Wednesday 29 June 2011

Banksy's legal protection

The IPKat reports here that although Bansky is relatively relaxed in respect of the use of his artwork by others he has a registered trade marks for his name.

Thus, it seems that Banksy appreciates the importance of protecting the rights in his name, albeit that it is not his real one.

Friday 24 June 2011

No innocent owner defence for stolen art as US court orders return of painting to France

In a recent decision of the United States Court of Appeals Second Circuit, another innocent buyer of a stolen painting has had to forfeit the work to the original owner from whom the work was stolen.

The painting in question is “Le Marché,” by Camille Pissarro, which was one of two paintings stolen from the Musée Faure in Aix–les–Bains, France on November 16, 1981.
By way of background, in 1985, the claimant/appellant, Sharyl R. Davis purchased the painting at fair market value from J. Adelman Antiques and Art Gallery, to whom the thief had consigned the work, unaware that it had been stolen, and it was only twenty years later, when Davis consigned the work to Sotheby's for sale at auction that the painting's provenance came to light. At this point, the French police became aware of the impending sale and informed US law enforcement officials that the painting had been stolen twenty-two years earlier. The US Department of Homeland Security thus requested that Sotheby's withdraw the painting from auction, and following the compilation of evidence to substantiate the theft, the US government filed a complaint in the Southern District of New York in November 2006 seeking forfeiture of the painting in order to return the work to France.

On 19 January 2010, the district court gave its judgment in favour of the US government and ordered forfeiture. Davis appealed and the 2nd US Circuit Court of Appeals was required to hear the matter. Davis argued that the government had failed to demonstrate probable cause under the applicable US law, namely, 19 U.S.C. § 1595a and the National Stolen Property Act.

Under section 1595a, merchandise “introduced into the United States contrary to law,” may be subject to forfeiture if that property “is stolen, smuggled, or clandestinely imported or introduced.” To satisfy the “contrary to law” requirement, the government alleged that the thief had violated the NSPA by stealing Le Marché from the Musée Faure back in 1981, transporting it into the United States, and then consigning it to Adelman. Davis submitted that the district court committed three errors in its application of the NSPA. Firstly, Davis argued, “contrary to law” referred only to violations of the customs laws, not to violations of the NSPA. Second, Davis said that the district court erred in granting summary judgment to the government on whether Le Marché's value met the NSPA's statutory minimum of $5,000. Finally, Davis argued, Le Marché was no longer “stolen” property within the meaning of Section 1595a(c), and was therefore not subject to forfeiture.

Unfortunately for Davis, the Court rejected each argument. In particular, in relation to Davis claim that she should have been allowed to assert an innocent owner defence, the court noted: 
  • The statute states that property introduced into the U.S. contrary to law "shall" be forfeited.
  • Use of the word 'shall' “indicated that Congress intended forfeiture under §1595a(c)(2) to happen as a matter of course.
  • Such definite language was not susceptible to an interpretation that a legitimate possessory interest in the property might defeat an otherwise valid forfeiture claim.
  • It was unsurprising that the law — enacted more than eighty years ago — would require forfeiture of property regardless of the owner's culpability.
  • Early statutes used to enforce the customs laws․ generally, contained no innocent owner defence. Historically, the owner of forfeited property could be entirely innocent of any crime, and, indeed, the Supreme Court had held, in a case addressing another provision of the Tariff Act of 1930, that “forfeiture may be enforced even against innocent owners․ The penalty is at times a hard one, but it is imposed by the statute in terms too clear to be misread.”
This judgment is an important reminder of requirement for sound due diligence in the purchase of art. Not only did Davis have to pay the costs of a drawn out court action, but she also lost the benefit of her long term investment.

Read the full decision here.

Thursday 23 June 2011

Ai Weiwei: latest news

Associated Press reports ("Chinese artist Ai Weiwei: Free in body, not voice") on the recent release of China's best-known detainee (on whom see Art & Artifice posts here and earlier).  The release is said to be the result of his confessing to the charges of tax evasion which he has always denied. It has been suggested that he is under a gagging order -- which, if true, it would obviously be difficult for him to confirm.

