Thursday 28 July 2011

Artist's Resale Right Petition

As reported here, and in my article in Entertainment Law Review at the beginning of this year, for a number of years now there has been a lot of debate in the UK over the Artist's Resale Right. For those who don't know, this right allows artists to receive a royalty every time their works are resold through auction houses, galleries and art dealers. At present, in the UK, the right applies to the sale of the works of living artists. The final step, in order for the Resale Right directive (2001/84/EC) to be fully implemented in the UK is for the right to also be applied to the works of deceased artists. This is expected to happen from 1 January 2012.

However, having no doubt been disappointed by the UK government's previous action in delaying full implementation of the directive, and aware of the ongoing opposition of the British Art Market to full implementaion, DACS (the Design and Artists Copyright Society), who distributes the Artist’s Resale Right royalties to artists, has sent out a call-to-arms seeking a show of support for the artists.

DACS is asking people to sign a "Petition for Artist's Resale Right" to show their support for the right. The petition states as follows:
We, the undersigned, welcome the full implementation of the Artist’s Resale Right from 1 January 2012. We call on the UK Government and European Commission to recognise the importance of this Right in supporting artists, their families and beneficiaries.

The royalties from the Right will provide desperately needed funding for artists’ families and beneficiaries, who inherit the burden of managing an artist’s estate, including the costs of storage, conservation, cataloguing, research and restoration as well as identifying works.
So, if you feel strongly about the need for the Artist’s Resale Right to be extended to the works of deceased artists, or just want to show your support for artists – you can find the petition here.

In its call, DACS points out that "There are far greater costs associated with selling works of art that dwarf the impact of the resale right. When Alberto Giacometti’s Walking Man I sold for £58 million in the UK in February 2010, it earned £7 million in buyer’s premium for the auction house. Compare this to the £2.4 million in resale royalties which were generated by the entire UK art market during the whole of 2010."

Wednesday 27 July 2011

Defining "sculpture": UK Supreme Court enters the fray

Is this a sculpture?
The UK's Supreme Court gave its decision today in Lucasfilm Ltd, Star Wars Production Ltd and Lucasfilm Entertainment Co Ltd v Ainsworth and Shepperton Design Studios Ltd, in a decision which you can read in full here.  The case, which turns on whether a Star Wars Stormtrooper helmet is a "sculpture", has already been covered on other blogs in brief and at length. Accordingly, while other members of the Art & Artifice team may wish to comment on other facets of the ruling. I'm just offering this little snippet which may appeal to those readers with an aesthetic tendency:
"38. In the courts below as in the parties’ written and oral submissions in this Court, the argument has centred on the right approach to three-dimensional objects that have both an artistic purpose (of some sort) and a utilitarian function (of some sort). ... The appellants’ printed case gives some world-famous examples: the caryatids which form part of the Erectheion at Athens; the Medici tombs in the sacristy of San Lorenzo in Florence; the Trevi fountain in Rome. These seem to be rather special cases, not because of their outstanding merit but because they all have a strong architectural element, and the fact that a work of architecture is functional does not disqualify it from copyright protection. Other artefacts mentioned in the case, such as the Ribchester helmet in the British Museum or a decorated medieval suit of armour, would come more naturally under the head of works of artistic craftsmanship, together with fine furniture, musical instruments, silverware and ceramics. But the appellants have made clear that it is no longer part of their case that the Imperial Stormtrooper helmet was a work of artistic craftsmanship".

