Russian authorities to end artist's fun?

This month saw Russian prosecutors launch an investigation into an art exhibition by two British artists, Jake and Dinos Chapman, for violation of Russia's 'extremism' legislation – which prohibit the incitement of hatred on racial, ethnic or religious grounds – the same legislation which was used to prosecute and imprison Pussy Riot, the Russian feminist punk-rock collective.

The exhibition, The End of Fun, is described as: "a three-dimensional collage, consisting of miniature plastic figures placed in nine glass display cases. The display cases are arranged in the hall in such a way that it resembles a swastika from above. In the display cases, a single landscape of hell unfolds, in which the figures ceaselessly kill one another with diabolical cruelty. In the artists’ words, only one moment in this piece is captured, the fact that everything happening behind the glass is taking place at the same time. Like the architects of the old Kunstkamera, the Chapman brothers "lock up" the fascists in a capsule full of sadistic bestiality. By placing cruelty in seal museum display cases or dioramas, the artists strive to cure society of that cruelty."

a capsule full of sadistic bestiality?

It currently remains on display at the State Hermitage Museum in St Petersburg, however, if it is found to breach Russia's laws, it could be closed down.

France 24 noted that:

"The city's prosecutor's office said it was checking for "possible violations" by the organisers of their Hermitage show "End of Fun" after "numerous complaints from citizens."

"According to the complaints, the said show insults the feelings of Orthodox believers... and is directed at inciting hatred," the prosecutors said on their official website..."

Meanwhile, the Telegraph reported:

"[The gallery's director] Mikhail Piotrovsky railed against the probe, saying it was a "stunning example of the cultural degradation of society" in Russia: "People think Christian crosses have been desecrated because a teddy bear and a McDonald's clown are nailed to them. There is nothing blasphemous here, but there is clearly a desire to spoil the mood in our city.

... Mr Piotrovsky said that "only an idiot" would consider the exhibition insulting to Christianity. "What is art and what is not is determined by the museum and not the general public," he said."

This is not the first time that the Russian authorities have sought to censor art. It is only hoped that the Chapman Brothers do not suffer the same fate as Pussy Riot.


Source: The Telegraph, 7 December 2012, France 24, 10 December 2012

From Santa Claus to Fanny Claus: Manet saved by the Brits

"Manet work among £29m of treasures saved for the UK" was the headline of this recent piece on the BBC website.  This saving was achieved just in time for Christmas by the crude but effective device of the export ban.

"An Edouard Manet portrait is among four treasures which have been prevented from leaving the UK in the last year. The items, worth a collective £29m, include a Benjamin Britten draft score, two Italian console tables and a sculpture by John Nost the Elder. The public will now have access to the works, according to a new report. They were bought for a combined £9.3m, after the secretary of state enforced an export ban giving museums and galleries more time to raise funds.

If an object is more than 50 years old and requires a licence for export out of the UK, the Reviewing Committee on the Export of Art and Objects of Cultural Interest, managed by Arts Council England, can decide whether the object is of national importance.

Its latest report said between 1 May 2011 and 30 April 2012 eleven items were considered, seven of which were referred to the secretary of state..

Manet's portrait of Mademoiselle Claus, a major work in the development of impressionist art by the 19th Century French painter, is worth an estimated £28.4m but was purchased for £7.8m by the Ashmolean Museum in Oxford in April. ...

The portrait's subject is Fanny Claus, a close friend of Manet's wife, and was a study for one of his most famous paintings Le Balcon.  Chairman of the Reviewing Committee, Lord Inglewood, said:

"This shows the benefits that can arise from the workings of a tax system which encourages the retention of treasures like these in this country. I would encourage the Treasury to look sympathetically and constructively at how the nation in the future can benefit even more from such schemes."

... Alan Davey, chief executive of Arts Council England, said it is "wonderful" that these rare objects have been saved for the nation.... Culture minister Ed Vaizey added:

"The export licensing system is a valuable tool in preventing items like these from disappearing abroad and ensuring they will be enjoyed for generations to come." ...".

It is is curious to reflect that, in these days of increasing globalisation of information and access to it, the "retention of national treasures" should remain a hallowed value in the UK to the extent that a painting of a French woman, executed by a French artist, should be regarded as a British treasure rather than a French one.  Future generations of Frenchmen can access the Ashmolean Museum quite handily via Heathrow Airport ...

