Artists fight for 5 Pointz

A group of street artists in New York have grouped together to fight the demolition of Long Island warehouse complex 5Pointz.

5Pointz - named in the claim as the "Mecca of the Aerosol Art World" - has been used by graffiti artists for the past 20 years to display their works. Artists were not only allowed to paint on the buildings, but there was an unofficial aerosol art program at 5Pointz whereby one of the plaintiffs was appointed by one of the the defendants to curate and manage the program.

In 2010, however, the owners of the site started at looking at the sale and redevelopment of the buildings after the NYC Buildings Department issued an order to close the largest of the buildings, as well as citing a number of violations including unsafe conditions. Then, earlier this year, the owners announced plans to demolish 5Pointz to make way for a luxury residential apartment development.

In an attempt to save the complex and their works, the artists have filed claims under the US Visual Artists Rights Act ("VARA") and copyright law. They argue that their pieces, paintings and murals on or at 5Pointz are each “works of visual art” within the meaning of VARA, and constitute copyrightable subject matter. Accordingly, the plaintiffs' honour and reputation as artists (ie. moral rights) will be damaged if the defendants destroy 5Pointz, thereby destroying the artists' works without their consent.

On 17 October 2013, the artists won the first round in the battle with Federal Court Judge Frederic Block granting a temporary restraining order prohibiting any demolition activities by the defendants in relation to the building, as well as prohibiting all painting on the building by the plaintiffs, for 10 days. This order expired on 28 October. The next round has now also gone to the artists who succeeded, this week, in getting the judge to extend the TRO for a further 14 days.

The next hearing of the case is scheduled for 6 November.

"Drunken Bulbs" by Jonathan Cohen - one of the many works at 5 Pointz cited in the claim 

Read the full claim here.

Freedom of artistic expression: a new book

Freedom of Artistic Expression: Essays on Culture and Legal Censure, by Paul Kearns, is a handsome and readable volume of thoughtful pieces published by Hart Publishing. The author is a Senior Lecturer in Law in the University of Manchester, where he teaches Public International Law, Human Rights Law and, as a specialist yet popular topic, Law, Literature and Art.

According to the book's website:

"This book presents a unique and comprehensive examination of the human and moral rights of artists. In what is arguably the first exhaustive book-length account of artists' rights, Paul Kearns explores the problems associated with censorship, both from philosophical and legal perspectives, and focuses on the various ways in which the morality of art is legally regulated in different jurisdictions. In relation to human rights, English, French and American law, the law of the European Convention on Human Rights, European Union law and public international law are all closely scrutinised to discover the extent to which they offer protection for artistic freedom. The author also examines domestic and international law in respect of artists' moral rights, the law of copyright and related laws. In short, the book provides an original, and sometimes controversial, analysis of persistent concerns regarding the legal regulation of the arts universally, doctrinally and theoretically, and seeks to offer an holistic treatment which will appeal to art lawyers, artists and those interested in the future of the arts".

This blogger was quite surprised at how much there remains to be said on the subject, even in the permissive era of the twenty-first century. This book will repay the reader's attention with its measured and well-informed approach to the topic.

The hardback version of this book (x + 249 pages) is already available (ISBN 9781841130804) at £50; Adobe and ebook versions are forthcoming at £36 each.

When photographers attack

Seven professional photographers have sued the NFL, as well as Getty Images and the Associated Press, for copyright infringement in a claim filed this week in the US Federal Court.

The Courthouse News Service explains:

The lawsuit involves only photos that the photographers shot "on spec" - meaning on speculation: to be paid per photo, not by the day or hour - and the library of "literally hundred of thousands" of such NFL-related photos. 

The photographers claim they retained copyright in the photos they shot on spec, but the licensing defendants and the NFL ignored that, to reuse their work for ads, news, promotions, products, and to boost the NFL's image and profits. 

