A South African gallery accepts not to exhibit Jacob Zuma's portrait, while Berlusconi is displayed in Rome in a glass coffin?

Vandals deface Brett Murray's painting "The Spear"
at Goodman Gallery in Johannesburg on May 22

The controversial painting, titled "The Spear" depicted the black President of South Africa, Jacob Zuma with his genitals hanging out. The portrait, made by a white South African artist called Brett Murray, was recently vandalized in the Goodman Gallery, which was displaying it.

The African National Congress has described the work as " rude, crude and disrespectful". Furthermore, this exhibition brought more than 2,000 protesters in Johannesburg, showing the ongoing debate existing in South Africa about whether white South Africans are insensitive and to what extent black South Africans still feel they are treated as second class citizens, even though the country is governed by Zuma's African National Congress.  The President's party, the ANC, led the fight against apartheid before becoming a political party.

Zuma has asked the High Court to rule that his constitutional right to dignity was violated, when the gallery put the painting on display earlier this month. The ANC is also demanding the City Press Newspaper to remove a photograph of the painting from its website.

President Zuma has sued local media companies 11 times for defamation; the most famous case is a 2008 suit against one of the country's most important artist, Zapiro, after depicting Zuma about to rape a female figure representing justice. Mr Zuma was cleared of raping a family friend in 2006.

Two years ago, the ANC condemned another artist, Yiull Damaso, for painting the body of Nelson Mandela undergoing an autopsy, saying it violated the anti-apartheid icon's dignity. 

"The Dream of all Italians" a waxwork figure of Silvio Berlusconi 

The debate on Murray's painting is happening, while a Rome gallery is currently exhibiting an artwork called "the Dream of all Italians" created by an artist duo, Antonio Garullo and Mario Ottocento, the first ever married gay couple who tied the knot in Amsterdam in 2002. 

The name of the installation refers to what Berlusconi apparently called himself on the phone to one of his young girlfriends, according to Italian media. Berlusconi's figure, lying on a red velvet carpet, is wearing giant Mickey Mouse slippers and has one hand inside his unzipped trousers. The artists said they put Berlusconi into a glass case to underline and criticize the personality cult he has been creating for years.

U.S. Postage Stamp Infringes on Copyrights of Sculptor

In the 1980’s, self-employed artist and former WWII army paratrooper, Frank Gaylord, won a competition to create the figurative sculpture element of the Korean War Memorial in Washington D.C.  His design consists of very lifelike cast-metal soldiers moving in formation, adorned in helmets and ponchos, looking about as if they are deep in unfamiliar territory.  The piece, entitled “The Column,” was constructed between 1990 and 1995.  By 1994 the various bodies supervising Gaylord’s creation of the sculptures had withdrawn all claims for copyright ownership and/or royalties in “The Column,” and thus Gaylord was allowed to retain all copyrights to the piece.

In 1996, an amateur photographer and retired U.S. marine, John Alli, visited the Korean War memorial during a snowstorm.  He photographed “The Column” in black and white, its figures swathed in snow and called the piece “Real Life.”   The photograph won first prize in a photo contest and Alli became interested in selling prints and posters.  Unfortunately, in his search for the copyright holder to “The Column,” Alli was misled by another individual claiming to own all the copyrights to the sculpture.  Alli entered into a licensing agreement with this individual and diligently tracked and paid royalties on the photo.  He did not locate or pay royalties to Gaylord.

In 2002, the U.S. Postal Service decided to issue at postage stamp commemorating the 50^th anniversary of the armistice of the Korean War, and paid Alli $1,500 for use of the photograph on the stamp.  The Postal Service sold stamps and other merchandise bearing the image of the stamp incorporating “Real Life.”

Gaylord then filed two lawsuits for copyright infringement—one against Alli and one against the Postal Service.  Although Gaylord settled with Alli years ago, his case against the Postal Service has been pending for six years now and has gone up to the Court of Appeals for the Federal Circuit twice.  Because the case involves infringement by the federal government, Gaylord is suing under a separate statute waiving the federal government’s sovereign immunity for infringement of copyrights and patents, instead of under the general statutory scheme of U.S. copyright law.  Gaylord prevailed in proving that the Postal Service’s subsequent use of “Real Life” infringed upon his copyrights in “The Column.” 

