Friday 26 November 2010

Let them in!

Worries this week that the UK visa system is jeopardising the London art scene.
Munira Mirza, the London Mayor’s advisor on arts and culture reports that more and more often artists, musicians and others involved in the arts are being refused entry to the UK because of their failure to comply with the draconian UK visa rules.

These rules include that organisations who wish to invite non-EU artists are required to register and pay $400 to sponsor the artists. Then, the artists have to comply with certain rules and targets, including proving that they have sufficient funds in their bank accounts. Often extremely difficult for artists, the profession not being one of the most highly remunerated for the majority.

If artists are allowed to enter, they have been told that if they on a visitor’s visa, but bring materials such as sketchbooks, musical instruments (basically anything that may be classified as the “tools of their trade”), they are not allowed to “make art” while they are here, as this is classified as “work” and the conditions of visitor visa’s are, obviously, that you do not work.

The result of these measures is a loss both to the arts organisations and the public, as well as to the British cultural scene in general. Surely there is a better way forward.

Source: The Evening Standard, 23 November 2010

A question of fraud

A new report of art fraud, this time in Portugal, where last month a police raid uncovered almost 130 fake paintings together with forged certificates of authenticity.

The paintings were claimed to have been painted by some huge name artists including; Chagall, Kandinsky, Matisse, Miro, Modigliani, Monet Picasso, Munch and Toulouse-Lautrec. However, rather than direct copies of known works from these artists, the forgeries consisted mostly of paintings in the style of the artists.

The Portuguese police are said to have set up a special investigation into the case, due to the wide range of artists whose works have been faked and the specialist knowledge that would have thus been required. Indeed, there were also forgeries recovered for the works of Leonardo da Vinci, which would have required extremely specialist knowledge of how to artificially age pictures as well as artistic skill. Further, such was the skill involved that according to some experts who have seen the forged paintings, they could have been sold for sums in the millions to unsuspecting buyers.

A Norwegian woman is under investigation in connection with the investigation and her husband is being sought by the Portuguese police.

However, given the scale of the works and the variation in artists' styles which have been reproduced in the forged paintings, it is doubted that one forger could have produced all the works.

It remains to be seen whether the investigation bears any fruit.

What is interesting from an strictly academic legal point of view is that fact that a large number of the forgeries were not copies, but paintings in the style of the artists. Would this amount to copyright infringement? Or could it be argued that the paintings were therefore copyright works in their own right, in which sufficient original skill and labour had been invested? Obviously, if the paintings were being passed off as authentic, copyright is not a defence to fraud. But if those artists were alive today, whether they had a copyright claim against the forgers would require a close examination as to whether the copyright in an artwork can be infringed by another work which merely imitates the style of the first work.

Which are the true works?

(Top left, a fake Chagall wedding scene. Bottom left, a real Chagall.
Top right, a fake reclining nude by Botero. Bottom right, a real Botero.)

Source: The Wall Street Journal, 24 November 2010

Thursday 25 November 2010

Art Loss Register in action

The Art Loss Register (ALR) operates the world's largest permanent and private database of stolen and lost works of art, antiques and valuables, to assist law enforcement agencies in the battle.

The ALR was established in 1991 and took over the work of the International Foundation for Art Research (IFAR), a not-for-profit organisation based in New York, which had established an art theft archive and began publishing “Stolen Art Alerts” in 1976 in an attempt to deter international art theft. The ALR now offers a range of services, including the registration, search and recovery of artworks to collectors, the art trade, insurers and worldwide law enforcement agencies.

Recently, the success of the ALR in restoring a stolen piece of art to its rightful owners was demonstrated here in the UK.

Artworks from the collection of the late fashion designer, Gianni Versace, went on sale at auction in March 2009. However, prior to the auction, one of the main attractions, a portrait of Major George Maule by 18th century German neoclassical artist Johann Zoffany was withdrawn.

An English family, who were direct descendants of the painting's subject, had recognised the piece as an old family heirloom when the auction was advertised, and contacted the ALR to seek to recover the painting.

Because the ALR was only established in 1991, it may have been thought that there was little the ALR could do to assist. Indeed, Versace was said to have been unaware that the painting had been stolen when he had purchased it. Fortunately, Vesace's estate, was willing to work out an arrangement to return the painting to its original owners, and it was ALR who helped to negotiate the case between the two parties. Thus, last week the painting had been reunited with family.

