Banksy Bail Identity Crisis

Banksy’s identity is a closely kept secret and although several newspapers have claimed to have unmasked him, this has never been publicly confirmed.

However, whilst anonymity may a good thing from an artistic and personal perspective, it has its drawbacks, particularly if you want to intervene in Russian court proceedings.

As Simone published previously, Banksy has been following the fate of the Moscow based Voina art collective. Two of their members Oleg Vorotnikov, 35, and Leonid Nikolayev, 27 have been in prison since November 2010 after Palace Revolution, a piece of performance art in the centre of St. Petersburg, was considered to be more criminal than artistic. The performance art in question involved turning over police cars in an anti-corruption protest which police claim caused thousands of pounds worth of damage.

Banksy organised an online fundraiser which raised the required bail money (approximately £80,000) but last Friday, a judge refused to accept the money due to a "lack of information about the person providing the money." The two Voina artists’ fate remains unclear. Even if bail is granted, they are facing up to seven years in prison, in what appear to be less than savoury conditions. A response which Russian art community has denounced as excessive.



Previous Voina performances have included throwing cats at McDonald’s workers to alleviate their boredom, staging an orgy in a Moscow museum and painting a giant cock on a bridge in St Petersburg (not to be confused with the blue cock which will be coming to Trafalgar Square’s fourth plinth in the near future)…

Sources: Art Info and The Guardian

Woman in Sombre Travelling Cloak Detained in the UK

Culture Minister Ed Vaizey yesterday placed a temporary export bar on Portrait of a Young Woman, said to be by artist Peter Paul Rubens, providing a last chance to raise enough money to keep the painting in the United Kingdom. The Minister’s ruling follows a recommendation by the Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest, administered by the Museums, Libraries and Archives Council (MLA). The Committee recommended that the export decision be deferred on the grounds that the painting is of outstanding aesthetic importance and of outstanding significance for the study of early 17th Century portraiture.

The Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest is an independent body, serviced by MLA, which advises the Secretary of State for Culture, Media and Sport on whether a cultural object, intended for export, is of national importance under specified criteria. Where the Committee finds that an object meets one or more of the criteria, it will normally recommend that the decision on the export licence application should be deferred for a specified period. An offer may then be made from within the United Kingdom at or above the recommended price.

The painting, which dates from c. 1602-04, depicts a woman in a sombre travelling cloak, embellished with elaborate lacework and expensive jewellery. Her identity is unknown, but she was clearly an individual of high status. The costume itself is Spanish but does not necessarily locate the painting in Spain, since some Italian courts at that time adopted the Spanish style of dress. It is possible that the painting was commissioned by Vincenzo Gonzaga, Duke of Mantua, for his “Gallery of Beauties”. The woman gazes straight out of the canvas and there is a sense of a strong bond between viewer and sitter that gives the portrait a powerful impact.

Lord Inglewood, Chairman of the Reviewing Committee, said: “This is a striking portrait of a very real, although unidentified, woman. There are some bravura areas of painting, especially in the face and hand. It is an important work for study as although its attribution to Rubens is debated it is an outstanding example of portraiture in Southern Europe from the beginning of the 17th Century."

The decision on the export licence application for the painting will be deferred until 17^th March 2011 and may be extended until 17 May 2011 inclusive if a serious intention to raise funds to purchase the painting at the recommended price of £1m is expressed. So if you have a spare £1m lying about, now is the time to make an offer.

Original Source: http://www.culture.gov.uk/news/media_releases/7719.aspx

Scratching the surface of London -- with stolen material

Whether you care for "The Urethra Postcard Art of Gilbert & George", the latest exhibition of work by that iconic British duo, there is much to excite the lawyer.  The works exhibited consist of collages made from postcards and stolen newspaper billboards. Regarding the latter

" ... one of the artists enters a newsagents' to purchase some chocolate, while the other pilfers that night's attention-grabbing headline outside. “We have been stealing the Evening Standard [bills] and other newspapers for the last six years,” George said.

It means they have titles for the next series of works even before these are created: including Arrested, Attack, Baby, Bomb, Caged, Gay and Murder. Gilbert said: “There is nothing pleasant. But that's not our fault. We are scratching the surface of London."”

While it is not apparent whether the postcards are also stolen, their reproduction in the book of the exhibition inevitably raises questions of copyright too.  Some of the postcards -- those which consist of sex advertisements which are becoming less ubiquitous now that public telephone boxes are giving way to handheld telephonic devices -- may not even be entitled to copyright  protection in the fullest sense, if British courts revert to old case law on the subject which has never been formally overruled.

