Wednesday 26 December 2012

Russian authorities to end artist's fun?

This month saw Russian prosecutors launch an investigation into an art exhibition by two British artists, Jake and Dinos Chapman, for violation of Russia's 'extremism' legislation – which prohibit the incitement of hatred on racial, ethnic or religious grounds – the same legislation which was used to prosecute and imprison Pussy Riot, the Russian feminist punk-rock collective.

The exhibition, The End of Fun, is described as: "a three-dimensional collage, consisting of miniature plastic figures placed in nine glass display cases. The display cases are arranged in the hall in such a way that it resembles a swastika from above. In the display cases, a single landscape of hell unfolds, in which the figures ceaselessly kill one another with diabolical cruelty. In the artists’ words, only one moment in this piece is captured, the fact that everything happening behind the glass is taking place at the same time. Like the architects of the old Kunstkamera, the Chapman brothers "lock up" the fascists in a capsule full of sadistic bestiality. By placing cruelty in seal museum display cases or dioramas, the artists strive to cure society of that cruelty."
a capsule full of sadistic bestiality?
It currently remains on display at the State Hermitage Museum in St Petersburg, however, if it is found to breach Russia's laws, it could be closed down.

France 24 noted that:
"The city's prosecutor's office said it was checking for "possible violations" by the organisers of their Hermitage show "End of Fun" after "numerous complaints from citizens."

"According to the complaints, the said show insults the feelings of Orthodox believers... and is directed at inciting hatred," the prosecutors said on their official website..."
Meanwhile, the Telegraph reported:
"[The gallery's director] Mikhail Piotrovsky railed against the probe, saying it was a "stunning example of the cultural degradation of society" in Russia: "People think Christian crosses have been desecrated because a teddy bear and a McDonald's clown are nailed to them. There is nothing blasphemous here, but there is clearly a desire to spoil the mood in our city.

... Mr Piotrovsky said that "only an idiot" would consider the exhibition insulting to Christianity. "What is art and what is not is determined by the museum and not the general public," he said."
This is not the first time that the Russian authorities have sought to censor art. It is only hoped that the Chapman Brothers do not suffer the same fate as Pussy Riot.

Source: The Telegraph, 7 December 2012, France 24, 10 December 2012

Monday 24 December 2012

From Santa Claus to Fanny Claus: Manet saved by the Brits

"Manet work among £29m of treasures saved for the UK" was the headline of this recent piece on the BBC website.  This saving was achieved just in time for Christmas by the crude but effective device of the export ban.
"An Edouard Manet portrait is among four treasures which have been prevented from leaving the UK in the last year. The items, worth a collective £29m, include a Benjamin Britten draft score, two Italian console tables and a sculpture by John Nost the Elder. The public will now have access to the works, according to a new report. They were bought for a combined £9.3m, after the secretary of state enforced an export ban giving museums and galleries more time to raise funds.

If an object is more than 50 years old and requires a licence for export out of the UK, the Reviewing Committee on the Export of Art and Objects of Cultural Interest, managed by Arts Council England, can decide whether the object is of national importance.

Its latest report said between 1 May 2011 and 30 April 2012 eleven items were considered, seven of which were referred to the secretary of state..

Manet's portrait of Mademoiselle Claus, a major work in the development of impressionist art by the 19th Century French painter, is worth an estimated £28.4m but was purchased for £7.8m by the Ashmolean Museum in Oxford in April. ...

The portrait's subject is Fanny Claus, a close friend of Manet's wife, and was a study for one of his most famous paintings Le Balcon.  Chairman of the Reviewing Committee, Lord Inglewood, said:
"This shows the benefits that can arise from the workings of a tax system which encourages the retention of treasures like these in this country. I would encourage the Treasury to look sympathetically and constructively at how the nation in the future can benefit even more from such schemes."
... Alan Davey, chief executive of Arts Council England, said it is "wonderful" that these rare objects have been saved for the nation.... Culture minister Ed Vaizey added:
"The export licensing system is a valuable tool in preventing items like these from disappearing abroad and ensuring they will be enjoyed for generations to come." ...".
It is is curious to reflect that, in these days of increasing globalisation of information and access to it, the "retention of national treasures" should remain a hallowed value in the UK to the extent that a painting of a French woman, executed by a French artist, should be regarded as a British treasure rather than a French one.  Future generations of Frenchmen can access the Ashmolean Museum quite handily via Heathrow Airport ...

