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.

Elizabeth Taylor's taste proves impeccable

The real Hals (detail)

At her home in Bel Air, California, the late actress Elizabeth Taylor hung a painting entitled "Portrait of a Man, Half-Length" in pride of place. Once thought to be in the style of seventeenth century Dutch master Frans Hals, the Los Angeles Times reports that experts now believe the portrait to be a real Hals.

The painting was listed in Seymour Slive's 1970s catalogue raisonné of Hals as being 'doubtful and wrongly attributed', but Slive had seen only a black and white photo of the work. When Ben Hall (head of Christie's Old Masters in New York) saw the real thing, the looseness of the brushwork and sensitivity of the face made him suspect Slive had been wrong. Pieter Biesboer, former curator of the Frans Hals museum in the Netherlands, agreed with Hall and told the Los Angeles Times that he had 'no doubts' about the painting's authenticity.

The portrait spotted by Taylor's keen eye, once valued at a mere $100,000, could now bring in around $1m when sold in January.

Written for Art & Artifice by Elizabeth Emerson (thanks!)
For further reading see LA Times here; AFA News here


Jeremy's question: portraits valued at $100,000 are likely to be insured for a sum of that nature. Authenticated originals demand insurance at a far higher level and insurance companies do not take kindly to works being either over-insured or under-insured. This raises the question: how are claims settled in respect of loss or damage to a work when the insured event takes place after a reassessment of the insured work has been commenced but before its authenticity has been confirmed. Does anyone know ...?

Master forger takes revenge on the art world

After their arrest nearly a year ago, German art dealers Wolfgang and Helene Beltracchi have struck plea bargains in their dramatic forgery trial. The husband and wife team, along with Helene's sister Jeanette, were accused of selling more than 40 forged paintings over a period of 14 years, one of which is said to have sold for $7m. They claimed the works to be by painters such as Max Ernst, Heinrich Campendonk, Fernand Léger and Max Pechstein, among others.

Above: a genuine fake Campendonk, which fetched 2.9m euro at auction

Now Wolfgang Beltracchi has reduced his sentence by pleading guilty, and appears to be enjoying his time on the soap box into the bargain. 'I created an original, an unpainted picture by each artist,' Die Welt reports him saying, 'I painted paintings which really shouldn't have been missing from the artists' oeuvres.'

In traditional forger's style the painter, who had minor success painting in his own name, blames the greed of the art world for the scandal and says he wasn't in it for the money alone - despite having made an estimated $20m from the scam.

Thank you, Elizabeth Emerson, for preparing this piece.
For further reading see Art Media Agency here; Artfix Daily here

Cardozo call for papers

Plato's Symposium: at least
there was plenty to drink ...

Art & Artifice begs to inform its readers that the Cardozo Arts & Entertainment Law Journal seeks submissions for the journal’s Symposium, to take place next Spring. The working title of the Symposium is “Examining and Overcoming Enforcement Issues in Copyright Law”.

The symposium provides an opportunity for academics, practitioners, consultants and students to exchange ideas related to the protection of intellectual property in the Digital Age, from the perspective of enforcement, as well as self-policing and cooperative agreements. Please note the following dates:

• Submission Deadline for Abstracts: October 31, 2011
• Submission Deadline for Articles: January 31, 2012
• Symposium Date: March 29, 2012

Mark Stephens to spearhead DACS

DACS (the Design and Artists Copyright Society) announced today its great pleasure in the appointment of Mark Stephens CBE as the new Chair of its Board of Directors. According to the DACS media release:

"Mark Stephens joins the organisation at an important time as debate continues about the future of copyright, and the global recession and public funding cuts impact on visual artists. DACS’ role in helping artists to sustain their practice and livelihood is even more critical than ever. 

Mark is a senior partner of law firm Finers Stephens Innocent, specialising in media law, intellectual property rights and human rights. Mark was instrumental in the establishment of DACS in 1984 – law firm Stephens Innocent was a home to DACS in the first years after its establishment. 

