"The 1978 piece is from the Shadows series, Warhol's venture away from pop art - including the Campbell's Soup Cans and Marilyn Monroe images - that made him famous.
Installation view of the Shadows series - a series of 102 paintings from 1978-79 is a culmination of Andy Warhol's interest in shadows that engaged him throughout the 1970s - at The Arts Club of Chicago Photo: Michael Tropea. © 2011 The Arts Club of Chicago.
It was due to be sold by the Hay Hill Gallery off Berkeley Square, and at least three collectors are said to have expressed an interest in buying it.From these facts, it seems that the basic question is what the contract between the gallery and the owner of the painting actually said. The more complicated issue will be whether the gallery can claim for damages for the sale which fell through.
However, the gallery's director Mikhail Zaitsev claims the work has gone missing and is suing Tor Uppstrom, who owns the piece, accusing him of trying to cut him out of the deal to avoid paying commission on the sale.
The black-and-blue piece, which went on display last summer, has been described as a "beautiful example of compelling, almost hypnotic power". Warhol referred to the Shadows series as "disco décor". Asked why, he said: "The opening party had a disco".
Mr Zaitsev said: "Our reputation has been damaged by this as buyers will think we cannot deliver on what we promise. We had a legal agreement with Mr Uppstrom and we expect him to honour the contract or pay us what we are owed." Mr Uppstrom, who lives in Kensington and has interests in property and horse racing as well as art, loaned the piece to the gallery as part of a collection of 40 Warhol works. The gallery paid £184,000 for the loan, on the understanding, it is said, that if any pieces were sold, it would recoup the money and earn commission on the sale. Mr Uppstrom could not be reached for comment.
It is claimed one collector was prepared to pay £3.5 million for Shadows as part of a package with other works. But the sale had not been completed by November last year and Mr Uppstrom allegedly told the gallery the painting had to be sent back to Switzerland and then re-exported back to the UK avoid customs duties.
Mr Zaitsev said: "We had a client ready. We had an agreement it would be sent back within a few weeks. It never returned."
The High Court writ accuses the owner of stalling by saying he was waiting to ship the piece back with other works, or that he was having difficulty contacting the delivery agents, or that he was in a meeting and would call back, which he allegedly never did.
Mr Zaitsev believes Mr Uppstrom felt he could make more money if he sold it himself and cut out the gallery. A similar Warhol work sold at Sotheby's in New York for £2.9 million in May.
The gallery is seeking £2.1 million in damages because the £3.5 million deal fell through when the buyer said he would not take the other paintings without the Warhol."
The full passage referred to above runs like this (at pages 13-14):"In a decision which, if maintained, could have quite far-reaching consequences for the fashion industry in the USA, and possibly elsewhere, a US District judge has effectively ruled Louboutin's trade mark of the colour red as applied to the soles of shoes invalid.
Louboutin had sued Yves Saint Laurent (YSL) for infringement of its US trade mark No. 3361597, comprising "a lacquered red sole on footwear" granted for ladies' high fashion designer footwear. YSL had recently been marketing, inter alia, a range of all-red footwear. Louboutin had requested a preliminary injunction and it was in the decision in relation to this that the judge's feelings became clear.
The judge would appear something of an aesthete. Despite enthusing about the nature of Louboutin's contribution to fashion, in a judgement full of literary and artistic references he effectively decided that, in the world of fashion, in which colour plays such a vital role, the monopoly of an individual colour was not what the Lanham Act (the U.S. trade mark law) was expected to contemplate. On the basis that he did not believe that Louboutin possessed a protectable mark, injunctive relief was denied. A case conference shortly will decide whether the mark should be cancelled.
Does his judgment fly in the face of the facts? How did he reach it and how does it sit with the law in other jurisdictions?
U.S law does allow registration of colour alone as a trade mark where this has achieved a 'secondary meaning', though it is not protectable where it is functional (the Qualitex case). The judge appeared to accept that Louboutin's red soles were widely recognised but went out of his way to distinguish fashion products from other industrial products. He referred to only colour patterns or combinations as having been protected as trade marks in relation to fashion articles whereas single colours as applied to industrial (non-fashion) articles could be acceptable.
