Short Film HowardCantour.com Without Credit

This week a short film called HowardCantour.com by actor, Shia LeBeouf, was posted on the website Short of the Week.  Not long after its posting, viewers identified the film as a copy of Justin M. Damiano, a comic written and illustrated by Daniel Clowes.  Clowes is a prolific writer and illustrator, and is the mind behind such famous works as Ghost World and Eightball (later adapted into the film Art School Confidential).  While HowardCantour.com originally premiered at Cannes in 2012 and continued to be shown at other film festivals, it was not until the film was exposed to online audiences that the copying was detected, and LeBeouf was questioned as to the movie's concept.

Clowes gave no permission for the creation of the film, and LeBeouf failed to credit Clowes in any way.  LeBeouf responded to the accusations regarding the film via Twitter, and these responses (and admissions) are reposted in Short of the Week's update regarding the film.  Short of the Week removed the film from its website out of respect to Clowes.

While many have labeled LeBeouf's work a theft, and plagiarism, it bears mentioning that the work may so closely resemble the original--having been called a "near direct adaptation"--as to constitute an unauthorized derivative work, thus infringing on Clowes' copyright in Justin M. Damiano.  It remains to be seen whether Clowes will take any legal action.

As Short of the Week points out, while the internet has often served as tool of intellectual property infringement, in the form of illegal music downloads and the like, but in this case, it was online viewers who were responsible for bringing LeBeouf's copying to light and promoting respect for artists' original works.

Possible infringement of Banksy's moral rights?

Banksy mania continues. 

After Banksy's works invaded New York with "Better Out than In" series, as we reported here,  Art Basel Miami will offer two of these Banksy's works for sale. 

The two pieces which will go on sale during the fair, from tomorrow till December 8, are: a rear door of a Manhattan car where the British street artist painted an Herculean figure surrounded by running horses, and a 680 kilograms chunk of a Brooklyn warehouse wall on which he painted on October 7 an heart-shaped balloon covered in bandages, informally known as the  "Red Hook Balloon".

Red Hook Balloon, Banksy, 2013, New York

The current owner of the works is Stephan Keszler, the New York Gallery owner who had  already controversially acquired a pair of Banksy works removed from a wall in Bethlehem in 2011.   In that occasion, Banksy’s authentication team, known as Pest control, admonished the gallerist, so that he cancelled a planned exhibition of the works at Art Basel Miami, but the walls were put on display the next year.

Keszler told that he purchased the Red Hook Balloon from the owner of the building on which it was painted and the car door from the car owner. The Red Hook Baloon was tagged by another graffiti artist before its removal, but its value is estimated up to 800,000 USD.

As already happened in 5 Pointz, the removal and, this time, the sale of street art works which had been created by Banksy to be public art poses importante questions concerning artist's moral right.In particular, art. 6 bis of the Berne Convention for the protection of literary and artistic works and, consequently, many national legislations provide artists with moral right of integrity. Such right provides that independently of the author's economic rights, and even after the transfer of the said rights, the author shall have besides the right to claim authorship of the work, the right to "object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation".

In light of the above, we may wonder if the removal and the sale of the Banksy's works could infringe the right of the integrity belonging to the British street artist, who might want to mantain public his artworks, without losing their " street " attitude. Certainly, the right of integrity will collide with the right of the owner of removing the illicit works.

Who will win?

"Girls" Parody or Just Infringement?

Some of our readers may be familiar with this video by San Francisco start up toymaker, GoldieBlox, which recently went viral.  The company develops science and engineering-related toys for girls.  In the video several young girls build a Rube Goldberg machine to turn off a television.  The soundtrack is a version of the Beastie Boys song "Girls," but with new, female-positive lyrics.  The Beastie Boys were not pleased about the use of their song.  When the band attempted to confront GoldieBlox about use of the song, GoldieBlox rapidly filed a lawsuit in U.S. District Court for the Northern District of California seeking declaratory judgment that their use of the Beastie Boys song was parody, and accordingly fair use, not copyright infringement.

In an open letter to GoldieBlox, which the Beastie Boys shared with the New York Times on Monday, the group maintains that they support the work and the message of the start up, but are committed to keeping their music out of advertisements. The band argues that the video was designed to advertise and sell GoldieBlox toys and that using the new version of the song is copyright infringement.