Source: The Telegraph 22 November 2010

Monday 22 November 2010

No freedom of art for witty German egg cup

Meet the eiPott. A Hamburg Appeal Court has held that use of the trade mark EIPOTT in relation to the attractive egg cup holder displayed above constituted an infringement of Articles 9(1)(b) and (c) of the Community Trade Mark Regulation. The fact that the word eiPott ("egg pot" in English) sounds uncannily like "iPod" didn't help.

Writes Anna Sophie Steinmeister, (Bardehle Pagenberg, Munich), in her note "'Humorous' mark not protected by freedom of art", published online on World Trademark Review here:
"The decision is also significant in that it establishes general rules on the issue of whether the user’s right to freedom of art may prevent a finding of trademark infringement. In this respect, the decision shows that use of a trademark in a witty and humorous manner will not imply that there is no trademark infringement if the mark is used for the main purpose of exploiting its distinctiveness". 

Friday 19 November 2010

"Who is Gillian? What is she ...?"

Yours for only £12.74, here
It's not yet featuring on the publisher's website, but Copyright Law for Artists, Photographers and Designers is already in this reviewer's hands. One of A & C Black's Essential Guides series, along with The Essential Guide to Business for Artists and Designers by Alison Branigan, which does not come out till February 2011, this little tome -- it feels like a longer book but the paper is hugely thick and it's only 96 pages long -- is written by Gillian Davies.

At this point, copyright experts will be excited by the prospect of an attractive, handsomely illustrated and easy-to-understand text from one of the world's great copyright lawyers -- but the excitement dies down in legal quarters when it is discovered that the author is not the Gillian Davies, a leading contributor to Copinger and Skone James and towering personality in the international copyright arena. Nor is she the other Gillian Davies or the other other Gillian Davies, but merely an other Gillian Davies. Calling your son Wayne Rooney may not turn him into a famous footballer but calling your daughter Gillian Davies will, it seems, firmly implant her within the cusp of law and art, one way or another.

What about the book, I hear you say. It's not bad. Seriously. And this is not surprising. Anyone whose grateful acknowledgements extend to ACID Queen Dids Macdonald and to the gentle, knowledgeable Simon Stokes has either done their homework well or knows who to get to do it for them. Gillian however knows something that many copyright experts don't know -- she knows her readership and pitches her words of advice and warning (Beware of the Bridgeman ...) at a level that will be at once appreciated and understood. This book will never replace Copinger and Skone James, but anyone who reads it may well be saved from having to pay some expensive IP specialists to read Copinger and Skone James for them.

Sunday 14 November 2010

Uncovering the RCA Secret

As Simone has explored here and here, the arts are having a tough time at the moment. But necessity is the mother of all invention and galleries, art colleges and museums are coming up with increasingly creative means of making money both for themselves and for the next generation of artists.

One of the most innovative is the
RCA Secret 2010.

Students are paid £250 for their two postcard series’ (one for the second and third year of the course). This money covers some of their material and final exhibition costs and the remainder of the proceeds go to the RCA Fine Art Student Award Fund. The approach and theme of the mini works of art varied considerably. The most interesting aspect, from an IP lawyer’s perspective, was the amount of anger towards both copyright law and the abuse of artistic rights online.

One series of postcards suggested that the internet was killing the arts by making works, particularly photographs, too easily available for others to use without compensating the artists. Other postcards commented on the ubiquity of marketing and celebrity in the modern world. My favourite (from a geeky legal perspective), was a mock Polaroid image pinned to a piece of white card which proclaimed “this is a trademark” (sic). Another, in the series stated “this design is copyrighted”.

One thing that was clear from the exhibition is how little understanding there is amongst many artists of exactly what rights they own when they create new artworks and the value of these rights. When copyright is the law which pays the bills a better understanding of how it works would add value to these young artists works and, potentially, give them more opportunities in the future.

Friday 12 November 2010

UK Government slaps export ban on Turner's Campo Vaccino

In July 2010, one of J. M. W. Turner’s finest works, Modern Rome – Campo Vaccino, went under the hammer at Sotherby’s. Completed in 1839, the work was Turner's final landscape painting of Rome. The painting was offer for sale by a descendant of the family of the 5th Earl of Rosebery, which had owned the painting since 1878. In fact, it was only the second time that the painting had appeared on the open market since it was painted. Accordingly, the painting was said to be in an immaculate condition.

Turner’s masterpiece had, however, previously been on a long loan to the National Galleries of Scotland, and had also been displayed at the Royal Academy, the Victoria and Albert Museum and the National Gallery of Art in Washington. Therefore, when the auction was announced in March 2010, there were fears that the piece would be lost from public view when it was sold.

