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.

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

The quantification of estate taxes: even more obscure than the valuation of art?

A recent decision of the United States Court of Appeals for the Fifth Circuit has been lauded as a victory for art collectors. More accurately, however, it appears to be a victory for the extremely wealthy seeking to avoid paying taxes.

While a lengthy, rather technical, case, it is hoped that the essential elements have been reproduced below.

James A. Elkins, Jr. and his wife collected 64 works of art during their lives. The collection included pieces by Jackson Pollock, Henry Moore, Pablo Picasso, Rene Magritte, David Hockney, Paul Cezanne to name just a few. At the same time, they were thinking ahead, both creating a Grantor Retained Income Trust (GRIT) that held title to their respective interests in the works, and entering into various agreements which also partitioned and allocated their interests in their art.

The result was that at the time of death of Mr Elkins in 2006 (his wife had died in May 1999), the art was jointly owned in varying percentages by Mr Elkins and his three adult children.

In 2007, his children filed a United States Estate (and Generation Skipping Transfer) Tax Return (estate tax return) in which they reported a Federal estate tax liability of over $100million. It listed, among other assets, fractional interests in various items of real and personal property, including the artworks.

In assessing the federal estate tax due on Elkins' estate, the Internal Revenue Service decided that tax should be paid on the full value of the art, refusing a discount based on Elkins' pro rata share—his fractional-ownership interest— of the art.

In 2010, the Executors of the Estate petitioned the United States Tax Court to review the assessment on the basis that there should have been a fractional-ownership discount applied when determining the taxable values of Elkins' fractional interest in the 64 items of art.

The Tax Court rejected the IRS' zero-discount position, but also rejected the quantums of the various fractional-ownership discounts adduced by the Estate through the reports, exhibits, and testimony of its three expert witnesses. Instead, the Tax Court concluded that a “nominal” fractional-ownership discount of 10% should apply across the board to from pro rata fair market value of Elkins ratable share of each of the works of art.

Still unhappy with the decision, the Estate appealed again and the case was heard by the US Court of Appeals for the Fifth Circuit.

The only question to be resolved was whether the federal estate tax due on the artworks was to be calculated based on Elkins' undiscounted pro rata share of the art (as the IRS contended) or should there be a fractional-ownership discount of either (i) a uniform 10% (as held by the Tax Court) or (ii) the various percentages that the Estate advanced through the testimony and reports of its expert witnesses?

The Court found:

• Just as it was obvious to the Tax Court that the IRS had no viable basis for rigidly insisting that no fractional-ownership discount was applicable, it should have been equally obvious that, in the absence of any evidentiary basis whatsoever, there was no viable factual or legal support for the the Tax Court’s own nominal 10% discount. 

• The Estate was entitled to apply a fractional-ownership discount to the tax due on Elkins' ratable share of the each of the 64 works of art. 
• The answer to the question of the correct quantum was to be found with the proper administration of the willing buyer/willing seller test for fair market value: 'the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of relevant facts.'
• The Estate's evidence was that the sale of Elkins' undivided interests in the artworks would produce prices substantially below his pro rata share of the works as any hypothetical willing buyer would demand significant fractional-ownership discounts in the face of becoming a co-owner with the Elkins descendants (given their financial strength and sophistication, their legal restraints on alienation and partition, and their determination never to sell their interests in the art).

• The correct quantums of the fractional ownership discounts applicable to Elkins' pro rata share of the various artworks were those determined by the Estate’s experts. 

The full list of the 64 artworks and the discounts can be found in Appendix B to the Tax Court’s decision. The discounts range from over 50% to just under 80%. A substantial difference from the Tax Court's nominal 10% discount. As a result, the Court ordered a refund payment to the Estate of $14,359,508.21, plus statutory interest, for overpaid taxes.

While apparently "nothing is certain except for death and taxes," you could add to that the certainty that those with enough money will seek to avoid both. And that, in itself, is an art form. But that is just a [reckless] opinion....what do you think?


Source: Forbes, 24 September 2014

Art vs Vandalism

Is defacing a Banksy art or vandalism?

Well, from the US point of view, it is certainly a crime worthy of punishment from anywhere between jail time to fines in the thousands of dollars.

It has, therefore, not been a fruitful year (artistically speaking, or otherwise) for David William Noll, who either has a big issue with Banksy's works or, whose artistic creativity, in defacing Banksy's art and then posting it on YouTube, has not been recognised.

