More fighting around Egyptian art

As reported here, it was not long ago that political battles were threatening artworks in Egypt. Now, there is a legal battle over a piece of Egyptian art in the US.

The artwork is an Egyptian mummy mask known as the Mask of Ka-Nefer-Nefer, said to be approximately 3,200 years old, which was discovered in about 1952.

Presently the mask is the possession of The Saint Louis Art Museum which has recently filed a complaint in the US District Court for the Eastern District of Missouri in Saint Louis. The Museum seeks declaratory relief that the US government (and in particular the US Department of Homeland Security) is not entitled to seize the mask from it.

The Complaint sets out the background as follows.

After the mask was discovered, in the early 1960s, it became part of a private collection which was purchased by a Croatian collector in Switzerland. In around 1995, the Croatian collector sold the mask to a Swiss company (Phoenix Ancient Art SA).

Subsequently, towards the end of 1997, the Museum initiated an investigation into the provenance of the mask as it intended to purchase the mask from Phoenix. At this time, the Museum made multiple enquiries into the mask's provenance to ensure that it was not stolen. These enquires were made of a number of individuals and entities, including: the director of the Museum of Egyptian Antiquities in Cairo, The Art Loss Register (as previously discussed here on this blog), INTERPOL, the International Federation of Art Research ad the Missouri Highway Panel (as an INTERPOL constituency). None of these, or other, background checks, established that the mask was stolen. Accordingly, in April 1998, the Museum purchased the mask from Phoenix.

However, from the end of 2005, a number of communications were sent to the US government alleging that the mask was stolen and asking the government to take action to return the mask to Egypt.

Eventually, at the end of 2010, the Museum was contacted by the US Attorney's Office for the Eastern District of Missouri in St Louis to attend a meeting regarding the mask. At that meeting, in January 2011, the Assistant US Attorneys informed the Museum of their intention to seize and forfeit the mask under the Tariff Act, 19 USC § 1595a – on the ground that it is reasonable to believe that the mask was “stolen, smuggled, or clandestinely imported or introduced” into the US.

The Museum claims in the alternative that

1. the US government is precluded from seizing and/or forfeiting the mask pursuant to the provisions of the Tariff Act because such recovery is time-barred by the applicable Statute of Limitations, 19 USC § 1621 – which provides that any action for forfeiture pursuant to the provisions of the Tariff Act must be commenced with 5 years after the time when the alleged offence is discovered – since at least as early as 2005, the government had constructive or actual knowledge that the mask was stolen

2. the US government cannot show probable cause that the mask was “stolen, smuggled, or clandestinely imported or introduced” into the US – on the basis that the museums investigations prior to purchasing the mask revealed no evidence that the mask was owned by Egypt under applicable Egyptian law, or that the mask was stolen from Egypt, or that the mask had unlawfully entered the US; and because Egyptian Law No. 215 on the Protection of Antiquities, which was applicable at the time the mask was discovered and excavated, allowed for the personal and private ownership of Egyptian antiquities, provided that antiquities could be sold or gifted, and thus did not establish ownership of the mask by Egypt.

As we have seen previously on this blog, Statute of Limitations arguments have proved very successful in the past in the US in relation to recovery of art works. We will have to wait and see whether it is once more in this case.

Giacometti art scam verdict

The first verdict in the one of the largest art frauds in Europe was delivered last week. Relating to the case of more than 1,000 fake sculptures by Alberto and Diego Giacometti which were uncovered by police in Germany in 2009, the FT reports:

“The trial of five suspected forgers has been going on for months in Stuttgart, and now a first verdict has been handed down in court. Three of those in the dock – two art dealers from Wiesbaden and the wife of a Mainz art dealer – have pleaded guilty to fraud and forgery and were sentenced to two years’ prison, suspended, plus a fine for two of them. The others, the Mainz art dealer, and a self-proclaimed “count”, Lothar Wilfried Senka, have admitted some of the charges but deny others; this case continues.

...Stuttgart prosecutor Dr Mirja Feldmann says that the “count”, identified in media reports as Senka, claims the sculptures came from Giacometti’s brother Diego. Feldmann also told me that the Mainz art dealer has admitted that he thought that the sculptures were fakes, but says that he owned the plasters and never had any intention of selling them. He also admitted issuing provenance certificates. A verdict is expected this spring.”

Considering that the total value of the pieces would have been hundreds of millions of pounds, if they were genuine, and that a number of dealers and collectors had already acquired large numbers of the sculptures for an estimated total of €9 million, a suspended prison sentence seems like a rather light penalty given the extent of the fraud.

