US Court grants preliminary injunction to prevent distribution of photographic work

Last month, the US District Court for the Southern District of New York granted an injunction to the owner of a photo of the Leonardo da Vinci painting 'Salvator Mundi' until the Court issues a final judgment in a copyright infringement case brought by the owner of the photo.

By way of background to the case, earlier this year, the painting 'Salvator Mundi' was authenticated as being a long lost painting by Leonardo da Vinci. While it was known within the art community that the painting was associated with da Vinci, the authentication was widely reported around the world as the discovery of new da Vinci paintings is extremely rare. Arrangements were then made to exhibit the work in the National Gallery in London. To promote the exhibition, the plaintiff in the case, Salvator Mundi LLC ("SMLLC") worked with the owners of the painting to commission a [so-called] 'high resolution digital photographic interpretation' of the painting for use in catalogues and fine art books (the "Photographic Work").

The Photographic Work was created by Timothy Nighswander, a professional art photographer, with experience photographic original fine art by numerous well-known artists. Copyright in the Photographic Work was assigned to the plaintiff.

SMLLC had allowed various media outlets to publish low-resolution digital copies of the Photographic Work in connection with news reports of the restoration of the painting and its exhibition in the National Gallery. These were displayed on the Internet on various news websites. However, it retained all rights in the image and no one else was allowed to photograph the painting.


The defendants copied the Photographic Work from one of the news sites and made unauthorised copies and public displays of it - including offering the image for sale on merchandise on the defendants' websites.

When SMLLC wrote to the defendants asking them to stop offering copies of the Photographic Work for sale, the first defendant said she was determined to distribute the image and would do so for free if the plaintiffs continued to harass her.

Therefore, SMLLC filed the claim for copyright infringement, inter alia, seeking a preliminary injunction to prevent the defendants from copying, distributing and publicly displaying the Photographic Work or otherwise infringing SMLLC's exclusive rights in the work.

Per the title, this preliminary injunction was granted against the first defendant, Laura Sotka, on 11 August 2011. It has been separately reported that a permanent injunction had already been entered a few days before against the first defendant which permanently prohibited the second defendant, Sean Broihier, from using or displaying the Photographic Work in any way. This was likely the result of settlement discussion. Therefore, it remains to be seen whether Sotka will fight on.

For anyone who wants to see the original painting, it is due to be exhibited in the National Gallery in London from November 2011. Details of that exhibition here.

"Modern masters" and style

"Modern masters under threat" is the title of a short, readable piece just published in issue 4 of the 2011 volume of WIPO Magazine. This unattributed article provides an easy-access introduction to frauds and forgeries for the uninitiated, also featuring the Annette Giacometti Prize for the Rights of Art and Artists.

With acknowledgement to the Victoria & Albert Museum, London, the article reproduces the following brief definitions:

What is a fake?
… an object that has been tampered with – e.g. a signature has been added or false indications of the object’s history have been introduced with the intention to defraud and increase the item’s value.

What is a copy?
… a direct replica of a pre-existing work or a work that imitates or was created in the style of a given artist. If the work is in the public domain, it is not illegal to make a copy of it provided there is no attempt to deceive or make anyone believe it is an original work. To reproduce a contemporary work protected under copyright law requires the permission of the artist whose work is being copied.

What is misattribution?
… this arises when a mistake is made in determining the original artist of a work and typically occurs when works have been restored and original details masked. This is considered a genuine mistake as there is no intention to deceive.

What is a forgery?
… an object that is created from scratch with the intention to deceive – it is a fraudulent imitation of an existing work.

What is fraud?
… “the act of making people believe something is not what it really is for criminal benefit".

These definitions should come with a caveat that, while they are handy when discussing protection and enforcement issues with clients, the words are not cast-iron terms of art that are understood in all jurisdictions as having the same meaning. In particular, the notion that a work in the style of a particular artist is a "copy" is a controversial and dangerous one.  The courts in England and Wales have held, in Gordon Fraser Gallery Limited v Tatt [1966] RPC 505, that there is no copyright in a style. While the adoption of a specific style, in combination with other factors, may constitute a misrepresentation or a fraud, it is not a copyright infringement. If the contrary had been the case, the world would have enjoyed the paintings of rather fewer impressionists and cubists.