Faking It: a new book

Faking It: Manipulated Photography before Photoshop, by Mia Fineman, is a handsome tome that will be at home on any coffee-table. Published by the Metropolitan Museum of Art, which is currently hosting an exhibition on this very theme, and distributed by Yale Books, this book is the fruit of the labours of the assistant curator in the department of photographs at The Metropolitan Museum of Art, and a tribute to her endeavours, her enthusiasm and her excellence.  As the book's web-blurb explains:
"It is a long-held truism that 'the camera does not lie'. Yet, as Mia Fineman argues in this illuminating volume, that statement contains its own share of untruth. While modern technological innovations, such as Adobe's Photoshop software, have accustomed viewers to more obvious levels of image manipulation, the practice of "doctoring" photographs has in fact existed since the medium was invented. In "Faking It", Fineman demonstrates that today's digitally manipulated images are part of a continuum that begins with the earliest years of photography, encompassing methods as diverse as overpainting, multiple exposure, negative retouching, combination printing, and photomontage. Among the book's revelations are previously unknown and never before published images that document the acts of manipulation behind two canonical works of modern photography: one blatantly fantastical (Yves Klein's "Leap into the Void" of 1960); the other a purportedly unadulterated record of a real place in time (Paul Strand's "City Hall Park" of 1915). Featuring 160 captivating pictures created between the 1840s and 1990s in the service of art, politics, news, entertainment, and commerce, "Faking It" provides an essential counterhistory of photography as an inspired blend of fabricated truths and artful falsehoods".
For the trial lawyer, who -- to be fair -- is not this book's prime readership target -- the text raises questions of the credibility of photographs as primary or corroborative evidence both in civil proceedings and in criminal trials.  For the intellectual property lawyer the book raises further and deeper issues relating to the moral rights of a photographer to object to the distortion of his or her work and to disassociated from its manipulated version, as well as to the treatment of orphan works.  On the same page as the copyright notice, the reader will find the following message:
"Unless otherwise specified, all photographs were supplied by the owners of the works of art, who hold the copyright thereto, and are reproduced with permission. We have made every effort to obtain permission for all copyright-protected images.  If you have copyright-protected work in this publication and you have not given us permission, please contact the Metropolitan Museum's Editorial Department ...".
From this it appears that the Museum has not found the absence of a legislative solution to the 'orphan works' problem to be an insuperable barrier to its commercial objective in publishing this book.

Further particulars of this lovely book can be found here.

Wednesday 5 December 2012

Art Attacks

Until very recently few had ever heard of Yellowism, an art movement that gained some notoriety in October 2012, when self-proclaimed Yellowist Vladimir Umanets wrote on one of Mark Rothko's paintings at the Tate Modern.  Umanets signed his name on Rothko's "Black on Maroon" and also wrote the phrase “A potential piece of yellowism."  It is difficult to discern exactly what Yellowism is, though there is a website for the movement as well as a YouTube channel.  Blouin ArtInfo gives a critical, but thoughtful analysis of Yellowism here.  

Marcin Lodyga, Umanets' partner in Yellowism wrote that Rothko's painting at the Tate, signed by Umanets was still a work of art.  He felt it would not be Yellowism, only potential Yellowism, until the work was placed in "yellowistic chamber," at which point it would express only the color yellow and cease to be a work of art.  Umanets told the BBC, "Art allows us to take what someone's done and put a new message on it."  

Rhetoric aside, appropriation within the art world is not new.  Marcel Duchamp signed a urinal and transformed an industrial design into a work of art.  Artists like Andy Warhol and Jasper Johns incorporated images (trademarks included) from modern culture into their works as if casting a mirror out onto modern society.  However, at some point in the 1970s and continuing until today art began appropriating itself, in the form of physical "attacks" on existing works displayed in galleries and museums. 

These "attacks" present some very unique legal questions.  When someone writes on a Rothko painting or dumps a bottle of ink into Damien Hirst's pickled sheep or draws a clown face on a Goya print, does this act of destruction create a new work of art and with it new copyrights in another author?  

Copyright protects original works of authorship, giving the author exclusive rights and the ability to prevent unauthorized copies or otherwise derivative works. As for art attacks, it would seem that the question comes down to whether the new work would be seen as an unauthorized derivative, or whether the work was transformative enough, and accordingly leaning in favor of fair use.  Still, transformative use is an incredibly difficult question, and often it leaves much to the eye of the beholder.  

One must also consider the moral rights attached to certain works.  In most civil law jurisdictions and some common law jurisdictions, moral rights attach to works of art during an artist's lifetime.  Among other issues, moral rights protect the integrity of the work, barring alteration, distortion, or mutilation of the work even after it leaves the artist's possession or ownership, and even if the artist has assigned the copyrights to another.  While moral rights may not present an issue in the case of long-since deceased artists, they could certainly play an important role in attacks on the works of living artists.

Further, it seems that in most cases those who "attack" works of art are not the legal owners of the physical work of art, thus their acts constitute crimes as well as civil torts.  Even if a new copyright existed, it would likely be rendered worthless as proceeds from the copyright would be viewed as proceeds of a crime.  (In case anyone is still wondering, Umanets was arrested for what he did to Rothko's painting.)  

While art attacks might serve as an end run into the limelight for new artists, the social and legal consequences are considerable.  

Monday 3 December 2012

Turkey claims art restitution from the Louvre

Part of the Iznik ceramic tiles displayed in the Louvre
At the beginning of October, the Louvre opened a new Islamic wing displaying over 3,000 works, among them a wall of Ottoman Iznik ceramic tiles. Turkish officials claim that some of the tiles were stolen from the Piyale Pasha mosque in Istanbul at the end of the 19th  by a French collector and demand the panels  to be returned.

 An estimated eight panels were taken from the mosque: five have been located in various museums, and the remaining three could be the ones currently displayed in the Louvre. Turkish Minister of Culture, Ertugrul Günay - in Paris on Wednesday November 21, to sustain the city of Izmir’s place in the Universal Exhibition - also officially requested the return of the tiles to Turkey. Iznik is a town in western Turkey that was the center of ceramic production of the Ottoman Empire throughout the sixteenth century. The town experienced a burst of tile production beginning in the middle of this century that would result in extremely elaborate, high-quality tiles for important buildings

This is not the first time Turkey has requested the Louvre to return objects to them. In 2006, the Turkish Foreign Affairs Minister contacted the Louvre requesting sixty Iznik ceramic tiles from the tomb of Suleiman but such demand was dismissed. 

The case of the Louvre’s Iznik tiles show how restitution of artworks can be problematic. Requests for art restitution from major museums have become more frequent in recent years, and the case of the Iznik tiles is only one of many involving Turkey. In 2011, the Museum of Fine Arts in Boston sent back a statue of the “weary Herakles,” and the Pergamon Museum in Berlin agreed to restitute a sphinx that has been there since 1915.