In its most recent opinion, issued May 14, 2012, the Federal Circuit held that the district court had erred in calculating Gaylord’s entitlement to damages.  The lower court employed a "zone of reasonableness" test to determine that the Postal Service owed Gaylord $5,000 (representing the upward bound that it usually pays for use of an image on a postage stamp).  The Federal Circuit agreed with Gaylord that this one-sided analysis was improper.  Instead, the court determined that the damages calculation should mirror that of the statutes addressing damages for copyright infringement generally.  In a case like Gaylord’s, when a plaintiff cannot show lost sales or lost opportunities to license, the determination of damages is a based on the fair market value of a license covering the defendant’s use.  The court parceled out several different uses of the stamp: to send mail, as a collector’s item, and as used on various secondary merchandise like postcards and pins.  The court concluded that the damages calculation may vary on stamps that were used for the purpose of sending mail as opposed to those that were bought and remain unused because they depict Gaylord’s work—these stamps represent almost pure profit for the Postal Service.  The case was then remanded and the lower court was directed to consider all evidence regarding a theoretical negotiation between Gaylord and the Postal Service, not just the evidence set forth by the Postal Service regarding its policies on the amount it is willing to pay to license artwork for stamps.  As the court pointed out, such logic allows an infringer to limit its liability by dictating what it wishes to pay, instead of what a plaintiff is owed.  Gaylord’s evidence will most likely show that he is entitled to a higher damages calculation, as he typically earns 8-10% royalty rate on licensing agreements related to his works.  The court also held that Gaylord is entitled to prejudgment interest, adding to his damages many years’ worth of interest.

The case has set some important new precedents related to copyright infringement by the U.S. government, especially with respect to the determination of damages.  More information about the commemoration of the Korean War, including an image of the stamp is available here.  A website about Gaylord’s sculptural works is located here.

Taking Art law to the MAXXI

Sometimes the legal issues got a little bit blurry

Last Thursday and Friday there was a fantastic international art law conference organised by Massimo Sterpi on behalf of the International Bar Association at the MAXXI art gallery in Rome. There was a huge range of speakers from artists to curators, academics to lawyers.

The speakers gave a fascinating insight into the world of galleries and museums, private collections and provoked considerable debate on some of the issues facing the art world today. The sorts of issues covered included

(1) how you reach a legal definition of art – a particular issue when trying to justify a hefty price tag for what might, to the untrained eye, look like a pile of bricks or a bit of twisted neon light,

(2) how new forms of art such as holograms can fall within old legal definitions,

(3) ownership of digital art, particularly when it includes user generated content or consist of collections of other works gathered from across the internet – pinterest was a particular discussion point,

(4) broader questions of ownership of art, particularly large scale public or performance art primarily in the context of the Burning Man project,

(5) appropriationism including the case law (hello Jeff Koons, Cariou v Prince et al),

(6) the different treatment of art in different legal systems, particularly the relatively open approach of copyright compared to the prescriptive and literal approach of tax laws,

(7) the dangers that museums and galleries face from last minute lawsuits to demonstrations and public being put in danger (fire, falling masonry, falling over in darkness… the list of potential danger is seemingly endless),

(8) controversies surrounding certain types of art, particularly bio art (from glowing green bunnies to pickled human bodies).

The wonderful Zaha Hadid creation that is the MAXXI

Unsurprisingly, given the number of lawyers in the room, there was a lot of talk about copyright and the inherent problems in applying an old system to a new world where digital reproduction is quick and common and appropriationism has become an accepted and almost mainstream art form. 

Suggested solutions included a form of compulsory licensing for copyright works (similar to the approach taken in patent law), a taxation approach (i.e. you have to pay money if your use of a work makes you any money – probably not the favoured approach of the content industries), and a shorter term of copyright protection.