Mark Stephens says: “Throughout the past 35 years I have advocated for artists’ rights. I am thrilled and delighted to be offered the opportunity to chair DACS at a time when the economic rights of artists are under threat as never before, not least because of digitalisation and multiplatform delivery. I intend that DACS should remain at the forefront of the development of new economic models to safeguard the ability of artists to contribute in such vital ways to our cultural life ..”.

Mark replaces Andrew Potter, who steps down in December 2011 after battling on behalf of his members for the past six years.  Art & Artifice wishes Mark the best of luck in his new position and is sure that he will throw his usual enthusiasm into discharging its duties.

Dylan's clones??

Another week, another art copying row. The opening of an exhibition of paintings by Bob Dylan (perhaps *slightly* more famous for his singing) has reportedly lead to a number of accusations of copying. Hosted by the Gagosian Gallery in New York, the exhibition is described as follows:

"Dylan's drawings and paintings are marked by the same constant drive for renewal that characterizes his legendary music. He often draws and paints while on tour, and his motifs bear corresponding impressions of different environments and people. A keen observer, Dylan is inspired by everyday phenomena in such a way that they appear fresh, new, and mysterious.

The Asia Series, a visual reflection on his travels in Japan, China, Vietnam, and Korea, comprises people, street scenes, architecture, and landscapes, which can be clearly identified by title and specific cultural details…"

It seems, however, that rather than being inspired by his travels, the works are also inspired by other artists' works. Fans have point out a number of the works bear remarkable similarities to the works of other artist. These include the following examples:

Bob Dylan’s painting / Léon Busy’s photo

Bob Dylan’s painting / Henri Cartier-Bresson photograph

Bob Dylan’s painting / Dmitri Kessel photo


As the New York Times points out, it is not the first time that Dylan has been accused of "borrowing" as his use of the writings of others in his lyrics has been noted in the past. It would, however, be less controversial if Dylan had credited his source material - After all, all the greats borrow, don't they?? It remains to be seen whether the 'original' artists object to Dylan's works and take any action.

Source: New York Times, 26 September 2011

US Court grants preliminary injunction to prevent distribution of photographic work

Last month, the US District Court for the Southern District of New York granted an injunction to the owner of a photo of the Leonardo da Vinci painting 'Salvator Mundi' until the Court issues a final judgment in a copyright infringement case brought by the owner of the photo.

By way of background to the case, earlier this year, the painting 'Salvator Mundi' was authenticated as being a long lost painting by Leonardo da Vinci. While it was known within the art community that the painting was associated with da Vinci, the authentication was widely reported around the world as the discovery of new da Vinci paintings is extremely rare. Arrangements were then made to exhibit the work in the National Gallery in London. To promote the exhibition, the plaintiff in the case, Salvator Mundi LLC ("SMLLC") worked with the owners of the painting to commission a [so-called] 'high resolution digital photographic interpretation' of the painting for use in catalogues and fine art books (the "Photographic Work").

The Photographic Work was created by Timothy Nighswander, a professional art photographer, with experience photographic original fine art by numerous well-known artists. Copyright in the Photographic Work was assigned to the plaintiff.

SMLLC had allowed various media outlets to publish low-resolution digital copies of the Photographic Work in connection with news reports of the restoration of the painting and its exhibition in the National Gallery. These were displayed on the Internet on various news websites. However, it retained all rights in the image and no one else was allowed to photograph the painting.


The defendants copied the Photographic Work from one of the news sites and made unauthorised copies and public displays of it - including offering the image for sale on merchandise on the defendants' websites.

When SMLLC wrote to the defendants asking them to stop offering copies of the Photographic Work for sale, the first defendant said she was determined to distribute the image and would do so for free if the plaintiffs continued to harass her.

Therefore, SMLLC filed the claim for copyright infringement, inter alia, seeking a preliminary injunction to prevent the defendants from copying, distributing and publicly displaying the Photographic Work or otherwise infringing SMLLC's exclusive rights in the work.

