman."

Sadly, the police did not take the case seriously at the time and as the snow has mostly melted the trail of the snowman (and most probably the snowman itself) has gone cold. This is one art theft that is destined to remain a mystery.

Let them in!

Worries this week that the UK visa system is jeopardising the London art scene.
Munira Mirza, the London Mayor’s advisor on arts and culture reports that more and more often artists, musicians and others involved in the arts are being refused entry to the UK because of their failure to comply with the draconian UK visa rules.

These rules include that organisations who wish to invite non-EU artists are required to register and pay $400 to sponsor the artists. Then, the artists have to comply with certain rules and targets, including proving that they have sufficient funds in their bank accounts. Often extremely difficult for artists, the profession not being one of the most highly remunerated for the majority.

If artists are allowed to enter, they have been told that if they on a visitor’s visa, but bring materials such as sketchbooks, musical instruments (basically anything that may be classified as the “tools of their trade”), they are not allowed to “make art” while they are here, as this is classified as “work” and the conditions of visitor visa’s are, obviously, that you do not work.

The result of these measures is a loss both to the arts organisations and the public, as well as to the British cultural scene in general. Surely there is a better way forward.

Source: The Evening Standard, 23 November 2010

A question of fraud

A new report of art fraud, this time in Portugal, where last month a police raid uncovered almost 130 fake paintings together with forged certificates of authenticity.

The paintings were claimed to have been painted by some huge name artists including; Chagall, Kandinsky, Matisse, Miro, Modigliani, Monet Picasso, Munch and Toulouse-Lautrec. However, rather than direct copies of known works from these artists, the forgeries consisted mostly of paintings in the style of the artists.

The Portuguese police are said to have set up a special investigation into the case, due to the wide range of artists whose works have been faked and the specialist knowledge that would have thus been required. Indeed, there were also forgeries recovered for the works of Leonardo da Vinci, which would have required extremely specialist knowledge of how to artificially age pictures as well as artistic skill. Further, such was the skill involved that according to some experts who have seen the forged paintings, they could have been sold for sums in the millions to unsuspecting buyers.

A Norwegian woman is under investigation in connection with the investigation and her husband is being sought by the Portuguese police.

However, given the scale of the works and the variation in artists' styles which have been reproduced in the forged paintings, it is doubted that one forger could have produced all the works.

It remains to be seen whether the investigation bears any fruit.

What is interesting from an strictly academic legal point of view is that fact that a large number of the forgeries were not copies, but paintings in the style of the artists. Would this amount to copyright infringement? Or could it be argued that the paintings were therefore copyright works in their own right, in which sufficient original skill and labour had been invested? Obviously, if the paintings were being passed off as authentic, copyright is not a defence to fraud. But if those artists were alive today, whether they had a copyright claim against the forgers would require a close examination as to whether the copyright in an artwork can be infringed by another work which merely imitates the style of the first work.

Which are the true works?

(Top left, a fake Chagall wedding scene. Bottom left, a real Chagall.
Top right, a fake reclining nude by Botero. Bottom right, a real Botero.)

Source: The Wall Street Journal, 24 November 2010

Art Loss Register in action

The Art Loss Register (ALR) operates the world's largest permanent and private database of stolen and lost works of art, antiques and valuables, to assist law enforcement agencies in the battle.

The ALR was established in 1991 and took over the work of the International Foundation for Art Research (IFAR), a not-for-profit organisation based in New York, which had established an art theft archive and began publishing “Stolen Art Alerts” in 1976 in an attempt to deter international art theft. The ALR now offers a range of services, including the registration, search and recovery of artworks to collectors, the art trade, insurers and worldwide law enforcement agencies.

Recently, the success of the ALR in restoring a stolen piece of art to its rightful owners was demonstrated here in the UK.

Artworks from the collection of the late fashion designer, Gianni Versace, went on sale at auction in March 2009. However, prior to the auction, one of the main attractions, a portrait of Major George Maule by 18th century German neoclassical artist Johann Zoffany was withdrawn.

An English family, who were direct descendants of the painting's subject, had recognised the piece as an old family heirloom when the auction was advertised, and contacted the ALR to seek to recover the painting.