GoldieBlox maintains that their version of the song is not just devised for selling toys, but intended to comment on the original while empowering young girls.  As the complaint states:

In the lyrics of the Beastie Boys’ original song, girls are limited (at best) to household chores, and are presented as useful only to the extent they fulfill the wishes of the male singers. The girls are objects. The GoldieBlox Girls Parody Video takes direct aim at the song both visually and with a revised set of lyrics celebrating the many capabilities of girls. Set to the tune of Girls by the Beastie Boys but with a new recording of the music and new lyrics, girls are heard singing an anthem celebrating their broad set of capabilities—exactly the opposite of the message of the original. GoldieBlox Girls are the subjects; they are the actors taking charge of their environment.

Under U.S. copyright law, fair use of a copyright-protected work is determined by examining the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market for or value of the copyrighted work.  In the case of parody, the threshold question is whether a parodic character may reasonably be perceived.  In examining parody one must consider the critical bearing on the substance or style of the original.  Undoubtedly, the original version of the song, recorded in 1986, is degrading to women, referencing the desire for "girls" to do the dishes and the laundry.  The song featured in the GoldieBlox video substitutes new lyrics about girls building spaceships, writing code, and engineering that would seem to bear rather directly on the demeaning character of the original.  

The complaint was filed late last week, and attorneys for the Beastie Boys have yet to appear.  As the band has become far more socially and politically conscious over its long existence these would seem particularly difficult public relations to navigate, and it will be interesting to see how this lawsuit unfolds, if at all.

Another Big Win for Photographers: Jury Awards Maximum Damages in AFP v. Morel

Following on the heels of my entry regarding Leonard v. Stemtech, another American photographer has received another major jury award for copyright infringement.  Earlier this year I wrote about AFP v. Morel, a case in which Getty and Associated French Presse (AFP) were found to have used photographer Daniel Morel's photographs of the aftermath of the Haiti earthquakes without permission.  Morel originally shared the photos on Twitter, where another photographer found them and attempted to pass them off as his own.  Eventually the photos ended up in the hands of Getty and AFP, and the agencies used and licensed the images without Morel's permission.  One of AFP's more creative defenses in this case was that Morel's sharing of the images on Twitter had resulted in a broad license allowing AFP to use the images based on Twitter's terms of service.  The court rejected that argument at the summary judgment phase.

Although Morel already prevailed on summary judgment as to direct copyright infringement, because he sought elevated statutory damages for willful infringement, a jury was left to resolve the intent of Getty and AFP in using Morel's images.

On November 22, 2013, the jury's verdict was announced.  Holding that the infringement was willful, the jury awarded Morel the maximum in statutory damages allowed for the eight infringed images, $150,000 per image, for a total damages award of $1.2 million.

Extensive coverage of the trial is available on EPUK.

Photographer Wins Big for Copyright Infringement

After nearly five years of litigation in U.S. District Court in Delaware, last month photographer Andrew Paul Leonard received a jury award of $1.6 million dollars in actual damages for infringement of his copyright-protected photographs.  Leonard specializes in microscopic photography and in 1995 created images of human bone marrow.  The jury found that the Defendant, StemTech Health Services, a company that markets and sells nutritional supplements, engaged in direct infringement for displaying Leonard's images in publications, websites, and videos, and also contributory infringement for the use of Leonard's images on the websites of Stemtech's distributors.

This case is exceptional, and few photographers would be likely to make a similar recovery on a showing of actual damages.  The case highlights a few important aspects of U.S. copyright law that can have a major impact on artists and photographers who find their works infringed.  While a work receives copyright protection when it is created, obtaining a copyright registration and the timing of that registration are key to pursuing unlawful infringement of the work.  Leonard was entitled to actual damages instead of statutory damages because he did not register the copyright in the image until after the infringement occurred.  A timely copyright registration will entitle the author of a work to statutory damages of up to $30,000 per work infringed (up to $150,000 per work infringed if the infringement is deemed to be willful), or actual damages, whichever is higher.  Additionally, a copyright registration is required to pursue an infringer in a federal lawsuit (and the federal courts have exclusive jurisdiction over copyright claims).

While many reforms to copyright law are being considered, such as copyright small claims courts, until those reforms are put into action, those who wish to enforce their copyrights must obtain timely copyright registrations to obtain maximum protection of their rights.

Dia challenge, a summary

Readers of this blog may have heard mutterings about the recent controversy surrounding the auction by Sotheby's of a number of artworks owned by the Dia Art Foundation. In brief, this is what happened.