In April this year, American "artist" Noll was charged with a vandalising several Banksy murals in separate incidents in LA and Park City, Utah.

In LA, Noll was charged with felony vandalism for painting over two Banksy works. For those charges, he pled no contest and was given three years of felony probation and 60 days of community service.

Girl on Swing – one of the Banksy works in LA that was vandalised

Around the same time, Noll was also charged with a vandalising two Banksy murals in Park City. After Noll failed to appear for a court hearing to face charges of criminal mischief for defacing those pieces, a warrant for his arrest was issued in August. At that time, it was speculated that, if convicted, Noll faced as many as 15 years in jail.

At the beginning of this week, however, Noll pleaded guilty to defacing the two Park City murals, and, as part of a plea deal, will not face jail time if he pays $13,000 in restoration costs before a November sentencing hearing.

So, could it be said that it is not a crime to paint on a wall if it looks nice/is carried out by a famous artist? But, it is a crime to paint over the works of famous artists? If this is the case, how does this fit together with instances where owners of the walls adorned by Banksy works decide to deface them?The challenges with protecting Banksy works continue to mount, even though it doesn't seem like it's an issue to Banksy.

Source: Associated Press, 16 September 2014

Who owns art? Copyright, inheritance and Vivian Maier

Vivian Maier, self portrait New York c1950s
via Wikipedia

She has been compared to Cartier-Bresson. She captured the life on the streets of Chicago and New York for over 40 years and she died penniless and without a will. It is the lack of a will rather than her artistic legacy which has recently been hitting the headlines and threatens to prevent the dissemination of her art to the world that she spent so long photographing.

Vivian Maier appears to have two male heirs, both French and both first cousins once removed. One of these heirs, Sylvain Jaussaud, has transferred their rights to John Maloof, who was one of the first to discover Maier’s work and has since bought the majority of her negatives as well as helping to create a film which celebrates her work and its discovery. 

The second heir was identified by a photographer/lawyer, David Deal, who believed that Maier’s legacy was being misappropriated and sought to track down any additional relatives who might have a claim. He convinced a second French cousin, Francis Baille, to seek legal heirship in the US courts with Deal as his legal representative.

As all Art and Artifice readers are no doubt aware, there is a fundamental distinction between a work and the copyright in a work. One does not necessarily go with the other. That said, in the UK, at least, if you inherit a work of art, the copyright is deemed to go with it unless there is a contrary intention expressed elsewhere in the will. It is this distinction that is causing the problem, Maloof is the lawful owner of many of the physical photographs and negatives but is not necessarily the owner of the copyright.

Whether or not Maloof is the owner depends on (1) the agreement which he struck with Jaussaud which sounds from the reports like it was a full assignment of rights, and (2) whether Baille has a claim to full or partial ownership of the rights in the photographs as well.

There is now a court case in Chicago to determine who owns the rights.

Unfortunately, whilst the case is working its way through the courts, it will be very difficult to see Maier’s photographs. The Cook County Public Administrator department reportedly sent letters to put all interested parties, including galleries exhibiting Maier’s work, on notice of the rights issue. Any dealing in the photographs is likely to be a challenge until this is resolved.

In the meantime, I have some queries for my US colleagues:

1 A particular quote from the New York Times article which has been circulating around the internet states that: “Under federal copyright law, owning a photograph’s negative or a print is distinct from owning the copyright itself. The copyright owner controls whether images can be reproduced and sold.” That is quite surprising. I can see that copyright could stop a reproduction (and by extension a sale following a reproduction) but how copyright can stop the sale of the photograph or negative itself. There is a clear distinction between the object and the copyright. But if only the object is sold and the copy (i.e. print) was made by Maier (the artist) what is to stop the resale?

2 My understanding is that until the photographs are registered, it is not possible to get statutory damages or legal fees for infringement of the photographs. Is that correct? If so, what will happen if the copyright in the photographs which have been registered by Maloof is found to be owned (or partially owned) by Baille?

Any light you can shed on this and the case in general would be much appreciated.

You can read much more about the background to this story in The New York Times (which takes a more Maloof friendly approach) and in The Independent (which is a bit more suspicious of Maloof's motives).

Fair Use in the Visual Trenches

I've recently been preparing to teach a class on intellectual property to visual artists in Seattle. As I gathered information and images for a slide show, I wondered how to explain to working artists (in the course of a few hours no less) why this is fair use:

And this is not.