39. Instead, the appellants contend that the helmet had no practical function at all. Their case is that it is sculpture because its purpose is wholly artistic ...: 
“In the present case, the question of functionality does not arise, because the articles in question have no functional purpose whatever. The Stormtroopers’ helmets and armour did not exist in order to keep their wearers warm or decent or to protect them from injury in an inter-planetary war. Their sole purpose was to make a visual impression on the filmgoer. They are therefore artistic works".
This is the argument which was rejected by the trial judge, the Court of Appeal and now by the Supreme Court itself. As the Court observed:
"44. It would not accord with the normal use of language to apply the term “sculpture” to a 20th
century military helmet used in the making of a film, whether it was the real thing or a replica made in different material, however great its contribution to the artistic effect of the finished film. The argument for applying the term to an Imperial Stormtrooper helmet is stronger, because of the imagination that went into the concept of the sinister cloned soldiers dressed in uniform white armour. But it was the Star Wars film that was the work of art that Mr Lucas and his companies created. The helmet was utilitarian in the sense that it was an element in the process of production of the film".
In any event, weight must be accorded to the opinion formed by the trial judge, who reached his decision on the basis of a long and pretty well exhaustive pursuit of the subject in which a great deal of evidence was submitted and reviewed by him.

Is it right to bring the criterion of utility into the determination of whether a work is a sculpture or not? And is a question of either/or, or cannot a work be both functional and aesthetically arbitrary, creative and deserving of protection? Readers' opinions are invited.

Tuesday 26 July 2011

Limited access art

One of my favourite London magazines, The Stylist [not only free, but full of great content – bit like this blog] recently ran a short piece of news from my homeland. It reported that the Australian government [not known to be the most liberal of governments] had issued a report urging that works of art, as visual works, be given an age-restriction classification in the same way as films. Intrigued I did some digging and, voila, stumbled across the Australian Senate Legal and Constitutional Affairs References Committee's “Review of the National Classification Scheme: achieving the right balance”. Unfortunately, not only is the title a mouthful, but the report itself is huge. So in my quest to achieve the right balance between too much information and not enough [and between work and life], here is a summary of the main points I picked up.

- The Senate referred the Australian film and literature classification scheme to the committee for inquiry and report, with particular reference to inter alia the application of the National Classification Scheme to works of art and the role of artistic merit in classification decisions.

- In the committee's view, the National Classification Scheme is flawed in a number of key areas including: (i) Aside from the complexity of its legislative framework, the scheme does not protect children from material that is likely to harm them; nor does it protect others more broadly from exposure to unsolicited material that they may find offensive, and (ii) 'Artistic merit' remains a defence to child pornography and child abuse material offences in many states, meaning that sexualised images of naked children can be exhibited in public galleries under the guise of 'art'. [This refers to the case of photographer Bill Henson whose artworks were seized by police from an exhibition in Sydney in 2008 due to the fact that they depicted naked children (of 12 and 13).]

- Accordingly, the committee believes that significant changes should be made to the National Classification Scheme.

- As a starting point, the committee identified several key principles should underlie a classification scheme in Australia.

- One of these principles is the application of the National Classification Scheme to artworks. In this respect, the committee noted that the application of the National Classification Scheme to artworks for public exhibition or display is limited. In the committee's view, obtaining classification will assist in ensuring that audiences can be provided with appropriate advice (and, where necessary, warnings) regarding the nature of the artwork. However, since the cost of application fees for classification could present difficulties to artists, the classification of artworks should be exempt from those fees.

- The committee also strongly opposes the inclusion of the artistic merit defence for child pornography offences in state legislation [which was removed from the NSW laws following the Henson case]. Accordingly, the committee recommends that the Australian Government, through the Standing Committee of Attorneys-General, pursue with relevant states the removal of the artistic merit defence for child pornography offences.

It is not really clear where we go from here. That could however just be because my knowledge of Australian Constitutional Law is a distant memory. So, if anyone knows, please enlighten us.

If you would like to read the whole report, you can find it here.

Image from

Monday 25 July 2011

Cornered by his art?

Last week, after years on the run, one major Croatian Serb war criminals Goran Hadzic was arrested. Hadzic has been charged and found guilty in absentia by the International Criminal Tribunal for the former Yugoslavia for crimes he committed under the leadership of Slobodan Milošević between June 1991 and December 1993, including the persecution and murders of thousands Croats and other non-Serbs.

Reuters reports that it was actually a stolen painting by Modigliani that lead to his capture:
A stolen painting said to be by Italian figurative artist Amedeo Modigliani gave prosecutors an essential clue in finding Hadzic, Serbia's war crimes prosecutor said.
"The breakthrough was information that he (Hadzic) wanted to sell a stolen Modigliani painting as he was running out of money," Vladimir Vukcevic told a news conference.