Because the ALR was only established in 1991, it may have been thought that there was little the ALR could do to assist. Indeed, Versace was said to have been unaware that the painting had been stolen when he had purchased it. Fortunately, Vesace's estate, was willing to work out an arrangement to return the painting to its original owners, and it was ALR who helped to negotiate the case between the two parties. Thus, last week the painting had been reunited with family.

Source: The Telegraph 22 November 2010

No freedom of art for witty German egg cup

Meet the eiPott. A Hamburg Appeal Court has held that use of the trade mark EIPOTT in relation to the attractive egg cup holder displayed above constituted an infringement of Articles 9(1)(b) and (c) of the Community Trade Mark Regulation. The fact that the word eiPott ("egg pot" in English) sounds uncannily like "iPod" didn't help.

Writes Anna Sophie Steinmeister, (Bardehle Pagenberg, Munich), in her note "'Humorous' mark not protected by freedom of art", published online on World Trademark Review here:

"The decision is also significant in that it establishes general rules on the issue of whether the user’s right to freedom of art may prevent a finding of trademark infringement. In this respect, the decision shows that use of a trademark in a witty and humorous manner will not imply that there is no trademark infringement if the mark is used for the main purpose of exploiting its distinctiveness". 

"Who is Gillian? What is she ...?"

Yours for only £12.74, here

It's not yet featuring on the publisher's website, but Copyright Law for Artists, Photographers and Designers is already in this reviewer's hands. One of A & C Black's Essential Guides series, along with The Essential Guide to Business for Artists and Designers by Alison Branigan, which does not come out till February 2011, this little tome -- it feels like a longer book but the paper is hugely thick and it's only 96 pages long -- is written by Gillian Davies.

At this point, copyright experts will be excited by the prospect of an attractive, handsomely illustrated and easy-to-understand text from one of the world's great copyright lawyers -- but the excitement dies down in legal quarters when it is discovered that the author is not the Gillian Davies, a leading contributor to Copinger and Skone James and towering personality in the international copyright arena. Nor is she the other Gillian Davies or the other other Gillian Davies, but merely an other Gillian Davies. Calling your son Wayne Rooney may not turn him into a famous footballer but calling your daughter Gillian Davies will, it seems, firmly implant her within the cusp of law and art, one way or another.

What about the book, I hear you say. It's not bad. Seriously. And this is not surprising. Anyone whose grateful acknowledgements extend to ACID Queen Dids Macdonald and to the gentle, knowledgeable Simon Stokes has either done their homework well or knows who to get to do it for them. Gillian however knows something that many copyright experts don't know -- she knows her readership and pitches her words of advice and warning (Beware of the Bridgeman ...) at a level that will be at once appreciated and understood. This book will never replace Copinger and Skone James, but anyone who reads it may well be saved from having to pay some expensive IP specialists to read Copinger and Skone James for them.

Uncovering the RCA Secret

As Simone has explored here and here, the arts are having a tough time at the moment. But necessity is the mother of all invention and galleries, art colleges and museums are coming up with increasingly creative means of making money both for themselves and for the next generation of artists.

One of the most innovative is the RCA Secret 2010.

Students are paid £250 for their two postcard series’ (one for the second and third year of the course). This money covers some of their material and final exhibition costs and the remainder of the proceeds go to the RCA Fine Art Student Award Fund. The approach and theme of the mini works of art varied considerably. The most interesting aspect, from an IP lawyer’s perspective, was the amount of anger towards both copyright law and the abuse of artistic rights online.

One series of postcards suggested that the internet was killing the arts by making works, particularly photographs, too easily available for others to use without compensating the artists. Other postcards commented on the ubiquity of marketing and celebrity in the modern world. My favourite (from a geeky legal perspective), was a mock Polaroid image pinned to a piece of white card which proclaimed “this is a trademark” (sic). Another, in the series stated “this design is copyrighted”.

One thing that was clear from the exhibition is how little understanding there is amongst many artists of exactly what rights they own when they create new artworks and the value of these rights. When copyright is the law which pays the bills a better understanding of how it works would add value to these young artists works and, potentially, give them more opportunities in the future.

UK Government slaps export ban on Turner's Campo Vaccino

In July 2010, one of J. M. W. Turner’s finest works, Modern Rome – Campo Vaccino, went under the hammer at Sotherby’s. Completed in 1839, the work was Turner's final landscape painting of Rome. The painting was offer for sale by a descendant of the family of the 5th Earl of Rosebery, which had owned the painting since 1878. In fact, it was only the second time that the painting had appeared on the open market since it was painted. Accordingly, the painting was said to be in an immaculate condition.