Yes, we can talk about the four main factors in a fair use analysis and, of course, transformativeness and parody, but practically speaking how is a working artist to put this to use? If lawyers and judges can't agree, or even explain the concept without discussing how vague and opaque the fair use doctrine is, what is an artist to do?

During my research I located a January 2014 Fair Use Report prepared for the College Art Association. The report addresses concerns that fair use is underutilized by the visual arts community due to confusion and fear about copyright infringement.

Some of the key findings and figures are summarized in the report as follows:

"Visual artists and other visual arts professionals, a term used in this report to include (among others) art historians, educators, professors, editors or publishers, museum professionals, and gallerists, share a common problem in creating and circulating their work: confusion and misunderstanding of the nature of copyright law and the availability of fair use—the limited right to reuse copyrighted material without permission or payment.

Fair use is flexible, available, and even core to the missions of many visual arts activities. 

Members of the visual arts communities typically overestimate the risk of employing fair use, which leads them to avoid it, even in circumstances where the law permits and so doing would not harm personal relationships necessary for their work.

They pay a high price for copyright confusion and misunderstanding. Their work is constrained and censored, most powerfully by themselves, because of that confusion and the resulting fear and anxiety.”

The report further found that approximately one third of those in the field had abandoned or declined to undertake certain projects due to copyright issues, this includes museums failing to digitize collections, curators declining to do shows where copyright permissions may be an issue, and artists who avoid collage and other types of appropriation art.

While I agree that fair use is flexible and available, it is perhaps the doctrine's over-flexibility that has led to many of these problems. Couple this with copyrights of expansive duration, lack of guidance with respect to orphan works, and at times avid copyright enforcement, and it is no wonder that some artists are avoiding the fair use morass all together. The outcome of these matters is so often unpredictable, and the courts' lack of consistency in application has left us with a hyper-flexible fair use doctrine and vague best practices.

Of course, this is not to say artists should be voluntarily ignorant and fearful of copyright law. Education about copyright serves as an extremely valuable tool in preventing unnecessary self-censorship and allows artists to understand and assess on their own terms the risks associated with particular uses of copyright-protected materials. Indeed artists should have an understanding that they themselves are the beneficiaries (not just the victims) of copyright protection and all the rights and opportunities associated therewith.

Art scam or mail fraud?

Reports this week from San Francisco that a local man has been charged with federal mail fraud in the US District Court, and is being held in prison without bail, in relation to a deal to purchase millions of dollars worth of art. 

It is claimed that Luke Brugnara, who has already spent time in prison for tax evasion and illegal trout poaching, falsely represented that he was able to purchase $11 million worth of artwork from a New York dealer. The works were then delivered to him without him having to pay a cent - apparently on the basis that he would pay for or return them within five days of receipt.

The San Francisco Chronicle details:

Brugnara made a deal in April to pay $7.3 million to an art dealer from New York for 16 paintings by Willem de Kooning, the Dutch American Abstract Expressionist artist... 

Brugnara also agreed to pay $3 million for an Edgar Degas sculpture, $450,000 for a painting by American realist artist George Luks, $160,000 for a drawing by Joan Miró and $145,000 for etchings by Pablo Picasso...  

The art dealer, who was not named in the affidavit, asked Brugnara to pay some of the money up front. Brugnara, however, said he shouldn't have to because he had previously bought a Renoir painting for $500,000 and a Picasso drawing from her without any problems...  

Brugnara told the dealer that he was opening a museum in San Francisco... When the dealer said she wasn't aware of any new museums opening in San Francisco, Brugnara told her it would actually be in Las Vegas...  

The art was shipped in crates from New York to Brugnara's home on Sea Cliff Avenue in San Francisco...  

The dealer's subsequent efforts to collect for the artwork were unsuccessful. Brugnara told his lawyer that the art was given to him as a gift and that the works were "unauthenticated and not worth much," according to an attorney representing the dealer.  

The dealer went to authorities earlier this month. 

As a non-American lawyer, it is not clear why the art dealer did not or was not required to bring a cause of action herself. Surely there was some sort of contract of sale that was breached? If only we could all have the FBI bring cases on our behalf. [But seriously, if anyone wants to enlighten us all, please do.]


Source: The San Francisco Chronicle, 30 May 2014

Not an easy snatch and grab

A thief managed to make off with a piece of a copper sculpture as it was being installed in a New York park.