With reference to all international issues, there is no authority on the issue of cultural repatriation of art. In 1970, UNESCO (United Nations Educational, Scientific, and Cultural Organization) held a Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property. This Convention established numerous principles and standards of behavior, but none of them can be applied retroactively. States that have ratified the Convention are obliged, however, to recognize the rights of each other state “to facilitate recovery of such property by the State concerned in cases where it has been exported.”. Although the convention could not apply its post-1970 regulations to all art that has been dispersed throughout the world, the ratification implies respect for the principles being established and a pledge to honor them. France ratified the convention in 1970, and Turkey ratified it in 1981.

As to art restitution, on one hand, the recent movement towards repatriation has grown and  Unesco stresses on the importance of embracing cultural differences, attributing works of art with a specific value as contributing in a significant way to the culture of the country of origin.

On the other hand, such  practices are standards of behavior as opposed to ones enforceable by legal action.  Then, the purpose of a museum like the Louvre is to educate its visitors about different cultures, but this mission necessarily requires diversity in the origins of the objects in their collections. Finally, there is no final authority, and each request for cultural property restitution depends on the case and merely on the willingness of the parties to cooperate with one another.

Sunday 2 December 2012

Fine art: the oddest market of all?

Apologies to anyone who may already have seen this, but the cross-over readership of Art & Artifice and the IP Finance weblog is very small.

"Fine Art: The Oddest Market of Them All?" is the title of an excellent analysis by blogger Neil J. Wilkof of the contrast between the fine art market and the market for copyright works, with particular focus on the role of authentication boards. It's well worth a read.

Are video games art?

SimCity 2000 (1984) designed by Will Wright and Fred Haslam
The New York based Museum of Modern Art (MoMA) has recently acquired a selection of 14 video games including Pac-Man, Tetris, SimCity2000 and Portal. These video games will form a new category of artworks held in the MoMA collection.

The MoMA press release announcing the acquisition poses the question ‘are video games art?’ and immediately answers it with a very self assured ‘they sure are’. However, it goes on to say, ‘but [video games] are also design, and a design approach is what we chose for this new foray into this universe’. So whilst MoMA considers video games to be art, it is classifying them under the broader heading of ‘interaction design’.

How do you display a video game in an art gallery?

There are a number of commentators who have suggested that MoMA is going to turn into an arcade in order to display these new acquisitions. Curating the games is considerably more challenging than that. For example, how do you display a game which is designed to be played without risking destroying it through repeated game play? Should you have consoles available for MoMA videos to play the games? Should they be the original consoles/computers? Does it matter?

MoMA has sought advice on this and many other legal, preservation and design matters. MoMA concluded that they have to obtain copies in the game’s original software format and the original hardware ‘wherever possible’. They also sought to acquire the original source code to enable translation in the future if the original technology becomes obsolete (hence, what I imagine is, a fairly hefty price tag for some of these games).

In terms of display, if the game is short enough (e.g. Passage) the game could be made playable in its entirety in the gallery. They will put on interactive demonstrations for longer games and even create guided tours of the alternative worlds in games like Dwarf Fortress. As MoMA puts it, the acquisition will enable the museum to ‘study, preserve, and exhibit video games as part of its Architecture and Design collection.’ 

How were the games chosen? 

MoMA explains that it followed the same approach to the acquisition of the games that it takes with other items in the collection i.e. ‘a combination of historical and cultural relevance, aesthetic expression, functional and structural soundness, innovative approaches to technology and behavior, and a successful synthesis of materials and techniques in achieving the goal set by the initial program.’ Because of this artistic focus, the MoMA selection doesn’t include some games which might have seemed logical choices from a historical significance perspective. Arguably if MoMA hasn't selected a game for inclusion it is less 'artistic' but there may be any number of factors as to why games have not been included so if a favourite game isn't included, don't get too upset!

Tetris, 1984.  Designed by Alexey Pajitnov
What does the law say?

There have been relatively few cases over the years to consider what form of rights video games are protected by and how close you have to be for infringement. However, it is relatively settled law that video games fall into the UK definition of a copyright work as a series of graphic (or artistic) works and as a literary work in terms of the underlying source code. Games can also incorporate short films, usually include a soundtrack (another right), and in some circumstances, may arguably be films in their own right.

Nova v Mazooma is still the main UK case – two similar pool games were found not to infringe as the copying was not of a ‘substantial part’ of the original game. This case analysed the game as a series of ‘graphic’ or artistic works.

For a full run through of all the recent cases and a comprehensive review of gaming law in general, the reader should look no further than Jas Purewal’s excellent Gamerlaw blog.

Across the pond, the argument that video games could be art was boosted in the US last year when the Supreme Court ruled they were like other works of art and their right to free speech should be protected under the First Amendment. See here for the NY Times' analysis. Thus, from a legal perspective at least, it is fairly settled that video games can be works of art.

What do the critics say?

Not all critics agree with MoMA’s assertion that video games can be works of art. The Guardian’s Jonathan Jones has been particularly critical – his article is a fairly provocative read. There is a certain amount of sneering about putting Tetris in the same galleries as works by Pollock and Picasso but the argument that they cannot be works of art because they require human interaction to be appreciated doesn’t seem to be particularly powerful – the definition of art is changing all the time. Most modern installations require at least minimal human interaction and a limited view of art as something that you merely gaze on has become outdated.

Should video games be treated as art? Your comments are always appreciated.