Turner’s masterpiece had, however, previously been on a long loan to the National Galleries of Scotland, and had also been displayed at the Royal Academy, the Victoria and Albert Museum and the National Gallery of Art in Washington. Therefore, when the auction was announced in March 2010, there were fears that the piece would be lost from public view when it was sold.

The painting was purchased at auction for 29.7 million pounds, setting a new auction record for Turner’s works, by a London dealer on behalf the J Paul Getty Museum in Los Angeles. Unfortunately, the Getty Museum will have to wait until at least 2 February 2011 to see whether an export licence will be granted to the painting, enabling them to take the painting out of the UK. The reason for the delay is that, at the beginning of November 2010, Culture Minister Ed Vaizey placed a temporary export ban on the painting, following the recommendation of the Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest (RCEWA).

RCEWA is an independent body, administered by the Museums, Libraries and Archives Council, which advises Ministers of the Department for Culture Media and Sport (DCMS) on whether cultural objects, intended for export, are of national importance under specified criteria. Where RCEWA finds that an object meets one or more of the criteria, it will normally delay the decision on whether or not to grant an export licence to allow UK buyers time to raise the money to purchase the object in question at or above the fair market price. In this case, RCEWA judged that Campo Vaccino was of outstanding aesthetic importance, so closely connected with the UK’s history and national life that its departure would be a misfortune, and that every possible effort should be made to raise enough money to keep it in the United Kingdom. The amount that has to be raised to buy back the painting is £30,284,968.75 including VAT.

At present, the export ban will expire on 2 February 2011, when a decision will need to be made as to whether to grant an export licence application for the painting. This period may be extended until 2 August 2011 if it appears that there is a possibility of sufficient funds being raised to make an offer to purchase back the painting.

The export ban should not have come as a surprise to the Getty Museum. It was a declared condition of the sale that export would be reviewed. Furthermore, export of the Getty’s 2002 purchase of Raphael's The Madonna of the Pinks was similarly held up for two years, and then reversed when the National Gallery in London was able to reach an agreement to purchase the work for £22 million in 2004. However, if the money cannot be raised to buy back Campo Vaccino, by this time next year it will most certainly have gone to join a number of other Turner works in sunny LA.

Battle for the copyright in children's book illustrations

A two year battle over the estate of celebrated American children's book author and illustrator Tasha Tudor has ended in a settlement on the threshold of the Vermont Probate Court.

Tudor died in 2008 at the end of a long and successful life and career, during which she illustrated almost one hundred books and received many awards and honours for her contributions to children's literature. She left an estate worth an estimate £1.2 million, which included all the copyright in her works. She also left two wills. One original will, executed in 2001, which essentially divided her main assets between her sons. A second, dated 2002, which amended the first will by cutting out one of her sons. Thus, the stage was set for Thomas Tudor, who had effectively been cut out, to contest the second will. He did – claiming that his brother had wielded undue influence over their mother and that there were suspicious circumstances surrounding the changes in the will.

After more than two years of fighting, the matter was due to be heard by the Vermont Probate Court on Monday 8 November 2010. However, after settlement discussions in the courthouse, the parties informed the Court that the matter had been resolved.
Unfortunately, the terms of the settlement are confidential. Nevertheless, it should be pretty clear who came out with ownership of the copyright once these are asserted. Indeed, if the official website is anything to go by, Thomas Tudor settled for something other than the copyright.

A selection of TT works:


© Tasha Tudor and Family Inc.

Visit the Tasha Tudor Museum here.


Source: The Associated Press

Errant tattoo artist faces criminal charges

Some implements used for tattooing

Global Times reports that an Australian man faces two charges of assault after reportedly tattooing a 40-centimetre penis on his friend's back after an argument. According to Queensland police, the first charge relates to the application of the indelible mark, the second being for allegedly punching the victim. According to a police spokesman

"The victim wasn't interested at first but he was talked into it and he said he wanted a yin and yang symbol with some dragons. The bloke started doing the tattoo and there was another bloke standing there watching saying, 'Mate, it's looking really good'. When he got home he showed it to the person he lives with and she said, 'I don't think it's the tattoo you were after'."