"Although plaintiffs license the photos that they shot 'on spec' through third-party licensing agents (formerly NFL Photos and then Getty Images and currently AP), they never transferred their copyrights in these photos to their agents," the lawsuit states. "Rather, as plaintiffs' contributor agreements expressly provided, they retained sole and exclusive ownership of all copyrights in these photos. 

"This action concerns the NFL defendants' rampant, willful, and continued misuse of photographs to which plaintiffs own copyrights. This action also involves Getty Images' and AP's illegal and unethical misconduct which permitted, encouraged, and contributed to the NFL defendants' infringements."

It looks like the licensing arrangements between the various parties are key to the claim. Essentially, it seems that the photographers were, at different times, represented by Getty and AP, who licensed their images to the NFL. However, it is alleged that neither Getty nor AP were working in the photographers' best interests. One complaint being that while Getty and AP licensed the plaintiffs' photos on a "rights managed" basis, in fact they allowed the NFL unlimited access to the photos and did not track their usage. There are also claims that due the photographers also suffered due to the licensing arrangements between the NFL and the other defendants.

The photographers are seeking damages for copyright infringement, as well as damages for vicarious and contributory copyright infringement, breach of contract and breach of fiduciary duty. They also want the NFL to be prevented from further copying, displaying, distributing or selling their images, and to deliver up the infringing photographs.

Source: The Courthouse News Service, 21 October 2013

Red Bus event this Thursday!

Art & Artifice's Red Bus event (click here for details) takes place this Thursday at the London office of Simmons & Simmons LLP. We have an absolutely full house with well over 100 people set to attend.

If you'd like to take a free, short guided tour of Simmons & Simmons' art exhibits after the event (which should finish at around 7.00 pm), please click the "yes" button on the Art & Artifice side bar before 6.00 pm on Wednesday.

Looted Klimt claim

We have not had a post about looted Holocaust art for a while.

We have previously reported on the return of artworks seized by the Nazis, including paintings by Gustav Klimt.

This week comes the news that a new claim has been filed in Austria in relation to another Klimt work, the Beethoven Frieze.

A section of the Beethoven Frieze (1902)

This claim, however, relates not to the return of the work per se, but rather the effect of former Austrian law on those who reclaimed the work.

The New York Times explains:

The gold-painted frieze was owned by the Lederer family, wealthy Austrian Jews who were important patrons of Klimt’s. When the Nazis invaded Austria in 1938, the family escaped to Switzerland, but its extensive art collection was seized and its once formidable industrial empire bankrupted. Many of the family’s valuable works, including 18 Klimts, were destroyed in the final days of the war. 

The mammoth frieze survived and was formally returned to Erich Lederer, the family heir, after the war. But there was a hitch. The Austrian government would grant him export licenses for his other artworks only if he sold the “Beethoven Frieze” to the state at a cut-rate price, Mr. Lederer’s heirs say.

In a 1972 letter to Bruno Kreisky, then the Austrian chancellor, Mr. Lederer complained about what he considered government extortion, writing that officials were “trying to force me to my knees” and thinking “why won’t he finally die, this LEDERER!” 

Mr. Lederer finally agreed to sell the frieze to the government in 1973 for $750,000: half of its estimated worth at the time, according to an evaluation by Christie’s. Since 1986, it has been on view at the turn-of-the-century Secession gallery, where it was first shown at a 1902 exhibition named after Klimt’s breakthrough art movement. 

Georg Graf, a law professor and restitution expert at the University of Salzburg, who is supporting the family’s claim, said, “While the Austrian Republic did formally return the artwork after the war, it ultimately forced Erich Lederer to sell it back in old age by upholding the export ban.”

In 2009, the Austrian government amended its restitution law to apply to property that was sold at a discount because of that ban. 

It is under this law that the Lederer family filed its claim on Tuesday to the government’s Art Restitution Advisory Board. This panel will, in turn, make a recommendation about the “Beethoven Frieze” to the Austrian minister for education, the arts and culture, Claudia Schmied, who is to make the final decision. 

This looks like it is going to be one of the more significant cases brought under the new law.