There is more to come…

These 14 games are the ‘seedbed for an initial wish list of about 40 to be acquired in the near future’. Games on the wish list include Spacewar, Pong, Snake (the original not the Nokia phone version), Donkey Kong, Legend of Zelda and Super Mario Bros. (making Shigeru Miyamoto the most sought after artist/game designer). The first 14 video games will be installed in MoMA’s Philip Johnson Galleries from March 2013.

You can view The Guardian’s slide show of some of the games here.

You can read more about the acquisition in The Independent here.

You can view YouTube gameplay for each of the games via The Week here.

Tuesday 27 November 2012

A lesson in copyright

I came across an advertisement for an upcoming seminar which may be of interest for artists who want to understand more about copyright than what they can learn from this website [if that is possible!] .

Offered by the Art Insider, the seminar entitled "Understanding copyright and IP" will take place on 7 December in London.

The Art Insider, which was founded this year, describes itself as "a forward-thinking company providing bespoke mentoring, group seminars and a comprehensive range of associated services for visual artists. We are a friendly team of practising visual arts specialists, dedicated to facilitating the professional development of artists and supporting the progression of studio practice. We provide artists with the knowledge, skills and confidence to navigate more successfully within the fine art industry...The Art Insider exists to bridge the gap between studio practice and successful commercial enterprise."

Their website advertises a range of seminars for artists from 'Business skills for artists' to 'Setting up and launching an exhibition.'

I cannot guarantee anything about the course or the provider, but would be interested to hear from anyone who attends the seminar, or who has any experience of the Art Insider – which looks like a valuable resource for artists.

Thursday 22 November 2012

Was the Olympic Opening Ceremony original?

The London Olympic Games opening ceremony in July was declared a triumph, with its director Danny Boyle tipped for a knighthood. Most should recall that the opening feature of the ceremony a rural scene including a spiral mound based on Glastonbury Tor, a lake and a water wheel, a farmhouse replete with live animals, and a model village with actors portraying villagers, football and cricket players.
Now that the dust has settled, however, a claim has emerged that this part of the opening ceremony was copied from a design submitted to a London 2012 art competition.

The Telegraph reports:
[Lee Merrill Sendall] submitted his design for Large Spiral Mound in 2009 to the Artists Taking the Lead competition – a joint initiative by Locog, the organisers of the Games, and Arts Council England (ACE) to fund 12 regional projects where artists could create an Olympic legacy.

Mr Sendall, 42, from Hull, was shortlisted for the £500,000 prize for his proposal to build a 200ft spiral Neolithic mound in East Yorkshire, representing the ancient history of the United Kingdom.

One of five finalists, in October 2009 he presented his proposal to a panel of judges including officials from Locog and ACE, with illustrations, a slide show and a written brief. He also provided judges with a set of postcards featuring the images.

Mr Sendall said: “When I saw pictures of models presented by Danny Boyle and his team for the opening ceremony, I was stunned at what appeared to be a copy of my proposal. “On the night of the opening ceremony, I received messages from relatives and friends asking if Danny Boyle had permission to use my idea. “Too many of my concepts and visuals appeared in the ceremony to be shrugged off as coincidence. I would have liked to have been asked if my ideas could be used and I would like proper credit for the project which I put a lot of work into.”
Mr Sendall is said to have sought legal advice, but is unlikely to pursue a claim given the costs involved. It appears that he is speaking out now with the aim of receiving some recognition of his ideas.

Unfortunately, as many of us know, copyright protects the expression of ideas, not the ideas themselves. Additionally, copyright infringment requires copying, which has been denied by Locog in a statement which said: “Danny Boyle was not involved in the Taking the Lead programme, which was funded by the Arts Council, and would not have seen any of the submissions...Danny’s vision for the opening set for the Olympic Games opening ceremony was inspired by the very well known Glastonbury Tor landmark and British history.” Locog also reportedly told The Art Newspaper: "The vision was Danny Boyle's and his only."

Source: The Telegraph, 18 November 2012
Photo:  BBC

Tuesday 20 November 2012

Challenge to sale of Paolozzi sculpture?

While Tower Hamlets is selling its public artworks, Camden Council is reportedly planning to challenge the of a statue by sculptor Eduardo Paolozzi.
The statue has been on public display in central London outside an office block in High Holborn for 25 years. It is said to be based on a self-portrait of Paolozzi, featuring him as the Greek God Hephaestus. It sold at auction for £140,000 on 14 November.

The Camden Council has reportedly says that the sculpture was removed without the correct legal permission and that despite the sale, they will fight to get the statue reinstated. The Camden New Journal reports:

A Town Hall spokeswoman said: “The council is very concerned about the removal of this statue from the building. We are exploring whether we have any powers to compel the owners to retain the statue in its position.”
The 20th Century Society’s [a leading conservation body who also oppose the sale] conservation officer Henrietta Billings said the statue must be returned. She added: “He is one of the UK’s most important 20th-century artists.

"While a private commission, it is very clearly built into the front facade. There is a space for it and it isn’t small.”

The expert added that its removal – it was taken away over the weekend – could break planning law because although the building is not listed, it is in a conservation area.

She added: “It is an integral part of the streetscape. It has been whisked away without any discussion. It may be private property but it is public art in a public area.

"They should have sought planning consent. If we were to lose this, people will look at its aesthetic and historic value in years to come and wonder why it wasn’t saved.”