Would a court grant equitable relief to protect from copyright infringement (or any other wrong) a piece of artwork which consisted of stolen material, we wonder.

 Source: "It’s a steal! Gilbert & George nick Standard posters for art’s sake", London Evening Standard, 12 January 2011

Obama Copyright Dispute Settled

News today that the Associated Press has settled its lawsuit against Street artist Shepard Fairey who produced the iconic Obama “Hope” poster based on an AP photo of Obama.

A joint statement released today, which helpfully summarises both sides of the dispute as well as the terms of the settlement (minus financial details aka the juicy bits), advised that:

“The Associated Press, Shepard Fairey and Mr. Fairey’s companies Obey Giant Art, Inc., Obey Giant LLC, and Studio Number One, Inc., have agreed in principle to settle their pending copyright infringement lawsuit over rights in the Obama Hope poster and related merchandise.

Mr. Fairey used an AP portrait photograph of Mr. Obama in making the Hope poster. Mr. Fairey did not license the photograph from the AP before using it. The AP contended that Mr. Fairey copied all of the original, creative expression in the AP’s photograph without crediting or compensating the AP, and that Mr. Fairey’s unlicensed use of the photograph was not a fair use. Mr. Fairey claimed that he did not appropriate any copyrightable material from the AP’s photo, and that, in any event, his use of the photograph constituted a fair use under copyright law.

In settling the lawsuit, the AP and Mr. Fairey have agreed that neither side surrenders its view of the law. Mr. Fairey has agreed that he will not use another AP photo in his work without obtaining a license from the AP. The two sides have also agreed to work together going forward with the Hope image and share the rights to make the posters and merchandise bearing the Hope image and to collaborate on a series of images that Fairey will create based on AP photographs. The parties have agreed to additional financial terms that will remain confidential.”

It also notes that the AP's copyright infringement lawsuit against Obey Clothing, the marketer of apparel with the Hope image, remains ongoing. So, the fight over this iconic piece of art is not all over yet.

Source: Wired, 12 January 2011 & Associated Press

Brainiart?

Questions have been raised as to the artistic value of an art exhibition currently showing at GV Art in Marylebone.

“BRAIN STORM - investigating the brain through art & science” is described as an “exhibition in which seven contemporary artists consider the human brain: the physical entity described by science, the seat of the mind and soul, and origin of the creative impulse”. The press release further explains that:

“Their works are shown alongside a film of a Neuropathologist performing a "brain cut up." For the viewer, this juxtaposition is the starting point for a dialogue between how we see the brain and understand its functions scientifically and what happens when this physical organ that produces our individual visual and creative understanding becomes the subject for the artist.”

“The inspiration for Brainstorm was an invitation earlier this year by Dr David Dexter, Reader in Neuropharmacology and Scientific Director Parkinson’s UK Tissue Bank, Centre for Neuroscience, Imperial College, London, for GV Art to observe a brain cut up. And, on 17 November, curator Robert Devcic and artists Katharine Dowson and David Marron spent more than two hours observing a braincut up at the Joint MS Society and Parkinson’s UK Tissue Bank at Imperial College, London. Some of the works in this exhibition were made in direct response to this experience.”

“The gallery hopes to have the actual brain and brain slices involved at that event on display in coming weeks. GV Art is the only private gallery in the country to hold a Human Tissue Authority Licence for Public Display and Storage”

Of course, it is on this last point that issues have arisen. For today, the brain, which was removed from the dead body of a multiple sclerosis sufferer (with the patient's consent), went on show.


It is reported that there have been protests over the work, with critics saying that the exhibit pushes the boundaries of decency in the name of art and that the public display of human body parts is “degrading”. In this respect, however, the only opponent cited is a Conservative MP, David Amess, who is a former member of the health select committee, who stated: “It's one thing if this is done in a laboratory, but it's degrading to put body parts on display in a public place. In my personal opinion, this is a disrespectful way to treat the human body and is unacceptable.”

It is not the first time that parts of a human body have gone on show in the name of art. This is not to say that there are not strict rules governing the public display or storage of any human tissue from a dead person.

The Human Tissue Act (“Act”), which came into force on the 1st September 2006 and is governed by the Human Tissue Authority (“HTA”), provides a framework for the regulation of storage and use of human tissue from the living, and the removal, storage and use of tissue and organs from the deceased for specified purposes. At the heart of the Act is the requirement that consent be obtained for the removal, storage and use of any relevant material which has come from a human body for certain Scheduled Purposes. These purposes include public display. The Act does not define 'public display', but the HTA Guidance provides that it will regard a public display as: “An exhibition, show or display in which a body of a deceased person or relevant material which has come from the body of a deceased person is used for the purpose of being exposed to view by the public.”

