Copyright infringement and public domain artworks: German museum sues Wikimedia

Last week Wikimedia announced that it is being sued by a German museum for copyright infringement after 17 images of public domain works of art were uploaded to Wikimedia Commons.

Reiss Engelhorn Museum © Rudolf Stricker/Wikimedia

The works of art in question are housed in the Reiss Engelhorn Museum in Mannheim, one of the largest publicly-owned museums in southern Germany. Those works are no longer protected by copyright. However, German copyright law may apply to photographs of public domain works, depending on factors such as the amount of skill and effort exercised, the creativity and originality of the photograph, and the actual art itself. The museum asserts that the images taken of those works are new creations protected by copyright as the photographer exercised the requisite time, skill and effort.

The lawsuit sheds light on shifting copyright licensing practices by museums and cultural institutions towards wider public access and use. Although licensing image reproduction rights has traditionally provided a significant stream of revenue for museums and galleries (for example, the National Portrait Gallery reported £334,000 in revenue from reproduction rights in 2011/12), institutions have increasingly provided free online access to their collections under the terms of Creative Commons (CC) licences. These range from the CC0 “no copyright reserved” licence, which effectively means relinquishing all copyright and similar rights held in a work and dedicating those rights to the public domain (as used by Amsterdam’s Rijksmuseum, which has provided free online access to all its paintings and granted the right to download and use reproductions) to the CC BY “attribution” licence, whereby licensees may copy, distribute, display and perform the work and make derivative works if they credit the author or licensor (as used by Denmark’s Statens Museum for Kunst in relation to its digital images and videos).

These policy changes in favour of wider copyright licensing models may have been influenced by case law: the 1999 case of Bridgeman Art Library v Corel resulted in a ruling that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality, a decision that has been strongly debated by experts ever since. Although this decision is not technically binding upon UK courts, the New York court follows UK Privy Council dicta from Interlego v Tyco Industries: "skill, labor or judgment merely in the process of copying cannot confer originality”.

It is perhaps because of these ambiguities in legal application that the 2009 dispute between the National Portrait Gallery and Wikimedia, where over 3000 images of public domain artworks from the NPG’s website were uploaded to Wikimedia, ended before it reached the court. At the time the NPG said it was "concerned that potential loss of licensing income from the high-resolution files threatens its ability to reinvest in digitisation". Nonetheless, in 2012 it began to make changes to its image licensing policy, allowing 53,000 low-resolution images to be downloaded free of charge for non-commercial uses via a Creative Commons licence.

William Wilberforce by Sir Thomas Lawrence, oil on canvas, 1828
© National Portrait Gallery, London

The European Commission has expressed its support of such initiatives: “it is important to stress the importance of keeping public domain works accessible after a format shift. In other words, works in the public domain should stay there once digitised and be made accessible through the internet.” This was reinforced by the Europeana Charta of 2010 that reads: “No other intellectual property right must be used to reconstitute exclusivity over Public Domain material. The Public Domain is an integral element of the internal balance of the copyright system. This internal balance must not be manipulated by attempts to reconstitute or obtain exclusive control via regulations that are external to copyright”.

Meanwhile, Wikimedia’s lawyers have appealed to directly to public sentiment, declaring that restricting the dissemination of images of public domain works “impoverishes the cultural heritage of people worldwide” and “prevents people from exploring our shared global cultural heritage”, whilst undermining the role of copyright laws as a means of rewarding creativity and originality. It will be interesting to see whether the German court's approach in the Reiss Engelhorn Museum lawsuit upholds this view or leads to a reversal of the wider sharing of public domain works.

Wikimedia’s statement can be found here.

A full list of the affected images can be found here.

The GLAM-Wiki initiative ("galleries, libraries, archives, and museums" with Wikipedia) helps cultural institutions share their resources with the world through collaborative projects. Learn more here.

La Bella Principessa: a Da Vinci or a copy?

The famous British art forger, Shaun Greenhalgh, who was imprisoned between 2007-2012, recently claimed to be the author of La Bella Principessa, a painting attributed to Leonardo Da Vinci, with an estimated value of $150 million.

La Bella Principessa (image: Wikipedia)

The attribution to the Italian painter has always been strongly challenged.

The artwork was documented for the first time in 1998, when it was sold at a Christie’s auction as an early 19th century painting created in the style of the Italian Renaissance. The work was auctioned and sold for $21,800.

In 2008, however, some experts concluded that, in fact, the painting was a Da Vinci, and from that time the work was exhibited in Italy as an authentic Da Vinci painting. The portrait, still in private hands, is now widely thought to depict the 13-year-old Bianca Sforza, the daughter of Ludovico Sforza, the Da Vinci patron. The work would have been commissioned on the eve of her marriage in 1496.

This was confirmed in 2010, when Martin Kemp – one of the world's most famous Da Vinci experts, and emeritus professor of the History of Art at Oxford University – published a book entitled "La Bella Principessa: The story of the New Masterpiece by Leonardo Da Vinci," which stated that the painting was done by the famous Italian artist. It therefore followed that museums and other experts believed Kemp’s assessment.

Unfortunately, it may be that the Principessa is not be so Bella after all. Most recently, Greenhalgh published a book of his memoirs, entitled "A Forger’s Tale," where he claims to have painted the painting in 1978, when he was working in a Co-op supermarket – with a girl called Sally, a cashier who Greenhalgh claims to have known in Bolton in 1975, being the alleged inspiration behind the girl portrayed in the painting.



This story shows how Leonardo Da Vinci has moved to the centre of an inflated industry of fakes. It is also a cautionary tale that art evaluation cannot be based exclusively on scientific analysis, but should also include human eye and expertise. Indeed, Kemp's authenticity claim of La Bella Principessa rests on testing its papers and materials, which date back at least 250 years ago: post-Da Vinci, but quite before Greenhalgh.