Source: Camden New Journal, 15 November 2012

Monday 19 November 2012

Decision to sell Henry Moore sculpture criticised

The decision by Tower Hamlet's mayor to sell a sculpture by Henry Moore has outraged many. The sculpture was sold to the borough by Moore himself in the 1960s for only £6,000 (much less that market value) on the condition that it was permanently displayed in an underprivileged area for the enjoyment of people in that area. However, the mayor ignored recommendations that the sculpture not be sold, stating that the money raised would ease the £100 million government cuts in their budget.

Moore's scultpure: Draped Seated Woman
The Guardian reports that this decision is latest in a growing list of public artworks being sold by councils, and experts fear that more councils may follow suit: "Last year, Bolton Council sold seven works of art, including two etchings by Picasso and a painting by John Everett Millais, and Gloucester city council approved plans to sell 14 works of art valued at £381,000. In the same year, Newcastle City Council put £270,000 of publicly-funded artwork for sale on eBay and Leicestershire County Council made more than £160,000 after selling off some of its art collection."

As well as the concerns for public art, the decision also raises the question as to the efficacy of sellers of artworks seeking to impose conditions on buyers. In this case, Moore's intention in selling the work at a low price was to allow the people of Tower Hamlets to benefit from the work. Decades later, however, the buyer does not appear to be at all concerned that it is restricted in any way from dealing in the work.

Source: The Guardian, 7 November 2012
Photo: Wendy North © 2010

More Meme, More Problems

Earlier this year when elderly parishioner Cecilia Gimenez "restored" the Ecce Homo fresco at her church near Borja, Spain, she never could have predicted the internet sensation it would become. By now our readers are likely familiar with the Ecce Homo, lately more commonly known as "The Monkey Boy of Borja." Gimenez's restoration attempt unwittingly succeeded in making a deteriorating fresco of Jesus look like a monkey. Some might consider her action vandalism (whether Gimenez had permission to paint on the fresco and the scope of that permission are not entirely clear). Still others, including some of our readers, have pointed out that her finished work differs so markedly from the original as to likely endow her with copyrights in the piece.

Images of the restoration inspired a thriving internet meme, spreading from news articles, to blogs, social media, and humor websites. It didn't take long before people, seemingly inspired by the absurdity of it all, to make pilgrimages to see the the Monkey Boy painting in person. Visitors to the church increased exponentially, and the church now charges admission. As The World reports, Borja recently experienced a flood of tourism, and the financial benefits of Gimenez's work flow well beyond the church to neighboring businesses. Enter merchandising--the Monkey Boy internet sensation has of course inspired consumer goods of all kinds, including Halloween costumes and Christmas ornaments. It is unclear whether this merchandise was created with permission, especially because Gimenez and the church now dispute ownership of the work, creating further questions about who could give consent to reproduce the image. Gimenez is reported to have hired attorneys to help assert her rights in the work (and the profits therefrom), yet the church argues that it owns the piece and profits therefrom because it is on the church's wall. Another question looms, and that is whether any royalties to Gimenez would be considered profits from a crime.

Surely, the situation with Ecce Homo presents many legal and ethical questions. Still, I have to stop and appreciate the fact that what started as an internet meme has brought people out from behind their computer screens to go see a work of art in person, however unusual that work might be.

Saturday 3 November 2012

Australia's new superannuation laws threaten art prices

It appears that the Australian art industry is feeling the first effects of changes in Australia's superannuation laws.

Under the changes self-managed super funds (SMSF) investing in collectables and personal use assets are subject to tighter rules as to how such collectables and personal use assets are stored and valued. In the context of the legislation, such collectables and personal use assets include artwork, jewellery, antiques, artefacts, coins or medallions, postage stamps or first day covers, rare folios, manuscripts or books, memorabilia, wine, cars, recreational boats, memberships of sporting or social clubs.

The new laws, which came into force on 1 July 2011, inter alia provide that:
  • these items cannot be stored in the private residence of a related party of the fund;
  • the fund must have written records in respect of decisions as to the storage of these items;
  • these items must not be used by related party; and
  • the transfer of an asset to a related party requires independent valuation.
It was predicted that the new laws would lead to the liquidation of art collections by SMSFs – who have until 1 July 2016 to bring their assets in line with the new rules or dispose of them. The AFR reports on one of the first skirmishes as follows:
"Sydney dealer Martin Browne last week forced the withdrawal of five works by Giles Alexander from Mossgreen’s Sydney sale of the contemporary collection of opera director John Wregg and his partner, artist manager Judith Alexander, on Sunday.
Browne did so by exercising Alexander’s copyright in images which had already made it into Mossgreen’s sale catalogue.
And he made the move because the Mossgreen estimates, which ranged from $500 to $3500, were “10 to 15 per cent” of the gallery prices set for the 37-year-old artist, who recently had his first show at London’s Fine Art Society, and whom he began to represent four months ago, he says.
“A low estimate gets people in, particularly if they are looking at the gallery prices,” says Browne, who had a number of artists – including McLean Edwards, Alexander Mc¬Kenzie and Tim Maguire – among Sunday’s 203 lots.
“Contemporary works should be held a minimum of 10 years, then sold judiciously, not just dumped on the market, at a loss in many cases.” ...
The sale in Sydney’s Queen Street, Woollahra, moved only about 60 per cent, on both volume and value, totalling $250,000, including buyers premium, against a pre-sale estimate of $330,000 (without). It also included eight unsold Susan Norries.
It follows the sale of 120 works from Melbourne Aboriginal dealer Bill Nuttall’s superannuation fund through Bonhams in May on estimates slashed to beat the anticipated rush as collectors moving to comply with the superannuation changes. “We are facing a potential tsunami of material being forced onto the market by the changes,” Browne says."
It remains to be seen whether this prediction proves accurate.

