Can the French really burn fake Chagalls -- or anyone else's work?

Looking miserable: not surprising,
since she's about to be burned

"Fake £100,000 Marc Chagall painting 'to be burned'" is the title of this BBC post on the sad fate of a not unattractive work that had the misfortune not to be authenticated as a work of the colourful Russian. According to the BBC

"A businessman has been told a painting he paid £100,000 for will be burned after it was ruled a fake. Martin Lang bought what he thought was an original work by Russian-born artist Marc Chagall in 1992. His son called in experts from BBC One's Fake Or Fortune? to examine it, and the painting underwent tests to determine whether it was genuine. It was sent to the Chagall Committee in Paris, who said it was fake and would be burned under French law. ...

The Chagall Committee is run by the artist's grandchildren to protect his reputation in the art world.

Mr Lang, 63, a property developer from Leeds, has asked the committee to mark the watercolour - a nude said to date from 1909-10 - as a forgery and then return it or give him a guarantee he will be reimbursed if it is later ruled as genuine.

He is still waiting for a reply".

Can any readers tell us if there really is an entitlement under French law to burn a painting that is sent for authentication?  This seems quite remarkable, especially if one considers the position of a painter whose work, sold to a buyer, is then purchased by a third party who believes it to be the work of a modern French master and sends it for authentication without the real artist even knowing.

French tax credit for art buyers proposed

The French like their art.



Last year, a government proposal to subject artworks to France's existing wealth tax in a bid to help reduce the budget deficit (reported on Art and Artifice here) was shot down in flames amidst argument that if the new rule was passed, art collections would flood out of the country and owners would refuse to lend to exhibitions. 

 

This month the Art Media Agency (AMA) reports that the French opposition party have presented a draft law intended to have the opposite effect - to encourage French tax payers to invest in art. If passed, the law would create a tax credit for individuals who purchase “artefacts, collector's items, and antiques, within an annual limit of €1000, and a maximum of 80% of the total price paid offered” - so that the maximum tax credit per person per year would be €800.



Not much in there for under  €1000



However, it's not all goods news. AMA reports that in order to make up the revenue shortfall created by the tax credit, "those behind the law proposed an increase on the tax applicable to the sale of precious metals, jewellery, artefacts, and antiques".

Would Germany and France find the red bus photo infringed?

You will be relieved to know that this is my last post, for the time being, on the red bus case...

France and Germany - moving towards both politcal and copyright law unity
[I've run out of red bus photos]

Again the inspiration for this post comes from the 1709 blog organised red bus seminar last week. Brigitte Lindner provided a fascinating comparison of the way the German and French courts would have approached the red bus problem. A very general summary of her talk is below.

Subsistence
France follows a fairly similar approach to the UK. A photograph attracts copyright protection if it is original and carries the “imprint of the personality” of its author. What this means in practice largely accords with the principles applied in Temple Island i.e. the court will look at a combination of the exposure, lighting, composition etc to determine whether a work is original.

By contrast Germany has a two-tier approach to photographic protection. A mere “photograph” i.e. any old photo with no creativity or artistic quality is treated as a “relative right” and protected for 50 years from the date of publication. The title of “photographic work” is awarded to “personal intellectual creations” which are similar to the French original photographs (angle, focus, colour etc are all important in this assessment).

Whilst Brigitte considered that the Claimant’s red bus photo would be protected as a photographic work in both France and Germany, she noted that it would definitely have been protected in Germany as a photograph at the very least. [Or would it, if the heavily manipulated image was arguably a collage?].

Infringement
France has only one very broad test for infringement which includes making adaptations and is general enough to encompass not just unchanged copying but cases where “characteristic and original elements” have been taken.

Germany has two types of infringement (1) reproduction – which covers unchanged copying and (2) adaptation – which covers alterations of an existing work.

A defence of “free use”?
Although Brigitte considered that the defendant’s images would have infringed in both France and Germany, she considered the potential for the Germany “free use” defence to apply.

Not to be confused with “fair use” (US) or “fair dealing” (UK), free use is essentially a freedom of expression defence. In order to qualify for the defence the new work must be so separate from the original that the first work “fades” in comparison. [This surely incorporates a judicial assessment of aesthetic quality]. Birgitte considered that the defendant would have needed to move further away in order to qualify for this sort of protection and could not rely on the defence in Germany.

Does anyone have experience of French or German law and can offer an insight into how this approach to photographic subsistence and infringement applies in practice? I noted a recent case in France (reported by TechDirt and the BJP) where the Le Corbusier Foundation appears to have successfully sued Getty for stocking some photographs of Le Corbusier chairs without its permission. Any information on that case would be of particular interest.

French Auction Houses allowed to sell by mutual agreement

Pierre-Paul Prud'hon,
Esquisse pour le portrait de
 l'Impératrice Joséphine à la Malmaison

France State has just bought three works of art thanks to voluntary sales through Christie’s France. These acquisitions are part of a larger operation of purchase of the Marquet de Vasselot's collection for the most famous French Museums: the Louvre and the National Library. The remaining part of the collection will be auctioned next month.

France passed a new law on July 6th, which entered into force on September 1st, modifying the previous law on July 10th, 2000. The aim of such new law was to allow auction houses to conduct sales by mutual agreement. i.e. private sales between the seller and the buyer, whereas previously such transactions were restricted in France to galleries and other private dealers. The law brings France into line with other European countries as England, which already allow auction houses to handle private sales.

Since they are fast and secure, private sales have special appeal for clients seeking privacy. Museums, which often must establish a budget in consultation with their boards, often lack flexibility during auctions and prefer private negotiations.