It is still unclear however whether the painting, believed to be “Portrait of a Man” by Modigliani (pictured here), is authentic – although the Art Loss Register (which I wrote about here) does list four Modiglianis as stolen. However, whether it is or not, the painting has already proven itself invaluable in bringing a major criminal to justice. The recovery of the stolen art would just be an added [multi million pound] benefit.

Source: Reuters, 20 July 2011

Monday 18 July 2011

Artistic originals: we invest more than we think ...

The economist's favourite
piece of artwork ...?
The UK's Intellectual Property Office's Economics, Research and Evidence team has recently published Film, Television & Radio, Books, Music and Art: UK Investment in Artistic Originals (16 pages, hereexecutive summary here).  This document reviews the definition of artistic originals and official estimates of investment in originals as recorded in the UK National Accounts. According to the review, new data on the value of the UK stock of artistic originals shows that approximately £1.1bn more was invested in original artistic work in the UK in 2008 than had previously been estimated. Combining these data with new depreciation rates suggests an upward revision of £3.5bn to the UK stock of artistic originals in 2008.

According to the executive summary,
"This report contributes to the measurement of the economic value of the UK creative sector. Our focus is on “the creation of long-lived artistic original assets protected by copyright.”, as defined by the System of National Accounts (SNA) [an internationally agreed standard, which appears to be under the aegis of the United Nations]. This includes new broadcast programmes, books, art, music and films. In particular, the report offers revised estimates of UK investment from 1990-2008 and a new calculation of the total stock of artistic originals. We also contribute to the measurement of depreciation and prices. The most significant artistic originals, in order of magnitude in UK spending, are: TV & Radio, Books, Miscellaneous Art, Music and Film. 
As a result of our work, we show that the total value of new artistic asset creation in the UK is even more significant than previously assumed, and is likely to be worth £3bn more in Gross Value Added (GVA) than national statistics currently suggest. 
The report includes:
i. a description and explanation of the appropriate conceptual framework for estimating investment in artistic assets;
ii. a description of official Office for National Statistics (ONS) methods in the context of that framework;
iii. new estimates of investment for the UK, using new data and methods;
iv. triangulation of estimates using other methods suggested by the conceptual framework;
v. a comparison of those estimates with data from the US;
vi. estimates of depreciation rates based on work in the US;
vii. a discussion of appropriate price indices, required to deflate data on investment and construct real capital stocks;
viii. estimates of the newly measured UK capital stock.

This work is an important step forward in the measurement of UK artistic asset creation and the contribution of the ‘creative industries.’ [For some assets, our estimates should be regarded as preliminary, and further work is required. In the case of Music, Books and Miscellaneous Art, accurate estimation requires a longitudinal analysis of the income earned by assets over their lifetime. We had hoped to include such estimates in this report, but legal and administrative complications have prevented us from doing so.]

We intend to collaborate with ONS in the near future, resulting in new estimates for Artistic Originals incorporated in the National Accounts, and so we anticipate an update to our estimates sometime in the near future. Here is a brief summary of the contents: 
1. First, we take a general overview and compare official UK with developmental US data. We discover that UK estimates are considerably lower on both an absolute and relative basis. In
particular, the UK seems to invest much less in Film than the US as a share of GDP
2. Second, we set out a framework for analysing artistic sector output and investment in artistic originals. Since little data on market transactions exist, our preferred methods - for conceptual and practical reasons - are based on input costs or royalty payments. 
3. Third, we evaluate ONS measurement practice, highlighting some ways to build on official data. We plan to collaborate with ONS in the near future to investigate incorporating new estimates into the National Accounts (Blue Book 2012).