Aside from the criminal and ethical issues involved, there's also a copyright point: what are the respective economic and moral rights of artist and client/canvas where (i) the work is a commissioned work but does not conform to the terms of the commission, and where (ii) the continued existence of the author's work depends upon the tolerance of the client who bears the art work on his own body?

Exposed: more hidden cameras

Unfortunately, while I got a good view of Heather Skuker’s surreptitious photos, I missed the Tate Modern’s recent exhibition “Exposed: Voyeurism, Surveillance and the Camera”. Also composed of photographs taken on the sly, without the explicit permission of the people depicted, Exposed included pictures, dating from the late nineteenth century to present day, of professional photographers and artists, as well as CCTV images.

Again, the exhibition raised the important question of privacy. As the introduction to the exhibition noted:

“The UK is now the most surveyed country in the world. We have an obsession with voyeurism, privacy laws, freedom of media, and surveillance – images captured and relayed on camera phones, YouTube or reality TV.

Much of Exposed focuses on surveillance, including works by both amateur and press photographers, and images produced using automatic technology such as CCTV. The issues raised are particularly relevant in the current climate, with topical debates raging around the rights and desires of individuals, terrorism and the increasing availability and use of surveillance. Exposed confronts these issues and their implications head-on.”

This subject was picked up in a collaboration between the Tate Modern and the Honourable Society of Gray’s Inn, which featured retired Law Lord, Lord Hoffmann. At a symposium held at the Tate Modern, it is reported that Lord Hoffmann addressed two questions: Should the law protect privacy? and Can the law protect privacy?

His answer to the first question was yes, English law should provide for privacy protection. For, although the growth of technology has allowed every detail of our private life to be captured, the privacy of our lives still needs to be protected.

In respect of the second question, however, he was not able to give such an unequivocal answer. Lord Hoffmann noted that it is difficult for the law to protect privacy for two reasons. First, the cost in bringing privacy proceedings tends to deter anyone other than the very rich or those on conditional fee arrangements from bringing these actions. Second, once the private information that requires protection has been made public, legal action becomes a most ineffective response. To illustrate this second point, Lord Hoffmann recalled Max Mosley’s well-known case against the New of the World for the invasion of his privacy. In that case, Mosley sued the publishers of the News of the World, following publication of an article which claimed an orgy in which he had participated had Nazi overtones, which was accompanied by images and video footage which had been taken on a hidden camera. But, although Mosley won and was awarded £60,000, the damage caused to him by the invasion of his privacy was clearly permanent, constant and worldwide. Moreover, he only recovered costs of £420,000 against his actual costs of £510,000, which left him out of pocket, as well as subjected to exposure of the very information that the court had ruled was private.

Thus, although, again, the exhibition has some very powerful images, it also raises some very important issues as to the boundaries between the public image and the private act.

No longer at the Tate Modern, Exposed can now be found at the San Francisco Museum of Modern Art until 17 April 2011. I know I would be willing to make the trip.

Weegee (Arthur Fellig) Audience in the Palace Theater c1943 © Weegee/International Center of Photography/Getty Images

Watch what you say about Art Dealers…

The Australian Northern territory Supreme Court in Alice Springs has recently denied an application from the Australian Broadcasting Corporation (ABC) to strike out an Aboriginal art dealer’s defamation claim.

The case relates to a television programme which examines exploitation in the Aboriginal art industry. This is not a new subject, Bruce Chatwin describes the Aboriginal art industry with a mixture of humour and, at times, quiet anger in his classic Australian travelogue: Songlines. But Bruce Chatwin never faced a defamation claim. Unfortunately for ABC, despite the fact that the Claimant, Mr Nibbs, refers to himself as the "original carpetbagger" in the programme he is now claiming that what he in fact said was that others have referred to him as a carpetbagger.

Unsurprisingly, Mr Nibbs didn’t like the whole of Australia to believe he was a “carpetbagger” and alleged that viewers of the program have been led to believe he is unscrupulous in his dealings with Aboriginal artists, paying the artists inadequately for paintings produced under oppressive conditions.


As with all defamation claims, the very fact of bringing a claim has led to far wider coverage than might otherwise have happened. It also raises the importance of the artist-dealer relationship and how crucial this is for both parties.

For more information on Aboriginal art, see here.

Source: ABC news

Consent to be seen?