Bye!

This is just a quick post to say “goodbye”, now that I’m retiring from active involvement in intellectual property.  I have enjoyed my job of providing “back page” support for Art & Artifice and wish the blog team the very best for a productive and successful future.  Thank you, readers, too for the chance to share some fascinating insights with you and to learn more about the legal side of the art trade than I imaged to exist when I first became involved.

Museum directors agree protocols to provide safe havens for endangered antiquities

Amidst armed conflicts in Syria and Iraq, the Association of Art Museum Directors (AAMD) has announced the release of protocols to help safeguard irreplaceable works of art and archeological materials that are currently in danger of destruction or trafficking.

The Protocols for Safe Havens for Works of Cultural Significance from Countries in Crisis provide a framework for museums to provide safe havens for works at risk from violent conflict, terrorism, or natural disasters.

In a press statement made earlier this month, the AAMD states that the Protocols allow owners/depositors whose works are at risk of damage or destruction to request safe haven at an AAMD member museum, where the works will be held until they can be safely returned. All deposited works will be treated as loans, preventing any issues of title ownership arising at a later date. Details of those works will also be made publicly available on a new section of the AAMD’s online Object Registry, ensuring transparency.

The Protocols consider the preservation of a work’s physical integrity as well as its safety, its provisions covering transport and storage, scholarly access, legal protections, exhibition, conservation issues, and the safe return of endangered works to the appropriate individuals or entities as soon as is feasible.

The AAMD has strongly encouraged its 240 members in the US, Canada, and Mexico to adopt these Protocols, and has invited museums around the world to use the Protocols in their efforts to protect endangered works.

Whilst not legally binding, these Protocols are indicative of the shifting attitudes towards the importance of international cooperation and intervention in protecting cultural heritage, and their release coincides with the first prosecution of cultural heritage destruction as a war crime.

“The scale of human suffering and loss of life that is taking place in Syria and other afflicted areas is devastating, and is compounded by the loss of unique works that are the record of different cultures and our shared humanity,” said Johnnetta Cole, President of the AAMD, and Director of the National Museum of African Art, Smithsonian Institution.

“The level of destruction and the intentional damage is deplorable and an attempt to eradicate cultural identity in tandem with the murder and repression of individuals. We stand with the international community in condemning these reprehensible acts of violence and brutal vandalism, and believe it is vital that we do everything in our power to help save endangered works for all people and for future generations.”

The AAMD’s press statement can be read in full here.

The full Protocols can be downloaded here.

Cultural heritage destruction prosecuted as a war crime for the first time: Islamist militant appears before ICC

In the first case of its kind, an alleged Islamist militant accused of destroying ancient monuments in Mali appeared last week at the International Criminal Court (ICC) charged with damaging humanity’s cultural heritage. It is the first time cultural heritage destruction has been prosecuted as a war crime; the ICC has traditionally focused on atrocities committed against individuals.

Ahmad Al Faqi Al Mahdi appears at the ICC in the Hague, Netherlands (Image: Robin van Lonkhuijsen/AFP/Getty Images)

Charges

Ahmad Al Faqi Al Mahdi is charged with war crimes of directing attacks against historic religious monuments and buildings, including nine mausoleums and one mosque in Timbuktu, Mali.

Al Mahdi, from the Ansar Tuareg tribe, was allegedly an active personality in the context of the occupation of Timbuktu, a ‘zealous member’ of Ansar Dine, a Tuareg extremist militia with links to al-Qaeda, and the head of the Hesbah (known as the ‘Manners' Brigade’), which enforced strict Islamist law in Timbuktu during civil unrest in Mali in 2012 and 2013. He is also charged with implementing the hardline Sharia law rulings of the so-called Islamic Court of Timbuktu, in particular the destruction of the nine mausoleums and the Sidi Yahia mosque.

The situation in Mali was referred to the ICC by Mali’s government in 2012, and following an investigation a warrant for Al Mahdi’s arrest was issued in September 2015. Al Mahdi was arrested by the authorities of Niger and handed over to the ICC shortly afterwards.


Timbuktu’s cultural heritage

Timbuktu, a UNESCO World Heritage site known as the ‘city of 333 saints’, was an intellectual and spiritual capital and a centre for the propagation of Islam throughout Africa in the 15th and 16th centuries. The mausoleums of Timbuktu have long been pilgrimage destinations for the people of Mali and neighbouring countries. As shrines to Timbuktu's founding fathers, who were venerated as saints by most of the city's inhabitants, they were widely believed to protect the city from danger. But fundamentalists considered this practice blasphemous. Of the city’s 16 mausoleums, some dating as far back as the 13th century, 14 were destroyed during Ansar Dine’s occupation of the city in 2012, along with mosques and approximately 4,000 ancient manuscripts.

Destruction of mausoleums and mosques during Timbuktu’s occupation (Image: AFP)

What next?

Following the defendant’s appearance before the Pre-Trial Chamber last week, a hearing is scheduled for 18 January 2016, where the Court will determine whether there is sufficient evidence to proceed to a full trial.

This case is a watershed moment in the field of cultural heritage protection, and it has been suggested that the Court consider investigating the Islamic State's destruction of ancient archaeological sites in Palmyra. However, as neither Iraq nor Syria is a member of the ICC, the Court is unable to intervene without a mandate from the UN Security Council.

Meanwhile an initiative to reconstruct Timbuktu’s mausoleums led by the Malian government, UNESCO and international partners is nearing completion. “Here we have our response to extremism,” said UNESCO’s Director-General, “an example of the successful integration of culture in peace building and we must continue along this road.”

