Portrait of a lobster: a lawyer looks at the art-style-design divide

Some readers of Art & Artifice will be readers of the jiplp weblog, but most will not. Today's jiplp features "Art, Style, Design" -- a powerful piece by veteran Italian intellectual property scholar and practitioner Mario Franzosi on the inadequacy of European design laws. In the middle of this analysus he seeks to distinguish the three concepts to which the title alludes in the following manner:

"2.1 Art results from the work of artists, those people who, with constant and enduring passion, communicate in understandable form their feelings and thoughts -- feelings and thoughts that are universal: those of the human race. 

Art expresses those permanent ideas like Beauty, Love, Courage, Misery, Heroism, Passion, Faith, which are everlasting principles and sentiments. The message is not immediately evident; especially for modern art, it has to be detected or interpreted; when detected, it makes an everlasting impression. 

One of the 284 lobster paintings
currently available from
Fine Art America -- none of which
look much like lawyers 

Works of Art are in Museums, and also in the lobbies of the most prestigious law firms. Some months ago I was in the office of a well-known, high-profile IP lawyer and I saw in the lobby a most catching picture. In this picture I clearly recognized that lawyer (looking, perhaps, a little younger than his actual years), working tirelessly for a case. The picture expressed clearly the intelligence, dedication, tension and ability of the professional. It seemed that this IP star was considering only the interest of his client, and nothing leaked from the external world. I expressed my admiration to the secretary. And she said (I told you that the meaning of the work of art is not immediately evident !): “Yes, Sir, true. However, it is a fact that the painting depicts a lobster, cooked with onions and potatoes”. I will not tell whether it was lobster or potato or onion that brought me to the identification with our famous friend.  

2.2. Style is typical of stylists, those people who express their style, their personality in their creations. A work of style is recognizable and easily attributed to the stylist. It is the signature of the creator, like a real signature made with a pen (stylus, in Latin). It must show the personality of the creator; if not, it is a creation with no style. And the style has to be consistent: if Armani changes style and designs in the style of Dolce & Gabbana, the public will say that he has lost style, and deserves no consideration and appreciation. The same if Dolce & Gabbana designs in the Armani’s style: nobody would accept it. An exchange of image is not allowed, since it would be a loss or style, no matter whether the new style is good or bad.

2.3. Design is quite a different animal. Designers design common objects, those kind of items that you use every day, in a manner that it is (or should be) appropriate for you and the object. They design common coffee-pots, or typing machines or refrigerators, which make good coffee, keep your food fresh, type letters easily. The personality of designers does not count; it is the utility and elegance of the object that matters. When in a shop window you see a coffee-pot that is a work of design, you look at it with interest, enter the shop and buy it (even if it costs a little more than expected, but not so terribly more), because you have a feeling that it is nice and makes a good coffee. You put the old coffee-pot aside, and think of using the old only if the new breaks out. But the new does not break, if it is good design, so that the old remains disconsolate on the shelf, until it goes, even more disconsolate, in the basement. 

A work of design is a work of a designer, working with other functions in the company. If the company could buy aluminum at a bargain, the coffeepot is made of aluminum; if not, is made of iron. If the company wants to make use of a number of filters that lay in the warehouse and nobody finds a proper use, the coffeepot employs said filters. The product is made with what is easily available, provided is appropriate (fit and match, if I may use the European terminology). The product is proper, but not fanciful; the public does not know, and does not recognize, the designer. The public buys coffeepots, and not names. 

Of course there are contact, or conflicts, between Art, Style and Design. For instance, if you enter a museum of fine art and see a beautiful chair, you may not know if it is a work of Art or Design. But there are ways to find out. For instance, if you sit on the chair and you feel comfortable, it is a work of Design. If you sit and the alarm sounds, the guardian comes with a broom and scolds you, it is a work of Art. The amount of scolding is the amount of creativity".

While the definitions are somewhat tongue-in-cheek, the message behind them, and its implications for the protection of applied and functional art, are immense. Readers are invited to share their comments and reflections on the good professor's thoughts.

Litigating the Californian "droit de suite" ?

Christie's Inc and Sotheby's Inc were sued last Tuesday in U.S. District Court, Central District of California, by a class of artists: New York painter Chuck Close, the L.A. artist Laddie John Dill, the estate of Robert Graham and the Sam Francis Foundation (only for Christie's).

The proposed class action was filed alleging that, the auction houses violated the California Resale Royalty Act, unlawfully failing to pay artists resale royalties for their works' sales in California.