A key principle on which the Act is based is that all human bodies, body parts and tissue within the Act’s scope should be treated with appropriate respect and dignity. This principle applies to the public display of a body or tissue from a deceased person, and the guidance’s proposals complement those within the European Union Tissues and Cells Directive (EUTCD). The Act is also complemented by DCMS' Guidance for the care of Human Remains in Museums, which deals with the curating, care and use of human remains and rests on the same principle. In order to regulate this principle, the Act also makes it a requirement that all organisations that either use or store human tissue must be licensed to carry out specific activities. The HTA is responsible for issuing the licences.

As we have seen, GV Art holds one such licence. Accordingly, it may be inferred that that this exhibition does not fall foul of the requirements of the Act and that it has been concluded that the brain is being treated with sufficient dignity and respect.

Whether or not it is Art is another question. But, regardless of the answer to that, the exhibition certainly sounds fascinating.

It is currently showing at GV Art until 22 January 2011.

Source: The Evening Standard, 11 January 2011

Image Source: © Alex Lentati

Brazil's new President: feminist or figurine?

Harmless fun, or a possible
criminal offence?

Google News has picked up the news that Brazil's new President Dilma Rousseff has been rendered into the form of a doll, complete with red dress and presidential sash, by figurine maker and collector Marcus Baby.  This, he says, is a "purely artistic exercise" which is not connected with any political posturing. According to the doll's creator,

"The creation of a Dilma Rousseff doll comes exclusively from the indisputable, historical fact that the actual president is visually interesting as inspiration for the type of art I do. That is all". 

What the President, a noted feminist and campaigner for women to take a greater share of the power in Brazil, feels about being put into doll format without her consent is as yet unknown. In some countries an activity which is deemed to be an insult to the Head of State may give rise to criminal prosecution, but in Brazil it is unclear what the situation is. According to Wikipedia,

"In Brazil, defamation is a crime, which is prosecuted either as “defamation” (three months to a year in prison, plus fine; Article 139 of the Penal Code), “calumny” (six months to two years in prison, plus fine; Article 138 of the PC) and/or “injury” (one to six months in prison, or fine; Article 140), with aggravating penalties when the crime is practised in public (Article 141, item III). Incitation to hate and violence is also foreseen in the Penal Code (incitation to a crime, Article 286). ...".

Images of the President Dilma Rousseff doll are on Marcus Baby's web page here.

Source: "For artist, Brazil's new president is a doll", Google News

Koons Sues Over Balloons

Jeff Koons has historically tended to be on the receiving end of copyright lawsuits – most famously in relation to his puppies sculpture.

However, just before Christmas Koons decided to take the initiative… His lawyers sent a cease and desist letter to Park Life a San Francisco shop for selling balloon dog book ends.

The letter has sparked a great deal of debate across the internet with many finding Koons’ approach somewhat hypocritical given his previous appropriations of other people's copyright work.

A&A has been particularly fascinated by the uncertainty as to the exact monopoly Koons is claiming in balloon images. Are children’s birthday party entertainers at risk of receiving similar letters? The bookend and the Koons sculpture are undoubtedly similar but there does not appear to be evidence that the bookend copied the sculpture – it could so much more easily be based on the balloon animals Koons copied in the first place.

It will be interesting to see if Koons decides to take this further and issue proceedings. At the moment, the shop in question, is being fairly bullish. It initially pulled all references to the balloon dog both in store and online but has now chosen a different tack and the balloon dog appears along with a message: “BALLOON DOG BOOKEND: please call Jeff Koons’ Lawyers.”

You can read more about the case here.
Source: Art Info

Rubbish or art?

Similar to our report here, a further story from the tail end of 2010, where it was reported that another art installation was mistaken as rubbish and thrown out. Valued at £30,000, Legg-io by Isabella Facco was on display at an open air exhibition in Padua, Italy, when rubbish collectors mistook the work as just that and sent it to be incinerated.

On realising what had happened, the gallery owners are said to have sought to reclaim the work, but were too late. It had already been destroyed.

The important question which this raises – apart from that time old one of 'what is art?' – is who, if anyone, bears the cost? Did the artist have an agreement in place with the gallery to display her works? If so, was there an indemnity clause, promising to indemnify her for any loss and damage to her work? Alternatively, would the artist or the gallery have a cause of action against the rubbish collectors? Or, if they worked for the city of Padua, is there a claim against the city?