A selection of the sculptures which were seized:

Source: The Financial Times, 25 February 2011

Kung Fu Fighting

On 16 February 2011, a copyright claim was filed in the US District Court of Massachusetts against DreamWorks Animation SKG, Inc., DreamWorks Animation LLC, and Paramount Pictures, Corp in relation to the popular “Kung Fu Panda” animated movie.

The claim has been brought by a Massachusetts artist Jayme Gordon, who alleges that the movie is based on and copied from copyright works authored and owned by him, which are collectively titled the “Kung Fu Panda Power” works.

An example of the similarity between Gordon’s works and the characters in the Kung Fu Panda movie is given as follows:


The claim also provides a number of other images which are said to have been produced by Gordon back in the 1990s and certainly prior to the release of the film in 2008.


Indeed, some of the images were registered with the US Copyright Office in 2000.


It is claimed that long before the release of Defendants’ Kung Fu Panda film, Gordon routinely sent his works featuring his illustrated characters, including his Kung Fu Panda Power characters, to animation and film studios, television networks, book publishers, and other companies specialising in children’s animation and entertainment. Gordon is said to have sent promotional flyers and T-shirts displaying his characters, and copies of his illustrations and text to these companies for many years.

Furthermore, in addition to illustrating his original Kung Fu Panda Power characters, Gordon began writing stories, and synopses for an animated television series and an animated film involving these characters in or around 1992, which he continued to develop and evolve up through 2002.

In Gordon’s Kung Fu Panda Power work, there was a Kung Fu fighting giant panda who loved to eat Chinese food and his resulting rotund shape did not lend itself to Kung Fu fighting. Kidd’s companion was small red panda whose Kung Fu master skills belied his small size, and who always carried chopsticks. These characters were accompanied by and worked with a Kung Fu fighting super group known as the “Five Fists of Fury,” comprised of a monkey, tiger, crane, mantis and a venomless snake, who were supporting characters.

For those who have seen the movie [only as chaperone to their kids of course!], this is probably sounding quite familiar..... For those who are interested, the claim details all the alleged similarities between the storylines and characters’ images.

It is unsurprising, therefore, that Gordon believes that the Defendants either obtained copies of or saw his illustrations and stories comprising the Kung Fu Panda Power works and used these to create the Kung Fu Panda movie. He is claiming damages as well as an acknowledgment from the Defendants that he is the author and creator of the “Kung Fu Panda” film, as well as the forthcoming sequel to the film “Kung Fu Panda 2”, and all other works derivative thereto which have been released or authorised, and will be released or authorised, directly or indirectly, by Defendants.”

This is not, however, the first claim brought against DreamWorks in relation to this movie. Last year, another individual, Terence Dunn sued DreamWorks for $1 million, alleging that they stole the idea of a kung fu panda from him. All the information on that claim, and some, can be found here.

It remains to be seen how DreamWorks will respond. But with the Kung Fu Panda film and franchise having generated hundreds of millions of dollars in revenue for the Defendants and continuing to do so, and with the sequel to the film, Kung Fu Panda 2, scheduled for release in the US on 3 June 2011, there is definitely a lot to kung fu fight over.

New protection for public art in India?

The Times of India reports that the Indian government is seeking to enact new legislation which will protect works of art in public places.

The new law is timely coming just a month after a number of paintings India artist in exile M F Husain, which were on public display at the India Art Summit, had to be removed following calls and emails threatening to vandalise the works if they continued to be displayed at the Summit. Although Husain’s painting were eventually remounted, there have also been other instances of actual vandalism of art works in India dating further back. India’s culture minister Kumari Selja has backed the new law. As the Times of India reports:

Speaking at a book release function, Selja said, “Protection of art that is put up in public places is a sensitive issue and we need to address this. We have all heard of instances where exquisite pieces of art that were put up in public places were damaged, not to speak of instances where such pieces are subjected to neglect and indifferences."

Selja said the role of civil society is important in this regard. It must take pride in the establishment of art in public places, and to assume the responsibility of safeguarding it.
Selja said bringing art closer to the people is a big challenge. "Art is not something that can be confined to museums and galleries, nor is it a preserve of the elite," she said.

Selja lamented the fact that despite the policy that 2% of the cost of all building projects will be provided for executing works of art, not much art has been created in public places. She said organizations such as Delhi Urban Arts Commission and municipal bodies have the responsibility to ensure and implement these guidelines. Also, other institutions associated with building activity have to take the initiative, she said.

