Photographs, celebrity and the PCC



Is this the face that launched a copyright case?
Answer: yes

Photography cases are becoming increasingly common in the Patents County Court of England and Wales (PCC). We have had ‘infringement’ of red routemaster buses, the damages caused by unlicensed photos of pharmaceuticals and now the subject matter has moved, somewhat inevitably, on to celebrities. Karren Brady is a very successful business woman who is, perhaps, best known for being the new Margaret in the UK version of The Apprentice. She was literally the subject of a photographic case - Celebrity Pictures & Tyson Sadlo v B Hannah Limited.

So, what happened?
Tyson Sadlo was engaged in July 2010 by company (Oxygen 10) to photograph Karren Brady for Today's Business Woman. Syndication rights were subsequently granted to Celebrity Pictures Limited which, together with Tyson Sadlo sued B Hannah Limited (a member of Oxygen 10’s corporate group) for copyright infringement. This was on the basis that B Hannah had authorised publication of the photos of Ms Brady in BUPA Health Magazine and on a celebrity website.

Why sue B Hannah and not Oxygen 10?
At the time of the shoot, Oxygen 10 was operated as a separate company from B Hannah. However, shortly afterwards the operations of Oxygen 10 and B Hannah were amalgamated and Oxygen 10 ceased trading. Oxygen 10 was dissolved earlier in 2012.

Who owned the copyright in the photos?
Unsurprisingly, the situation was far from straightforward. B Hannah claimed that either it owned all the copyright in the photographs or that it is a joint owner of the copyright. The uncertainty surrounding ownership of the rights was due to a written document ("the contract") which B Hannah claimed to have sent to Mr Sadlo before the photo-shoot. The contract explained that by accepting the assignment Mr Sadlo agreed to worldwide exclusivity in favour of Oxygen 10. As the judgment put it, ‘there is no dispute that, if this document was received by Mr Sadlo, its terms are sufficient to defeat the present claim to infringement of copyright’. However, this would most likely be by means of licence rather than assignment – the contract referred to ‘worldwide exclusivity’. Thus, regardless of whether the contract was sent to Mr Sadlo he would most likely retain ownership of the copyright.

Can you become a joint owner of copyright by setting up a photographic scene?
Maybe. Creation Records is a great case about an Oasis album cover which was snapped by the paparazzi before the official photographer took any pictures. As there was no copying of the ‘official’ photograph there were many debates about potential alternative copyright in the mise en scene. Whilst these arguments were ultimately unsuccessful the case did raise the proposition that "There may be cases where one person sets up the scene to be photographed (the position and angle of the camera and all necessary settings) and directs a second person to press the shutter at a moment chosen by the first, in which case it would be the first, not the second, who creates the photograph. There may also be cases of collaboration between the person behind the camera and one or more others in which the actual photographer has greater input, although no complete control of the creation of the photograph, in which case it may be a work of joint creation and joint authorship." Cue argument that Mr Sadlo was in fact a joint owner of copyright together with the staff from Oxygen 10 who helped set up the scene. Although Mr Sadlo was given a brief and received some assistance on the shoot, this argument the judge found that “I do not think these general instructions to the photographer as to the type of photographs, or the very general acceptance that there was a team effort involved in the photo-shoot as a whole, are sufficient to make anyone other than Mr Sadlo the author of the photographs.”

Was there a contract?
Whether or not the contract was received was the key issue in the case although B Hannah also claimed that there was an implied claim as to transfer of exclusive rights. The receipt or otherwise by Mr Sadlo of the contract is therefore the principal issue in the action. Whilst, as the judge put it, “the evidence can scarcely be described as satisfactory on either side”, he ultimately decided in favour of Mr Sadlo. One of the key determining factors was that there was quite a lot of email correspondence between the parties but no mention in any of this correspondence of the contract – which was allegedly sent by post.

Implied assignment?
B Hannah tried to claim that there should be an implied assignment. However, after examination of the relatively limited evidence, Mr Justice Floyd held that “it is not necessary to imply into the agreement any wider term than that accepted by the claimants, namely an agreement to use the results of the photo-shoot for publication in Today's Business Woman.”

Conclusion
The claimants won and the licence of the photos from B Hannah to Bupa and the celebrity website was an infringement. Although B Hannah tried to argue that Oxygen 10 and not B Hannah was responsible that argument failed (amongst other things, it had paid Mr Sadlo’s fee). The judge did not decide costs or damages. If these cannot be agreed between the parties, there will be a further hearing before Floyd J after 1 October. Whilst it is to be hoped that the parties can reach a reasonable compromise, it is always interesting to get judicial guidance in this area.

Lessons learned
• Make sure your contract is clear – are rights being assigned or licensed? If so, what rights and in what jurisdictions? Is the licence limited to a particular publication or a form of media? Is it exclusive, limited in time etc?
• Get things in writing and sent by email or fax as well as post (ie a method where you get a delivery receipt and there can be no question regarding service).
• If you are using assistants to set up your shoot, be aware that in some circumstances thy can be a joint owner of copyright in the photograph.
• Implied terms will be made to the minimum extent possible. Ie it is very unlikely that a court will find it necessary to imply an assignment.