Per the title, this preliminary injunction was granted against the first defendant, Laura Sotka, on 11 August 2011. It has been separately reported that a permanent injunction had already been entered a few days before against the first defendant which permanently prohibited the second defendant, Sean Broihier, from using or displaying the Photographic Work in any way. This was likely the result of settlement discussion. Therefore, it remains to be seen whether Sotka will fight on.

For anyone who wants to see the original painting, it is due to be exhibited in the National Gallery in London from November 2011. Details of that exhibition here.

"Modern masters" and style

"Modern masters under threat" is the title of a short, readable piece just published in issue 4 of the 2011 volume of WIPO Magazine. This unattributed article provides an easy-access introduction to frauds and forgeries for the uninitiated, also featuring the Annette Giacometti Prize for the Rights of Art and Artists.

With acknowledgement to the Victoria & Albert Museum, London, the article reproduces the following brief definitions:

What is a fake?
… an object that has been tampered with – e.g. a signature has been added or false indications of the object’s history have been introduced with the intention to defraud and increase the item’s value.

What is a copy?
… a direct replica of a pre-existing work or a work that imitates or was created in the style of a given artist. If the work is in the public domain, it is not illegal to make a copy of it provided there is no attempt to deceive or make anyone believe it is an original work. To reproduce a contemporary work protected under copyright law requires the permission of the artist whose work is being copied.

What is misattribution?
… this arises when a mistake is made in determining the original artist of a work and typically occurs when works have been restored and original details masked. This is considered a genuine mistake as there is no intention to deceive.

What is a forgery?
… an object that is created from scratch with the intention to deceive – it is a fraudulent imitation of an existing work.

What is fraud?
… “the act of making people believe something is not what it really is for criminal benefit".

These definitions should come with a caveat that, while they are handy when discussing protection and enforcement issues with clients, the words are not cast-iron terms of art that are understood in all jurisdictions as having the same meaning. In particular, the notion that a work in the style of a particular artist is a "copy" is a controversial and dangerous one.  The courts in England and Wales have held, in Gordon Fraser Gallery Limited v Tatt [1966] RPC 505, that there is no copyright in a style. While the adoption of a specific style, in combination with other factors, may constitute a misrepresentation or a fraud, it is not a copyright infringement. If the contrary had been the case, the world would have enjoyed the paintings of rather fewer impressionists and cubists.

You can read "Modern masters under threat" in full here.

Art and Privacy

Back in November, I pondered the subject of consent in relation to an exhibition of photographs by Heather Shuker of girls in toilets taken without their knowledge (see here) – and particularly questions of privacy, image rights and reputation. Similar questions have now been raised in respect of the reproduction of old mug shots on prints, posters and notebooks by US company Larken Design.

A few years ago, one of the principles of Larken Design purchased some mug shots which had been discarded by the Alameda County Sheriff’s Department in California from an antiques shop. Copies of these mug shots were then digitally retouched and reproduced as prints and posters, and on notebooks and mugs, which are now available to purchase.




While no names are revealed on the images, the use of the mug shots nevertheless raises questions as to the legality and propriety of using the shots.

The New York Times reports that the assistant sheriff for Alameda County believes that since arrest records in California are public information, dissemination is not crime, and nor is copyright infringement an issue. (Although it is not clear what his authority is for this latter statement.) However, this does not address questions of privacy and reputational damage.

Although the names of the subjects are not revealed, unlike the Shuker exhibition, it is much easier to determine the identity of the individuals. Having paid for their crimes (whatever those may have been), should these individuals not be entitled to a right to privacy and protection of their reputation, and therefore be able prevent the reproduction of their images by Larken Design? Not in the US according to Peter Swire, a law and judicial administration professor at the Moritz College of Law at Ohio State University. In his quote to the New York Times, Mr Swire says (of Larken Design): "In terms of public revelation of private fact, they can say they’re not telling the names of anybody, so they’re not harming any individual, and that under the First Amendment they’re allowed to publish truthful old photos.”