By using an analogy with shades of colour used in painting [cited in full below], he believed colour played a unique role, a feature given to an article of art or design to depict the idea the creator intended. "No-one would argue that a painter should be barred from employing a colour intended to convey a basic concept because another painter .. .also staked out a claim to it as a trade mark in that context. If.....this proposition holds as applied to high art, it should extend ....to high fashion. The law should not countenance restraints that would interfere with creativity and stifle competition."
He also took the view that the red colour had a functionality. He referred to Christian Louboutin as having admitted choosing the colour to give his styles energy and engagement and referred to the coloured outsole in an unexpected colour as being "decorative, an object of beauty. To attract, to reference, to stand out, to blend in, to beautify, to endow with sex appeal - all comprise non-trademark functions of colour in fashion."
In another twist, he included the additional cost factor in producing the red lacquered finish in his reasoning as to why the colour was functional -- "because it makes the final creation that much more exclusive, and costly."
So we have a conflict. The evidence on one hand through which the US registration (and more recently CTM allowance) was obtained and which suggests that a significant proportion of the relevant public associates red outsoles on ladies' high-heeled shoes only with Louboutin, i.e. alleged de facto distinctiveness, and the public interest, as articulated by the judge, suggesting that in the artistic and high-fashion worlds, a monopoly on individual colours can never be justified.
It is fair to say that the U.S registration, one of the first applied for by Louboutin in 2007, could have been more clearly drafted. The judge picked up on the lack of clarity in trade mark terms of the words 'lacquered' and 'red', it having been commonplace for some years to define colours when used in trade marks by reference to established standards such as the Pantone scale. Attempts by Louboutin's counsel to imply restrictions on these terms were waved away. Further, the registration covered all ladies' footwear generally, rather than just the high-heeled footwear on which the mark is particularly known. References by Louboutin's counsel to allowances of the same mark in the UK and EU - most particularly a recent successful appeal decision in OHIM - were also not persuasive. Both these marks define the 'red' colour by reference to the Pantone scale and the CTM is also limited to high-heeled shoes.
There are other factors. In their defence, YSL referred to red outsoles as having previously been known to the public through shoes worn by characters as diverse as Louis XIV of France and Dorothy in the Wizard of Oz (though neither of these styles was especially high-heeled)! More particularly, it appears that YSL themselves had earlier sold styles of footwear with red soles in the contemporary market (though whether these had preceded Louboutin's commercialisation is not clear). In the US and UK, it is a general principle of intellectual property law that no newly granted monopoly should be able to prevent a third party from doing lawfully what he was doing before the monopoly was granted, so to that extent the effect of the decision might be seen as correct even if the rationale might not have been what was expected.
What would be the position in Europe? The Louboutin CTM No. 8845539 is more specifically defined than its US predecessor and has been allowed, but is under opposition on the basis of alleged earlier rights. This will not test the inherent allowability of the mark under the absolute grounds of Art. 7 of the Regulation. The law on colour marks throughout the EU rests on the 2003 decision of the European Court of Justice in Case C-104/01 Libertel which made clear the allowability of colour marks in principle but said that all surrounding circumstances, including "whether registration would run counter to the general interest in not unduly limiting the availability of colours for the other operators who offer for sale goods of the same type as those in respect of which registration is sought." have to be considered. No distinction between the fashion and other industries has yet been drawn so the door for someone to try this remains open. Whether anyone will try to walk through it in Louboutin shoes remains to be seen".
"The narrow question presented here is whether the Lanham Act extends protection to a trademark composed of a single color used as an expressive and defining quality of an article of wear produced in the fashion industry. In other words, the Court must decide whether there is something unique about the fashion world that militates against extending trademark protection to a single color, although such registrations have sometimes been upheld in other industries.Christopher is a consultant with Dehns; he has been practising as a patent and trade mark attorney in the United Kingdom for more than three decades.