 I will be blogging in more detail on the issues raised in due course but if any of the above are of particular interest please let me know in the comments section below and I will try to cover them first...

Graffiti and copyright law: a new article

A 42-page draft article, "Outlawed Art: Finding a Home for Graffiti in Copyright Law", by Nicole A. Grant (Columbia University, Law School), has been posted on SSRN (click here for details).

The abstract of this thoughtful illustrated article reads as follows:

"An intractable tension exists between the existence of graffiti as iconoclastic youth expression and the emergence of its recognition as an art form, and the boundaries of American copyright law. As graffiti gains more traction in the mainstream art world, copyright law has come to frame much of the discussion surrounding the rights that stem from (and that are overlooked by) the creation of these works. While graffiti is heralded for its uniqueness, it also thrives in a culture of appropriation that encourages dialogue among graffiti artists, in addition to establishing as the norm the pilfering of everyday cultural referents for artistic use. On the one hand, the [United States] Copyright Act grants protection to all original works of authorship fixed in a tangible medium of expression, which ostensibly could include illegal works of graffiti. On the other hand, the rights that could be extended to graffiti artists are limited by the nature of graffiti itself - by virtue of its illegality, there is the risk that works lose a layer of protection when pitted against the property owners whose buildings act as unwitting canvases, and other artists from whom a graffiti artist/secondary user culls material for his own work. This Paper addresses the competing interests and tensions that arise from these considerations, ultimately asking the question whether copyright law can find any coherence in the culture and art of graffiti".

Update: A&A Event Thursday 24 May

The A&A event on Thursday 24 May is now fully booked.

However, please feel free to email elizabethemerson@mac.com with the heading 'A&A Event' if you would like to sign up to a waiting list for the event. You will then be alerted should any spaces become free.

But it's Art, Officer!

Stolen Pieces by Eva and Franco Mattes (detail)

If you nip down to the Carroll-Fletcher gallery before 18 May, you can catch a rather odd exhibition. It's called Anonymous, Untitled, Dimensions Variable and behind it are contemporary artists Eva and Franco Mattes.

Rather than sticking to the old-fashioned route of making their own artwork, the Mattes have take an unorthodox shortcut and nicked it, instead.

The succinctly titled Stolen Pieces is one of the works show in the exhibition. It displays a variety of fragments which the Mattes have chipped and stripped from other, earlier artworks, including 'a length of shoelace from a Claes Oldenburg soft sculpture, a little blob of lead from an installation by Joseph Beuys and a tiny chip of porcelain from Marcel Duchamp’s Fountain' according to the gallery's website.

From 1995 - 1997, the industrious pair carefully gathered the ingredients for Stolen Pieces from museums around the world. But they displayed them for the first time only in 2010, having ascertained that by then the relevant limitation periods for their escapades had expired and they were safe from legal repercussions.

Presumably the limitation period for receiving some stiff letters from certain museum directors is still open though.

Could the Schiele case affect the protection of a good faith purchaser?

Egon Schiele's
"Seated Woman with a Bent Left leg (Torso)",1917

An Egon Schiele drawing from 1917, Seated Woman With a Bent Left Leg (Torso), has been the center of a legal battle since 2005, in which US collector David Bakalar and Austrian art collector Franz Friedrich Grünbaum’s heirs (Czech citizen Milos Vavra and the New York resident Leon Fischer) are fighting to establish ownership. 

Grünbaum’s heirs claim that the Nazis stole the painting from their ancestor (Grünbaum fled Vienna in 1938 and died at the Dachau concentration camp in 1941), while Bakalar argues instead that Grünbaum’s sister-in-law, Mathilde Lukacs, sold the drawing to the Swiss dealer Eberhard Kornfeld of the Galerie Gutekunst in 1956. Then, Kornfeld sold the piece to the Galerie St Etienne in New York and, in 1963 Bakalar bought the work from the Manhattan dealer in “good faith”. 