1977 California resale royalty law grants  to visual artists 5% of the proceeds from the resale of artworks under certain conditions, that: the seller lives in California or the sale occurs there, and only for specific kind of art defined as "an original painting, sculpture or drawing or work of art in glass". This resale right is extended for 20 years after the artist's death, also to the artist's heirs. 

This law was inspired to the European visual artists royalties known as the French "droit de suite" now spread throughout the European Union, thanks to the implementation of the European Directive 2001 /84, that took effect, also in Ireland and Great Britain, which previously didn't allow visual artist's resale royalties.

The plaintiffs charge the auction houses ruotinely violate the law hiding the identity of the sellers and their residencies. In their turn, Christie's and Sotheby's have announced they will charge this law for constitutionality issue, since it could conflict with U.S. federal copyright law.

Finally, if successful, these suits could shift business elsewhere, opening a new scenario in American art market.

Read  more on L.A. times here

Read more on Artjournal here
Read the complaint against Sotheby's here

How will we tell our Warhols from our baked beans now?

The real Andy Warhol
-- or is it?

The Andy Warhol Art Authentication Board will close early next year. The announcement was made by the Andy Warhol Foundation for the Visual Arts, which will continue its work on Warhol's catalogue raisonné and other core projects, reports the The Art Newspaper.

Over its 16-year life, the Board has had more than its fair share of criticism, building up a controversial reputation and sky-high litigation bills surrounding its authentication decisions.

On one occasion it rejected a work which had belonged to Warhol's one-time gallerist Anthony d'Offay, and which was signed, dated, and had been included in a previous Warhol catalogue raisonné with Warhol's knowledge.

More recently, the Board spent close to US$7m defending an antitrust lawsuit brought by collector and filmmaker Joe Simon-Whelan, who had requested - and been denied - authentication of a work he and other experts considered to be a Warhol portrait. He accused the Board of conspiring to 'restrain and monopolise trade in the market for Warhol works'. The parties settled last year, but apparently not very amicably: a lawyer for the Foundation said Simon-Whelan had admitted in court that 'there was no basis for his allegations', while the collector himself explained that he had ceased to pursue the multi-million dollar case because he couldn't afford it (some inauthentic commentary there from somebody).

As well as saving millions in legal fees, the Board's running costs of US$500,000 per year will be freed up by the closure. This will allow the Foundation 'to maximize its grant-making and other charitable activities in support of the visual arts', says the Foundation's president Joel Wachs.

Warhol, whose will set up the Foundation for the advancement of the arts (rather than in support of the legal industry), would no doubt have approved.

Read The Art Newspaper's report here
Read artinfo.com's report here

Another piece written for Art & Artifice by Elizabeth Emerson

Proposed UK government scheme encourages art gifts to the nation

Joseph and Potiphar’s Wife, given
under the Acceptance in Lieu scheme

The UK government is currently pondering the responses given to its recent consultation, the snappily titled ‘Gifts of pre-eminent objects and works of art to the nation’. It is hoped that the scheme will encourage lifetime gifts of art to the nation in return for tax breaks (complementing the existing Acceptance in Lieu of Tax scheme, which encourages giving by reducing inheritance tax).

The idea is that a prospective donor will offer a work of art to the government. A panel of experts will then judge whether the work is ‘pre-eminent’ or merely nice. If the former, the panel will value the work and the donor will gain a tax deduction of (it is suggested) 25% of that value. Broadly, the nation gets 75% of the work for free, the donor saves tax, and everyone’s happy.

Respondents to the consultation have, however, pointed out a few possible flies in the ointment. These include the following:

• although the donor can express a preference as to where the work of art goes, they won’t be given the final say. Some donors may not care for the idea that they cannot be sure that the work will go to their preferred charity;

• donors may find it more tax advantageous to simply sell a work of art and make a Gift Aid donation of the profits after tax to their chosen charity. This would also enable a donor to be sure that their gift benefits the charity of their choice;

• the scheme’s cap of £1m per object and £2m per donor in tax deductions may deter owners from donating more valuable objects; and 

• where inheritance tax on an object has been deferred under a conditional exemption, and the object is then donated under the scheme, inheritance tax on that object could then become payable.

We look forward to discovering how far these concerns will influence the final shape of the scheme. Draft legislation is expected in early December.

To see the full consultation, click here.

Written for Art & Artifice by Elizabeth Emerson (thanks!)