Faking It: a new book

Faking It: Manipulated Photography before Photoshop, by Mia Fineman, is a handsome tome that will be at home on any coffee-table. Published by the Metropolitan Museum of Art, which is currently hosting an exhibition on this very theme, and distributed by Yale Books, this book is the fruit of the labours of the assistant curator in the department of photographs at The Metropolitan Museum of Art, and a tribute to her endeavours, her enthusiasm and her excellence.  As the book's web-blurb explains:

"It is a long-held truism that 'the camera does not lie'. Yet, as Mia Fineman argues in this illuminating volume, that statement contains its own share of untruth. While modern technological innovations, such as Adobe's Photoshop software, have accustomed viewers to more obvious levels of image manipulation, the practice of "doctoring" photographs has in fact existed since the medium was invented. In "Faking It", Fineman demonstrates that today's digitally manipulated images are part of a continuum that begins with the earliest years of photography, encompassing methods as diverse as overpainting, multiple exposure, negative retouching, combination printing, and photomontage. Among the book's revelations are previously unknown and never before published images that document the acts of manipulation behind two canonical works of modern photography: one blatantly fantastical (Yves Klein's "Leap into the Void" of 1960); the other a purportedly unadulterated record of a real place in time (Paul Strand's "City Hall Park" of 1915). Featuring 160 captivating pictures created between the 1840s and 1990s in the service of art, politics, news, entertainment, and commerce, "Faking It" provides an essential counterhistory of photography as an inspired blend of fabricated truths and artful falsehoods".

For the trial lawyer, who -- to be fair -- is not this book's prime readership target -- the text raises questions of the credibility of photographs as primary or corroborative evidence both in civil proceedings and in criminal trials.  For the intellectual property lawyer the book raises further and deeper issues relating to the moral rights of a photographer to object to the distortion of his or her work and to disassociated from its manipulated version, as well as to the treatment of orphan works.  On the same page as the copyright notice, the reader will find the following message:

"Unless otherwise specified, all photographs were supplied by the owners of the works of art, who hold the copyright thereto, and are reproduced with permission. We have made every effort to obtain permission for all copyright-protected images.  If you have copyright-protected work in this publication and you have not given us permission, please contact the Metropolitan Museum's Editorial Department ...".

From this it appears that the Museum has not found the absence of a legislative solution to the 'orphan works' problem to be an insuperable barrier to its commercial objective in publishing this book.

Further particulars of this lovely book can be found here.

Art Attacks

Until very recently few had ever heard of Yellowism, an art movement that gained some notoriety in October 2012, when self-proclaimed Yellowist Vladimir Umanets wrote on one of Mark Rothko's paintings at the Tate Modern.  Umanets signed his name on Rothko's "Black on Maroon" and also wrote the phrase “A potential piece of yellowism."  It is difficult to discern exactly what Yellowism is, though there is a website for the movement as well as a YouTube channel.  Blouin ArtInfo gives a critical, but thoughtful analysis of Yellowism here.  

Marcin Lodyga, Umanets' partner in Yellowism wrote that Rothko's painting at the Tate, signed by Umanets was still a work of art.  He felt it would not be Yellowism, only potential Yellowism, until the work was placed in "yellowistic chamber," at which point it would express only the color yellow and cease to be a work of art.  Umanets told the BBC, "Art allows us to take what someone's done and put a new message on it."  

Rhetoric aside, appropriation within the art world is not new.  Marcel Duchamp signed a urinal and transformed an industrial design into a work of art.  Artists like Andy Warhol and Jasper Johns incorporated images (trademarks included) from modern culture into their works as if casting a mirror out onto modern society.  However, at some point in the 1970s and continuing until today art began appropriating itself, in the form of physical "attacks" on existing works displayed in galleries and museums. 

These "attacks" present some very unique legal questions.  When someone writes on a Rothko painting or dumps a bottle of ink into Damien Hirst's pickled sheep or draws a clown face on a Goya print, does this act of destruction create a new work of art and with it new copyrights in another author?  

Copyright protects original works of authorship, giving the author exclusive rights and the ability to prevent unauthorized copies or otherwise derivative works. As for art attacks, it would seem that the question comes down to whether the new work would be seen as an unauthorized derivative, or whether the work was transformative enough, and accordingly leaning in favor of fair use.  Still, transformative use is an incredibly difficult question, and often it leaves much to the eye of the beholder.  