The piece was part of an exhibition of Vietnamese artist Danh Vo's work "We the People", organised by the Public Art Fund. We the People is a life-size replica of Frédéric Auguste Bartholdi’s Statue of Liberty, recreated by Danh Vo in about 250 individual pieces.

One part of We the People

MyFoxNY reports that the robbery took place last week in City Hall Park - one of the locations of the exhibition, which was due to open on 17 May. The piece taken was a large, chain link section made of copper resembling a portion of the Statue of Liberty's foot. It is said to weigh about 40lbs and be worth about $6,000.

It does not appear that the theft has impacted on the opening of the exhibition, which can now be seen in both City Hall Park and Brooklyn Bridge Park. The police are investigating.

More details on the exhibition can be found here.

Rothko Restored!

Some months ago I wrote an entry regarding Art Attacks.  For lack of another term of art, an "art attack" is when a famous work of art is defaced or otherwise attacked by another artist--the act of the attack or the resulting "new" work being considered art by the attacker.  One such incident occurred late in 2012 when Mark Rothko's painting Black on Maroon was written on in graffiti pen at the Tate Modern.  After 18 months of work by conservators, the painting has been restored and is now available for viewing at the museum.  Phaidon provides an absolutely fascinating look behind the scenes at what it took to restore the piece.  While Black on Maroon is now considered back to its original condition, the implication of the attack and ensuing restoration on the painting's value is estimated to be a £5 million loss, though the Tate indicates it has no intent to sell the piece.  I certainly hope our London-based readers will take the opportunity to go view this brilliantly restored work in person.

Priceless art discovered in US storage facility

Almost 80 paintings which went missing in 1998 have been uncovered by the FBI in a storage facility in the San Francisco Bay Area.

The artworks were all created by Polish artist Hanna "Kali" Weynerowska. Before she died, she bequeathed all the works to a Polish museum in Switzerland. At this point, it seems, the paintings all mysteriously disappeared. It was not until a few years ago, when the Polish Ministry of Culture established a fund to locate them, that the search for the artworks was reignited.

The San Francisco Chronicle reports that:

"...the FBI, contacted by the Polish government, tracked down a relative who led agents to a storage facility in Santa Rosa that held 75 Weynerowska originals. On Thursday, they arrived at the museum in Rapperswil, Switzerland, where Polish and U.S officials will attend a Ceremony of Restitution on June 16. 

The paintings, in the artist's distinctive pointillist style, have such titles as "Boy on Donkey," "The Cobbler" and "Walking a Bird." Their financial value is modest, perhaps $12,000 each, but "they are priceless emotionally ... very important to the legacy of Polish excellence," Caria Tomczykowska, an envoy of the Polish Consulate in Los Angeles, said Friday at a San Francisco news conference called by the FBI. 

"The FBI is proud to stand shoulder-to-shoulder with our Polish counterparts in ensuring safe passage of these lost national treasures," said David Johnson, special agent in charge of the FBI's San Francisco office.  

He said the male relative, whom he didn't identify, had handed the paintings over voluntarily and isn't in legal trouble. Despite the artist's bequest, Johnson said one or more of her local relatives had apparently held on to the works since 1998 because of the costs of shipping them, and "perhaps a bit of emotional attachment."

All's well that ends well. It does, however, seem very odd that the FBI and Polish governmental institutions were required to intervene to recover the paintings which were actually just being held by Weynerowska's relatives. Efficient allocation of resources??

Source: San Francisco Chronicle, 12 April 2014

Artists v Cody Foster

Hot on the heals of the story of M&S allegedly ripping off the designs of an independent artist, comes a similar tale from the US.

An article by Fast Company details the most recent activities of US company Cody Foster & Co. Most recent, because it seems that this is not the first time Cody Foster & Co. has been accused of copying artists' works.

Indeed, as background to the current story, in the last few years Cody Foster has been regularly accused of selling numerous items on its website which are very similar, if not identical, to the works of several different artists and designers.

Many of these small artists, unfortunately, do not have the resources to bring a legal claim against Cody Foster. Therefore, they have tried to bring the company to account by publicising its actions on the internet and via social media. To some extent this has been successful - with some major retailers ceasing their dealings with Cody Foster. This does not appear, however, to have stopped Cody Foster. In fact, rather than produce their own original pieces, Cody Foster is just trying to suppress the claims against them. The Fast Company reports:

"Accused of ripping off the designs of a number of independent designers late last year, [Cody Foster & Co] is now trying to settle one of the lawsuits that has sprung up in the wake of the allegations. 