Wednesday 22 June 2011

Hangover Tattoo Claim Settled

As predicted, the claim filed by the tattoo artist responsible for Mike Tyson's facial art, S Victor Whitmill, against Warner Brothers Entertainments for their reproduction of the tattoo on the face of one of the cast of the movie The Hangover Part 2 (as reported here) has now been settled.

The Order for Dismissal was handed down by the Court today. However, as could also have been predicted, the terms of the settlement are confidential and no details have been released.

Thus we are left to ponder not only whether there is copyright in a tattoo which can be infringed, but also just how much richer Mr Whitmill will be.

Thursday 16 June 2011

Queried title to sketches halts sale of Macca's mouse and friends

A creature of its time: this mouse, part of
the collection, with pipe, heavy eyelids and
working-class credentials, may have been
modelled on the late UK prime Minister
Harold Wilson, who was active at that time
A set of drawings, created by Sir Paul McCartney back in the 1970s, has been withdrawn from sale at an auction in Gloucestershire, England, after a legal challenge over ownership. Prototypes for a part-animated film, they were put up for sale by Maggie Thornton, daughter of animator Eric Wylam who died in 1997.  Although they have been in the family's possession for some 40 years, they were withdrawn from the auction after lawyers for the elderly Beatle -- one of only two survivors of the original Fab Four -- said they were unaware that their client had given them to Mr Wylam in the first place.  According to the BBC,
"... Chris Albury from Dominic Winter auctioneers in South Cerney, said he had no choice but to withdraw the items from sale. "The lawyers say they're still Paul McCartney's property as the film was made by his company MPL Communications," he said. "As such any work done by Paul or the team working on the film should have been returned to MPL or Paul at the end of its usage. "But this is contrary to what Maggie believes and what her father always told her."
The pictures, which were designs for the unreleased film The Bruce McMouse Show, had been expected to fetch £25,000 ..."".
Source: "Paul McCartney drawings withdrawn from sale at auction", BBC, 16 June 2011.  Further information concerning the drawings is available on The Mail here.

Wednesday 8 June 2011

No sign of thaw in Russia-US art freeze

As reported here, following the decision of the US district court for the DC Circuit in the case of Chabad-Lubavitch v Russia in 2010, Russia imposed a ban on art loans to American institutions, fearing that US authorities would seize Russian art coming into the country and hold it as security in the case.

Despite reassurances from lawyers for the claimants, Chabad-Lubavitch, that they do not intend to enforce the judgment by seizing any Russian art or cultural property loaned by Russia to US museums, the freeze on Russian art into the US continues.

It has now affected numerous US galleries who have been forced to postpone or cancel exhibitions and shows featuring Russian artworks. Further, in response some US galleries, including big players such as the MET, are now considering whether to discontinue their loans of artworks to Russia.

Therefore, almost six months since Russia confirmed that the ban remained in place, there remains little prospect of a resolution. Indeed, the situation will only get worse, especially if the US decide to impose their own freeze.

Monday 6 June 2011

Hangover Tattoo Faceoff

Though the title may suggest the result of a great party over the weekend, it actually refers to the most recent copyright battle set in Hollywood. The movie “The Hangover Part II” hit screens across the world at the end of May, bringing in $16.4 million in the UK alone, but unfortunately not all were happy with the film's release (and not just the audiences).

Prior to the film's release, a US tattoo artist filed a claim in the Federal District Court for the Eastern District of Missouri against Warner Brothers Entertainments for copyright infringement.

The claimant and tattoo artist, S Victor Whitmill, is the artist responsible for the well-known tattoo on Mike Tyson's face, which he created and applied to Tyson in 2003. At that time, Whitmill claims, it was agreed that he would own the work, and thus the copyright in the tattoo.

For those that have not seen the movie or the preview, or indeed heard of it, one of the characters wakes up with a copy of Tyson's tattoo on his face.