Source: Australian Financial Review, 1 November 2012

Friday 2 November 2012

Resale royalties in the US: you can still influence events ...

Readers of this weblog may have missed the call (reported here) by the United States Copyright Office for submissions and evidence regarding artists' resale royalties from countries and indeed from anyone -- including artists -- who has had some experience of droit de suite schemes that are currently operating.  The call for submissions was to have closed next Monday, 5 November, but the effects of Hurricane Sandy have resulted in that deadline being shifted back to 5 December.

The original call for submissions is here; the notice regarding the extension is here.

Thursday 1 November 2012

Ai Weiwei to repay money to supporters

Following the loss of his appeal in his tax case (reported here), Ai Weiwei has reportedly started to repay the money that was sent to him by his supporters when the Chinese authorities imposed a $2.4 million penalty for unpaid taxes and fines (as we reported here) on his company, Beijing Fake Cultural Development Ltd.

At the time, Ai reportedly said that he would not treat the money from supporters as donations, but as loans that he would repay. He has now said that said that "We have no more options to keep trying. We've done what we could, and the court's decision has been made. So we should repay the money."

Source: The Associated Press, 31 October 2012

Tuesday 30 October 2012

Exotic Dance isn't Art: It's Official.

Last month, New York strip club Nite Moves argued in court that it should be exempt from paying taxes. As reported in Art and Artifice, the club said that exotic dance was an art form and, since New York law exempts revenue from 'dramatical [and] musical arts performances' from taxation, the club's income should be tax free.

Sadly, the New York Court of Appeals disagreed, and the club will have to pay its back taxes after all. The Court noted that the tax break for the arts was intended to promote 'cultural and artistic performances in local communities' and the majority judgment was that the lap dances do not do so .  Consequently, Nite Moves was not entitled to tax exemption. '[P]erformances by women gyrating on a pole to music, however artistic or athletic their practice moves are, [is] not a qualifying performance entitled to exempt status,' they concluded.

However, the decision was close. Three of the seven appeal judges dissented, Judge Smith's dissenting judgment being particularly strong. He argued that there should be no distinction between highbrow and lowbrow dance, saying that 'a dance is a dance' whether 'artistic or crude, boring or erotic'.

The club's attorney W. Andrew McCullough agrees. The result of the judgment is that 'The state of New York still gets to be a dance critic,' said McCullough (as reported in US Metro ),' and that is not the legitimate function of state of New York.'

Saturday 27 October 2012

3D Printed Art

With only a few colours to choose from
many simply opted for white
Last Sunday, I went to 3D Print Show. In case the name doesn’t say it all – this was a show dedicated to 3D printing. Different stands demonstrated myriad applications for 3D design, image capture, post processing and printing. There was a 3D printed fashion show (sadly I missed it), a 3D printed rock band – the guitars not the band members – and a range of items from 3D lampshades, architecture models to more straightforward sculpture.

The show was an educational experience in many respects not least for the various opportunities that it offers for artistic expression (and the incredibly large number of IP and other legal issues that this new technology raises).

3D printing is more or less what it says it is, you print layers of a material to build up a structure, layer upon layer. There appeared to be at least three methods of printing. (1) building up layers of the same plastic which is fed in from spools of coloured plastic ‘wire’ (2) a method using powder and mixing the plastic – after two explanations I still don’t really understand how this works and (3) a more traditional ink jet printer approach – these guys considered themselves to be the true 3D printers.

The Replicator 2.
Not quite Star Trek (but not far off)

The most common printer on display, MakerBot’s Replicator 2, works by building up layers of plastic (i.e. method 1) but it can only work in the specific colours of the original PLA plastic – mixing of the colour pigments doesn’t seem to be possible yet for this sort of printer. This made for interesting trinkets on display and, more significantly, the potential to develop slightly gaudy prototype models for designers working on everything from toys to space stations. Those at the more traditional end of the creative spectrum had even printed copies of old roman statues in a plain colour and then post processed (i.e. painted) the surface. Not quite Rodin but an intriguing start and it certainly has enormous potential to help sculptors to develop ideas in the same way that it is already helping architects and designers to plan buildings and develop toys.

3D printed guitar
Most of the materials on display were made from a plastic called PLA but it was possible to use metals, ceramics and a range of other plastics. The impression that I got from the event was that this is just the tip of the iceberg.

Artistic applications ranged considerably from complicated geometric designs which looked incredible the first time but less so by the hundredth, to fashion design – particularly shoes – and a host of fusion items such as mixed ceramics/PLA vases and an incredible piece which looked like a lump of plastic which had been stretched in a number of directions but when viewed through a reflective cylinder showed a hand creeping out in all directions.

3D printed hand (in reflection)
Rejuvenation by Jonty Hurwitz
3D printing is a huge opportunity for the art world. However, there is also enormous potential for concern. Several of the stands were at pains to show how easy it is to copy a 3D design into a digital file. This can be done with pin point precision via various scanners but also, less accurately/more alarmingly, by scanning in a digital photograph and reconstructing the rest of the 3D image via a computer program. The ability to infringe copyright in designs and sculpture – even ones which have not been originally 3D printed is therefore enormous.

The resolution on the printed items is good but still far from mould quality. For the time being, the technology is not quite detailed enough to be, in my opinion, a viable medium for quality art. However, the potential for using 3D design to develop ideas and explore concepts in three dimensions is extraordinary.

It also opens up huge possibilities for appreciating and reimagining our cultural legacy. Imagine a 3D Starry Starry Night or Matisse’s the Snail, a Picasso line drawing that can move. Some will be extremely tacky but the ability to interact with these artistic works is an educational opportunity that the galleries of the world might like to think about. It is worth remembering that many public galleries’ key works are out of copyright and the ability for third parties to use the works will be difficult.