You can read "Modern masters under threat" in full here.

Art and Privacy

Back in November, I pondered the subject of consent in relation to an exhibition of photographs by Heather Shuker of girls in toilets taken without their knowledge (see here) – and particularly questions of privacy, image rights and reputation. Similar questions have now been raised in respect of the reproduction of old mug shots on prints, posters and notebooks by US company Larken Design.

A few years ago, one of the principles of Larken Design purchased some mug shots which had been discarded by the Alameda County Sheriff’s Department in California from an antiques shop. Copies of these mug shots were then digitally retouched and reproduced as prints and posters, and on notebooks and mugs, which are now available to purchase.




While no names are revealed on the images, the use of the mug shots nevertheless raises questions as to the legality and propriety of using the shots.

The New York Times reports that the assistant sheriff for Alameda County believes that since arrest records in California are public information, dissemination is not crime, and nor is copyright infringement an issue. (Although it is not clear what his authority is for this latter statement.) However, this does not address questions of privacy and reputational damage.

Although the names of the subjects are not revealed, unlike the Shuker exhibition, it is much easier to determine the identity of the individuals. Having paid for their crimes (whatever those may have been), should these individuals not be entitled to a right to privacy and protection of their reputation, and therefore be able prevent the reproduction of their images by Larken Design? Not in the US according to Peter Swire, a law and judicial administration professor at the Moritz College of Law at Ohio State University. In his quote to the New York Times, Mr Swire says (of Larken Design): "In terms of public revelation of private fact, they can say they’re not telling the names of anybody, so they’re not harming any individual, and that under the First Amendment they’re allowed to publish truthful old photos.”

I would say that the position under UK law is not as clear cut. The UK Human Rights 1998, which came into force on 2 October 2000, incorporates the European Convention on Human Rights (ECHR) into domestic UK law. Article 8 of the ECHR contains an express right to privacy that "Everyone has the right to respect for his private and family life, his home and his correspondence." Accordingly, in the UK these rights would have to be taken into account. Therefore, if it could be shown that the use of such images constituted an unjustified disclosure of private information - in respect of which the claimant could be said to have a reasonable expectation of privacy - a privacy action might succeed.

Source: The New York Times, 27 August 2011

Hungary can be sued for return of Nazi looted art

Last week, the United States District Court for the District of Columbia (DDC) rejected Hungary's motion to dismiss a claim brought against it by the heirs of Baron Mor Lipot Herzog, a well-known Jewish Hungarian art collector.

Herzog had amassed a large collection of more than 2000 paintings, sculptures and other artworks prior to his death in 1934. After his death, and the death of his wife in 1940, his collection was divided among his three children. However, the collection was then seized by Hungary and Nazi Germany, and while the Hungarian government purported to “return” a handful of items from the collection to the Herzog heirs in the years immediately following the war, those “returns” were largely on paper or short-lived, and the vast majority of the collection remained in the possession of a number of museums and other Hungarian state-owned bodies.

One of the pieces claimed in the action.

Having unsuccessfully tried to reclaim the collection through the Hungarian courts, the plaintiffs [claimants in the UK] filed the action in the DDC in July 2010 against the Republic of Hungary, the Hungarian National Gallery, the Hungarian Museum of Fine Arts, the Hungarian Museum of Applied Arts and the Budapest University of Technology and Economics.

On 15 February 2011, the defendants filed a motion to dismiss the claim on a number of grounds including:

the Court lacked jurisdiction under the Foreign Sovereign Immunities Act;

the Court was an improper forum for the claims based on the 1973 Agreement between Hungary and the United States; and

the claims were barred by the applicable statute of limitations; principles of international comity, claim preclusion, and issue preclusions; and the Act of State Doctrine.