Finally, it is not often that you see a photographic copyright case and even rarer that one merits a QC and a High Court judge (albeit sitting in the PCC). It is to be hoped that the recent judicial focus given to photography will enable greater clarity in terms of the courts likely approach and enable more matters to be settled without recourse to legal proceedings... (you never know!)

New Australian art law?

If the latest art news from Australia is anything to go by, it seems that new legislation may shortly be introduced to protect international artworks which have been loaned to Australian galleries from seizure in the event of an ownership dispute.

The Sydney Morning Herald reports:

...[T]he Arts Minister, Simon Crean, said yesterday: ''The new legislation will guarantee the return to the lender of cultural objects such as paintings, drawings, sculptures, textiles, stamps and coins, which are brought to Australia on loan for temporary public exhibition.''

Without it, he said, Australians might have been denied the opportunity to see masterpieces such as those on loan from the Prado in Madrid to the Queensland Art Gallery.

The lack of such laws has been cited by Australian collecting institutions as a barrier to negotiating loans where there is the potential for dispute about a work's ownership or ethics of acquisition.

Antiquities, indigenous artefacts and works expropriated from Jewish citizens by the Nazis, or from Russian owners by the Soviets, are among those that have become the subject of disputes internationally.

The new legislation, to be passed in the spring session of Parliament, will ''ensure that any [such] loans from overseas collections will be co-ordinated in consultation with Aboriginal and Torres Strait Islander people'', Mr Crean said.

If there really has been a barrier to international art coming into Australia due to inadequate legal standards, the proposed legislation may be a welcomed change. It remains to be seen whether such a change will actually make a difference to Australian galleries.

Les baigneuses by Pablo Picasso - exhibited in
the Art Gallery of New South Wales
between 12 Nov 2011 - 25 Mar 2012
 on loan from the Musée National Picasso, Paris

Source: Sydney Morning Herald, 21 July 2012

China rejects Ai Weiwei's claim

As we reported back in April, Ai Weiwei filed a lawsuit against the Beijing tax office claiming that it had violated the law when it imposed a $2.4 million penalty on his company for unpaid taxes and fines. Today, a Beijing court rejected his claim.

The Associated Press reports that:

The [Chaoyang District People's] court rejected the lawsuit on the grounds that the reasons given by the design firm in seeking to have the tax penalty revoked did not hold water, according to a copy of the verdict seen by The Associated Press.

The court said, for example, that the company was wrong in arguing that financial accounts seized from Ai's studio by police should not be used as evidence in the tax authority's investigation against the firm. It said tax investigators are allowed to use information sent to it by other departments or organizations. ...

The court ... rejected lawyers' requests to see evidence against the company, produce witnesses and have an independent auditor verify figures.

Representatives of Ai said that the ruling was made "totally without reason" but that it came as no surprise, and vowed that the ruling would be appealed, including the company's legal representative Pu Zhiqiang, who said "We have lost this lawsuit but we believe that our action in reality can serve as a symbol of the awakening of civil consciousness....We do not recognize the legality of the ruling."

Ai, himself, who was not allowed to attend the hearing is said to have told reporters that:

"Today's verdict means that after 60 years of the founding of our nation, we still lack the basic legal procedures, the truth is not respected, and they do not give taxpayers or citizens any rights to defend oneself."

"The whole legal system is in a dark state right now."

This decision is the latest obstacle Ai Wei Wei's freedom from oppression by the Chinese authorities. He remains unable to leave the country and is under constant police surveillance. At this stage, it is difficult to predict what his next move will be.

Source: Associated Press, 20 July 2012

Government of Taiwan Sued for Allegedly Breaching Contract with Artist

The president of Taiwan as well as another local official for Kinmen County, have been sued by an expatriate Chinese artist for breach of contract.  The complaint also names an unknown number of John and Jane Does.  The case was filed in U.S. District Court for the Southern District of New York.  Artist Weiming Chen, now a resident of the United States, claims that the President of Taiwan succumbed to political pressures from mainland China that caused the Taiwanese government to breach its contract with Chen.  The artist alleges that on January 17, 2012, he entered into a contract with the government of Taiwan to create a 32-meter tall sculpture on Kinmen island, a few miles off mainland China.  The island was under military administration for many years and is historically significant as the site of intense battles between Taiwan and mainland forces.  The statue was to face the mainland and was to echo the spirit of New York's Statue of Liberty as well as the Goddess of Democracy statue formerly situated in Tiananmen Square in Beijing.  The original Goddess was fabricated out of foam and papier-mâché by students during the protests which took place in the spring of 1989 and was demolished by the military during the infamous suppression on June 4, 1989.  Replicas of the Goddess are now situated around the world.

The colorfully-worded complaint was filed on July 5, 2012 and requests millions of dollars in punitive damages for civil conspiracy, breach of contract, and interference with business relations.  The artist also seeks the right to build the statue.  The Taiwanese government has yet to respond to the artist's allegations.