There were even 3D foetuses
taken from ultrasounds!
I am not aware of any intellectual property cases revolving around 3D print technology whether from the patent side or the copyright/design right infringement side but if anyone out there has heard of a case somewhere around the world please get in touch and/or share the details via the comments section below.

Protect your art via a new small claims procedure in England and Wales

Will one of these RCA secret artists benefit
from the new procedure?
On 1 October 2012, a new procedure was introduced for most intellectual property claims in England and Wales. I wrote an article for The Guardian, which explains the background and the details. You can read it here.

Essentially the small claims track is a simplified judicial process which has previously been available for a wide range of low value legal claims in the UK but, significantly, not IP. As I said in The Guardian:
“It is hoped that the new system will provide access to justice for people such as photographers and designers whose works are regularly infringed, but for whom the costs of bringing legal action are often too great compared to the potential benefit of, for example, a licence fee for the photograph. I acted on a pro bono basis for a photographer who took a series of photographs for a business brochure, but subsequently saw the images on a commercial website and in a range of other publications, all without his permission. The new system will make it easier for people like him to take action to stop that happening.

The small claims track will only cover claims for straightforward copyright, registered trade mark and/or unregistered design infringement. The Patents County Court (PCC) will hear all IP claims made under the small claims track. Patents, registered designs and other claims not covered by the small claims procedure can still be brought under a streamlined procedure in the PCC, potentially with an agreed cost or damages cap. However, this procedure is more complex and expensive."
Key points:

  • It covers claims worth up to £5,000 (rising to £10,000) in 2013, the exact date is currently unclear. 
  • It only applies to very simple cases. The small claims track is not suitable if, for example, you can’t easily prove ownership, the infringement isn’t complete copying or there are other difficulties such as the infringer may be able to rely on one of the many obscure defences hidden within the copyright designs and patents act. 
  • It doesn’t cover patents and registered designs.  However, a whole range of rights from performer’s and moral rights to plant varieties are covered by the new procedure. 
Finally, there are a number of groups who help guide artists through the thorny rights issues such as Anti Copying in Design (ACID) and the Design and Copyright Society (DACS). These groups help to support artists and, in the case of DACS, collect royalties on behalf of artists. Links to these groups and many more are available on the Art & Artifice side bar.

Have you used the new small claims system? If you have any questions or comments - let us know.

Friday 19 October 2012

Hands off the paintings: France's short lived art tax

France's art world has been in uproar this week over a proposal that art works should be subject to a wealth tax.

Currently, only assets such as real estate and cash are included when calculating a person's wealth for tax purposes. But a new bill to reform the wealth tax was to have provided that where a person owned any art work worth over €50,000 that too would be factored in when assessing their wealth for tax purposes.
The bill had been backed by budget minister Jérôme Cahuzac and passed by the Assemblée Nationale (France's lower house) as a means of reducing France's budget deficit. But France's top museums, including the Pompidou, Musée d'Orsay, Versailles and the Louvre wrote a letter to the government saying that the proposal would seriously damage the art world in France. The letter, quoted in daily paper Libération, said that the museums feared that the proposed tax would lead to art collections leaving the country as owners no longer wished to keep them in France. It also argued that French owners of artworks would no longer be willing to lend to French museums and galleries, 'for fear that if they are put on display they [the owners] will be identified'.

Daily paper Libération said the proposal was 'grotesque' and would 'disorganise the fragile ecosystem that allow exhibitions to come together, art historians to work, and [France's] cultural institutions to draw in visitors', Reuters reported.
Responding to the growing outrage, Prime Minister Jean-Marc Ayrault stated this week that the government will oppose the proposal. Arguably of course those owning over €50,000 worth of art would in fact be well placed to pay additional tax. But it seems that such a publicly unpopular measure was not worth the negative publicity, especially since in any case the addition of artworks to the wealth tax was expected to raise only a few million euros.

Read more here, here and here.

Wednesday 17 October 2012

Apple sued for infringing copyright in photograph

A swiss photographer, Sabine Liewald, has sued Apple for copyright infringement in the U.S. District Court for the Southern District of New York, accusing the company of infringing the copyright in her photo Eye Closeup (below) by "[copying, publishing and exploiting] the photo, including in its Macbook Pro advertising campaign, keynote address and related advertising materials without permission or compensation."

According to the claim, Apple obtained the photo from Liewald's agent for "comping" (or layout) purposes only. It did not obtain any additional permissions from Liewald or her agent, and, indeed, subsequently informer her agent that it did not intend to use the photo in its Macbook Pro advertising campaign. Nevertheless, Apple proceeded to use the photo, as follows:

Liewald is seeking actual damages and for any profits attributable to infringements of her copyright in the photo, as well as for statutory damages for each infringing use of the photo.

Read the full claim here.

Tuesday 16 October 2012

Hong Kong's art market boom as China slows?

At the beginning of October, leading Chinese auctioneer China Guardian held its debut auction in Hong Kong, having been lured by Hong Kong's international buyers, low tax regime and stable regulatory framework.
Landscape series by Qi Bashi, Album of Mountains and Rivers
1922, which led China Guardian's auction
Reuters reports on the apparent shift in the Chinese art market as follows:
China Guardian's sale of Chinese art and classical furniture in the former British colony follows its rise as the world's third largest auction house on the crest of China's art market boom, with sales of $1.77 billion last year...