Reconstruction of Timbuktu’s mausoleums nears completion (Image: CRAterre/Thierry Joffroy)

The ICC’s case information sheet for The Prosecutor v. Ahmad Al Faqi Al Mahdi can be found here.

More information on Timbuktu’s cultural heritage can be found on the UNESCO World Heritage Site page here.

"God Hates Renoir": A grass roots art critic speaks out

A strange tale of grass roots art criticism has unfolded in Boston this week. 

An Instagram account started by one Max Gellar, entitled Renoir Sucks at Painting, was taken onto the streets of Boston. Protestors (reportedly, about six of them) stood outside Boston's Museum of Fine Arts (MFA) carrying placards proclaiming that 'God Hates Renoir', 'Renoir Sucks', and the snappy 'ReNOir'. Their demand: MFA should take down its Renoirs, replacing them with other works kept in its storage vaults.

Photo: Lane Turmer /AP

'Why do so many people think he’s good?' the Guardian reports Gellar as asking. 'Have you looked at his paintings?' They are, according to him, 'empty calorie-laden steaming piles', the decision to hang which in public galleries 'represents an act of aesthetic terrorism'.

It is not clear how serious the protest is. The Huffington Post reports Gellar as saying it is 'meant to be taken more ironically than literally', but Gellar's more genuine point appears to be the question of who is entitled to decide what deserves space in national galleries. 'Curators,' he is reported to have said, 'lack the courage to say, ‘Hey, wait, everybody’s been wrong this whole time.’ They’re not looking at the paintings.' 

Either way the story is reminiscent of another, more famous instance of an art critic attacking a painter's work: Whistler v Ruskin, the 1878 libel case in which J M Whistler sued the famous critic John Ruskin over his published letter commenting on some of Whistler's paintings, in particular the impressionistic Nocturne in Black and Gold: the Falling Rocket. Ruskin, in a pithy comment worthy of Gellar, wrote that Whistler's work was like 'flinging a pot of paint in the public's face', enraging Whistler until he finally took the matter to the courts - rather to the amusement of the public, which was impressed neither by Ruskin's over-personal critique nor Whistler's arguably over-sensitive reaction.

J M Whistler
Nocturne in Black and Gold: The Falling Rocket,
The Detroit Institute of Arts 

Luckily for Gellar, Renoir, who died in 1919, is not around to follow Whistler's lead and sue - it is a general principle that the dead cannot be defamed. But even if he were alive he might be put off by the outcome of that historic trial. The painter won, but instead of the £1000 he had claimed, poor Whistler was given just one farthing in nominal damages, leaving him in heavy debt due to paying his own costs.

Meanwhile, the MFA shows no signs of bowing to public demand, and Renoir's works remain on view to offend or delight, as the case may be. 

Anish Kapoor sued for leaving racist graffiti on his sculpture at Versailles

The British artist Anish Kapoor recently announced that right wing Versailles municipal councillor, Mr Fabien Bouglé, had filed a lawsuit against him and the president of the Palace of Versailles, Catherine Pégard, for choosing not to remove some racist graffiti from his sculpture "Dirty Corner".

Dirty Corner by Anish Kapoor

The complainant, Bouglé, said that the vandalized artwork now incites racial hatred and insults and should be cleaned.

The sculpture was installed last June in the gardens of the French Palace of Versailles and has since been vandalised twice. The first time, the artwork was cleaned after being splattered with yellow paint a few days after its installation, but, after the second attack, the artist decided to leave the anti-Semitic messages on the sculpture's exterior. 

Although Kapoor strongly condemned the racist messages, he decided to leave them on the sculpture as a reminder of the intolerance and hate in the society. "I had already questioned the wisdom of cleaning it after the first vandalism. This time, I am convinced that nothing should be removed from these slurs, from these words which belong to antisemitism that we'd rather forget" Kapoor told le Figaro.

His choice has opened a public debate. On one side, the French President, François Hollande, expressed his support for the artist, agreeing with Kapoor's decision. Likewise, the French Culture Minister, Fleur Pellerin, said she respected Kapoor's choice, and said that the public debates surrounding Kapoor's decision were "extremely interesting and raise the question of creative freedom".

On the other side, Kapoor's choice was criticised by Jonathan Jones of the Guardian. Jones believes that Kapoor should reconsider his decision and clean the work, thereby not offering the vandals any publicity. According to the British journalist, the sculpture should be properly protected by the French Police and become a permanent addition to Versailles: that would be the true victory for culture over barbarism. 

 

For the moment, notices explaining the vandalism to visitors have been installed next to the work, while the French lawsuit against Kapoor is ongoing.  

Photo: Francois Guillot/ AFP Le Figaro

Art Buff returns to Folkestone

Art Buff

"Banksy artwork set to return to Folkestone after lengthy legal battle" is the title of this item, reported a couple of days ago in the Guardian. It reads, in relevant part, as follows:

A Banksy artwork ripped from a wall in Folkestone and shipped to the US is to be returned to the seaside town after a lengthy legal battle, in the first example of a Banksy being returned to public ownership. A British judge ruled on Friday morning that the mural, titled Art Buff, was to be returned to the place where it was originally daubed by the elusive graffiti artist during the Folkestone Triennial last year.

The artwork, which depicts a woman looking at an empty plinth while listening to headphones, appeared overnight last September. It was verified by the elusive artist on his website, with the words: “Part of Folkestone Triennial. Sort of.” The piece attracted hundreds of visitors but just weeks after its appearance the owners of the amusement arcade on which it was painted chiselled it out of the wall and sent it to a gallery in New York – which valued it at almost half a million pounds. It was later sent to an art fair in Miami where it failed to sell.