Earlier this month, two of the founders of the Dia Art Foundation filed suit in the Manhattan state court to prevent the organisation from selling a number of artworks from its collection.

The Foundation, a nonprofit organisation, which was established in 1974 to initiate, support, present and preserve art projects, had decided to sell some of its works at Sotheby’s to raise money. Founders Heiner Friedrich and Fariha de Menil Friedrich, sought an injunction against the Foundation and Sotheby’s to prevent the sale of the artworks. At the time, it was reported:

Many of the works named in the lawsuit were donated by Mr. and Ms. Friedrich when they created the foundation with the art historian Helen Winkler. The lawsuit claims that selling the works to private collectors would remove them “from public access and viewing in direct contravention of Dia’s entire intent and purpose.” The auction would be a breach of an “implied covenant of good faith and fair dealing” with the Friedrichs and the artists who made the works, the suit states.

The case was, however, dropped. The New York Times reported:

The founders, Heiner Friedrich and Fariha de Menil Friedrich, said in a written statement through their lawyers on Tuesday morning that while they consider the sale “utterly wrong” and “against Dia’s mission,” the foundation is “our precious child, and we do not wish to continue to oppose it through legal action.”

Accordingly, the sale of the works went ahead. It appears, from Sotheby's catalogue that the foundation raised a significant amount of money. Indeed Cy Twombly's Poems to the Sea (below) raised almost $22 million alone. Let's hope the foundation puts the money to good use.

Source:   The New York Times, 7 November 2013 & 12 November 2013

Fight over 5 Pointz ends with dirty tactics - whitewash

For artists battling to save 5 Pointz - reported here - it must have been heartbreaking to wake up to these scenes:



After the Federal Court ruling last week, refusing to grant an injunction to stop the demolition of 5 Pointz, the building owners appear to have taken matters into their own hands. They hired a crew of painters who worked through last night to whitewash the walls of 5 Pointz - covering up years of stunning street art, paintings and murals.

So much for the rights of the artists. No moral rights, just outrage.


 Photos by Tiernan Morgan

Jean-Michel Basquiat's family sue the IRS

The late Jean-Michel Basquiat’s paintings don’t come cheap. But are they quite as expensive as the US Internal Revenue Service (IRS) thinks they are?

When the artist himself died at just 27 in 1988, his estate went in equal parts to his parents. Twenty years later when Basquiat’s mother died, she still held a huge collection of his artwork. The family had it valued and paid up US$8.5m in taxes on her estate – a sum not to be sneezed at – but the US tax authorities claim it’s considerably less than they ought to have paid. The IRS has determined that the family undervalued the collection by US$66m, and accordingly still has an outstanding tax liability of nearly US$10m (including penalties for late tax returns and undervaluing assets).

Now the artist’s family are taking the tax authority to court, arguing that the new valuation is far too high. The IRS has been known to exercise what some might describe as poetic licence when valuing art (such as the case of the legally unsaleable Rauschenberg valued at US$65m). But how did a difference of opinion on this scale come about?

The key to the huge discrepancy is explained by the fact that the IRS’s valuation does not take account of the “blockage discount” claimed by the Basquiat family. In the art world, this term refers to a discount which may be claimed by an art-rich estate on the basis of the devaluation which could occur if that estate sold all its art holdings at once. If the market is flooded with a particular artist’s works, the likelihood is the estate won’t get the same value as it would have done had the works been sold one by one.

Probably, any discount allowed will be lower than that claimed by the family, but the outcome of the case remains to be seen. In the meantime, anyone looking for a cheap Basquiat may want to keep an eye on the market.

Source: www.dnainfo.com

A Nazi-looted art trove of 1,500 masterpieces was discovered in Munich

A treasure trove worth around 1 million dollars has been recently found in an apartment in Munich.

The trove includes masterpieces of Picasso, Henri Matisse, Auguste Renoir and Marc Chagall. Other works among the 1,500 discovered were by Otto Dix, Franc Marc, Emil Nolde, Oskar Kokoshka and Ernst Ludwig Kirchner.

The trove was found by German tax authorities while they were investigating on the possible tax evasion of Cornelius Gurlitt, the son of the art dealer Hildebrandt Gurlitt. The tax authorities went into Gurlitt's apartment, where they expected to find few undeclared euros, but they discovered piles and piles of old food in every room of the house and behind these walls of food the trove was incredibly hidden.