To answer this question, and recognizing the fanciful business from which this lawsuit arises, the Court begins with a fanciful hypothetical. Suppose that Monet, having just painted his water lilies, encounters a legal challenge from Picasso, who seeks by injunction to bar display or sale of those works. In his complaint, Picasso alleges that Monet, in depicting the color of water, used a distinctive indigo that Picasso claims was the same or too close to the exquisite shade that Picasso declares is “the color of melancholy,” the hallmark of his Blue Period, and is the one Picasso applied in his images of water in paintings of that collection. By virtue of his longstanding prior use of that unique tinge of blue in context, affirmed by its registration by the trademark office, Picasso asserts exclusive ownership of the specific tone to portray that color of water in canvas painting. Should a court grant Picasso relief?"
"Due to numerous emails, text messages and other letters sent to various offficers of the CCP, and to the artists themselves, with an increasing number of threats to persons and property, the members of the Board of the Cultural Center of the Philippines have decided to close down the Main Gallery where the Kulo Exhibit is on display. This decision was made amidst controversy and deliberation by the Board as to what steps are necessary to avoid future similar incidents."Philippine President Benigno Aquino is reported to have called the CCP and told them that he too opposed the artwork: "I did stress the idea that there are rights but if those rights hurt the rights of others, there is something wrong and that is not covered by the law. I reminded them that there is no freedom that is absolute," he said.
A stylish young model from FranceHayley Devlin (Hamlins LLP) also pursued the France/romance theme:
Was greatly in need of romance.
With a new handbag and dress
And intention to impress,
She went out at once in a prance
A stylish young model from FrancePeter Smith (Serjeants) let us have the following offerings,
Developed a handbag romance
Hermes and Dior
and so many more
Left the poor girl needing finance
A stylish young model from France
Had a handbag that drew every glance.
Which worked out for the best
As the way that she dressed
Was determined completely by chance.
A stylish young model from France
Gave a surgeon the eye at a dance.
But his hope was forlorn:
It was "handbags at dawn"
When her breasts he proposed to enhance!
A stylish young model from FranceGrace Smith, like Peter's third limerick, picked up the financial theme:
Worked her finances out in advance:
By posing in lad mags
Her "handbags and glad rags"
Were paid for without Granddad's grants.
A stylish young model from FranceFrom the pen of Aaron Wood (Wood TMD) came these two entries, the first being described as having "the overtone of truth", the second being "the fun one":
Stared at a shop window in trance
A handbag was calling
In love she was falling
But cash flowed so poorly – no chance
A stylish young model from France,
Had a counterfeit handbag by chance
The bag was in satin,
The brand was not latin,
So she took a quite “laissez-faire” stance.
A stylish young model from France,Finally, from the fertile, febrile mind of poet-in-residence Jonathan Caruana (Wilson Gunn) comes a veritable epic:
Was lacking in true elegance
From her handbag – a Birkin
She downed a full firkin
And developed a wobbly stance
A stylish young model from France
Took, when shopping, this bargaining stance:
Finding fake goods, she'd cry,
"You'll be jailed! (Unless I
Keep my silence... Cash, please, in advance)".
Thus, blackmailing pedlers she'd profit
(Or at least get a large chunk knocked off it).
Her wardrobe grew vast
With the fakes she'd amassed
Without slimming effect on her wallet.
While she dressed with quite fabulous style,
There was something amiss all the while:
Gloves, handbags and heels
All had plasticky feels,
And the shoes lasted less than a mile.
Then one day, on the red carpet posing,
She stood, with cheap dress clips unclosing...
'Til her seams came unstitched
And her hosiery unhitched,
And the substandard dye
Had left stripes on her thigh,
And the paps snapped with glee
At the peepshow for free
—The contrite blackmailleur
Blushing, cried, “Sacrebleu!”—
For she stood in the Emperor's clothing.
Now I hope you this lesson observed:Well done, Jonathan -- I think this worthy entry nudges in ahead of the others. We look forward to seeing you at the conference.
That—though seemingly money's conserved—
An elegant label
Is nought but a fable,
If sewn into place undeserved".