Can you make a sculpture with a bit of paper?

WARNING: This is not a blog about origami.

It is Frieze-ing in London this week.

Frieze art fair lives in a lovely bubble where the global economy is not on verge of collapse and people still have bottomless pockets full of money to lavish on the art world. Works on sale range from the tens to the millions of pounds and cover all forms of artistic media. This year it is hosting over 170 galleries from around the world and has a variety of talks to keep punters entertained.

One of the big talking points has been “The Finest Art on Water”. This work of “art” is in fact a yacht. Buyers can choose to buy the yacht as a boat for €65m (approx £58m) or as a sculpture for €75m (approx £66m). What’s the difference? Well it all lies in a bit of paper, a certificate of authenticity, which is provided for a mere €10m by German artist Christian Jankowski. This is not the only boat on sale with alternative embodiments (boat/art) but, as the most expensive example, it is the one which has raised the most eyebrows.

Presumably when Jankowski seeks to transform the boat into “art” he intends it to be a sculpture, as opposed to a work of artistic craftsmanship (which it may well be in its own right).

At the risk of being pedantic, can a boat be a sculpture in the legal sense? And how can a bit of paper change its designation?

Lucasfilm v Ainsworth spent a lot of time considering whether stormtrooper helmets were sculpture but didn’t reach a final conclusion on how to define a sculpture. The closest the Supreme Court came was to cite Richard Meade QC’s formulation, as put forward in Metix v Maughan, with approval [35]. Meade suggested that “a sculpture is a three-dimensional work made by an artist's hand”. Neither the boat nor the certificate satisfies this requirement (although the certificate may well be an artistic work, as a painting or other two dimensional work).

You can read more about Jankowski here.

Read the Guardian story which inspired this blog here.

Can’t make it to Regent’s Park to buy a boat? Fear not, you can browse the virtual art gallery here.

French Auction Houses allowed to sell by mutual agreement

Pierre-Paul Prud'hon,
Esquisse pour le portrait de
 l'Impératrice Joséphine à la Malmaison

France State has just bought three works of art thanks to voluntary sales through Christie’s France. These acquisitions are part of a larger operation of purchase of the Marquet de Vasselot's collection for the most famous French Museums: the Louvre and the National Library. The remaining part of the collection will be auctioned next month.

France passed a new law on July 6th, which entered into force on September 1st, modifying the previous law on July 10th, 2000. The aim of such new law was to allow auction houses to conduct sales by mutual agreement. i.e. private sales between the seller and the buyer, whereas previously such transactions were restricted in France to galleries and other private dealers. The law brings France into line with other European countries as England, which already allow auction houses to handle private sales.

Since they are fast and secure, private sales have special appeal for clients seeking privacy. Museums, which often must establish a budget in consultation with their boards, often lack flexibility during auctions and prefer private negotiations.

Elizabeth Taylor's taste proves impeccable

The real Hals (detail)

At her home in Bel Air, California, the late actress Elizabeth Taylor hung a painting entitled "Portrait of a Man, Half-Length" in pride of place. Once thought to be in the style of seventeenth century Dutch master Frans Hals, the Los Angeles Times reports that experts now believe the portrait to be a real Hals.

The painting was listed in Seymour Slive's 1970s catalogue raisonné of Hals as being 'doubtful and wrongly attributed', but Slive had seen only a black and white photo of the work. When Ben Hall (head of Christie's Old Masters in New York) saw the real thing, the looseness of the brushwork and sensitivity of the face made him suspect Slive had been wrong. Pieter Biesboer, former curator of the Frans Hals museum in the Netherlands, agreed with Hall and told the Los Angeles Times that he had 'no doubts' about the painting's authenticity.

The portrait spotted by Taylor's keen eye, once valued at a mere $100,000, could now bring in around $1m when sold in January.

Written for Art & Artifice by Elizabeth Emerson (thanks!)
For further reading see LA Times here; AFA News here


Jeremy's question: portraits valued at $100,000 are likely to be insured for a sum of that nature. Authenticated originals demand insurance at a far higher level and insurance companies do not take kindly to works being either over-insured or under-insured. This raises the question: how are claims settled in respect of loss or damage to a work when the insured event takes place after a reassessment of the insured work has been commenced but before its authenticity has been confirmed. Does anyone know ...?