Hildebrant Gurlitt was a well-known art historian during the Nazi era, who was tasked by the SS official Goebbels to sell the so-called “degenerate” artworks seized by the Hitler's government. Nazi regime seized around 20,000 works before the Second World War and many of them were shown during the "Degenerate Art" exhibition, which took place in Munich in 1937.

Indeed, many masterpieces were found "ungerman" by the Nazi regime: Hitler loved only classical art. Therefore, these masterpieces were seized, stolen from collectors - many of them Jewish. Jewish collectors were also forced to sell “degenerate” works of art at a very low price to art dealers, in order to purchase expensive visas to flee from Germany.

The recovered works are currently stocked by the Bavarian customs in Garching near Munich and a team of art experts is trying to find the rightful owners' heirs. One painting is said to be a Matisse's portrait of a woman previously belonging to the famous jewish collector Paul Rosenberg.

Source: The Guardian, 3 November 2013

Should the National Gallery seize a Klimt portrait?

Gustav Klimt's unfinshed portrait of Amalie Zuckerkandl (1917-1918)

After our post on the famous claim on a looted Klimt's work, the "Beethoven frieze", the National Gallery is now called on seizing another Klimt's looted painting.

Klimt's unfinished portrait of Amalie Zuckerkandl is now the centrepiece of the exhibition "Facing the Modern: The portrait in Vienna in 1900" which runs until January at the National Gallery. Recently, a leading expert in looted art, the lawyer E Randol Schoenberg, outlined its concerns on the painting, which apparently seems to had been looted by the Nazis during the Second World War from the jewish collector, the baron Ferdinand Bloch-Bauer.

The Baron Bloch-Bauer was a friend of Amalie Zuckerkandl, herself a Nazi victim. He was forced to flee Austria to go to Zurich. In his will, he explained that all his property in Vienna had been confiscated by the Nazy. Indeed, the painting would had been at Bloch-Bauer's home, after the baron's escape, and it was listed in a Nazi inventory in 1939 by Dr Erich Führer, a lawyer and high-ranking SS officer. According to Mr Schoenberg, Dr Führer kept for himself 12 of Bloch-Bauer's paintings, including the Klimt's portrait.

Apparently, Amalie's son-in-law came into possession of the portrait during the war and sold it to the art dealer Vita Künstler, who owned it till she donated it to the Belvedere Gallery in Vienna, when she died in 2001. But the Baron's heirs asked the restitution of the portrait and in 2006 an arbitration panel rejected it, granting ownership of the Zuckerkandl's portrait to the Austrian State but a dispute on this decision is currently pending.

By the way, in 2006 Mr Schoenberg successfully represented 90-year-old Maria Altmann in her effort to win back five stolen Klimt paintings from the state of Austria that had been seized by the Nazis, including his famous gold portrait of Bloch-Bauer's wife and Maria's aunt, Adele.

Mr Schoenber told the National Gallery should request a new determination by the Austrian art restitution advisory board, thus according to  the new Austrian law the painting would have been restituted to the Ferdinand's heirs.

Anyhow, a spokeswoman for the National Gallery said  the Klimt's Portrait of Amalie Zuckerkandl is among those paintings in the exhibition for which the Government offers immunity from seizure. Therefore, the National Gallery had been obliged to duly investigate the history of this painting from the beginning of 1933 to the end of the year 1945.

This looks like it is going to be another significant case of looted art in Austria.

Source: The Guardian, 21 October 2013

Red Bus Recap

For those of you who were unable to attend our Red Bus event last week, William Corbett, an associate at Simmons & Simmons, has kindly prepared this guest posting to recap the event.

The evening began with Michael Edenborough QC recapping the facts of the dispute.  Michael (who acted for the claimant) started by noting that there had been more than one judgment involving the same parties.  The defendants accepted liability in relation to the claimant's initial claim for copyright infringement; but the Court was required to resolve the issue of damages.  The main case concerned an attempt by the defendants to create a work that did not infringe the claimant's copyright in a photograph showing a red bus crossing Westminster Bridge (claimant’s photo on top; defendants’ photo below):

Michael highlighted that the claimant had taken a photo in real life (i.e. the photographer had waited for the bus to cross the bridge).  The idea of a red subject against a greyscale background had come from the film Schindler's List.  The claimant had also manipulated the photo in ways beyond the obvious colour changes, e.g. the sky had been cut out and elements such as people and parts of the foreground removed. 