The legal challenge to return the artwork to Kent was launched by Folkestone-based arts charity the Creative Foundation, with the financial backing of a benefactor, who felt that Art Buff belonged to the people of Folkestone and not to a wealthy collector.  ... 

The piece, he said, had been cut out under the supervision of art dealer Robin Barton who trades under the name of Bankrobber and specialises in Banksy pieces.

After investigating the matter, lawyers acting for the Creative Foundation discovered that the Godden family, who had ordered the removal and sale of the Banksy, only owned the leasehold – not the freehold – of the arcade where Art Buff had been drawn. An injunction against selling the artwork was taken out in early 2015, and on Friday morning judge Richard Arnold ruled that the tenant had “no reasonable prospect of establishing that it was entitled, let alone obliged, to remove the mural” and ordered its return to Folkestone. ...

In the past Bansky has condemned the removal and private sale of his artworks as disgusting. In April last year 10 of Banksy’s most expensive murals, all of which had been removed from public spaces, were sold at auction in London for between £100,000 and £500,000 each.

Upton said he hoped the case, which was the first example of a Banksy being returned to public ownership, would inspire others in the future. “People should fight to keep these works in the public realm,” he said. “That’s how they came about and where they were intended to stay – not that I have any idea what Banksy’s intentions are.”

While it's good to see that this piece of artwork has been saved, it is worrying that the fate of a piece of art should be made to hinge on something as arbitrary was whether the wall upon which it was painted was held by a leaseholder or by the freeholder.

The Art of Protecting Design

We are lucky to have another guest post from the wonderful Molly Torsen Stech: Knowing that other attorneys gracefully bridge the different bodies of intellectual property law more often than I, I recently found a post on the 1709 Blog very interesting; it considered the various ways in which interior design might be protected by intellectual property laws. In particular, it considered copyright, design rights, and trademark rights; and it generated some interesting comments.

Of course, “interior design” can comprise a wide array of meanings. Is it the totality of the look and feel of a single room in a home or is it a hotel’s overarching color scheme and atmosphere, complete with floral arrangements, wallpaper, and furniture style and placement that comprise interior design? Given that Serbia has recently amended its design law, Israel is considering a new design law, the European Commission may publish the results of an evaluation of the legal and economic aspects of its design protection in early 2016, and given the fascinating designs on view at the ongoing Expo in one of my favorite cities, some esoteric musings on the nexus of IP laws are perhaps warranted.

In struggling to understand the term “interior design,” it is also useful to spend some time parsing the term “industrial design” (and even just “design”), in an effort to understand how to differentiate design from art; and art from commercial identification, and so on. Needless to say, none of this is straightforward. As McKenna and Strandburg note, “[p]roduct design lies at the intersection of the patent, copyright, and trademark regimes. Useful articles often have both utilitarian and aesthetic aspects, and at times their features serve as source identifiers in the marketplace.” The United States handles these amorphous questions under copyright law, design patent law, and/or sometimes trademark (trade dress) law.

Unlike the European Union, and other intellectual property regimes, it does not have a sui generis design law under which to protect designs specifically, although the United States did recently implement the procedure-oriented and WIPO-administered Hague Agreement Concerning the International Registration of Industrial Designs. Given the nearly undefinable nature of “design,” and the often patentable or copyrightable objects to which design is affixed or in which it is embedded, it is of course arguable whether a domestic sui generis design law is helpful. The United States Patent and Trademark Office, in its definition of “design,” through the lens of design patents, notes:

Since a design is manifested in appearance, the subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation. Design is inseparable from the article to which it is applied and cannot exist alone merely as a scheme of surface ornamentation. It must be a definite, preconceived thing, capable of reproduction and not merely the chance result of a method.

But to obtain a design patent, the subject matter must be an article of manufacture (a tangible, man-made object); and it must be original, novel, non-obvious, and ornamental; the characteristics of these adjectives have developed through case law. U.S. copyright law does not protect design (with the improbable exception of a vessel hull design) embodied in a useful article (including clothing, furniture, and household appliances) unless the thing is expressed separately from that useful article. Fabric design, for example, can be copyrighted if it is creative enough, but a dress design made of that fabric cannot be copyrighted because U.S. copyright law perceives the dress as a useful article. 

Copyright does not protect the mechanical or utilitarian aspects of. . .works of craftsmanship. Copyright may, however, protect any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object. Thus a useful article can have both copyrightable and uncopyrightable features. For example, a carving on the back of a chair or a floral relief design on silver flatware can be protected by copyright, but the design of the chair or the flatware itself cannot, even though it may be aesthetically pleasing.

The Alessi Fior d'Olio

What, then, does a company do with something like Alessi’s Fior d’Olio, designed by Marta Sansoni, for example? What is its protection strategy in the United States versus other jurisdictions, keeping in mind that forms of protection are generally not mutually exclusive?

The Fior d’Olio is essentially an olive oil receptacle, pourer and cap. The cap “fits into the neck of the bottle, allowing you to pour only as much as you need on your food, while controlling the oxidation process that begins as soon as the bottle is opened.” While its description sounds much more functional than it does aesthetic, the Fior d’Olio’s appearance is quite charming and elegant and its lever looks like an olive leaf. Is the leaf conceptually separable from the receptacle so as to achieve eligibility for copyright protection? Perhaps, theoretically, but the leaf piece in itself may not actually cross the threshold to adequate creativity for copyright purposes. Trade dress protection is likely unavailable since a consumer is not likely to immediately recognize the receptacle as an Alessi product (in comparison, consider the shape of a bottle of Dom Perignon champagne, which is recognizable as such.)

This musing is not so timely as it is summertime food for thought. Lawyerly creativity may reach its zenith in creating a strategy for protecting these gems of manufacture that overlap IP regimes, both within a single jurisdiction, and worldwide.