Given India’s rich cultural and artistic heritage, hopefully, the rest of the Indian government is similarly supportive and, recognising the need for the law, does not delay in bringing the new legislation into force.

One of MF Husein's paintings that was threatened at the Art Summit.

Source: Times of India 12 February 2011

Legislators take sides over "Sell the Pollock" Bill

A detail of the mural: should this work be sold
to fund 1,000 scholarships for arts students?

The Daily Iowan is waxing lyrical at the moment about an unusual piece of proposed legislation that would force a museum to sell a work that was donated to it. In "Legislators: Pollock bill not likely to pass" (here), Ariana Witt explains that some Iowa legislators are in agreement that a proposed law to force the University of Iowa’s Museum of Art to sell a multimillion-dollar Jackson Pollock painting is not likely to be enacted. Says the article:

“I don’t know that the public good is served by selling a painting that was donated to the university,” said Rep. Dave Jacoby, D-Coralville, who said he doesn’t think it will pass the House. ...  But Rep. Steven Lukan, R-New Vienna, said he thinks the bill will make it to the Senate, though he said he hasn’t formed an opinion on the issue of selling the $140 million piece.

Peggy Guggenheim donated Pollock’s Mural to the UI in 1951. The painting was moved from the Museum of Art because of the 2008 flood and is now housed at the Figge Art Museum in Davenport.

Rep. Scott Raecker, R-Urbandale, proposed Feb. 9 that the Museum of Art be forced to sell the painting in order to fund 1,000 scholarships for UI arts students. Sen. Jeff Danielson, D-Cedar Falls, said he believes it is a “horrible public-policy idea, likely to have a chilling effect on the university’s art relations.”

Though the bill is in the early stages with the House Appropriations Committee, nationally, those in the art world have openly opposed the possibility of it being passed.   ... 

The UI’s own policy on selling artwork says money made must go toward more art, said chief museum curator Kathleen Edwards. The collections policy also states all sales must comply with local, state, and U.S. federal laws as well as university regulations. Still, a violation of ethical guidelines, Blanton said, could lead to a loss of accreditation by the UI and dissuade potential art donors.

“Who wants to give a Van Gogh if next week it could be on the auction block?” he said.

Seeing as Jackson Pollock was expelled from art school himself, one might suspect that he would be less than enthusiastic to see his work liquidated for such educational purposes.

How about Sitters' Rights?

Art and Artifice has just heard from intellectual property enthusiast and Collyer Bristow partner Joe Cohen, who informs us that his firm's Art Gallery hosts regular exhibitions of the work of up-and-coming artists (details of the current exhibition can be seen here).  Joe adds:

"Of interest to subscribers to “Art and Artifice” will be an event which we are hosting in our Gallery behalf of the Law Society Art Group from 9 March 2011 from 18:00 to 20:30.  Guest speaker is Martin Gayford, who will be speaking about sitting for Lucien Freud. Martin Gayford is the author of the book: Man with a Blue Scarf, subtitled “On Sitting for a Portrait by Lucien Freud”.

Places are limited, so subscribers to Art and Artifice who wish to attend the event are asked to email Darren Butt by 26 February 2011.

Art and Artifice is already thinking up lots of questions to ask.  How about the introduction of Sitters' Rights, which seem to have eluded the architects of the Berne Convention on the Protection of Literary and Artistic Works ...?

"Copyright or right to copy?"

"Bad artists imitate; great artists steal" (Pablo Picasso)

On 11 March 2011 there's a conference coming up in Turin, organised by Elisa Vittone who explains:

"How and how much has contemporary art jeopardised classic rules of protection of artistic works? In 2010, the National Gallery, London and the Musée d’Art Moderne de la Ville de Paris organized exhibits, which called concepts of uniqueness, originality and authenticity into question. How can the law settle this? How far is artists’ freedom willing to go? Does a uniform application of resale right really operate in the EU? What impact will the Dalì decision of the European Court of Justice [here] have in the EU State Members?"