No permission was sought from Whitmill to reproduce the tattoo, nor was he credited. Accordingly, Whitmill sued for copyright infringement prior to the film's release seeking an injunction against all use and display of the tattoo as well as damages.

In a huge reply – dwarfing the claim at 149 pages to 9 pages – Warner Brothers said that the effect of a preliminary injunction would be devastating in terms of the economic losses they would incur. They also argued that there were no merits in Whitmill's claim as there was no legal precedent for a claim to copyright in a tattoo, and, alternatively that there was “fair use” of the tattoo.

It is clear, given that the film was released, that the preliminary injunction was denied and Warner Brothers were successful in the first round. The judge accepted that to prevent the release of the film would cost Warner Brothers as much as $100 million, but also, and more importantly, it would affect thousands of other businesses which would also be losing money. Therefore, it was not in the public interest to stop the release of the movie.

However, the judge reportedly made it clear that Whitmill had a sound claim, saying that he had a “strong likelihood of prevailing on the merits for copyright infringement” as “of course tattoos can be copyrighted...They are not copyrighting Mr. Tyson’s face, or restricting Mr. Tyson’s use of his own face, as the defendant argues, or saying that someone who has a tattoo can’t remove the tattoo or change it, but the tattoo itself and the design itself can be copyrighted, and I think it’s entirely consistent with the copyright law.” Further, the judge is said to have found that that most of the arguments put forward by Warner Brothers were “just silly.”

In light of these pronouncements, it is probable that Warner Brothers will seek to settle with Whitmill out of court rather than pursue their defence. The question will thus unfortunately not be whether copyright subsists in a tattoo and how it is infringed, but rather how much it will cost Warner Brothers. Then again if Whitmill maintains his demand for $30 million to settle, we could be lucky and get some more conclusive answers from the court.

Previous tattoo copyright considerations here

Sunday 5 June 2011

Origami plagiarism: the plot unfolds ...

An example of Sarah Morris's art:
this is a coloured-in, unfolded work
entitled 'Black Beetle'. What is the test
of infringement?
ArtLyst has just reported that White Cube exhibitor Sarah Morris is being sued for plagiarism. According to the article,
"...  The multimillion-pound claim was formed in a group action by six international Origami artists . They have stated that Morris has copied their work by taking the patterns from published works blowing them up and changing the colours.

Morris who lives in both New York and London, has been presented with a lawsuit by the Spain, Italy, Japan and American Origami creators.. They have alleged that Morris's body of abstract work entitled "Origami", which consists of a series of 38 works are "coloured-in copies of their intricate origami representations of hummingbirds, grasshoppers and other animals, birds and insects, produced using the centuries-old Japanese craft of paper-folding" says their lawyer, Andrew Jacobson, who describes them as "some of the most renowned origami artists in the world today".

The federal lawsuit for copyright infringement will take place in Oakland, California, The case alleges that 24 works have been copied from works have been exhibited and sold without obtaining permission and crediting them. They claim that Morris has "created confusion" over the authorship of their designs and damaged their professional reputations. Morris's origami paintings sell for more than $100,000 (£68,000). Origami, as an art, has millions of enthusiasts worldwide. The designs by origami artists involved in the lawsuit, Manuel Sirgo Alvarez, Noboru Miyajima, Nicola Bandoni, Toshikazu Kawasaki and Jason Ku are easy to find in books, magazines and on the internet. ...".
This blogger is delighted to find such a fine example of art imitating law exams. In the Queen Mary, University of London, LLB Intellectual Property paper for 1987 the candidates were set a question which required them to consider whether a three-dimensional origami elephant was an infringement in the artistic copyright in a two-dimensional set of instructions for making it (this was before the passage of the current legislation in 1988: under the Copyright Act 1956, s.9(8) a three-dimensional reproduction of a two-dimensional work did not infringe "if the object would not appear, to persons who are not experts in relation to objects of that description, to be a reproduction of the artistic work". The Examinations Department was charged with the responsibility of providing 40 pink origami elephants for the candidates plus three further elephants for the use of the external examiners.