Brunch at one of my favourite haunts this weekend led me to stumble upon an interesting photography exhibition.

Girls UnScene, currently on display at The Luxe in London’s Old Spitalfields Market, is described as a series of photographs deliberately taken without the consent of the subjects revealing the hidden details of, and the exchanges and interactions between, females in night-club toilets, showing them in unguarded moments.

The artist, Heather Shuker, explains:

“My work seeks to contradict the staged visual representation of females in public and to show how they are when behind closed doors."

Fair enough? The exhibition does indeed have some extremely strong images, but taken without the subjects’ consent? I would submit that this raises a number of important issues – privacy, image rights and reputation management to name a few.

It would be interesting to know whether Heather got any legal advice prior to embarking on this work.

Would you appreciate this photo being taken and displayed without your consent?













© Heather Skuker

The exhibition is certainly worth a trip. It remains at The Luxe until 30 November 2010

When is a photo not a photo?

Last Friday took me to the V&A’s Friday Late which was dedicated to their current exhibition – Shadow Catchers or Camera-less photography. It was the usual fun and fascinating evening that I have come to expect from Friday Lates including a Q&A with Martin Barnes, curator of photography at the V&A.

The world of photography has transformed in the last ten years. The advent of digital photography and, in particular, the fact that most mobile phones now include a digital camera, means that millions more photos enter the world on a daily basis (although few of these photos are ultimately printed).

The concept of digital photography was, to my knowledge, not even conceived when the Copyright Designs and Patents Act was drafted yet the definition was cleverly crafted to include all possible variants:

"Photograph" means

a recording of light or other radiation

on any medium on which an image is produced or

from which an image may by any means be produced

and which is not part of a film.

A little long winded perhaps. Almost poetic. It covers all the images in the exhibition and elsewhere in the gallery. Even those the photographic community would not necessarily deem a photograph such as an x-ray of a jacket or the heat impression from some lace gloves on chemically treated paper. It is worth remembering that what we consider to be a sculpture, building, photograph etc may not necessarily marry up with what the stereotype associated with that word conjures up.

I tried and failed to think of an example of something we might consider to be a photograph but fails to fall within the CDPA definition. If any readers have any good examples, please comment below.

Prison Art: Russia 1948-1986

For those of you who have been interested in the recent Russian themes explored on A&A, you may want to take yourself down to the Russian Criminal Tattoo Archive exhibition at 4 Wilkes Street in London’s East End. The exhibition, which opened yesterday, shows around 120 of the 3000 plus original ink drawings made by Russian prison attendant Danzig Baldaev. The drawings date between 1948-1986 when Baldaev worked as a warden in Kresty, an infamous Leningrad prison. Baldaev himself was an ‘orphan’ of the soviet system; his father having been denounced as an enemy of the people, Baldaev grew up in a Russian children’s home.

Having published three volumes of Baldaev's drawings in the Russian Criminal Tattoo Encyclopaedia series, Murray and Sorrell now launch their first exhibition, giving the public a rare chance to see the original drawings for the first time. The public may never have had the chance to see these works had Damon Murray and Stephen Sorrell of the design publishers Fuel not heard about it from a Russian literary agent. Upon hearing about the works they visited his widow in St Petersburg, where they found thousands of drawings of inmates tattoos stacked in bin liners. Baldaev’s widow did not know what to do with them, but she was concerned that her family would throw them out when she died. Murray and Sorrell bought them off her and published what became a hugely popular book series entitled the Russian Criminal Tattoo Encyclopaedia.

The tattoos formed a service record of a criminal's transgressions and whilst the KGB knew about Baldaev's project, surprisingly they sanctioned it, acknowledging the value of information recorded about a prisoner on their bodies. Each tattoo has a unique meaning: skulls denote a criminal authority; a scorpion a bodyguard; a cat a thief; crosses on knuckles show the number of times the inmate had been to prison; and a shoulder insignia marked solitary confinement. But tattoos also told a political story; a swastika was not indicative that the wearer was a fascist supporter, but instead represented a refusal to accept the rules of prison society, whilst a larger tattoo of manacled hands holding the Kremlin ironically refers to how the State is founded on corruption and signifies a "don" or boss.

The accompanying photographs by Sergei Vasiliev act as an important counterpart to Baldaev's drawings and allow us a glimpse into this compelling and extraordinary world. These incredible images allow the viewer a rare opportunity to delve into the ever-changing folklore of the Russian criminal underworld.