Kindness or Catastrophe? Australia's experience of resale royalty rights

"Artist’s Resale Royalty in Australia: Strong evidence of a catastrophic decline in both sales and prices: Australia's Art Market Down 50%" is the title of an article in AAD (Art Antiques Design) by Australian artist and artists' resale royalty agitator John R. Walker. According to the abstract:

In this article, I shall give an overview of the highly corrosive impact, which the Artist’s Resale Royalty (ARR) has had, and is having on Australia’s Art market. The impact of ARR also appears to have had an entirely adverse reaction on the UK’s Art Market; with trade in a large proportion of valuable secondary market Art works now, quite obviously, taking flight to places like New York, Switzerland and Miami. Below, as you will see, many reputable, and governmental sources have been cited. Due to the implementation of this scheme, we, in Australia, have sadly seen our indigenous Art sector virtually wither away right in front of our eyes since the ARR was introduced back in 2010.

I’m an Australian Artist, I’m not being paid to write this, and the below is an honest appraisal of what we are facing here due to the ARR, and it is written based on my personal experience, and on factual publicly available information.

This article powerfully and persuasively puts the case for taking an urgent look at a scheme which, however well-intentioned its implementation may have been, appears to be in need of careful reappraisal.

To read this article in full, click here

Web-only art auctions: how will they work?

"Goodman and de Pury launch web-only auctions with promises to keep down fees" is the title of a piece of news from Roland Arkell, writing for the Antiques Trade Gazette ("the weekly bible of the fine arts and antiques industry"), here. According to this piece, in relevant part:

Two senior members of the international auctioneering profession launch separate online-only ventures this week. Tim Goodman and Simon de Pury are embracing the digital revolution, looking to challenge a centuries-old business model with a footloose approach to selling art and antiques at auction.

Goodman's Fine Art Bourse (FAB) hopes to gain traction in the market via an innovative pricing model. Meanwhile de Pury's eponymously titled firm is promising to reduce buyer's fees to 15%.

The headline statistic at FAB is that they will charge vendor's and buyer's fees of just 5% with a 72-hour packing and shipping service - so often a barrier to entry for bidding online - 'free' for both buyers and sellers. They add that transaction charges will be exempt of sales taxes or artist resale royalties, as sales are processed through headquarters in Hong Kong.

However, the devil is in the detail. Alongside the 5% cut, consigners and purchasers will each be billed an additional fixed fee to cover other charges. The 'fixed lot selling fee' of $330 applies for items estimated up to $100,000 and $1000 for items estimated at over $100,000. This covers collection, storage and photography while the 'fixed lot buying fee' at the same rates pays for packing, shipping and delivery.

Sellers will also responsible for paying insurance costs of 1%.  ... the pricing model is designed to reward sellers of higher-priced items, but at lower thresholds it is less attractive.
... 

Goodman believes the traditional auction business model - one where an auction house can take proceeds of up to 50% from the sale of a work of art - is no longer sustainable.

"Something has to give. All we have done is apply digital technology to some of the good old ways and cut costs," he says.  ..."

It will be fascinating to see whether and, if so, how these two new-technology approaches will catch with purchasers who are in many cases both traditional in outlook and idiosyncratic in their habits. Will they take business from the well-established auction houses or will they create and develop new business? And, from a lawyer's point of view, it would be good to know a bit about choice of law and forum for the settlement of any disputes that might arise from the use of these services.

Thanks go to John Walker for drawing my attention to this development.

Dammed if you do, damned if you don't: are sculptors worth more than scalers?

"Hoover Dam artist wins $1.3 million in copyright lawsuit" is the striking headline of an article by Henry Brean in the Las Vegas Review Journal, here. According to the author:

"An artist has won almost $1.35 million in a lawsuit over a sculpture commemorating workers who were paid $5 per day to risk their lives during the construction of Hoover Dam. A jury in Las Vegas federal court ruled last month in favor of artist Steven Liguori, creator of the bronze statue known as the “High Scaler” at Hoover Dam.

In 2011, Liguori sued Bert Hansen, longtime owner and operator of the Hoover Dam Snacketeria and the High Scaler Cafe at the dam, after the artist said he was cheated out of royalty payments and his work was used without permission for merchandise and marketing. According to the lawsuit, Hansen commissioned Liguori to create “High Scaler” for a $166,000 fee and a share of the proceeds from merchandise based on the sculpture as well as the artist’s other dam-related creations.

U.S. District Judge George Foley ordered Hansen to pay Liguori $1.2 million for breaching their agreement and $150,000 in other damages.

The sculpture at the center of the legal dispute is modeled on a photograph of a high scaler, a special breed of Hoover Dam laborer willing to clear loose rock from the walls of Black Canyon while dangling from ropes tied to clifftop eye bolts.

“They were the celebrity laborers on the dam,” said Dennis McBride, director of the Nevada State Museum at the Springs Preserve and a leading Hoover Dam historian. “They’d be sitting in their bosun’s chairs, and over the side they went.”

...  The Las Vegas law firm Hutchison &Steffen, which represented Liguori, announced the final judgment in the lawsuit Thursday. “A jury of his peers found that he just wasn’t treated fairly,” Hutchison &Steffen partner Todd Moody said of Liguori in a written statement. “Not only did they breach the contract they had with him, they also infringed on the copyright he had. And to be awarded the highest statutory amount was kind of the icing on the cake.” ...".