...The details of the agreement were initially this: While Cody Foster denied having pirated Smith's designs, Cody Foster was still willing to agree to a license to use Smith's deer antler designs, both retroactively and going forward in perpetuity. In exchange for this license, Cody Foster was willing to pay Smith $650 as long as she submitted to a gag order, which would not only prevent her from talking about the dispute in the future, but which would require Smith to delete any mentions of her dispute with Cody Foster from the web, including tweets, Facebook statuses, blog posts, and more. Smith would also have to acknowledge that she had defamed Cody Foster in the eyes of the company's clients."

In other words, Cody Foster is mainly concerned with cleaning up its online reputation. [Although, I'd argue that it can't be that concerned, considering it was only offering $650.] In any case, whether the artist accepted the settlement or not, Cody Foster still has a way to go. From a quick search on Google for 'Cody Foster', apart from the company's own website, the majority of the results contain references to the copying allegations.

The Fast Company article which provides some excellent detail on Cody Foster's activities, as well as comparisons of artists' designs and Cody Foster's offerings, can be found here.

Source: Fast Company, 5 March 2014 & 18 October 2013

UK artist squares up to M&S over alleged copying

When UK designer, Louise Verity, came across high street giant Marks & Spencer's latest wall art offerings, she was understandably concerned.

One of Verity's works

M&S piece

Verity has produced and sold her works - which consist of various large messages displayed across printed pages (as in the example above) - through her business Bookishly since 2009.

For their SS14 season, M&S began selling framed wall prints which closely imitated her own.

The World Intellectual Property Review reports:

After seeing the M&S products in November last year, Verity asked for legal advice from a lawyer, who wrote to the retailer suggesting that it was in breach of copyright. 

In response, M&S’s legal representatives said they did not believe the retailer was infringing copyright.

Verity told WIPR: “M&S keeps saying that I don’t own and cannot claim rights on the idea and that the style is an established design practice, but I never claimed the concept was my idea.  

“The problem I have is that it’s a very distinct style and I use the same font in everything I do. The M&S product uses the same font and the layout looks like one of mine.”

Any IP lawyers reading this will be very familiar with the idea of copying the idea versus the expression. I would be interested to hear thoughts on whether this would amount to copyright infringement by M&S. At this stage, however, it does not appear that Verity has gone as far as filing a claim against M&S. Indeed, it seems that M&S has removed their piece from their website and it is no longer available. So perhaps the saga is over for now.


Source: World Intellectual Property Review, 24 February 2014

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

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.

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

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".

Forging Art

Need any tips?

A new book by Jonathon Keats (art critic, journalist, novelist and artist) might be right up your street.

"Forged: Why Fakes Are the Great Art of Our Age", which was published last month, is said to "[explore] art forgery from ancient times to the present. In chapters combining lively biography with insightful art criticism, Jonathon Keats profiles individual art forgers and connects their stories to broader themes about the role of forgeries in society. From the Renaissance master Andrea del Sarto who faked a Raphael masterpiece at the request of his Medici patrons, to the Vermeer counterfeiter Han van Meegeren who duped the avaricious Hermann Göring, to the frustrated British artist Eric Hebborn, who began forging to expose the ignorance of experts, art forgers have challenged 'legitimate' art in their own time, breaching accepted practices and upsetting the status quo. They have also provocatively confronted many of the present-day cultural anxieties that are major themes in the arts. Keats uncovers what forgeries--and our reactions to them--reveal about changing conceptions of creativity, identity, authorship, integrity, authenticity, success, and how we assign value to works of art. The book concludes by looking at how artists today have appropriated many aspects of forgery through such practices as street-art stenciling and share-and-share-alike licensing, and how these open-source "copyleft" strategies have the potential to make legitimate art meaningful again."

It sounds like a really interesting read.

Inept thief charged with stealing Dali

Cartel de Don Juan Tenorio by Salvador Dali

There are widespread reports this week of the case brought by the New York authorities against a Greek man in relation to a bungled attempt to steal this Dalí painting from New York gallery, Venus Over Manhattan.

Last June, in broad daylight, Phivos Istavrioglou walked into the gallery, pulled the painting off the wall and put it in his shopping bag – in front of security cameras and leaving fingerprints in the process. Once photos of him from the security cameras started to circulate, Istavrioglou was scared into removing the picture from its frame, rolling it up and sending it back to New York.

Gotcha!