Birds of a feather...copy each other?

The Australian press is a flurry with reports of some artistic copying. The first image below is a photograph, entitled Shenae and Jade, by artist Petrina Hicks, which is held in the collection of the Art Gallery of New South Wales. The second is a painting by Czech artist Marek Hospodarsky entitled Bird.

Reports the Sydney Morning Herald:

Art dealer David Hulme found it hard to spot the differences when he received a promotional email from art dealer Saatchi Online.

The price of the Hospodarsky painting is $1200 - a print costs $20.

 Mr Hulme said the image was an ''iconic photographic image''. ''I compared the two and it's obvious that it's a copy,'' he said. ''The main problem is the way it is being proliferated to such a substantial amount of people around the world.'' He rated the work as ''quite an amateurish representation of Petrina's very highly professional work'' and said it could damage the artist ''because it is not of anywhere near the same quality''.

When The Sunday Age contacted the Stills Gallery in Paddington, Sydney, which represents Hicks, it was not long before a second painting by the artist was discovered on the Saatchi website that also looked familiar. Hicks accused Hospodarsky of ''directly'' ripping off another of her images. "I can also recognise the works of other well-known artists in his paintings; his work is 100 per cent derivative,'' she said.

Looking to our favourite recent UK Red Bus case, there it was held that it is possible to infringe copyright in a photograph by recreating a scene that had been photographed, when the skill and labour of the author (his intellectual creation) went into creating the scene that was photographed in the first place. The judge found that the common elements between the defendants' work and the claimant's work were causally related, in other words, that they had been copied, and, on a qualitative assessment of the reproduced elements, those elements were a substantial part of the claimant's work. Therefore, there was copyright infringement of the original work.

Applying the decision to the facts of this situation, upon a very basic visual appraisal (of my own), it does seem that the Hospodarsky painting reproduces the key visual elements of the Hicks painting. I would be interested to know our readers' views on the matter. Would you consider that Hospodarsky's painting reproduces a substantial part of the Hicks image so as to amount to copyright infringement? Or is Hospodarsky's painting his own intellectual creation.


Source: Sydney Morning Herald, 8 July 2012

Retaining the valuable assets

Much has been written recently about the downfall of international law firm Dewey & LeBoeuf LLP. Only a few, it seems, picked up on a small art slant to the story. Specifically, in the Motion filing for an Order relating to Dewey's Bankruptcy proceedings, lodged on 20 June 2012, it was emphasised that the Motion was not intended to apply to Dewey's personal property in the form of artwork located in the its former Houston, Texas offices, or Los Angeles, California offices.

The Motion sought permission to reject certain unexpired leases and subleases of non-residential real property for Dewey's closed offices and abandon certain personal property located in Dewey's former offices where it is no longer conducting any business. Such lease rejections are reportedly permitted under US bankruptcy law with the court's prior approval. The purpose being to reduce the firm's liabilities as far as possible. Naturally therefore, Dewey were careful to make sure that the assets they have – their artworks – are retained and retrieved from their offices.

For how much longer these works remain in Dewey's possession, with its creditors lining up, remains to be seen.

Source: Wall Street Journal, 21 June 2012

A Tale of Two Rocks

For those of us into large rocks, it's been a week to remember. 

Los Angeles' LACMA has seen the arrival of Michael Heizer's Levitated Mass, a 340- tonne boulder now balanced above a sunken walkway. Despite murmurs over its US$10m price tag, it has been enthusiastically received in its new hometown.

More controversial, if more petite, has been Wolfgang von Schwarzenfeld's Global Stone project in Berlin's Tiergarten. The artist brought a 35-tonne sandstone boulder from Venezuela as part of the project and - although he says that former Venezuelan president Rafael Caldera authorised its removal to Germany - some Venezuelans say it was stolen and they want it back. 

Global Stone in Berlin

It is being claimed that the stone is sacred to the Pemón Indians local to the Canaima National Park in south west Venezuela, where the boulder was found. The Guardian reports that a 'small group of the Pemón is alleging that the rock is their "grandmother" – a petrified ancestor of the tribe – and that its removal, and separation from a "grandfather" has led to natural disasters throughout Venezuela, including a mudslide in 1999 that killed 20,000, harvest failures, and the disappearance of fish in the region's rivers'. 

But it's also suggested that the sacred nature of the boulder in question (along with the tribal story to back it up) has been hurriedly concocted for political purposes. According to von Schwarzenfeld it was only after the stone had been removed that any interest was shown in it. One Pemón expert, Bruno Illius, has said that the story was created by current Venezuela President Hugo Chavez, with the intention of creating an international cultural cause and then solving it to gain positive propaganda. "The whole protest has been manipulated," the Guardian reports him as saying. "Hardly any of the Pemón know about the stone's supposed origins."

A resolution has yet to be found for the Venezuelan boulder, known to the Pemón as the Kueka Stone. The claim over it may be for theft, but as with many cultural heritage issues the solution may well be political and emotional rather than legal.

Read more in the Guardian and the Associated Press.