Unfortunately for the defendants, the DDC rejected all these grounds and, for the most part, denied the defendants' motion. In respect of the ground listed above, the court inter alia held as follows.

Jurisdiction
In order to have jurisdiction, the Court had to find that: (1) “rights in property” are at issue; (2) the property was “taken in violation of international law”; and (3) “the property at issue (or any property exchanged for it) [is] . . .‘owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality’ engages in commercial activity in the United States”.

The Court found that (1) the defendants did not dispute that “rights in property" (2) the plaintiffs’ claim that the Herzog Collection was taken in violation of international law was substantial and non-frivolous, and therefore, adequately satisfied the second requirement; and (3) the defendants admitted that the museums and the university (both agencies or instrumentalities of Hungary) were in possession of the pieces of collection identified in the complaint which was sufficient to satisfy the ‘owned or operated’ requirement, ad these bodies were are engaged in “either a regular course of commercial conduct or a particular commercial transaction or act” in the US as of the commencement of the action.

Improper forum
The 1973 Agreement did not strip the court of jurisdiction.

Barred claims
The defendants’ claim to forum non conveniens ground was not established.

The Complaint stated facts which, if true, could support a finding that the action was timely, and so was not barred by the applicable statute of limitations.

The balance of factors weighs against applying the act of state doctrine (which precludes the courts of a country from inquiring into the validity of public acts of a recognised foreign sovereign power committed within its own territory).

There were no grounds for dismissing the case on the political question doctrine (which instructs that courts should decline to adjudicate matters which have in any measure been committed by the Constitution to another branch of government).

The claims were not barred by the doctrine of international comity (that the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh, as on a new trial or on appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact).

It is assumed that the case will now proceed to trial and a decision on the merits. However, this preliminary decision is a very worthwhile read. Particularly, on the historical aspects of Hungary during and after the Second World War.

Still life or nature morte? Roadkill hits the headlines

A recent news item on Yahoo! draws attention to the activities of Andrew Lancaster, an English immigrant who, on his arrival in New Zealand, took up taxidermy and has become a leading exponent of roadkill art. Says the article

"... “Some people call me sick and some think it’s pretty good,” Mr Lancaster told New Zealand website Stuff. “I saw heaps of dead things on the side of the road and thought it was a waste. When I’m driving along the road and see something I pull up and go back for it,” he admitted.

Mr Lancaster, now living in Tauranga, New Zealand, sells the animal hybrids on Trade Me – the Kiwi equivalent of Craigslist. Working during the day as a marina caretaker, he creates his custom animals in the evenings and on days off.

The amateur taxidermist said he collects birds, pheasants, rats, ferrets and has even found possum babies – discovered inside of their mother’s pouch. Mr Lancaster insists that he only works on animals he finds dead and would never hunt an animal. The unique hybrids have developed a following as his Facebook site ‘Andrew Lancaster Taxidermy Creations’ currently has 241 fans ...".

Andrew Lancaster is by no means unique, since other roadkill artists have hit the headlines.  They include Adam Morrigan (Horsley, Gloucestershire, England) and a group based in the United States.  Art & Artifice reminds budding roadkill taxidermists that they should check with local legislation before scraping their raw materials off the asphalt: in some countries it can be a criminal offence to possess all or part of an endangered species -- so think twice before you stuff that white rhino ...

Barbican Art Theft

The Barbican Art Gallery in the City of London suffered what was apparently the first art theft in its history in May this year.

Thieves stole a number of parts from a sculpture entitled "Glass Plant: Garbage Bricks" (1970-1971) by artist Gordon Matta-Clark which was on display in the exhibition "Pioneers of the Downtown Scene, New York 1970s", which the Gallery hosted between March and May.

Not your average brick. One of bricks from the sculpture - made from bottles gathered from New York city by Matta-Clark.

The Gallery tried to track down anyone who might have seen what happened to the work using booking information and members' details, but has so far been unsuccessful. It has now offered a reward for information leading to the recovery of the piece.

Source: The Evening Standard, 26 August 2011