Unfortunately for Istavrioglou, New York detectives were able to lift his fingerprints from the package, which they then matched to those taken from another shoplifting incident, and were thus able to identify Istavrioglou. As a final step, an undercover policeman posed as an art gallery owner and convinced Istavrioglou to return to New York with the offer of a consultant position. Upon his touch down at JFK, Istavrioglou was arrested.

Istavrioglou has pleaded not guilty to grand larceny. Bail has been set at $100,000 (£65,000).


Source: New York Post, 19 February 2013, The Guardian, 20 February 2013

More art enters the Public Domain

1 January is a special time of year for lots of reasons, not least the fact that lots of art enters the public domain (in Europe and several other jurisdictions – for an overview of the copyright terms worldwide – see here). It is also time for the annual Art & Artifice overview of some of the artists whose work has now become available.

Walter Sickert

Sickert - The Camden Town Murder

Sickert is considered by many to be the greatest British painter between Turner and Bacon. He developed a distinctive form of impressionism and was known for his urban scenes. Whilst he was known for his focus on ordinary people he was not above the occasional celebrity painting, including Winston Churchill.

Some, notably Patricia Cornwell have alleged that he was Jack the Ripper (or at least knew his identity) but this claim remains unsubstantiated.

Albert Kahn

Kahn - The Fisher Building, Detroit

Kahn was the architect associated with the development of Detroit. He moved to America from Germany in 1880 and forged a successful career as an architect.

Notable buildings include the Ford Motor Company's Highland Park plant, the Fisher Building, the General Motors building in Detroit and much of the original campus at the University of Michigan.

Grant - American Gothic

Grant Wood 

Wood is an artist best known for his paintings of the American Midwest, particularly the iconic American Gothic.




Ivan Bilibin

Bilibin - Morozco

Bilibin was a Russian illustrator and stage designer.   He was inspired by Slavic folklore and contributed to the Ballet Russes. Bilibin’s fame was established with a series of illustrated Russian fairytales. He lived in Paris for much of his life but returned to Soviet Russia in 1936.  He died in the siege of Leningrad.

Johannes E Akkeringa

Akkeringa was part of the Hague School of painters. He painted a variety of quaint subjects using oils and watercolours.

Mikhail Nesterov  

Nesterov - Taking the Veil

Nesterov was a major representative of religious symbolism in Russian art.

Russian authorities to end artist's fun?

This month saw Russian prosecutors launch an investigation into an art exhibition by two British artists, Jake and Dinos Chapman, for violation of Russia's 'extremism' legislation – which prohibit the incitement of hatred on racial, ethnic or religious grounds – the same legislation which was used to prosecute and imprison Pussy Riot, the Russian feminist punk-rock collective.

The exhibition, The End of Fun, is described as: "a three-dimensional collage, consisting of miniature plastic figures placed in nine glass display cases. The display cases are arranged in the hall in such a way that it resembles a swastika from above. In the display cases, a single landscape of hell unfolds, in which the figures ceaselessly kill one another with diabolical cruelty. In the artists’ words, only one moment in this piece is captured, the fact that everything happening behind the glass is taking place at the same time. Like the architects of the old Kunstkamera, the Chapman brothers "lock up" the fascists in a capsule full of sadistic bestiality. By placing cruelty in seal museum display cases or dioramas, the artists strive to cure society of that cruelty."

a capsule full of sadistic bestiality?

It currently remains on display at the State Hermitage Museum in St Petersburg, however, if it is found to breach Russia's laws, it could be closed down.

France 24 noted that:

"The city's prosecutor's office said it was checking for "possible violations" by the organisers of their Hermitage show "End of Fun" after "numerous complaints from citizens."

"According to the complaints, the said show insults the feelings of Orthodox believers... and is directed at inciting hatred," the prosecutors said on their official website..."

Meanwhile, the Telegraph reported:

"[The gallery's director] Mikhail Piotrovsky railed against the probe, saying it was a "stunning example of the cultural degradation of society" in Russia: "People think Christian crosses have been desecrated because a teddy bear and a McDonald's clown are nailed to them. There is nothing blasphemous here, but there is clearly a desire to spoil the mood in our city.

... Mr Piotrovsky said that "only an idiot" would consider the exhibition insulting to Christianity. "What is art and what is not is determined by the museum and not the general public," he said."

This is not the first time that the Russian authorities have sought to censor art. It is only hoped that the Chapman Brothers do not suffer the same fate as Pussy Riot.


Source: The Telegraph, 7 December 2012, France 24, 10 December 2012