One must also consider the moral rights attached to certain works.  In most civil law jurisdictions and some common law jurisdictions, moral rights attach to works of art during an artist's lifetime.  Among other issues, moral rights protect the integrity of the work, barring alteration, distortion, or mutilation of the work even after it leaves the artist's possession or ownership, and even if the artist has assigned the copyrights to another.  While moral rights may not present an issue in the case of long-since deceased artists, they could certainly play an important role in attacks on the works of living artists.

Further, it seems that in most cases those who "attack" works of art are not the legal owners of the physical work of art, thus their acts constitute crimes as well as civil torts.  Even if a new copyright existed, it would likely be rendered worthless as proceeds from the copyright would be viewed as proceeds of a crime.  (In case anyone is still wondering, Umanets was arrested for what he did to Rothko's painting.)  

While art attacks might serve as an end run into the limelight for new artists, the social and legal consequences are considerable.  

Turkey claims art restitution from the Louvre

Part of the Iznik ceramic tiles displayed in the Louvre

At the beginning of October, the Louvre opened a new Islamic wing displaying over 3,000 works, among them a wall of Ottoman Iznik ceramic tiles. Turkish officials claim that some of the tiles were stolen from the Piyale Pasha mosque in Istanbul at the end of the 19^th  by a French collector and demand the panels  to be returned.

 An estimated eight panels were taken from the mosque: five have been located in various museums, and the remaining three could be the ones currently displayed in the Louvre. Turkish Minister of Culture, Ertugrul Günay - in Paris on Wednesday November 21, to sustain the city of Izmir’s place in the Universal Exhibition - also officially requested the return of the tiles to Turkey. Iznik is a town in western Turkey that was the center of ceramic production of the Ottoman Empire throughout the sixteenth century. The town experienced a burst of tile production beginning in the middle of this century that would result in extremely elaborate, high-quality tiles for important buildings

This is not the first time Turkey has requested the Louvre to return objects to them. In 2006, the Turkish Foreign Affairs Minister contacted the Louvre requesting sixty Iznik ceramic tiles from the tomb of Suleiman but such demand was dismissed. 

The case of the Louvre’s Iznik tiles show how restitution of artworks can be problematic. Requests for art restitution from major museums have become more frequent in recent years, and the case of the Iznik tiles is only one of many involving Turkey. In 2011, the Museum of Fine Arts in Boston sent back a statue of the “weary Herakles,” and the Pergamon Museum in Berlin agreed to restitute a sphinx that has been there since 1915.

With reference to all international issues, there is no authority on the issue of cultural repatriation of art. In 1970, UNESCO (United Nations Educational, Scientific, and Cultural Organization) held a Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property. This Convention established numerous principles and standards of behavior, but none of them can be applied retroactively. States that have ratified the Convention are obliged, however, to recognize the rights of each other state “to facilitate recovery of such property by the State concerned in cases where it has been exported.”. Although the convention could not apply its post-1970 regulations to all art that has been dispersed throughout the world, the ratification implies respect for the principles being established and a pledge to honor them. France ratified the convention in 1970, and Turkey ratified it in 1981.

As to art restitution, on one hand, the recent movement towards repatriation has grown and  Unesco stresses on the importance of embracing cultural differences, attributing works of art with a specific value as contributing in a significant way to the culture of the country of origin.

On the other hand, such  practices are standards of behavior as opposed to ones enforceable by legal action.  Then, the purpose of a museum like the Louvre is to educate its visitors about different cultures, but this mission necessarily requires diversity in the origins of the objects in their collections. Finally, there is no final authority, and each request for cultural property restitution depends on the case and merely on the willingness of the parties to cooperate with one another.

Fine art: the oddest market of all?

Apologies to anyone who may already have seen this, but the cross-over readership of Art & Artifice and the IP Finance weblog is very small.

"Fine Art: The Oddest Market of Them All?" is the title of an excellent analysis by blogger Neil J. Wilkof of the contrast between the fine art market and the market for copyright works, with particular focus on the role of authentication boards. It's well worth a read.

Are video games art?