In 2005 and 2011 the courts ruled in Bakalar’s favor, but renewed uncertainties as the case reaches an appeals court prompted the Art Dealers Association of America (ADAA), the Society of London Art Dealers (SLAD), and the UK dealer Richard Nagy to lobby in support of Bakalar’s claim.

The trio has filed an amici curiae statement (a “friends of the court” supporting brief), urging  the court to uphold the portion of the law that protects “good faith” purchases and, in particular, the laches doctrine, which safeguards purchaser showing that a claimant delayed unreasonably in pursuing a claim.

The group is worried because of the new legal arguments the Grünbaum’s heirs are seeking : firstly, that the “duties of diligence relevant to a laches defence inquiry trigger only after the true owner learns of the location of the stolen chattel”, secondly, that the “knowledge or actions of a claimant’s ancestors cannot be imputed to the claimants when determining if laches should apply”. 

If the Court accepts this new interpration, the application of the laches doctrine will be dramatically affected according to the group. The trio argues that this doctrine, which forms a major part of Bakalar’s defence and  is commonly used in disputes over titles to works of art, constitutes the only defence a good-faith purchaser has against a claim.   

The group deems that without such protection, time for claimants or for their heirs to file a recovery action will be limitless and collectors might take their business to other States where “the laws are more favourable to good-faith purchasers”. 

But Vavra and Fischer's lawyers counterclaim that their clients do not want to eliminate this protection but emphasise that the onus should be on “purchasers to show that they have exercised due diligence".

In your opinion should be favored the good faith purchaser?

Olympic Dispute over Image Rights

Pre-Olympic diving - no athletes are identifiable

Samsung recently came up with what seemed like a genius marketing idea. It would use social media to show people how they are connected to great Olympians of the past and present via a Facebook app. The Olympic Genome Project sounded like a great idea but unfortunately, despite shelling out a small fortune to be an Olympic sponsor, Samsung didn't get permission from all the athletes involved in the project.   Some of them are decidedly unhappy at their names and images being used without their permission.

What is the legal position?  In the UK, assuming that the athletes didn't own the copyright in the photographs (which is unlikely), there wouldn't be much that the Olympians could do about this usage. Their best case would be a claim for "false endorsement" (a la Irvine v Talksport) or, less promisingly, another form of passing off. All of the images appear to have been taken of the athletes in sporting action so no privacy concerns would arise.

By contrast, the US has an established image or personality right (which varies on a state by state basis).  Guess which jurisdiction the athletes decided to sue in?

At least 18 athletes have filed a lawsuit in Los Angeles which claims (1) false endorsement (i.e. that by using their names and faces, Samsung is creating the impression that these athletes endorse their products); (2) Samsung is denying the athletes compensation for the use of their names and images; and (3) violating Section 3344 of the California civil code, which makes it a crime to use someone’s name, voice, signature, photograph or likeness for commercial purposes without the person’s explicit permission. The claimants argue that Samsung did not receive their permission. According to the claimant's lawyer “California law says you can’t use anybody’s name or image to market a product unless you have their consent.” Samsung's usage is alleged to be a problem because (a) the claimants have deals with some of Samsung's competitors and those deals are potentially put in jeapardy by Samsung's actions and (b) tying the athletes to this sort of product will make it harder for them to get endorsement deals in the future.

The number of athletes in question may actually help reduce the likelihood of success. A quick scan of the California code reveals, at subsection (e) that:

The use of a name, voice, signature, photograph, or likeness in a commercial medium shall not constitute a use for which consent is required under subdivision (a) solely because the material containing such use is commercially sponsored or contains paid advertising. Rather it shall be a question of fact whether or not the use of the person's name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required under subdivision (a).

The exact use of each of the images is not completely clear but it appears that they are buried within a facebook app rather than prominently on display and thus the damage, if any, may be fairly minimal.  On the other hand, the Olympics are so huge (and the sponsorship is so tightly regulated) that any form of usage in connection with a sponsorship campaign may cause a great deal of damage to the athletes.

Samsung claimed in a statement that it had worked closely with the United States Olympic Committee for more than year and followed the appropriate procedures in communicating with the athletes.