In contrast to the claimant's photo the defendants' photo was not taken in real life.  By the time the defendants’ photo was produced the old Routemaster bus had been withdrawn from routes crossing Westminster bridge, hence the defendants had to use a photograph of the bus on the Strand.  The defendants needed to combine two photos of the bus and three photos of Westminster bridge in order to create the final image shown above.

Michael listed similarities between the photos and argued that the defendants had taken the essence of the claimant's photo. 

Three issues will be relevant to every copyright case: (i) originality (ii) derivation (iii) substantial part.  The first issue was not really disputed: the claimant’s photo attracted copyright protection.  The claimant had discretion in several respects: (a) technical issues such as exposure etc (b) composition i.e. choosing the scene to be photographed (c) the precise details deriving from being in the right place at the right time (d) digital manipulation of the photograph.  While the subject matter of the defendants’ photo was not unusual (the Routemaster bus and Houses of Parliament being iconic symbols of London), the Court found that the defendants’ photo was derived from the claimant’s photo.  In relation to the third issue, HHJ Birss QC (as he was then) admitted that he had not found this to be an easy question, but ultimately held for the claimant. 

After the judgment was handed down in draft the parties disputed whether a portrait version of the defendants’ photo infringed.  The Court held that the portrait version still reproduced a substantial part of the claimant’s photo and hence it too infringed.

David Stone of Simmons & Simmons then commented on the case.  The judgment acknowledges the defendants’ argument that the claimant couldn’t have a monopoly in a black and white image of the Houses of Parliament with a red bus in it.  However, the Court did in effect enforce such a monopoly.  David highlighted visual differences between the photos, e.g. the defendants’ photo barely shows the bridge or the river.  David queried how far the court had been influenced by the defendants’ previous admission of copyright infringement and referred to the German concept of ‘salami slicing’.  That concept provides that an infringer cannot avoid infringement by making small incremental changes until they just avoid infringement: in such a case the infringer would have to make a bigger change than someone who had not previously infringed.

Rachel Buker then provided a US perspective on the case.  Rachel considered that the claimant would have been unlikely to succeed in the US due to the US Courts’ strict application of the idea/expression distinction.  This principle is well demonstrated by Kerr v. New Yorker Magazine (63 F. Supp. 2d 320 - (SDNY 1999)), which concerned an image of a man’s head in profile with a Mohawk haircut forming the silhouette of the Manhattan skyline.  In that case the US Court held that even if the defendant had taken the claimant’s idea they had not copied his expression of that idea.

Richard Davis (who acted for the defendants) was in the audience and provided some thoughts.  First, the claimant had effectively urged the Court to treat the copyright work as a patent claim (see paragraph 61 of the judgment).  Copyright cases should not be decided like patent cases.  Second, the defendants had initially appealed the judgment and been granted leave to appeal by the Court of Appeal, but the appeal was later withdrawn.  Had the Court of Appeal had a chance to consider the case they could have taken one of two approaches: (i) dismiss the outcome and re-do the legal analysis accordingly (ii) hold that absent any obvious error of fact or law the judgment could not be questioned.

The evening concluded with an interesting debate about the scope of copyright protection in photographs.  Issues included the relevance or otherwise of artistic merit, the amount of effort expended by the claimant and the defendant in creating their photos, the commercial success of a work and what must be appropriated in order for infringement to be found (e.g. the claimant’s skill and labour or essential parts of visual appearance).  Readers may wish to consider the following expression of an abstract idea:

Again, we'd like to thank all those who attended and Simmons & Simmons for hosting and providing a tour of the firm's fantastic art collection.  Also thanks to William for this entry.  We truly appreciate it.

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

A New Hearing for the Lady in Blue

In a previous entry, I wrote about an appeal to be heard by Russia's new Intellectual Property Court involving images of the Thomas Gainsborough painting "Portrait of a Lady in Blue."  The case was filed against fashion designer, Ila Yots, by the owner of the painting, The State Hermitage Museum.  Yots appealed an unfavorable decision requiring that she stop using the images.  Last week, the IP Court, which has been operational since July of this year, ordered a new hearing for the designer.  The case has been remanded to the Commercial Court of Stavropol Territory.

Department of Transport strikes again

After taking aim at Texan art installation "Playboy Marfa", the Department of Transportation in Texas has struck again - this time at "Prada Marfa" (pictured below).