There are also issues as to how much loss was suffered. The work was valued at £30,000. Was it insured for this much? Is this figure to be reassessed in light of the fact that the work was mistaken for rubbish?

In any case, the artist has clearly suffered a loss. However, in order to recover something to compensate her for this loss, these are the types of hard questions which need to be answered.

Art?

Source: Sunday Mail (Scotland), 19 December 2010

Entrustment, insurance and top marks for Spencer

Art & Artifice has just been taking a peep at Spencer’s Art Law Journal, since vol.1, issue 3 (Winter 2011) is now available. As editor Ronald D. Spencer explains,

"This issue contains three essays, which will become available by posting on Artnet, starting December 2010.

... the legal structure we call art law (an amalgam of personal property law, contract, estate, tax and intellectual property law) supporting the acquisition, retention and disposition of fine art, often fits uneasily with art market custom and practice. The result is that 21st century art market participants are frequently unsure of their legal rights and obligations.

The goal of this Journal is to promote discussion of art law legal issues for lawyers and nonlawyers alike, so as to provide greater transparency, stability and predictability. ...

Three times a year issues of this Journal will address legal issues of practical significance to collectors, dealers, scholars and the general art-minded public."

Looks good to us.  The first article of 2011 is Elizabeth C. Black's "  Entrustment, The Hidden Title Risk of Leaving Your Artwork in the Care or Possession of Others -- Will Your Fine Art Insurance Cover Your Loss? Probably Not".  She concludes, following a review of US law and practice, that

" ... fine arts policy insurance claim for lost title due to an entrustment may result in a denial of coverage. You should be sure you always know the location of your artwork, who has possession of it, and whether or how it is being displayed (e.g., is it listed for sale?). Consignment agreements often run for years and artwork may be moved between various locations as a series of consignments from your dealer to other dealers (whose identity is not known to you) over the course of several years. The more informed you are about these re-consignments, the more likely you will be able to protect your interests".

This looks like sensible advice, regardless of the jurisdiction -- though it's not just a question of being informed in the first place, it's also a question of how to remember to stay policy-conscious as art works travel and change their functionality between display object, item for sale and goods in transit.

Happy new year!

Happy New Year from Art and Artifice! We hope 2011 brings you joy, happiness and lots more exciting art law news.

As always, with the start of a new year many works of art lose their copyright protection. This blog is dedicated to the artists who died in 1940 and their now copyright free art. If you know of any artists we have overlooked, please let us know using the comments section below.

John Calvin Stevens

was an American architect who worked in both the Shingle Style, in which he was a major innovator, and the Colonial Revival style. He designed more than 1,000 buildings in the state of Maine and several others throughout the world, including various features of this church.

Robert Frangeš-Mihanović

was a pioneer of modern Croatian sculpture and one of the initiators and organizers of artistic life in Zagreb at the turn of the century.

Isaak Babel

was a Soviet journalist, playwright, and short story writer acclaimed as "the greatest prose writer of Russian Jewry.” Despite being an enthusiastic and loyal Communist, Isaac Babel was arrested, tortured and executed during Stalin's Great Purge.

Charles Herbert Woodbury

was an American marine painter. He was renowned for his images of the coast and sea. Seeing and understanding movement was fundamental to his art and teaching, and is reflected in his own maxim: “Paint in verbs, not nouns.” Woodbury had over 100 solo exhibitions throughout his career, and his work can be found in many of America’s most prestigious art galleries including the Met in New York.

Paul Klee

was a renowned Swiss artist who died in 1940 of scleroderma, a disease which is generally acknowledged to have strongly influenced his creative art. Klee has been associated with Expressionism, Cubism, Futurism, Surrealism, and Abstraction. His pictures such as this one of a cat



are difficult to classify. He generally worked in isolation from his peers, and interpreted new art trends in his own way. He was inventive in his methods and technique. Klee worked in many media including oil paint, watercolour, ink, pastel, etching and others. He often combined them into one work. He used canvas, burlap, muslin, linen, gauze, cardboard, metal foils, fabric, wallpaper, and newsprint.

Paul Behrens

dabbled in various artistic design enterprises particularly in applied arts, including constructing typefaces, ceramics, and magazine covers. In 1907, the German company Allgemeine Elektricitäts-Gessellschaft (AEG) hired Behrens as a consultant. In an early form of marketing, he transformed the company's image and created, arguably the first, corporate identity. He designed the AEG trade mark, stationery and catalogues, as well a certain products for the company. Whilst his copyright no longer has any intellectual property rights, any trade marks which remain on the register can be protected almost indefinitely so long as the registrations are maintained.