I would say that the position under UK law is not as clear cut. The UK Human Rights 1998, which came into force on 2 October 2000, incorporates the European Convention on Human Rights (ECHR) into domestic UK law. Article 8 of the ECHR contains an express right to privacy that "Everyone has the right to respect for his private and family life, his home and his correspondence." Accordingly, in the UK these rights would have to be taken into account. Therefore, if it could be shown that the use of such images constituted an unjustified disclosure of private information - in respect of which the claimant could be said to have a reasonable expectation of privacy - a privacy action might succeed.

Source: The New York Times, 27 August 2011

Hungary can be sued for return of Nazi looted art

Last week, the United States District Court for the District of Columbia (DDC) rejected Hungary's motion to dismiss a claim brought against it by the heirs of Baron Mor Lipot Herzog, a well-known Jewish Hungarian art collector.

Herzog had amassed a large collection of more than 2000 paintings, sculptures and other artworks prior to his death in 1934. After his death, and the death of his wife in 1940, his collection was divided among his three children. However, the collection was then seized by Hungary and Nazi Germany, and while the Hungarian government purported to “return” a handful of items from the collection to the Herzog heirs in the years immediately following the war, those “returns” were largely on paper or short-lived, and the vast majority of the collection remained in the possession of a number of museums and other Hungarian state-owned bodies.

One of the pieces claimed in the action.

Having unsuccessfully tried to reclaim the collection through the Hungarian courts, the plaintiffs [claimants in the UK] filed the action in the DDC in July 2010 against the Republic of Hungary, the Hungarian National Gallery, the Hungarian Museum of Fine Arts, the Hungarian Museum of Applied Arts and the Budapest University of Technology and Economics.

On 15 February 2011, the defendants filed a motion to dismiss the claim on a number of grounds including:

the Court lacked jurisdiction under the Foreign Sovereign Immunities Act;

the Court was an improper forum for the claims based on the 1973 Agreement between Hungary and the United States; and

the claims were barred by the applicable statute of limitations; principles of international comity, claim preclusion, and issue preclusions; and the Act of State Doctrine.

Unfortunately for the defendants, the DDC rejected all these grounds and, for the most part, denied the defendants' motion. In respect of the ground listed above, the court inter alia held as follows.

Jurisdiction
In order to have jurisdiction, the Court had to find that: (1) “rights in property” are at issue; (2) the property was “taken in violation of international law”; and (3) “the property at issue (or any property exchanged for it) [is] . . .‘owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality’ engages in commercial activity in the United States”.

The Court found that (1) the defendants did not dispute that “rights in property" (2) the plaintiffs’ claim that the Herzog Collection was taken in violation of international law was substantial and non-frivolous, and therefore, adequately satisfied the second requirement; and (3) the defendants admitted that the museums and the university (both agencies or instrumentalities of Hungary) were in possession of the pieces of collection identified in the complaint which was sufficient to satisfy the ‘owned or operated’ requirement, ad these bodies were are engaged in “either a regular course of commercial conduct or a particular commercial transaction or act” in the US as of the commencement of the action.

Improper forum
The 1973 Agreement did not strip the court of jurisdiction.

Barred claims
The defendants’ claim to forum non conveniens ground was not established.

The Complaint stated facts which, if true, could support a finding that the action was timely, and so was not barred by the applicable statute of limitations.

The balance of factors weighs against applying the act of state doctrine (which precludes the courts of a country from inquiring into the validity of public acts of a recognised foreign sovereign power committed within its own territory).

There were no grounds for dismissing the case on the political question doctrine (which instructs that courts should decline to adjudicate matters which have in any measure been committed by the Constitution to another branch of government).

The claims were not barred by the doctrine of international comity (that the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh, as on a new trial or on appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact).

It is assumed that the case will now proceed to trial and a decision on the merits. However, this preliminary decision is a very worthwhile read. Particularly, on the historical aspects of Hungary during and after the Second World War.