Damages for breach of contract and copyright infringement are nothing new and, by the standards of litigation in the United States today -- especially when compared with the massive damages awarded by juries for patent infringement in the same jurisdiction -- $1,3 million seems almost trivial. However, the juxtaposition of that sum against "$ 5 an hour" makes it sound unfairly large.  There is also the implication that it's somehow unfair for an artist to gain more financially from his art than is paid to laborers who risk life and limb while dangling from ropes, though the truth of the matter is that the supply of monumental sculptors is far more limited than the availability of high scalers, a factor that is inevitably going to be reflected in the contract terms offered to Liguori in the first place.

US returns looted art to Italy

This week saw the return by the United States of 26 pieces of art to Italy. Each work had been separately looted and subsequently smuggled out of Italy and into the US.

A Repatriation Ceremony was held at the US Embassy in Rome to celebrate the return of the pieces to Italy. The ceremony was a culmination of a lengthy investigation carried out collaboratively between the US Homeland Security Investigations (HSI) and the Carabinieri Tutela Patrimonio Culturale (TPC).

In his speech at the Ceremony, US Ambassador to Italy, John R. Phillips, noted that:

"Italy is blessed with a rich cultural legacy and therefore cursed to suffer the pillaging of important cultural artifacts. The collaboration between agents from HSI and investigators from the TPC has borne fruit in returning some important artifacts to their rightful home in Italy. 

The plundering of historical and cultural artifacts is among the oldest forms of cross-border organized crime. INTERPOL estimates that the illicit trading in cultural property produces more than $9 billion in profits each year – only human trafficking, narcotics and weapons trades generate more illicit revenue. 

The crime may be ancient, but the perpetrators are very modern. The use of the Internet has provided these criminals the ability to acquire, transport, advertise and sell valuable cultural property swiftly, easily and stealthily and while making it easier to evade detection by law enforcement agencies. 

Fortunately, the customs laws of the United States allows agencies such as HSI and CBP the ability to seize, forfeit and ultimately return cultural property that is brought into the United States illegally." 

Some of the artworks that were returned include:

Sleeping Beauty, a 1,800 year-old, ancient Roman marble sarcophagus lid of sleeping Ariadne, which investigation revealed was smuggled out of Italy. HSI New York special agents seized the sarcophagus lid with a warrant issued from the Eastern District of New York.

A 5th century B.C. Etruscan black figured Kalpis, which is believed to have been looted in Italy and smuggled into the United States in 1981. After an investigation, our HSI office in Cleveland, Ohio, seized the Kalpis.

A 5th century B.C. red-figured Attic Volute Krater attributed to the Methyse Painter. This Kalpis was seized by HSI St. Paul, Minnesota.

A 17th century Venetian bronze breech-loading gun, which was seized by CBP officers in Boston as it was being smuggled into the United States. After an HSI Boston investigation, the cannon was successfully forfeited.

Reportedly, no criminal charges have been filed in relation to any of returned artworks since, in some cases, the statute of limitations on any crimes would have expired, and, in others, the paper trail for the piece's import into the US was too difficult to reconstruct. In addition, these pieces represent but a fraction of the art currently circulating on the black market. Nonetheless, as Phillips stated "every victory, every piece that is returned, every bit of cultural history that can be restored to its rightful home is a measure of progress."

Source: The New York Times, 26 May 2015

Replica of Old Summer Palace opens despite potential IP infringement claim by Chinese authorities

A full-scale replica of Beijing’s Old Summer Palace has opened to tourists at Hengdian World Studios, a giant film studio located in Zhejiang Province also known as “Chinawood”, amidst threats of legal action by the original Old Summer Palace's administrative office "if the replica infringed intellectual property rights".

Known in Chinese as Yuánmíngyuán (the Gardens of Perfect Brightness), and originally called the Imperial Gardens, the Old Summer Palace in Beijing was destroyed in 1860 during the Second Opium War on the orders of Lord Elgin (who, incidentally, was the son of the Lord Elgin of Elgin Marbles fame).

In a written statement sent to Xinhua News Agency, the Old Summer Palace's administrative office said the complex of pavilions and gardens where the Qing Dynasty emperors resided (the Forbidden City was used for formal ceremonies) is "unique and cannot by replicated. The construction and development of the site should be planned by authoritative national organizations, and any replication of it should reach certain standards."

An aerial view of the replica Old Summer Palace (Photo: AP)

 
The office offered no further explanation as to how its intellectual property rights might be infringed. Xu Xinming, chief lawyer at the China Intellectual Property Lawyers association, dismissed the threat, commenting that China's intellectual property law only covers 50 years from when a work has been completed, but in any case "the original Old Summer Palace has been destroyed and the replica has nothing to do with intellectual property rights."

Whilst the threat of legal action appears to hold little weight, the incident has led to a wider debate within China about the merits of the project, with Xinhua saying that many have accused Hengdian World Studios, the world's largest outdoor film studio, of "bastardizing a site associated with patriotism."

Visitors leave after a multimedia show at Hengdian's replica Old Summer Palace (Photo: AP)

Hengdian’s studio sets include replicas of the Forbidden City and the Tian'anmen Gate Tower, and Chinese blockbusters such as Zhang Yimou’s 2002 movie “Hero” have been filmed at Hengdian. Xu Wenrong of the Hengdian Group, the conglomerate behind the project, stated: “The Chinese government has never agreed to rebuild the site because its destruction is a national shame. But generations of people have all heard about the garden, they haven't been there and they expect it to be rebuilt."

He said it was natural to charge an entrance fee to an attraction, but asserted that the replica had been built "for the benefit of the people and future generations" rather than to make money. A press officer from Beijing's cultural relics bureau responded that the replica had been built for the purposes of filmmaking and tourism. "It's fully commercial and can hardly be regarded as a decent replica because it's not situated within the Old Summer Palace."