Don’t miss this opportunity to see this wonderfully unique and informative exhibition.

One Man’s Rubbish is Another’s Treasure

Hackney Council in East London are seeking to paint over a piece of street art (to be precise a 3.5m (12ft) rabbit on the side of a recording studio) by internationally renowned artist ROA. The owners of the building had originally granted ROA permission to create the piece, but they have been served with a removal notice by Hackney Council, warning that unless they "remove or obliterate the graffiti" within 14 days, a council contractor will paint over the wall and charge them for the service.

Hackney Council seemed to have deemed the work a ‘blight’ on the local environment; news to local residents and the building owner who have a lot of positive things to say about the work. By locals it has been hailed as something which adds to the local area.

This is not an unfamiliar story. In 2007 a Banksy piece showing a monkey preparing to blow up a bunch of bananas at Waterloo station in London was painted over by staff. In October 2008 Westminster city council removed a mural from Newman Street in central London after the deputy council leader, Robert Davis, said keeping it would be "condoning" graffiti. Last year Hackney was criticised after it painted over a Banksy cartoon of the royal family that had been present on a block of flats for over eight years.

So who is ROA?

ROA is a secretive Belgian street artist who has risen to prominence over the last two years after. He began by painting animal forms in a disused warehouse close to his native Ghent, Belgium. His work can now be seen in across the USA, Europe and as far away as Brazil. His first solo show in the UK was staged in 2010 at the Pure Evil gallery in Shoreditch, which specialises in Street Art.

Does Anybody Think it Should Stay?

Mark Rigney, who runs a walking tour featuring ROA's work, said: "Hackney council should realise that this art movement is a huge tourist attraction and people are crossing London and the globe to see the art upon the streets of Hackney, Islington and Tower Hamlets – areas which are often referred to as the epicentre for London street art."

Charley Edwards, who runs the Pure Evil gallery, said that the ROA show “was the most successful show we've ever had in terms of people coming. You could hear the gasps as people walked in and saw his pieces.”

Julia Craik, managing director of Premises music studios and cafe says "If it was some horrible graffiti then they'd have a point, but it's a thing of beauty in Hackney Road, which is not the greatest area in the world. Among the bingo halls and shops you've got a really nice artwork, which really adds something."

An interesting comment, which begs the question: should the local authority be nominated as overseer as to what constitutes ‘good street art’ versus ‘bad graffiti’? A question that Hackney Council seems to tackle head on Hackney: "The graffiti ... is clearly visible from the road and, whilst it is not the council's position to make a judgment call on whether graffiti is art or not, our task is to keep Hackney's streets clean.

"As part of our enforcement policy, which is informed by Defra guidance, we initially contacted the property owner on an informal basis and offered advice, including what they needed to do if they wished to retain the piece of graffiti. This was followed by a letter and another visit to the property before the removal notice was served. However, we are currently holding our enforcement action to allow the owner a further opportunity to seek planning advice about retaining the piece."

Other councils have adopted novel solutions to deciding whether or not a piece of graffiti should remain. Sutton invited residents to vote on whether a Banksy should remain. More than 90% of respondents wanted it to stay, but the mural was defaced by taggers before the vote closed.

Do YOU Think it Should Stay?

Supporters of the work have started a petition to save it and at the last count there were 1617 signatories. If you think the Rabbit should stay click here to show your support.

The Bigger Picture

The destruction of street artworks such as graffiti, which by its very nature is likely to be on someone else’s property, begs an even bigger question: should the ROA as the artist have the right to object to derogatory treatment of his work in accordance with sections 80-83, of the Copyright Design and Patents Act 1998 in the same was as afforded to other artists? Are his Moral Right’s as an artist in fringed? Or does the Council’s right to obliterate such works fall squarely within the provision of section 81? Fellow Blogger Tomasz Rychlicki raises similar interesting points in his Legal questions about illegal art article if you have time to read more.

Craik said she had replied to Hackney Council in writing after receiving their letter this month, but was yet to receive a response. "It could happen at any moment," she said. "We're constantly thinking 'are we going to come in tomorrow to no rabbit, and a massive bill.'"

For More Images of ROA’s work click here.

Source: Guardian Online Monday 25 October 2010 23.12 BST