The story is that: Atty. Jo Imbong, executive director of the St. Thomas More Society Inc., [has] said they may file charges against the CCP for violating Article 201 of the Revised Penal Code, which penalizes the exhibition of offensive material.What struck me most about this story is that the Philippines has a law on Immoral Exhibitions - and with a quick search, it appears that Article 201 of the revised penal code on immoral doctrines imposes penalties upon the following:
"There is a provision in the Penal Code which penalizes the exhibition of works which offend religion. That might be one possibility. Or a civil suit which requires the closure of the exhibit," Imbong said.
"What we have done so far is give notice to the CCP through president Dr. Raul Sunico and gave him 48 hours to close the exhibit. I spoke to him and he promised to promptly act on our letter." ...
"Apparently, the use of Christ's image, Christ's face, the rosary, the crucifix and interspersing it with the male organ, broken crucifixes piercing the eyes and forehead of Christ...the message that's delivered here is one of mockery and andalism that hurts the sensibilities of the Christian community," Imbong said.
Imbong said those who have visited the exhibit, which is open to the public, have called "Kulo" an "insult to their faith."
She added that even some of CCP's staff "were revolted by it."
"The role of the CCP is to promote excellent Filipino aesthetics and positive Filipino cultural values and national identity. My question is, is it our identity to mock and vandalize religious icons? Is that the Filipino pride that the CCP is supposed to foster? Are we going to be proud of what destroys revered symbols? That's not Filipino at all and that is contrary to the mandate of CCP," she said.
CCP chairperson Emily Abrera, however, stands by the legitimacy of the exhibit, saying that it promotes intelligent debate.
"We see nothing wrong with the works, exhibit," she said.
"I don't know if they've viewed the entire exhibit. Mr. Medeo Cruz's installation is one of the 32 artists and I think we should take it as part of the exhibit. This is part of the dialogue of the discourse, part of social community. Not all art is for aesthetic purposes...and that is the context from which the exhibit must be taken.
"It is part of our culture to question, it is part of our culture to seek answers, to look behind the surface and dig out what our real values are. This is a time for questioning for many."
While art is, after all, a form of expression, Imbong maintained that such expression has its limits and that artists have a social responsibility.
"Unlike any other form of speech, (art) has its limits. It is not absolute. The law admonishes respect of the belief of others," she said.
The Arts Law, the national community legal centre for the arts, made a submission and gave evidence to the Senate Inquiry into the National Classification Scheme (NCS). As reported by Simone, the Senate Committee handed down its report on 30 June 2011 and the final report can be accessed here. It is noted that the Senate Inquiry was chaired by former liberal senator, Guy Barnett, a religious conservative, and the grab bag of issues canvassed were of particular concern to those holding similar political and social views as the Chair. See Arts Law’s summary of the Senate Report here.So it seems that unfortunately this issue is not going to be resolved any time soon. But I will certainly be watching the debate as it develops from now. Thanks to all for their help.
Whilst the Senate Inquiry was underway, the Australian Attorney General, Robert McClelland, asked the ALRC to inquire more broadly into the NCS especially in view of the many technological developments, particularly convergence issues, and adult-themed computer games, which have emerged since 1995 when the NCS was established. No doubt the recent controversies in Australia concerning the appearance of naked or semi-naked children in art (notably the Bill Henson photography exhibition in 2008) also formed part of the background to the ALRC reference. The ALRC issues paper took a more comprehensive and systematic approach to how the classification and censorship systems should work in Australia.
Submissions to the ALRC inquiry closed on 15 July 2011. Arts Law’s submission, which was widely supported by the Australian arts community, suggested that the Australian Government needs to take a more realistic approach to classification and censorship in the digital age, that it was unnecessary to classify the visual arts and the current NCS which theoretically applies to moving image art (as film), should also be exempted from the classification system. Arts Law also emphasized the importance of retaining ‘artistic merit’ as a factor to be considered classifying work, particularly for the R18+ rating, in view of the right to freedom of expression and the underlying principle that adults should be free to read see and hear what they choose. This principle should only be subject to prohibiting access to illegal content eg child pornography. The ALRC is due to report 30 January 2012.