Master forger takes revenge on the art world

After their arrest nearly a year ago, German art dealers Wolfgang and Helene Beltracchi have struck plea bargains in their dramatic forgery trial. The husband and wife team, along with Helene's sister Jeanette, were accused of selling more than 40 forged paintings over a period of 14 years, one of which is said to have sold for $7m. They claimed the works to be by painters such as Max Ernst, Heinrich Campendonk, Fernand Léger and Max Pechstein, among others.

Above: a genuine fake Campendonk, which fetched 2.9m euro at auction

Now Wolfgang Beltracchi has reduced his sentence by pleading guilty, and appears to be enjoying his time on the soap box into the bargain. 'I created an original, an unpainted picture by each artist,' Die Welt reports him saying, 'I painted paintings which really shouldn't have been missing from the artists' oeuvres.'

In traditional forger's style the painter, who had minor success painting in his own name, blames the greed of the art world for the scandal and says he wasn't in it for the money alone - despite having made an estimated $20m from the scam.

Thank you, Elizabeth Emerson, for preparing this piece.
For further reading see Art Media Agency here; Artfix Daily here

Cardozo call for papers

Plato's Symposium: at least
there was plenty to drink ...

Art & Artifice begs to inform its readers that the Cardozo Arts & Entertainment Law Journal seeks submissions for the journal’s Symposium, to take place next Spring. The working title of the Symposium is “Examining and Overcoming Enforcement Issues in Copyright Law”.

The symposium provides an opportunity for academics, practitioners, consultants and students to exchange ideas related to the protection of intellectual property in the Digital Age, from the perspective of enforcement, as well as self-policing and cooperative agreements. Please note the following dates:

• Submission Deadline for Abstracts: October 31, 2011
• Submission Deadline for Articles: January 31, 2012
• Symposium Date: March 29, 2012

Mark Stephens to spearhead DACS

DACS (the Design and Artists Copyright Society) announced today its great pleasure in the appointment of Mark Stephens CBE as the new Chair of its Board of Directors. According to the DACS media release:

"Mark Stephens joins the organisation at an important time as debate continues about the future of copyright, and the global recession and public funding cuts impact on visual artists. DACS’ role in helping artists to sustain their practice and livelihood is even more critical than ever. 

Mark is a senior partner of law firm Finers Stephens Innocent, specialising in media law, intellectual property rights and human rights. Mark was instrumental in the establishment of DACS in 1984 – law firm Stephens Innocent was a home to DACS in the first years after its establishment. 

Mark Stephens says: “Throughout the past 35 years I have advocated for artists’ rights. I am thrilled and delighted to be offered the opportunity to chair DACS at a time when the economic rights of artists are under threat as never before, not least because of digitalisation and multiplatform delivery. I intend that DACS should remain at the forefront of the development of new economic models to safeguard the ability of artists to contribute in such vital ways to our cultural life ..”.

Mark replaces Andrew Potter, who steps down in December 2011 after battling on behalf of his members for the past six years.  Art & Artifice wishes Mark the best of luck in his new position and is sure that he will throw his usual enthusiasm into discharging its duties.

Dylan's clones??

Another week, another art copying row. The opening of an exhibition of paintings by Bob Dylan (perhaps *slightly* more famous for his singing) has reportedly lead to a number of accusations of copying. Hosted by the Gagosian Gallery in New York, the exhibition is described as follows:

"Dylan's drawings and paintings are marked by the same constant drive for renewal that characterizes his legendary music. He often draws and paints while on tour, and his motifs bear corresponding impressions of different environments and people. A keen observer, Dylan is inspired by everyday phenomena in such a way that they appear fresh, new, and mysterious.

The Asia Series, a visual reflection on his travels in Japan, China, Vietnam, and Korea, comprises people, street scenes, architecture, and landscapes, which can be clearly identified by title and specific cultural details…"

It seems, however, that rather than being inspired by his travels, the works are also inspired by other artists' works. Fans have point out a number of the works bear remarkable similarities to the works of other artist. These include the following examples:

Bob Dylan’s painting / Léon Busy’s photo

Bob Dylan’s painting / Henri Cartier-Bresson photograph

Bob Dylan’s painting / Dmitri Kessel photo


As the New York Times points out, it is not the first time that Dylan has been accused of "borrowing" as his use of the writings of others in his lyrics has been noted in the past. It would, however, be less controversial if Dylan had credited his source material - After all, all the greats borrow, don't they?? It remains to be seen whether the 'original' artists object to Dylan's works and take any action.

Source: New York Times, 26 September 2011