Tuymans tussle over alleged parody: no defence, says court

"Tuymans found guilty in copyright case involving political portrait", an online-only piece by Julia Halperin for The Art Newspaper last week, related the tale of Belgian artist Luc Tuymans, who was held liable for copyright infringement by a civil court in Antwerp which ruled that Tuymans’s painting, "A Belgian Politician", this being a heavily cropped image of the MP Jean-Marie Dedecker (shown right), borrowed too heavily from a photograph taken in 2010 by photojournalist Katrijn Van Giel (show left. The article adds, in relevant part, that

The court has forbidden Tuymans from making additional versions of the work; he faces a €500,000 penalty if he does not comply. He must also secure Van Giel's permission in order to publicly exhibit the painting in the future. The ruling, delivered a week ahead of schedule, did not address whether Tuymans owes any additional damages to the photographer. “This may come at a later stage, in separate proceedings,” says Van Giel’s lawyer Dieter Delarue.

Both Van Giel’s photograph and Tuymans’s painting capture the top half of Dedecker’s face. The controversial politician’s brow is furrowed and beads of sweat are collecting on his harshly lit forehead. ...

... Tuymans admitted that Van Giel’s photograph served as inspiration for the painting. But the artist denied he had violated copyright law and claimed that his work—rendered in a characteristically muted palette—was a parody rather than a copy. Tuymans’s lawyers have argued that the painting is a critique of Belgian society’s growing conservatism.
...
“We are happy that the court was not misled by Tuymans’ argument that his work is a parody. The court followed our argument that the work of Tuymans is not a humorous work, which is the most important requirement for a work to qualify as a parody,” says Delarue, Van Giel’s lawyer.

..."

It is understood that Tuymans plans to appeal.

This is the first parody ruling to come to this blogger's attention since Case C-201/13 Deckmyn [on which you can study an entire oeuvre of blogposts on the IPKat by Eleonora Rosati, here], in which the Court of Justice of the European Union laid down the first set of principles by which defences of parody in copyright infringement actions should be measured. In short, the court ruled that

1. Article 5(3)(k) of Directive 2001/29 ... on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as meaning that the concept of ‘parody’ appearing in that provision is an autonomous concept of EU law.

2. Article 5(3)(k) of Directive 2001/29 must be interpreted as meaning that the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery. The concept of ‘parody’, within the meaning of that provision, is not subject to the conditions that the parody should display an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work; that it could reasonably be attributed to a person other than the author of the original work itself; that it should relate to the original work itself or mention the source of the parodied work.

However, the application, in a particular case, of the exception for parody, within the meaning of Article 5(3)(k) of Directive 2001/29, must strike a fair balance between, on the one hand, the interests and rights of persons referred to in Articles 2 and 3 of that directive, and, on the other, the freedom of expression of the user of a protected work who is relying on the exception for parody, within the meaning of Article 5(3)(k).

It is for the national court to determine, in the light of all the circumstances of the case in the main proceedings, whether the application of the exception for parody, within the meaning of Article 5(3)(k) of Directive 2001/29, on the assumption that the drawing at issue fulfils the essential requirements of parody, preserves that fair balance.

The Antwerp court's ruling looks as though it fits the Deckmyn rules: no humour and no mockery = no parody and no defence.  Coincidentally both this case and Deckmyn concern alleged Belgian parody.

Supreme Court rejects Norton Simon's appeal in looted art case

On 20 January, the US Supreme Court declined to hear the Norton Simon Museum's appeal in a case contesting its ownership of diptych "Adam" and "Eve" by Lucas Cranach the Elder. The Supreme Court's rejection allows Marei Von Saher to pursue her lawsuit to reclaim the Cranach paintings. 

Von Saher alleges that the diptych was looted from her father-in-law, Jacques Goudstikker, during the Nazi era. More specifically, that the Nazis conducted forced sales of Goudstikker's artworks, including the diptych, which Goudstikker left behind when he fled the Netherlands in 1940 (see our previous post for more details). 

The museum had argued – both in the California appeal court and in its application to the Supreme Court – that Von Saher's claims conflicted with the US policy on resolving war-related art disputes, and with its right to conduct foreign affairs. The US District Court agreed. 

Last June, however, the 9th Circuit Court of Appeals overturned the District Court's ruling, stating that allowing Von Saher's claim to proceed "would encourage the Museum...to follow the Washington principles [which call for restitution]...Perhaps most importantly, this litigation may provide Von Saher an opportunity to achieve a just and fair outcome to rectify the consequences of the forced transaction with Goering during the war". 

The immediate consequence of the Supreme Court's decision is that the case, which has focused solely on preliminary legal issues since it was filed in 2007, will resume with additional preliminary proceedings before a federal judge in Los Angeles. Nevertheless, the outcome of this lawsuit remains uncertain. Indeed, LA District Court judge John Walter has already twice dismissed the case, only to have his rulings appealed and overturned by the 9th Circuit. 

Regardless how the battle over "Adam" and "Eve" turns out, however, the consequence of the Supreme's Court non-action is that the legal theory behind the 9th Circuit's ruling becomes binding precedent in federal courts in nine Western states. 

The 9th Circuit held that US courts should accept the 1998 Washington Principles and the 2007 Terezin Declaration as statements of US foreign policy. These two documents provide that signing members should no longer put legal obstacles to legitimate claims for the return of Nazi-looted art. Art law experts, therefore, foresee that a possible consequence of the Supreme Court's decision is that these two document have legal effect in US Courts. 

The 9th Circuit also said that the US District Court should turn its attention whether the Act of State Doctrine applies to the paintings. This Doctrine states that US courts cannot hear cases involving government policies and the official actions of foreign governments. If the Doctrine does apply, the Judge will have to evaluate whether the Dutch government's handling of "Adam" and "Eve", in particular whether their 1996 sale of the diptych, qualifies as a policy action by the Dutch government.