The painting was purchased at auction for 29.7 million pounds, setting a new auction record for Turner’s works, by a London dealer on behalf the
J Paul Getty Museum in Los Angeles. Unfortunately, the Getty Museum will have to wait until at least 2 February 2011 to see whether an export licence will be granted to the painting, enabling them to take the painting out of the UK. The reason for the delay is that, at the beginning of November 2010, Culture Minister Ed Vaizey placed a temporary export ban on the painting, following the recommendation of the Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest (RCEWA).

RCEWA is an independent body, administered by the Museums, Libraries and Archives Council, which advises Ministers of the Department for Culture Media and Sport (DCMS) on whether cultural objects, intended for export, are of national importance under specified criteria. Where RCEWA finds that an object meets one or more of the criteria, it will normally delay the decision on whether or not to grant an export licence to allow UK buyers time to raise the money to purchase the object in question at or above the fair market price. In this case, RCEWA judged that Campo Vaccino was of outstanding aesthetic importance, so closely connected with the UK’s history and national life that its departure would be a misfortune, and that every possible effort should be made to raise enough money to keep it in the United Kingdom. The amount that has to be raised to buy back the painting is £30,284,968.75 including VAT.

At present, the export ban will expire on 2 February 2011, when a decision will need to be made as to whether to grant an export licence application for the painting. This period may be extended until 2 August 2011 if it appears that there is a possibility of sufficient funds being raised to make an offer to purchase back the painting.

The export ban should not have come as a surprise to the Getty Museum. It was a declared condition of the sale that export would be reviewed. Furthermore, export of the Getty’s 2002 purchase of Raphael's The Madonna of the Pinks was similarly held up for two years, and then reversed when the National Gallery in London was able to reach an agreement to purchase the work for £22 million in 2004. However, if the money cannot be raised to buy back Campo Vaccino, by this time next year it will most certainly have gone to join a number of other Turner works in sunny LA.

Thursday 11 November 2010

Battle for the copyright in children's book illustrations

A two year battle over the estate of celebrated American children's book author and illustrator Tasha Tudor has ended in a settlement on the threshold of the Vermont Probate Court.

Tudor died in 2008 at the end of a long and successful life and career, during which she illustrated almost one hundred books and received many awards and honours for her contributions to children's literature. She left an estate worth an estimate £1.2 million, which included all the copyright in her works. She also left two wills. One original will, executed in 2001, which essentially divided her main assets between her sons. A second, dated 2002, which amended the first will by cutting out one of her sons. Thus, the stage was set for Thomas Tudor, who had effectively been cut out, to contest the second will. He did – claiming that his brother had wielded undue influence over their mother and that there were suspicious circumstances surrounding the changes in the will.

After more than two years of fighting, the matter was due to be heard by the Vermont Probate Court on Monday 8 November 2010. However, after settlement discussions in the courthouse, the parties informed the Court that the matter had been resolved.
Unfortunately, the terms of the settlement are confidential. Nevertheless, it should be pretty clear who came out with ownership of the copyright once these are asserted. Indeed, if the
official website is anything to go by, Thomas Tudor settled for something other than the copyright.

A selection of TT works:

© Tasha Tudor and Family Inc.

Visit the Tasha Tudor Museum

Source: The Associated Press

Tuesday 9 November 2010

Errant tattoo artist faces criminal charges

Some implements used for tattooing
Global Times reports that an Australian man faces two charges of assault after reportedly tattooing a 40-centimetre penis on his friend's back after an argument. According to Queensland police, the first charge relates to the application of the indelible mark, the second being for allegedly punching the victim. According to a police spokesman
"The victim wasn't interested at first but he was talked into it and he said he wanted a yin and yang symbol with some dragons. The bloke started doing the tattoo and there was another bloke standing there watching saying, 'Mate, it's looking really good'. When he got home he showed it to the person he lives with and she said, 'I don't think it's the tattoo you were after'."
Aside from the criminal and ethical issues involved, there's also a copyright point: what are the respective economic and moral rights of artist and client/canvas where (i) the work is a commissioned work but does not conform to the terms of the commission, and where (ii) the continued existence of the author's work depends upon the tolerance of the client who bears the art work on his own body?

Exposed: more hidden cameras

Unfortunately, while I got a good view of Heather Skuker’s surreptitious photos, I missed the Tate Modern’s recent exhibition “Exposed: Voyeurism, Surveillance and the Camera”. Also composed of photographs taken on the sly, without the explicit permission of the people depicted, Exposed included pictures, dating from the late nineteenth century to present day, of professional photographers and artists, as well as CCTV images.