The programme for this event -- for which admission is free -- looks like this:

14.00 Registration

14.20 LUCA BEATRICE (President of Circolo dei Lettori): Welcome

14.30 ELISA VITTONE (IP Lawyer – Law Firm Saglietti & Partners): Introduction

14.40 FRANCESCO MANACORDA (Director of Artissima): Right of Reply? The Reasons of re-enactment in Contemporary Art

15.00 MARIO BARBUTO (President of Torino Court of Appeal): Legal Requirements of Protection of a Work of Art according to Italian Law

15.20 JUDITH ICKOWICZ (Chargée de Cours Univerisité Paris 1 – Ancien Avocat): The Concept of Work of Art applied to Contemporary Art according to French law

15.40 FRANCESCO POLI (Professor at Brera Academy of Fine Arts – Lecturer at Paris University 8): Uniqueness and Authenticity of Oeuvres in the History of Contemporary Art

16.00 SÉBASTIEN GOKALP (Curator – Musée d’Art Moderne de la Ville de Paris): The Exhibition Seconde Main: an Exhibition of “look-alike Works”

COFFEE BREAK

16.40 CRISTIANO GIULIO SANGIULIANO (Christie’s – Director Dep. Contemporary Art,  Milano): Transparency of the Market: the Role of Auctions

17.00 MARINA ANNA TAVASSI (President IP Chamber Milano Court): Infringement in figurative Art and derivative Works

17.20 ALASTAIR WILSON QC (Head of Hogarth Chambers London): Reproduction of Works of Art in UK

17.40 LUIGI CECERE (SIAE – Manager; OLAF Section, Roma; Società Italiana Autori ed Editori – Italian Association of Authors and Editors): Resale Right in Italy

18.00 JEREMY STEIN (Manager of DACS (Design and Artist Copyright Society) UK): Resale Right in UK

18.20 MASSIMO DI CARLO (President of ANGAMC, the Associazione Nazionale delle Gallerie d'Arte Moderna e Contemporanea – National Association of Modern and Contemporary Art Gallery): Resale Right. A Market Perspective

18.40 Debate

19.30 APERITIF"

For more information please contact  Elisa Vittone (Saglietti & Associati), email info@studiosaglietti.it - Tel. + 39 011 533 834.

Koons’ Bubble Bursts as Balloon Dog Suit Settles

As previously posted, in December 2010, Koons instructed his lawyers to write a cease and desist letter to Park Life, a San Francisco gallery selling balloon dog book ends, and imm Living, their Canadian distributor. Park Life were fairly bullish in their response both on their website and via their lawyer – who launched a declaratory action against Koons requesting a jury trial and a judgment that the Park Life book ends do not infringe Koons’ sculptures. The confident response included an entire section dedicated to a history of balloon animal making and was at times faintly hilarious “as any clown can attest, no one owns the idea of making a balloon dog”. There were even rumours of the lawyer collecting a range of expert witnesses who could demonstrate their balloon modelling skills in court.

Under the settlement, Koons is reported to have agreed not to pursue any claims against Park Life or imm Living so long as Koons’ name is not used to sell their goods (something neither business was doing before Koons made the connection in December). The irony is that Koons himself made the connection with his letter before action and now Park Life’s balloon dog bookends are reportedly “flying off the shelves”.

Source: Art Info

Don’t Mess with My Sculpture! Visual Artists Rights in Action

In July 2010, the New Jersey artist David Ascalon started a lawsuit against the Jewish Federation of Greater Harrisburg on the basis that his rights under the US federal Visual Artists Rights Act 1990 (VARA) had been violated in relation to a Holocaust Memorial on the banks of the Susquehanna River in Harrisburg, Pennsylvania’s state capital, which was installed in 1994.

VARA is effectively the US equivalent of moral rights and limits how a work of art may be disposed of or altered. These rights are unaffected by sale of the physical work of art or assignment of the copyright in the work. In other words, even though David Ascalon had sold the memorial to the Jewish Federation, he still retained certain rights in respect of how the Jewish Federation could use the sculpture.

The artist claimed that his rights were violated by the removal of his name from the sculpture’s base and the restoration of a decaying element of the original sculpture in which a rust-colored “barbed wire” serpentine element was replaced with stainless steel. After what was described in the press release as “several months of amicable negotiations among the parties” the parties reached a settlement on 7 February 2011 which includes providing David Ascalon with access to the sculpture to remake the “barbed wire” element and the restoration of his name to the sculpture.



This case offers an important reminder to arts owners that just because you own the physical work of art does not necessarily mean that the work is entirely yours to do whatever you choose.



For images of what the sculpture looked like before and after, see here.
To read the original complaint, click here.

Call for articles: art and the law

A special issue of the South African Journal of Art History, dealing with the relationship between art/ architecture/ design/ craft/ film/ photography and law, is planned for 2011. This is a peer-reviewed journal recognised by the Department of Education for subsidy purposes. Articles for this special issue will be reviewed by legal and/or art academics in the appropriate field.