Source:  The New York Times, 15 October 2013

Monet at centre of conspiracy trial

One of the Monet water-lily paintings is central to the trial of Vilma Bautista, ex-assistant to former first lady of the Philippines, Imelda Marcos.

Bautista was reportedly indicted in New York last year on charges that include conspiracy, tax fraud, illegally selling the Monet painting, Le Bassin aux Nymphease, as well as trying to sell other valuable paintings.

The Huffpost explains:

The artwork vanished amid Ferdinand Marcos' 1986 ouster, ended up in Bautista's hands and is part of a multibillion-dollar roster of property the Philippines claims the Marcoses acquired with the nation's cash, prosecutors said. 

But for all the art-world intricacies and Philippine politics, "at bottom, this case is really quite simple — it's about greed and fraud," Manhattan Assistant District Attorney Garrett Lynch told jurors in an opening statement. 

The defense said Bautista believed that Imelda Marcos rightfully owned the paintings and that Bautista had authority to sell them for her. Bautista is just an intermediary who got caught up in a decades-long dispute between a nation and its former leader, attorney Susan Hoffinger said.  

"That battle doesn't belong here" in a Manhattan criminal courtroom, Hoffinger said in her opening.

This will be an interesting case to follow.

Source: HuffPost, 16 October 2013

The Show Can Go On

A copyright dispute which threatened to postpone the opening of an exhibition of sculptures by artist Lauren Clay has been resolved.

By way of background, the exhibition was to include a number of sculptures by Clay which paid homage to the works of American Abstract Expressionist sculptor and painter, David Smith. Unfortunately, this was not acceptable to the Estate of David Smith. Indeed, BlouinArtInfo reports that:

When the estate became aware that Clay was planning a show including these referential works, it reached out to Clay through its copyright representative, the licensing and rights management organization VAGA. 

“They demanded an accounting of the work,” said Clay, who was openly scornful of what she sees as VAGA’s interference with her artistic freedom. She added that that the organization had asked her to write a letter requesting permission to copy the Smith pieces — “as if I need permission,” she said — and explaining why she was making the work. “Basically they were bullying everyone and intimidating everyone,” she said, to prevent her pieces from being shown. 

In response, Clay's lawyer wrote to VAGA arguing that Clay's works were in not an infringement of Smith's works, rather they fell within the fair use provisions of US copyright law as transformative works.

Now it seems, however, that the question as to whether or not the works do infringe copyright is merely academic as the parties have come to an agreement in accordance with which Clay will not to sell the works and/or to display them with a statement acknowledging that the works are not authorised by David Smith's estate.

Academic or not, what do our readers think?

Clay

v

Smith

Source:  BlouinArtInfo, 3 October, 2013, Art in America, 15 October, 2013

Federal Government Shutdown Impacts Intellectual Property Registration in the United States

As the federal government shutdown rolls into its second week, I will take a moment to address the impact of the shutdown on intellectual property registration in the United States.  As stated on the U.S. Patent and Trademark Office website, the USPTO is fully operational on a provisional basis by drawing from prior year reserve funds.  The USPTO shall remain open for about four weeks.  If the government shutdown continues the USPTO will close when reserve funds are exhausted, however a small staff would continue to maintain IT infrastructure.

The U.S. Copyright Office remains closed.  As stated on the Copyright Office website, the Copyright Office will not be responding to inquiries, processing transactions, or making further updates to the website.  Copyright registration submissions are still being accepted, securing a date of receipt, but these applications will not be processed until the Copyright Office reopens.

Red Bus seminar: waiting list now open

This month's Art & Artifice event, "Art and copyright after the Red Bus case" (24 October, details here) at the lovely and thoroughly arty CityPoint London office of host firm Simmons & Simmons LLP, is now completely booked out.  If you've not already registered but wish to do so, let us know and we'll put your name on the waiting list.

If you are registered but for any reason can't come, please let us know so that we can reallocate your space to someone on the waiting list.