The destruction of the Old Summer Palace is still a very sensitive issue in China today, and is frequently referenced in patriotic education campaigns. The Chinese government continues to put a lot of effort into locating and recovering the 1.5 million cultural relics it estimates were looted from the palace by British and French troops in 1860, and by an allied force including troops from the United States, Russia and Britain in 1900.

Romero Britto sues Apple over copyright infringement

Apple was recently sued by the Pop artist Romero Britto over its "Start something new" campaign for using an artwork from the design duo Craig & Karl, that allegedly copies the design style which Britto is famous for. 

A screenshot of Apple's website of the "Start something new" campaign

Britto became aware of the copycat art when Apple launched its worldwide promotional campaign, but he discovered that the two artists had been systematically making art similar to his own for years.

Excerpt of the comparison offered in Britto's complaint

Britto is a Miami-based pop artist, internationally well-known, who works with several brands on advertising campaigns, using bright colours, strong lines and simple designs. According to his complaint, Britto's specific trade dress is "strong, fanciful, non-functional, and inherently distinctive. In addition, the Britto Trade Dress has acquired distinctiveness as a result of uninterrupted promotion and sale of Britto brand products and services".    

The lawsuit was recently filed in the US District Court, Southern District of Florida, against Apple and the graphic design duo for trade dress infringement, trade dress dilution, as well as unfair competition and copyright infringement.

Britto accused the two artists of violating the Britto trade dress and Apple for commercially exploiting the allegedly infringing image. Indeed, Apple uses Craig & Karl's image – representing a patchwork hand on a bright yellow background on one of its iPads in the graphics – to promote its new advertising campaign, describing how this image was realized on iPad Air 2 using IOS apps.

Further to Apple's massive advertising campaign and to the use of Craig & Karl's image in retail stores, many people contacted Britto under the false impression that he had created the infringing artwork. Britto received many incorrect congratulations on his new deal with Apple, as well as messages of dismay from business partners, and inquiries from collectors wanting to know if the image displayed in the Apple stores or on the Apple website came from him.

Britto contacted Apple asking the company to cease using the infringing image, but he did not receive a response. Therefore, he decided to file a lawsuit, asking for an injunction preventing Apple from using the infringing artwork and Craig & Karl from producing or using other copycat artworks, along with damages and attorneys' fees. 

The Reach of the Lens

One of The Neighbors

Huge thanks to Molly Torsen Stech for the following guest post on the Svenson saga. For those not aware of this US case it is what might have happened in Rear Window if Jimmy Stewart was an artist.

Molly is a copyright and trade mark policy attorney based in New York City. She recently joined INTA as Editor-in-Chief and is involved in pro bono work for Volunteer Lawyers for the Arts of New York (VLANY). Before moving to New York, she was Counsel in the Office of Policy and International Affairs at the US Copyright Office, where her portfolio included Europe, Russia, Canada, relevant WIPO committees, and the OECD.

On 9 April 2015, an appeals court in New York State decided a controversy that highlights one of the many discrete qualities of photography that challenges current law. Copyright law itself is not implicated; rather, the jurisprudence in question is based in privacy interests. Artist and photographer Arne Svenson was born in 1952 in Santa Monica, California, and has worked in New York City for three decades.  His work is quite varied; the stylistic approach that best captures it is, to my eye, accurately reflected in his biography: “First and foremost in Svenson's practice is to seek out the inner life, the essence, of his subjects, whether they be human, inanimate, or something in between.” If Mr. Svenson was surprised by the litigation, it could well be that the exhibition that prompted the lawsuit was not dramatically different from some of his prior work. 

In the first half of 2012, Mr. Svenson began photographing people in the apartment building across from his own in Manhattan. The building’s façade is mostly glass, and Mr. Svenson photographed his subjects without their knowledge, although his lens could of course only capture what was viewable in front of various windows facing him. He selected some of these images to comprise an exhibition he called The Neighbors, which was exhibited in galleries in Los Angeles and New York. During the New York exhibition, various subjects of the photographs learned that their images were included in the show and demanded the withdrawal of those works. The artist and gallery agreed to remove some of them, including one where siblings were photographed together (which they presumably agreed to remove based on a potential viewer’s enhanced ability to recognize them together rather than separately).  In an interview in March of this year, Mr. Svenson noted that he shot the photographs “for the tiny nuances of gesture and posture that define who we are, collectively. The subjects are to be seen as representations of humankind, non-identifiable as the actual people photographed.” His purported aim, then, was not to photograph these particular individuals; rather to photograph vignettes of people, generally, in their homes. 

In May 2013, some of the photographs that Mr. Svenson had not removed from the exhibition were shown on television broadcasts, which prompted the lawsuit; plaintiff tenants (and subjects of Mr. Svenson’s photographs) sought damages pursuant to the statutory tort of invasion of privacy, and the common law tort of intentional infliction of emotional distress. The trial court granted the defendant’s cross-motion to dismiss the complaint in August 2013, but the appellate court then granted a preliminary appellate injunction. The New York privacy statute, however, focuses on restricting activities that have “advertising purposes;” and activities “for the purposes of trade.” The appellate court noted that the legislature’s use of the “broad, unqualified terms for advertising and trade purposes, on their face, appear to support plaintiffs’ contention” that the statutory terms should apply across the board to items bought and sold, including artistic photographs. But it found that courts “have refused to adopt a literal construction of these terms because the advertising and trade limitations of the privacy statute were drafted with the First Amendment in mind.” It ultimately granted Mr. Svenson’s cross motion to dismiss the complaint. 