Again, the exhibition raised the important question of privacy. As the introduction to the exhibition noted:

“The UK is now the most surveyed country in the world. We have an obsession with voyeurism, privacy laws, freedom of media, and surveillance – images captured and relayed on camera phones, YouTube or reality TV.

Much of Exposed focuses on surveillance, including works by both amateur and press photographers, and images produced using automatic technology such as CCTV. The issues raised are particularly relevant in the current climate, with topical debates raging around the rights and desires of individuals, terrorism and the increasing availability and use of surveillance. Exposed confronts these issues and their implications head-on.”
This subject was picked up in a collaboration between the Tate Modern and the Honourable Society of Gray’s Inn, which featured retired Law Lord, Lord Hoffmann. At a symposium held at the Tate Modern, it is reported that Lord Hoffmann addressed two questions: Should the law protect privacy? and Can the law protect privacy?

His answer to the first question was yes, English law should provide for privacy protection. For, although the growth of technology has allowed every detail of our private life to be captured, the privacy of our lives still needs to be protected.

In respect of the second question, however, he was not able to give such an unequivocal answer. Lord Hoffmann noted that it is difficult for the law to protect privacy for two reasons. First, the cost in bringing privacy proceedings tends to deter anyone other than the very rich or those on conditional fee arrangements from bringing these actions. Second, once the private information that requires protection has been made public, legal action becomes a most ineffective response. To illustrate this second point, Lord Hoffmann recalled Max Mosley’s well-known case against the New of the World for the invasion of his privacy. In that case, Mosley sued the publishers of the News of the World, following publication of an article which claimed an orgy in which he had participated had Nazi overtones, which was accompanied by images and video footage which had been taken on a hidden camera. But, although Mosley won and was awarded £60,000, the damage caused to him by the invasion of his privacy was clearly permanent, constant and worldwide. Moreover, he only recovered costs of £420,000 against his actual costs of £510,000, which left him out of pocket, as well as subjected to exposure of the very information that the court had ruled was private.

Thus, although, again, the exhibition has some very powerful images, it also raises some very important issues as to the boundaries between the public image and the private act.

No longer at the Tate Modern, Exposed can now be found at the San Francisco Museum of Modern Art until 17 April 2011. I know I would be willing to make the trip.

Weegee (Arthur Fellig) Audience in the Palace Theater c1943 © Weegee/International Center of Photography/Getty Images

Tuesday 2 November 2010

Watch what you say about Art Dealers…

The Australian Northern territory Supreme Court in Alice Springs has recently denied an application from the Australian Broadcasting Corporation (ABC) to strike out an Aboriginal art dealer’s defamation claim.

The case relates to a television programme which examines exploitation in the Aboriginal art industry. This is not a new subject, Bruce Chatwin describes the Aboriginal art industry with a mixture of humour and, at times, quiet anger in his classic Australian travelogue: Songlines. But Bruce Chatwin never faced a defamation claim. Unfortunately for ABC, despite the fact that the Claimant, Mr Nibbs, refers to himself as the "original carpetbagger" in the programme he is now claiming that what he in fact said was that others have referred to him as a carpetbagger.

Unsurprisingly, Mr Nibbs didn’t like the whole of Australia to believe he was a “carpetbagger” and alleged that viewers of the program have been led to believe he is unscrupulous in his dealings with Aboriginal artists, paying the artists inadequately for paintings produced under oppressive conditions.

As with all defamation claims, the very fact of bringing a claim has led to far wider coverage than might otherwise have happened. It also raises the importance of the artist-dealer relationship and how crucial this is for both parties.

For more information on Aboriginal art, see here.

ABC news

Consent to be seen?

Brunch at one of my favourite haunts this weekend led me to stumble upon an interesting photography exhibition.

Girls UnScene, currently on display at The Luxe in London’s Old Spitalfields Market, is described as a series of photographs deliberately taken without the consent of the subjects revealing the hidden details of, and the exchanges and interactions between, females in night-club toilets, showing them in unguarded moments.

The artist, Heather Shuker, explains:

“My work seeks to contradict the staged visual representation of females in public and to show how they are when behind closed doors."
Fair enough? The exhibition does indeed have some extremely strong images, but taken without the subjects’ consent? I would submit that this raises a number of important issues – privacy, image rights and reputation management to name a few.

It would be interesting to know whether Heather got any legal advice prior to embarking on this work.

Would you appreciate this photo being taken and displayed without your consent?

© Heather Skuker

The exhibition is certainly worth a trip. It remains at The Luxe until 30 November 2010