4. Looking at assets in more detail: 
(i) for Film we show UK investment to be higher than currently measured using data on a broader range of UK productions; 
(ii) similarly for TV & Radio we use data for a broader range of productions, but our final estimate is lower because we don’t assume a mark-up for the monopoly power exerted by the owner in the commercialisation of their own assets; 
(iii) for Books we generate a higher figure estimating the cost of producing original works;
(iv) for Music we generate a slightly larger figure by estimating the cost of asset creation, but our data on royalties indicate a larger figure still; 
(v) official data do not include GFCF in any other types of long-lived artistic assets, though we estimate these as substantial. 
5. We use our framework to produce estimates of GFCF in Artistic Originals according to a variety of methods and triangulate those data to check the quality of the results. A summary of these results is presented in the table below [omitted from this post]".
If any kind reader would like to explain what this all means to the creators of original artistic works in the United Kingdom in practical terms, we'll be delighted to hear from them.

Sunday 17 July 2011

Bansky work destroyed

Back here we reported on a piece of art that had been mistaken as rubbish and thrown out. Now it appears that a similar fate has befallen one of Banksy's works – albeit not for the first time.

Gorilla in a Pink Mask had graced the outer wall of a building in Eastville, Bristol for 10 years until it was recently covered in emulsion by the new owner of the building. Unfortunately, it seems that he was not aware that he was destroying an extremely valuable artwork.

But does anyone have the right to complain or a cause of action to prevent such acts? After all it was the owner's wall to paint over - was it not?

This is likely to reignite one of the main controversies over Banksy's outdoor works that because he uses private properties as his canvas, it is often difficult to ascribe ownership of the works and to protect and preserve them. Any suggestions as to how his art could be protected?

Friday 15 July 2011

Handbags at Dawn: a competition

Further to yesterday's announcement of the Handbags at Dawn: Intellectual Property in the Fashion Industry conference (click here for programme), sponsored by this weblog, here's some good news. The organisers of the conference, CLT, are offering free admission to this enjoyable event, plus a tasty lunch, as a competition prize.

To enter the competition you have to write a limerick which (i) begins with the line: "A stylish young model from France ..." and (ii) contains the word 'handbag'.  Entries should be emailed here with the subject line "French model" by not later than midnight (BST) on Sunday 31 July 2011. 

The best entries will be published on this blog.

Thursday 14 July 2011

Handbags at Dawn: this year's Intellectual Property in the Fashion Industry conference

Handbags at Dawn: Intellectual Property in the Fashion Industry is a popular one-day conference organised every September in Central London by CLT Conferences.  This year's event takes place on 22 September and it's very exciting for the Art & Artifice crew since this is the first fully-fledged conference which this weblog has ever sponsored. Two members of the A&A blog team (Simone and Rosie) are speaking, while team support Jeremy is in the chair.

You can get an idea of the topics covered by taking a peek at the brochure here.  Of particular interest to readers of Art & Artifice will be the appearance of Dutch lawyer Jens van den Brink (Kennedy van der Laan, Amsterdam).  Few lawyers in Europe are better qualified than Jens to discuss "Fashion IP versus Artistic Freedom", since he acted for Nadia Plesner in her litigation against luxury goods house Louis Vuitton over the now celebrated handbag image in her work Darfurnica (see posts here and here for details).