Not to be confused with these
Neighbours

There are several questions raised by this case which were not presented to the court. For example, many art critics note the “painterly” quality of Mr. Svenson’s photographs, likening some of his work to the paintings of John Singer Sargent. Extrapolating from this characterization, would paintings based on his photograph also engender claims of invasion of privacy? In January of this year, a civil court in Antwerp surprisingly (at least to this lawyer) found that a Luc Tuymans painting based on a photograph of a politician infringed the copyright in that photograph. In different jurisdictions, could Mr. Svenson make paintings of his photographs to avoid the privacy claim? In other words, is it the nature of photography itself that is the offender here? Or is it the resultant recognizable likeness of the individual, whether on Panalure paper or canvas? Obviously, New York and Antwerp operate under different laws, but the question of what the offense is – the likeness or the medium – is interesting. Recalling the 2004 UK case Campbell v Mirror Group Newspapers Ltd, I wonder whether Mr. Svenson’s photographs would receive more hostile treatment on the other side of the Atlantic (acknowledging, however, that Ms. Campbell is a celebrity, which certainly distinguishes the cases.) 

Another open question is the relative importance of artistic intent or meaning. In the recent Second Circuit Cariou v. Prince copyright fair use decision, the court emphasized that an artist’s commentary on his own art is not necessarily the key to answering the fair use factors under copyright law, but it spent quite a bit of time remarking on the different genres of audiences that the artists in question tended to attract, and did not provide clear guidance on who the appropriate “observer” is in qualifying the four factors of the fair use doctrine. (“Prince’s work appeals to an entirely different sort of collector than Cariou’s. Certain of the Canal Zone artworks have sold for two million or more dollars. The invitation list for a dinner that Gagosian hosted in conjunction with the opening of the Canal Zone show included a number of the wealthy and famous. . .”) In the Svenson case, the appellate court acknowledges Mr. Svenson’s status as a “renowned fine arts photographer” as a factor that favors protecting his work under the First Amendment, but the court leaves the analysis there, declining to go on to focus on the audiences that his work might reach. Copyright case law and privacy case law may simply part ways on that scale. 

As a last point: none of these struggles of balance between art and privacy are new. The Svenson appellate court, at the opening of its decision, references the renowned 1890 Harvard Law Review article by Samuel D. Warren and Louis D. Brandies, The Right to Privacy. Although it does not specifically cite this passage, I find it relevant, and as appropriate in 2015 as it was in 1890: 

If you may not reproduce a woman's face photographically without her consent, how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination ... [However], it is only the more flagrant breaches of decency and propriety that could in practice be reached [by a right to privacy], and it is not perhaps desirable even to attempt to repress everything which the nicest taste and keenest sense of the respect due to private life would condemn.

Greece rules out legal action to recover Elgin Marbles

As reported by Jeremy, the Greek government publicly stated this week that it would not be pursuing restitution of the Elgin Marbles through international courts, despite being advised by their high-profile British legal team that it is a “now or never” opportunity.  

The Greek culture minister Nikos Xydakis told Greece’s Mega TV: "One cannot go to court over whatever issue. Besides, in international courts the outcome is uncertain", adding “the road to reclaiming the return of the sculptures is diplomatic and political.” The Greek government would instead switch to “low-key, persistent work” to effect the Marbles’ return to Athens.

The comments came 48 hours after a 148-page report prepared by Geoffrey Robertson QC, Norman Palmer QC and Amal Clooney was presented to the Greek government, urging it to consider legal action against the British Museum through the International Court of Justice or the European Court of Human Rights in Strasbourg. 

Elgin Marbles east pediment (Image: Andrew Dunn/Wikimedia)

Background to the report

The Greek government has made longstanding appeals for the return of the controversial Elgin Marbles, the sculptures removed by Lord Elgin from the Parthenon in the early 1800s that, following their purchase by the British Government in 1816, became part of the British Museum’s collection. 

The dossier, commissioned following a high-profile visit to Athens by the team of lawyers last October, is reported by the Independent to make a compelling case for the Greek government to pursue legal action and sets out which steps needed to be taken. “The British adhere to international law…The Greek government has never taken advantage of this Achilles’ heel,” the report is quoted as saying. “You must take legal action now or you may lose the opportunity to do so due to future legal obstacles.”

The report proposes first making a formal request for the Marbles’ return, then lodging a claim at the International Court of Justice. If the Court were to refuse jurisdiction, an approach should be made to the European Court of Human Rights (ECtHR). A “75-80 per cent chance” of success is estimated if an international court accepts jurisdiction, and the report cites a 1962 International Court of Justice ruling which forced Thailand to return sculptures removed from the Preah Vihear temple in Cambodia. The advice also suggests the case would also be looked upon favourably under the European Convention on Human Rights.

One possible future obstacle is the new Conservative government’s election pledge to repeal the Human Rights Act 1998 and to consider making Strasbourg judgments non-binding on UK courts. The new Culture Secretary, John Whittingdale, has also previously made clear that he supports the British Museum in the dispute.

Reaction

Despite such obstacles, the Greek government’s comments have been somewhat unexpected. Alexis Tsipras, the Greek prime minister, led far-left Syriza to power in January on the back of nationalist sentiment and declared his intention to secure the return of the Elgin Marbles. In March Mr Xydakis responded to the British Museum’s refusal to consider mediation by condemning British “negativism” and “lack of respect for the role of mediators”. Furthermore, a considerable amount of goodwill has been generated by recent efforts (not least Amal Clooney’s highly-publicised involvement in the matter), with public opinion in the UK also supporting the return of the Elgin Marbles to Athens.

It has been speculated that the Greek volte-face is the result of pressure from the EU and IMF over Greece’s massive debts and the looming possibility of an exit from the eurozone. However, the report was funded by a third party, and there have been several offers to assist in funding any legal action. It remains to be seen whether the Greek government will follow any of the report’s recommendations. For now this development counts as a major victory for supporters of the British Museum, but it is evident that the dispute is nowhere near its conclusion.