The People of Kansas (Continue to) Seek Criminal Charges Against a Sculpture

A perplexing news story emerges from Overland Park, Kansas regarding a bare-breasted sculpture housed in the city's international sculpture garden.  Since early 2012 local conservatives have waged a war on the piece, Yu Chan's "Accept or Reject," a bronze sculpture of a woman, topless and holding a camera to photograph herself.  Those who oppose the sculpture do not seem to take issue with the fractured, disjointed, gutless, headless, depiction of the female form, instead they protest the sculpture's naked breasts, and allege that the sculpture will encourage children to engage in "sexting." When complaints to local government did not appease them, opponents of the statue then teamed with the American Family Association (AFA), a national conservative organization.  The group gathered over 4,000 signatures, enough to impanel a grand jury under local law, a procedure sometimes referred to as a citizen's grand jury.  

Grand juries are generally summoned to investigate and determine whether there is enough evidence to formally charge an individual with a crime.  In most cases, the grand jury is called by a prosecuting attorney or judge, however some states allow citizens, with enough petition signatures, to assemble a grand jury.  Citizen grand juries have the same powers to call witnesses and issue subpoenas.  Slate offers this critical discussion of the use of citizen grand juries by conservative groups.

Opponents of the sculpture requested that the grand jury determine whether the sculpture was legally "obscene."  The petition was unclear whether the AFA sought criminal charges against the sculpture, city, arboretum, or unnamed officials.  Although authorized to conduct investigation for up to ninety days, the jury convened for less than one day in fall of 2012 before determining that the piece did not constitute obscenity. To prove obscenity under the law, one must show that the work lacks serious artistic merit, that it depicts, in a patently offensive way, sexual conduct as described by state law, and in addition, that under contemporary community standards the work appeals to the "prurient interest." It seems a losing proposition when the target is a work of art in a sculpture garden, still, the AFA is undeterred and is attempting to gather a second grand jury.  This second attempt is undertaken after the AFA accused the local prosecutor of "hijacking" the first grand jury and sought amendment to the state law mandating that the citizens who impaneled the grand jury to be called as the first witness to testify. 

Odd as it may be, this is not the first time criminal process has been employed against the showing of artworks.  Famously, in 1990, the Cincinnati Contemporary Arts Center and its director were indicted for obscenity for displaying works by Robert Mapplethorpe and the matter went to trial.  This was the first known occasion of criminal charges against a museum director for hanging an artwork on a wall.  The jury took testimony from leading museum directors, among others, and viewed photographs for several days before determining that the museum and its director were not guilty.

It remains to be seen whether the AFA will succeed in indicting a sculpture.  Perhaps most ironic is that this sculpture, which has attracted so much ire, is not slated to be permanently situated in the arboretum, rather the work is a part of a first phase of the international sculpture garden focusing on Chinese works and is expected to remain in place for only three to five years.

Whited out: Banksy art survived less than a day in New York

Few hours after their creation, two of the new Banksy's artworks have been vandalized in New York.

The world famous street artist, whose works have fetched up to $ 2 million, had just announced on his website the new project "Better out than in", aiming to create new works of art out in the streets of New York during his month-long residency, more than in galleries.

One of the vandalized work, titled "The street is in play", was whited out after less than a day. The artwork, stencilled in classic Banksy style on a Manhattan wall, depicted two boys, one standing on the other's back and attempting to grap the spray can in a sign reading "graffiti is a crime". 

The Banksy's artwork "The street is in play" before and after being whited out

The second Banksy's work was a white spray-painted text "This is my New York accent", in a traditional graffiti font, while underneath it was sprayed in a more usual font "...normally I write like this". This work was vandalized too, by someone spraying their own tag over the top of it.

Another vandalized Banksy's work in the westside street of Manhattan

In one of the rare interview released by the British artist in 2010, he said "Graffiti's isn't meant to last for ever. I'd prefer someone draws a moustache and glasses on one of my pieces than encase it in Perspex. I've always been uncomfortable with the way galleries put things on a pedestal. I think art should be a two-way conversation, not a lecture behind glass".

Souce: Daily mail, October 3, 2013