SimCity 2000 (1984) designed by Will Wright and Fred Haslam

The New York based Museum of Modern Art (MoMA) has recently acquired a selection of 14 video games including Pac-Man, Tetris, SimCity2000 and Portal. These video games will form a new category of artworks held in the MoMA collection.

The MoMA press release announcing the acquisition poses the question ‘are video games art?’ and immediately answers it with a very self assured ‘they sure are’. However, it goes on to say, ‘but [video games] are also design, and a design approach is what we chose for this new foray into this universe’. So whilst MoMA considers video games to be art, it is classifying them under the broader heading of ‘interaction design’.

How do you display a video game in an art gallery?

There are a number of commentators who have suggested that MoMA is going to turn into an arcade in order to display these new acquisitions. Curating the games is considerably more challenging than that. For example, how do you display a game which is designed to be played without risking destroying it through repeated game play? Should you have consoles available for MoMA videos to play the games? Should they be the original consoles/computers? Does it matter?

MoMA has sought advice on this and many other legal, preservation and design matters. MoMA concluded that they have to obtain copies in the game’s original software format and the original hardware ‘wherever possible’. They also sought to acquire the original source code to enable translation in the future if the original technology becomes obsolete (hence, what I imagine is, a fairly hefty price tag for some of these games).

In terms of display, if the game is short enough (e.g. Passage) the game could be made playable in its entirety in the gallery. They will put on interactive demonstrations for longer games and even create guided tours of the alternative worlds in games like Dwarf Fortress. As MoMA puts it, the acquisition will enable the museum to ‘study, preserve, and exhibit video games as part of its Architecture and Design collection.’ 

How were the games chosen? 

MoMA explains that it followed the same approach to the acquisition of the games that it takes with other items in the collection i.e. ‘a combination of historical and cultural relevance, aesthetic expression, functional and structural soundness, innovative approaches to technology and behavior, and a successful synthesis of materials and techniques in achieving the goal set by the initial program.’ Because of this artistic focus, the MoMA selection doesn’t include some games which might have seemed logical choices from a historical significance perspective. Arguably if MoMA hasn't selected a game for inclusion it is less 'artistic' but there may be any number of factors as to why games have not been included so if a favourite game isn't included, don't get too upset!

Tetris, 1984.  Designed by Alexey Pajitnov

What does the law say?

There have been relatively few cases over the years to consider what form of rights video games are protected by and how close you have to be for infringement. However, it is relatively settled law that video games fall into the UK definition of a copyright work as a series of graphic (or artistic) works and as a literary work in terms of the underlying source code. Games can also incorporate short films, usually include a soundtrack (another right), and in some circumstances, may arguably be films in their own right.

Nova v Mazooma is still the main UK case – two similar pool games were found not to infringe as the copying was not of a ‘substantial part’ of the original game. This case analysed the game as a series of ‘graphic’ or artistic works.


For a full run through of all the recent cases and a comprehensive review of gaming law in general, the reader should look no further than Jas Purewal’s excellent Gamerlaw blog.

Across the pond, the argument that video games could be art was boosted in the US last year when the Supreme Court ruled they were like other works of art and their right to free speech should be protected under the First Amendment. See here for the NY Times' analysis. Thus, from a legal perspective at least, it is fairly settled that video games can be works of art.

What do the critics say?

Not all critics agree with MoMA’s assertion that video games can be works of art. The Guardian’s Jonathan Jones has been particularly critical – his article is a fairly provocative read. There is a certain amount of sneering about putting Tetris in the same galleries as works by Pollock and Picasso but the argument that they cannot be works of art because they require human interaction to be appreciated doesn’t seem to be particularly powerful – the definition of art is changing all the time. Most modern installations require at least minimal human interaction and a limited view of art as something that you merely gaze on has become outdated.

Should video games be treated as art? Your comments are always appreciated.

There is more to come…

These 14 games are the ‘seedbed for an initial wish list of about 40 to be acquired in the near future’. Games on the wish list include Spacewar, Pong, Snake (the original not the Nokia phone version), Donkey Kong, Legend of Zelda and Super Mario Bros. (making Shigeru Miyamoto the most sought after artist/game designer). The first 14 video games will be installed in MoMA’s Philip Johnson Galleries from March 2013.

You can view The Guardian’s slide show of some of the games here.

You can read more about the acquisition in The Independent here.

You can view YouTube gameplay for each of the games via The Week here.