This case will, hopefully, settle but it offers an important reminder for photographers (in particular although similar issues can apply to graphics artists etc) and those intending to use identifiable images of persons in ad campaigns to make sure that the rights are cleared in all jurisdictions where the images will be used.

 Source: Wired.

Update: A&A Event Thursday 24 May

Our late birthday celebration event on Thursday 24 May can now be updated with the names of our lovely speakers. Entertaining us will be:

Claudia Dilley
Claudia is a graduate of the Courtauld Institute of Art and has worked for Christie's, London since 2004. She manages the commercial side of her departments, overseeing business strategy and client development. She works closely with the Christie's in-house legal team and will be talking to us about the crossover between her commercial work and the world of art law.

Simon Stokes
Simon is a partner at Blake Lapthorn. He heads the firm's art law practice and is the author of several books including Artist's Resale Right: Law and Practice (Institute of Art and Law) Most recently he launched the second edition of his book Art and Copyright (Hart Publishing), which was reviewed by A&A here. He is one of the leading authorities on copyright law in the UK.

Once again details are:

The date: Thursday 24 May
The fun starts at: 7pm
The address: Dr Johnson's House, 17 Gough Square, London EC4A 3DE (click here for a map and directions)
The refreshments: wine and nibbles will be flowing
The donation: Dr Johnson's House is very kindly letting us host this event for free but we would be very grateful if all attendees could give a minimum donation of £3 on the night to support this fantastic institution.

How to reserve a place: Please email elizabethemerson@mac.com with the subject heading 'A&A event' if you would like to attend. Please note that places are limited!

A&A Event: Thursday 24 May 2012

Art & Artifice is celebrating its first birthday (only a few months late…) on Thursday 24 May 2012. The Curator of Dr Johnson’s House has kindly agreed to let us use the House for the evening but unfortunately numbers are limited so if you are interested in attending please let us know ASAP.

The date: Thursday 24 May 2012
The fun starts at: 7pm
The address: Dr Johnson's House, 17 Gough Square, London, EC4A 3DE
The mystery guest speaker: come along and you will find out who…
The refreshments: wine and nibbles will be flowing
The donation: Dr Johnson’s House is very kindly letting us host this event for free but we would be very grateful if all attendees could give a minimum donation of £3 on the night to support this fantastic institution.

How to reserve a place
Please email elizabethemerson@mac.com with the subject heading “A&A event” if you would like to attend.



Exterior of Dr Johnson's House by twilight,

©Phillip Sayer

Tell me more about Dr Johnson’s House
Dr Johnson's House is one of the few residential houses of its age still surviving in the City of London. Built c.1700, it was a home and workplace for Samuel Johnson 1748-1759, and it was here that he compiled the first comprehensive English Dictionary. Now restored to its original condition, the house contains panelled rooms, a pine staircase, and a collection of period furniture, prints and portraits. Situated to the north of Fleet Street, the house is found among a maze of courtyards and passages that are a reminder of historic London.

We hope to see you there. Very best wishes from the Art and Artifice team.

Self-dealing won't save family paintings, says court

Severnake Lodge: framed
paintings hung there
are not "fixtures"

Cardigan (Earl of) v Moore and Cotton [2012] EWHC 1024 (Ch), a decision of Mr Justice Newey (Chancery Division, England and Wales) on 20 April, is worthy of note if you are a trustee of ancestral paintings which form part of a family estate.

According to the court, not only can the trustees sell the paintings, but they can also apply to set aside a lease of those paintings, which vested them in a family member (the Earl of Cardigan), under the self-dealing rule in Tito v Waddell (No.2) [1977] Ch. 106, where the lease was granted by a partnership that held the family estate's property before it was placed in trust.

According to Mr Justice Newey a reasonable person would understand the deed which set up the trust to be transferring all the assets listed in a schedule to the deed, which included the paintings, to the trustees. As such, they no longer represented partnership property. Nor were they "fixtures" which could be said to be included in the lease to the Earl of Cardigan of Severnake Lodge, the house in which they hung.