Playboy Marfa was an installation by Richard Phillips, as commissioned by Playboy Enterprises. The Texan authorities decided to remove it on the grounds that it was not art but advertising, since it comprised an enormous Playboy bunny image (see report here) and no outdoor advertising permit had been granted for the work.

Now Prada Marfa, another art work placed on a highway outside the Texan town of Marfa, is up for removal for the same reason. Unlike the relatively new Playboy installation, Prada Marfa has been in situ since 2005. The installation is a perfect copy of a small Prada shop situated in the middle of bleak desert landscape, complete with Prada products in the window and, of course, the Prada logo featuring prominently. It was designed by Scandinavian artists Michael Elmgreen and Ingar Dragse with Miuccia Prada's permission, but was not commissioned by her.

The installation is much beloved and it's easy to see why; the stark, clean Prada aesthetic complementing, yet completely subverting, the stark, clean beauty of the empty desert landscape it sits within. It is a strange and thought provoking sight drawing sightseers in their thousands. Ironically however it also breaches the 1965 Highway Beautification Act on the basis that it is "an illegal outdoor advertising sign".

Undoubtedly it does serve the purpose of advertising Prada, even if this is simply an unintended side effect common to pop culture art works. But on a practical level the decision to remove the artwork, if carried out, will deprive Texas of an art work that "hasn’t cost taxpayers anything and that has been elected one of the most-worth-seeing roadside attractions in the States", as co-designer Elmgreen put it.

Whether Prada Marfa goes the way of Playboy Marfa remains to be seen.

Due diligence in art transactions: are informal authentications enough?

A painting said to be by Jackson Pollock and that was
discredited in 2003.

The scandle of art forgery involving the NY-based Knoedler Gallery is now turning  into a defamation suit at the New York State Supreme Court in Manhattan.

Ann Freedman, the former president of the now-closed Knoedler & Co. Gallery, has filed a defamation lawsuit against the famous art dealer Marco Grassi. He doubted on the New York Magazine whether the Knoedler dealer did any due diligence on the works she previously bought from Glafira Rosales, which turned out to be all fakes. 

Ms. Rosales, a Long Island art dealer, claimed to had got them from a previous collector she refused to identify. 

The Knoedler Gallery sold these works over the next few years to trusting collectors at high prices, based on the Rosales' assumptions that it was the collection of around forty unknown works of famous Abstract Expressionists such as Mark Rothko, Robert Motherwell and Barnett Newman.

The outcome was devastating to the art world, since it was discovered that the artworks were painted in a studio in Queens by a Chinese artist for few thousand dollars for each one. The Knoedler Gallery closed after 160 years of business, after many collectors had filed lawsuits for fraud and breach of warranty or some of them had requested their money back, as Jack Levy did in 2002. The Goldman Sachs co-chairman had bought an untitled Jackson Pollock for $ 2 million, bringing it to the International Foundation for Art Research for authentication. IFAR refused to attribute the painting to Pollock and Mr. Levy asked his money back.

Now the defamation suit challenges Mr. Grassi statements on the New York Magazine where he said that "A gallery person has an absolute responsability to do due diligence, and I don't think she did it. The story of the paintings is totally kooky. I mean, really. It was a great story and she just said, 'this is great".

Ann Freedman affirmed she was diligent in her transaction by receving informal authentications. In many case, the opinions that Ms. Freedman gathered were not official authentication, but opinions from 20 experts among which curators from the Museum of Modern Art, the National Gallery of Art and the Solomon R. Guggenheim Museum, that told her the paintings were all authentic based on their own evaluation. 

Is gathering informal authentication sufficient for complying with due diligence in art transaction?

Source: Wall Street Journal, September 11, 2013

Doig denies design

As reported here, earlier this year a lawsuit was filed in the US against Scottish artist Peter Doig by one Robert Fletcher, who claimed that Doig had given him a painting more than thirty years earlier, when he was known as Peter 'Doige'. Fletcher had filed the suit after Doig had refused to acknowledge the painting in question as his work.


Lawyers for Doig have now filed papers alleging that it is simply a case of mistaken identity. The National Post reports:

“The painting over which they have brought suit was not painted by Peter Doig,” one of the artist’s attorneys, Chicago lawyer Shuyash Agrawal, stated bluntly in an Aug. 28 submission to an Illinois district court. 

And in the same submission, Agrawal delivered a potentially devastating blow to Fletcher’s claims: “We have now found the person who actually painted the work at issue.” Doig’s lawyer identified an Alberta man named Peter Doige — who had died in February 2012 and was memorialized on the website of an Alberta labour union — as the work’s true artist.  