Tutankhamun's beard in a sticky situation

The Egyptian Museum in Cairo has had more than its fair share of drama in recent years. However, the jewel in the crown, the treasures from the tomb of Tutankhamun remained intact.

Tutankhamun's burial mask -
one of the best known images from ancient Egypt 

Until now.

Reports of exactly what happened (and when) vary but most seem to agree that although the damage has only just been widely noticed, it was actually caused in August 2014 during routine maintenance - possibly to fix a lightbulb in the case above the mask.

The beard was made separately from the rest of the mask with enough time and the right conservation methods applied, this problem could have been fixed and the world would not have been any wiser. However, the job was rushed overnight (presumably so as to avoid reporting the problem) and rather than specialist glue, standard epoxy resin appears to have been used.

The problem with epoxy is that it is an extremely effective glue which means that if it is used incorrectly the effects are near irreversible.  According to an unnamed staff member, not only is the glue visible along the top of the beard but some of the glue has dried on the mask's face and one of the 'repairers' left scratches on the mask when using a spatula to try to remove the glue...

Sources: The BBC, Live Science and The Guardian.  The BBC report includes a photograph which may document the crucial moment when the mask was broken.

Not good enough: Spanish government refuses to accept art in lieu of tax in 2014 on quality grounds

The UK has a longstanding tradition of accepting artwork in lieu of tax. The Acceptance in Lieu scheme allows taxpayers to give artwork instead of cash to pay inheritance tax, and the Cultural Gifts Scheme gives breaks on income tax, capital gains tax and corporation tax to those who make lifetime donations of artworks to the nation. The Acceptance in Lieu report for 2014 says that tax of £167 million was foregone in exchange for artworks over the past ten years, £30 million of which relates to 2013-14.

But it is not just the UK which operates such a scheme. The Spanish government too accepts art in lieu of tax – just not last year.

Pablo Picasso's Portrait of Dora Maar, now in the
Reina Sofia in Madrid, was given in lieu of tax
by Spanish bank Caja Madrid in 2005

The Art Newspaper (TAN) reports that in 2014, Spain did not accept any artworks offered in lieu of tax “because the administration did not consider the works submitted as payment to have any artistic value or historic interest to public collections”.

TAN also notes that many of the works submitted in lieu of tax in past years were presented by corporates and banks, in contract to the position in the UK where corporates have only recently been able to make use of such schemes (they can obtain tax breaks under the Cultural Gifts Scheme, which has been in operation only since 2013).

In the absence of any more masterpieces in the basement, it looks as though some Spanish companies may need to start paying tax in the old-fashioned way – in cash. 

Reynolds' portrait of Omai: Taxpayer's final victory

In March last year, the Upper Tier Tribunal gave judgment in a long-running case surrounding the sale of Sir Joshua Reynolds’ iconic eighteenth century portrait of the South Sea Islander Omai.

Sir Joshua Reynolds' Portrait of Omai, c.1775

That judgment was in the taxpayer’s favour, with the Upper Tier Tribunal agreeing that the painting, which had been sold for £9.4 million, was a “wasting asset” and that the sale proceeds were therefore exempt from capital gains tax. Reports on the First Tier Tribunal’s decision and the Upper Tier Tribunal’s decision can be found here and here.

Now, in a final victory for the taxpayer, HMRC have been refused permission to appeal the decision on the grounds that their application does not raise an arguable point of law. The case which began with the painting’s sale at auction in 2001 has finally, fourteen years later, come to a close – and the taxpayers can go home knowing that the taxman won’t come calling again. 

Art, Law and Ethics come to Hong Kong

From 2 to 4 February, Christie's Education (an associated institute of the University of Glasgow but actually based in London) is running a three day course, conducted by Philippa Malas (Lecturer, Art, Law & Business, Christie's Education London), who put the course together, along with art market professionals and a representative of the local police, on ‘Art, Law and Ethics’. The venue is Christie's offices in Hong Kong. You can click here for further details and registration.

If you are either in Hong Kong or plan to be passing through in early February, you may find this just what you're looking for.

There's more on Christie's Education here

Information Tribunal ruling on FOIA exemptions concerning Tate Gallery and BP's sponsorship

In the United Kingdom, the Information Tribunal gave its decision last month in three related appeals under sections 41(1) and 43(2) of the Freedom of Information Act 2000 on whether the Tate Gallery was exempt from disclosing certain information concerning financial sponsorship from BP. The decisions are Brendan Montague v Information Commissioner, EA/2014/0040; Brendan Montague v Information Commissioner, EA/2014/0071; The Board of Trustees of the Tate Gallery v Information Commissioner, EA/2014/0070. The appeals were brought by environmental campaigner Brendan Montague with the support of arts and activism charity Platform, according to the Guardian.

One appeal related to a request for sponsorship figures, in which the Tribunal confirmed that the "commercial interest" exemption in section 43(2) applied and that the public interest in maintaining the exemption was greater than the public interest in disclosure. The Tate Gallery was nonetheless required to disclose the figures for sponsorship sums from 1990 to 2006, despite the Tate Gallery's argument that knowledge of BP's past level of support would have an adverse impact on negotiations with possible sponsors in 2012 or later.

The other two appeals related to requests for information concerning the activities of the Tate Gallery's ethics committee, including the minutes of that committee's meetings. Here the Tribunal held that the gallery was entitled to withhold disclosure of some of the information contained in the minutes. The considerations that weighed in favour of disclosure were the public interests in transparency of the gallery's decision-making and meaningful public accountability since, in some cases, these outweighed the public interests in maintaining the exemption (which were to safeguard the work of the ethics committee and not to damage the gallery's commercial interests).