A long list of possible subjects for submission appears on the Afro-IP blog here,

The closing date for the receipt of submissions is 31 May 2011.  Please e-mail  submissions to the editor: Estelle A Maré at mare_estelle@fastmail.fm and attach a short CV (200 words) and an abstract.

Painting plus "suggestive word" can be a trade mark, says Swedish court

Could this be a trade mark? Yes,
if you add a "suggestive word"

The Swedish Court of Patent Appeals gave judgment recently in a case involving the use of paintings as figurative trade marks for food and beverages (PBR 08-005, 08-007, 08-050).  The trade mark applicant,  Kvibergs Marknad AB, sought to register paintings by PS Kröyer, Alexander Roslin and Gustav Klimt as trade marks.  In 2007 the Swedish Patent and Registration Office refused these applications on the basis that they were merely decorative, not distinctive, and the public would see them only as paintings, not as trade marks.

The Court of Patent Appeals agreed in principle: where a trade mark is made up of elements that are not a means of individualisation of a product, it will not be perceived as a distinctive mark - this is particularly true where an element of the mark is well known in a different context. However, one of the marks applied for consisted of what the Court called "a figurative element together with a word of a suggestive nature". This figurative mark could function as a trade mark and, therefore, the bar to registration had been overcome. The court directed that the Patent and Registration Office reassess the application in light of the court's decision.

Source: "Paintings cannot be registered as figurative trademarks" by Tom Kronhöffer and Sofia Ekdahl (MAQS Law Firm, Stockholm) in World Trademark Review

Go Go Google Gallery

Gone are the days when you need to leave the house, use some method of transportation and travel to a gallery to view art. Now, thanks to Google, you can view one of 17 global galleries in a slightly grainy and hard to navigate format from your home computer. The technology behind Google’s streetview has been employed to provide a 360° (well almost) tour of various globally renowned galleries including the Met, MoMa and Frick in New York; the Uffizi in Florence, the Hermitage in St Petersburg and the National Gallery and Tate Britain in London.

Above: The Ambassadors by Hans Holbein the Younger in the National Gallery, London

Whilst the technology that enables you to look at your street from your living room is perhaps not yet at a sufficiently high standard to provide the full gallery experience, Google’s HD art works are quite simply amazing. Google has taken a couple of images in each gallery and photographed them using an incredible powerful imaging technique which, at its best, enables scenes that were previously almost invisible to be viewed in incredible detail. Critics have been particularly gushing about Pieter Bruegel's 1565 painting, The Harvesters where an entire scene involving throwing sticks at a goose has finally been rendered visible to a mass audience.



Above: Figures by Abakanowicz in the Museum Kampa, Czech Republic

In one sense these HD photographs have completely transformed the art works and created a new work which is beautifully detailed and offers immense educational possibility for all generation. However, due to the exact nature of the copying, the new HD photographs are, arguably, less likely to satisfy copyright’s originality test which would enable the photographs to be treated as copyright works in their own right.



Left: Louis XIV by Antoine Benoist in the palace of Versailles

To experience the Google art project, click here.

For glowing reports from The Guardian see here and here and to take its Google art quiz see here.

1709 Blog Gets Visual

For a thought provoking and insightful analysis of such diverse topics as:

• the artist’s resale right,
• Jeff Koons’ balloon dog shenanigans; and
• artistic meaning in the digital environment,

see Hugo Cox’s recent post on the 1709 blog here.

A Smart Thief

Likened to Thomas Crown, a thief has stolen paintings worth thousands of pounds from the Page gallery in Knightsbridge in broad daylight.

When a well-dressed man in his forties attended two private viewings at the gallery, which is currently hosting a pop up exhibition of contemporary art, staff assumed he was a buyer. However, on the occasion of his third visit, last Wednesday, the man proceeded to cut two paintings out of their frames and walk out with them under his long coat.

The paintings stolen were

Golden Fleece by Anssi Sojakka

and

DHSS by Graham Carrick

Police are now searching for the man and the works.

Source: Evening Standard, 28 January 2011

Snap away in NYC

Photographers in New York City are finally free to photograph federal buildings and public spaces without the fear of interference (including the confiscation of memory cards, 35mm film or other photographic equipment).

The New York Civil Liberties Union (NYCLU) has been campaigning on this issue since the measures were first introduced post 9/11. Following legal action, the US government has now agreed to issue a written instruction to all relevant personnel to state that there are no general security regulations which prohibit external photography (note internal photography of public spaces remains restricted). There is still the possibility for local rules to override this provision but in general this is good news for New York photographers and anyone planning a holiday to NYC in the near future.

Source: HyperAllergic