“A simple Google search for ‘Peter Doige’ revealed several Canadians with the first name of ‘Peter’ and a family name of ‘Doige,’” stated Agrawal. “Among these Google results was an ‘in memoriam’ listing on the website of the Alberta Regional Council of Carpenters and Allied Workers (ARC) regarding the passing of one of its members, Peter Doige in February 2012.” 

Furthermore, Doig's lawyers say that they have found Peter Doige's sister, Marilyn Doige Bovard, who has signed an affidavit stating that her brother was an artist and, more importantly, that he had served time at Thunder Bay Correctional Facilities, where Fletcher claimed to have met the artist of his painting.

Nevertheless, it seems that Fletcher is still convinced the work is by Peter Doig. His quest for the real truth continues, for now.

Source: National Post, 13 September 2013

Sotheby's battles US Government over Cambodian statue

Another update, this time to the Cambodian art dispute reported here.

By way of reminder, in August 2011, the US government intervened in a claim by the Cambodian government in respect of an ancient sandstone statue that was listed for auction by Sotheby's. Sotheby's then withdrew the statue from sale.

In a latest development, both sides to the dispute have filed motions with the US District Court in Manhattan accusing the other of unethical behaviour.

On it's side, Sotheby’s is accusing the US government of intervening in their negotiations to sell the statue in a private deal which would have allowed for the return of the statue to Cambodia. Their claim is that the government blocked the deal as it wanted all the credit for the statue's return.

Meanwhile, the prosecutors have accused one of their former colleagues,  Jane A. Levine, who now works for Sotheby's, of providing them with “false and misleading information” in relation to the statue.

Sotheby's, additionally, filed further evidence disputing the ability of the US government to bring the case, and asked the judge to defer the further exchange of discovery until the court has ruled on on its motion to dismiss the case.

The court has set the next hearing for 14 October.

Source: The New York Times, 13 September 2013

Update: Kunsthal loot and blue suede shoes

By way of latest news in relation to the saga of the paintings stolen from the Kunsthal gallery (reported here, here and here), where the lawyers for the accused had said that the paintings had not been destroyed and could be returned, now they have said that the accused thieves will not reveal where the works have been hidden following the refusal by the Romanian court of a request for the case to be tried in the Netherlands.

Bloomberg reports that at a pretrial hearing in Bucharest for the trial of Radu Dogaru, the alleged ringleader, his lawyer said that 'his client was trying to avoid a more-stringent sentence in his homeland by offering to return the five under his "control" in exchange for being transferred to Holland and, if convicted, serving his time there'.

Don't you criticise my shoes

Before the court could deal with this issue, however, there was apparently several hours of debate as to what it should do about the shoes of one of the lawyers for the accused. The man in question had reportedly made the sartorial decision to wear blue suede sneakers with florescent green stripes to court, which, understandably, enraged the judge. Ignoring the lawyer's protestations that the shoes were expensive and highly fashionable, and that the judge was clearly biased and should be replaced, the judge declined to replace himself and fined the lawyer 5,000 lei ($1,488).

Meanwhile, the Dutch foundation that managed the stolen pieces, seemingly despaired by the on-going saga, has given up on ever recovering the paintings, recovering €17 million from its insurers, and accordingly surrendering its ownership rights to the paintings.

Sources: Bloomberg, 10 September 2013, The New York Times, 10 September 2013

Fate of "Big Mountain Jesus" Now Rests with the Ninth Circuit Court of Appeals

At Whitefish Mountain Resort in Montana, one may encounter Jesus--in the form of a six foot tall statue, adorned in a baby blue robe, and from time to time, ski goggles and mardi gras beads.  This iconic local statue remains the topic of an extended battle between an atheist group, the Freedom From Religion Foundation (FFRF), and the U.S. Forest Service and the Knights of Columbus.  The statue, known as Big Mountain Jesus, was placed in its current location in the 1950's by the Knights of Columbus.  Due to the passage of time and varying historical narratives, the precise reasons for the existence of the statue are unknown.  By some accounts the statue was meant to honor veterans of World War II who had served in the 10th Mountain Division, as they had encountered similar shrines throughout their time in the mountain communities of Europe.