The speakers' credentials are most impressive. According to the brochure,
"Simone Blakeney has recently joined the Intellectual Property team at Clifford Chance. She has experience in advising on a wide variety of IP matters, including trade marks, passing off, copyright and design issues. Simone’s practice covers a range of sectors, including the fashion industry. 
Jens van den Brink studied law in Amsterdam, London and new York and practices at Kennedy Van der Laan’s IP/media  department in Amsterdam, which has strong fashion industry, IT and media practices. Jens specializes in work for the media, with a focus on free speech and copyright. His clients include major newspapers, publishers, broadcasters and blogs, and he acted for Plesner in the dispute with Louis Vuitton. Jens is guest lecturer in media law at various Dutch universities and editor-in-chief of Media Report, a media law blog 
Rosie Burbidge is an associate in the intellectual property group of olswang LLP. Rosie is a big fan of fashion, particularly where it intersects with the world of art. She feeds her interest in art and the law through her contributions to the Art & Artifice blog.
Mary-Ellen Field has created, managed, protected and monetized intellectual property rights throughout the world for 30 years. She has worked on major international brand transactions licensing and franchising projects in the fashion and beauty sectors. She has been retained as an expert witness in numerous high profile trade mark disputes. She has launched and managed brands in the premium and luxury and masstige markets in Europe, Australia, the USA and Russia. 
John Hull is head of IP at Memery Crystal LLP. He has wide experience in this field and has a particular interest in information rights, the law of confidence, data privacy and in the commercialisation of IP. He is the author of numerous articles in professional and academic journals; is Visiting Professorial fellow at Queen Mary, the University of London, a visiting lecturer at the Institute of Brand and Innovation law at UCL and visiting lecturer at the IP Academy in Singapore. 
Catherine Lee is passionate about IP, with a special interest in branding, creative content and technology. She is a qualified solicitor and trade mark attorney (in Australia) and a solicitor and barrister (in England and Wales). She also holds a DPhil in copyright law from the University of oxford and is proud to be an IPKat.
Annsley Merelle Ward specialises in intellectual property and reputation management litigation with particular emphasis in the fashion, cultural heritage and entertainment sectors. With knowledge of IP law in the US and on the continent, her work often involves multi-jurisdictional copyright, design right and trade mark disputes. She writes for leading intellectual property blog, IPKat and has also presented papers and seminars at international conferences. 
Henry Ward is a member of 8 New Square where his practice covers many aspects of intellectual property law, including patents, copyright and designs, trade marks, confidential information and malicious falsehood. He “cuts through the intricacies and delivers a clear message to clients,” and “exudes authority, as he remains calm under pressure and firm in his submissions,” according to Chambers".
See you there? We do hope so!

Tuesday 5 July 2011

US Supreme Court votes that video games are art

In another interesting decision, the US Supreme Court has ruled that video games are entitled to the same protection under the US Constitution as movies, novels, artworks and other forms of expression.

The case stemmed from the introduction of a law in California which sought to restrict the sale or rental of violent video games to minors. The case was, unsurprisingly, brought by the Entertainment Merchants Association. The basis for the claim: the law violated the First Amendment since video game were art and should have the same First Amendment rights books or movies.


The Supreme Court agreed. In summary, it held that:
The California law did not accord with the First Amendment as video games qualify for First Amendment protection because, like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium and “the basic principles of freedom of speech . . . do not vary” with a new and different communication medium.

The basic principle that the government lacks the power to restrict expression because of its message, ideas, subject matter, or content is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But that a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test.

California’s law did not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. Instead, the State wished to create a wholly new category of content-based regulation that was permissible only for speech directed at children. That was unprecedented and mistaken. The US had no tradition of specially restricting children’s access to depictions of violence, and thus California’s claim that “interactive” video games presented special problems, in that the player participated in the violent action on screen and determined its outcome, was unpersuasive.

Because the law imposed a restriction on the content of protected speech, it was invalid unless California could demonstrate that it passed strict scrutiny, i.e., it was justified by a compelling government interest and was narrowly drawn to serve that interest. California could not meet that standard. Psychological studies which purported to show a connection between exposure to violent video games and harmful effects on children did not prove that such exposure caused minors to act aggressively. Any demonstrated effects were both small and indistinguishable from effects produced by other media. Since California has not restricted those other media, e.g., Saturday morning cartoons, its video-game regulation was wildly underinclusive, and raised serious doubts as to whether the State was pursuing the interest it invoked or was instead disfavoring a particular speaker or viewpoint. California also could not show that the law restrictions met the alleged substantial need of parents who wished to restrict their children’s access to violent videos. In any case, the video-game industry’s voluntary rating system already accomplished that to a large extent. Moreover, as a means of assisting parents the law was greatly overinclusive, since not all of the children who are prohibited from purchasing violent video games have parents who disapprove of their doing so. For all these reasons, the law could not satisfy strict scrutiny.
I think my favourite part of that ruling is: “This country has no tradition of specially restricting children’s access to depictions of violence” – which leads to the obvious conclusion that the law is unconstitutional as a restriction on free speech

Only in America.

For all the gory details of the decision see here.