Although Big Mountain Jesus stands atop a private ski area, the ski area's land is leased from the U.S. Forest Service.  Every ten years, the Knights of Columbus seek a permit for the statue to remain situated.  According to FFRF, a statue of Jesus on public lands violates the Establishment Clause of the First Amendment to the U.S. Constitution, which mandates government neutrality between individual religions as well as between religion and non-religion.

In June 2013 the U.S. District Court for Montana issued a decision upholding the Forest Service's decision to again approve the Big Mountain Jesus permit.  Acknowledging intense political pressure and involvement from the National Register of Historic Places in favor of reissuing the permit, but dismissing that pressure as a basis for its decision, the court held that the continued presence of Big Mountain Jesus was not a Constitutional violation.  The court relied on the principal that not all religious symbols run afoul of the Establishment Clause.  To the extent that the statue may have had religious significance, the court found that over the course of the last 60 years the statue had become a historic landmark and curiosity more secular in nature.  Ultimately, the court held that the U.S. Forest Service's discrete act of issuing a permit did not reflect governmental endorsement of any religious sect.  Further, the court reasoned that because the government neither owns the statue nor controls the land it stands on, Big Mountain Jesus was more aptly considered private speech by its owners that cannot reasonably be interpreted to reflect government promotion of religion.

FFRF recently appealed that decision to the Ninth Circuit Court of Appeals.  The matter is scheduled to be fully briefed by January 2014.

Artist faces child pornography charges

The recent federal elections may have overshadowed this latest art news out of Australia.

Australian artist, Paul Yore, was charged last week with producing and possessing child pornography. The charges were laid following the seizure by Victorian police of pieces of his art back in June of this year. The artworks were from one of his installations called "Everything's F..ked" - which was on display at a Melbourne gallery at that time.

One of Yore's allegedly pornographic pieces

The case is scheduled to be heard in the Melbourne Magistrates Court in November. If it goes to trial, it is likely to be a landmark case on the censorship of art.

Source: The Australian, 7 September 2013

Art After Death: coming soon ...

From our friend and colleague Jani McCutcheon (Associate Professor in the Law School, University of Western Australia), comes news of this exciting event, which we are are happy to publicise.  We do hope that some kind soul who attends will be able to send Art & Artifice a report which we can publish on this weblog.

While this symposium is aimed at lawyers, we hope that plenty of artists will be there to express their views. 

Faculty of Law

Art After Death Symposium

REGISTRATION

WHEN

• Monday, 14 October 2013

TIME

• 2.00pm-5.30pm

VENUE

• Lawrence Wilson Art Gallery, The University of Western Australia

REGISTRATION

• $15.00 public registration
• $250.00 legal professionals

Registration closes Wednesday, 9 October 2013

LAW CPD ENQUIRIES

Email:Jennifer Rhodes
Telephone: (08) 6488 2995

BROCHURE

Art after Death brochure [PDF, 914.9 KB]
Updated 5 Sep 2013

A half day symposium exploring legal, financial and other issues affecting artists after death.

As an artist, your primary concern is developing your professional practise, in whatever guise that might take.  But, have you ever pondered what will happen to your work when you are no longer here?  Who will decide where your work can be shown, who can reproduce it and for what purposes can it be copied or used?

Like any other personal property, planning for your artwork, including who will own your work, administer your copyright and protect your reputation, after your death is an important but rarely discussed consideration.

Art After Death provides a unique opportunity to hear from prominent legal, accounting and arts professionals about the issues you may need to consider when planning for your will and estate.  You will also have the rare opportunity to ask questions and raise issues with the panel during the session.

Legal Professionals
If you are a practising legal professional, this is a fabulous opportunity to attend a unique CPD session covering aspects of intellectual property, estate planning law and ethical issues when dealing with artist estates.

Full attendance at the symposium entitles a practitioner to 3 CPD points.  1 point for each category: Legal Skills & Practice; Ethics and Professional Responsibility and Substantive Law/Legal Knowledge

Convenors

Arranged and supported by The University of Western Australia Law School, The University of Western Australia Cultural Precinct and Artsource. The symposium will be led by Jani McCutcheon and a panel of industry experts, see brochure for details.

Public Talk

Following the symposium, participants are invited to attend a public talk by author Katrina Strickland in relation to her recent book, Affairs of the Art, which discusses how the reputations of some well know Australian artists have been managed by the galleries, agents, and other arts industry professionals entrusted with these significant Australian artist's estates. 

Time: 6.00pm - 7.00pm
Venue: Lawrence Wilson Art Gallery, UWA
Free, register for the public talk