The sale, though relatively small, is seen as a symbolic foray by China's top auction company into the turf of goliaths Christie's and Sotheby's who have long dominated international auction hubs like Hong Kong, New York and London.
China Guardian's key rival, Poly International is also planning an inaugural Hong Kong sale in late November, while A&F Auction and Beijing Rongbao Auction aim to enter Hong Kong in one or two years, according to art market reports.
China's wave of millionaire buyers and investors have helped propel Hong Kong into the world's fourth largest art auction hub, with nearly 7 percent of global art auction revenue in 2011, according to French art database

Art dealers and experts say the Chinese expansion into Hong Kong is also being driven by a tightening regulatory environment in China, that has grappled with widespread art crimes including tax evasion, a proliferation of fakes, money laundering and manipulative bidding practices...

In April, a large-scale Chinese customs probe into tax evasion on art imports delivered a blow to the art market, with at least six prominent art dealers, collectors and artists being investigated, according to art dealers and Chinese media reports. "The tax probe had a huge impact on the spring auctions in China," said the owner of an art gallery in Taipei who is a frequent buyer in the Chinese art market, but who declined to be identified because of the sensitivity of the matter. "Everyone finds himself in danger so the market is extremely cold." According to market researcher ArtTactic, total auction sales this spring from the biggest four auction houses in the China market dropped to $1.5 billion, 32 percent lower than the autumn season in 2011 and 43 percent less than a year before...

Art market experts, however, say Hong Kong's laissez-faire economy, solid regulatory framework and zero-tariffs on art imports, make it a secure and stable alternative for China's auction firms. Although Beijing has lowered its import duties on arts to 6 percent from 12 percent since the beginning of 2012, another 17 percent of value-added tax still poses a huge burden to Chinese auction houses.
It certainly seems that the Hong Kong market can only continue to grow, especially in light of its favourable tax regime as compared to China, as well as, obviously, its proximity.

Source: Reuters, 7 October 2012

Monday 15 October 2012

US Court of Appeal rejects Nazi theft claims

The US Court of Appeals for Second Circuit last week affirmed in its entirety the judgment of the District Court in relation to an ownership dispute concerning this 1917 drawing by Egon Schiele known as Seated Woman With Bent Left Leg (Torso):


As we reported here, the case was brought by David Bakalar who sought a declaration that he was the lawful owner of the work having purchasing it from a dealer.

On the other side, were Milos Vavra and Leon Fischer who were the heirs to Fritz Grunbaum, a prominent Austrian Jewish art collector, who owned the work before he was murdered by the Nazis in 1941. Vavra and Fischer claimed in the alternative that either (i) the work had been stolen by the Nazis after Grunbaum's arrest in Vienna in 1938 or (ii) the drawing had been stolen from the Grunbaum estate.

The District Court for the Southern District of New York awarded judgment to Bakalar on the basis of laches. In this respect, the Court noted that Vavra and Fischer ancestors' were aware of, or should have been aware of, their potential intestate rights to Grunbaum's property, and were not diligent in pursuing their claims to the work, which meant that Bakalar was Prejudiced in his ability to garner evidence to vindicate his rights in the work. The District Court also found that was not looted by the Nazis.

Vavra and Fischer appealed on the basis that that the District Court committed two errors of law bearing on the laches defense and challenged the finding that Bakalar was prejudiced by their ancestors’ delay in pursuing the work.

The Court of Appeals rejected the appeal in full finding no merit in Vavra and Fischer’s arguments. It held that there was no clear error in the findings that Vavra and Fischer’s ancestors knew or should have known of a potential claim to the Drawing, that they took no action in pursuing it, and that Bakalar was prejudiced in the litigation as a result of that delay. It was therefore sound to recognize Bakalar’s title on the basis of his laches defense.

This is an important decision for the New York art market which favours the rights of dispossessed former owners over the rights of good faith purchasers of stolen property, to ensure there is a balance between both parties' rights. Claims can be made by dispossessed owners, but they need to be made in good time in order not to prejudice the purchasers' ability to defend their rights.

The decision of the US Appeals Court can be found here.

Monday 1 October 2012

US considers the Artist's Resale Right

The US Copyright Office has published a Federal Register notice of inquiry requesting comments on the resale royalty right.

The summary of the inquiry in the Federal Register notes:
The U.S. Copyright Office is undertaking an inquiry at the request of Congress to review how current copyright law affects and supports visual artists; and how a federal resale royalty right for visual artists would affect current and future practices of groups or individuals involved in the creation, licensing, sale, exhibition, dissemination, and preservation of works of visual art. The Office thus seeks comments from the public on the means by which visual artists exploit their works under existing law as well as the issues and obstacles that may be encountered when considering a federal resale royalty right in the United States.
Comments (which can be submitted here) are due by 5:00pm EST on 5 November 2012.

Thursday 27 September 2012

Ai Weiwei loses appeal over tax evasion

Poster of  2012 Alyson Klayman's documentary
"Ai Weiwei: Never Sorry"
As we reported in several posts here and again here on this blog, the world famous Chinese artist was condemned by Bejing authorities for tax evasion. 

Ai and his company Fake Cultural Development Ltd presented appeal against such sentence, accusing the tax bureau of violating laws in handling witnesses, counterfeiting evidences and company accounts. 

Ai said authorities have repeatedly denied him his legal rights and failed to follow basic procedures. For instance, Beijing court should have given him written notice of its judgment three days in advance, but instead notified him by phone on Wednesday, the day before the ruling. The short notice meant his lawyers weren't able to attend because they were travelling, he said.

Chinese authorities have today rejected  his second and final appeal against a $2.4m tax fine. Ai paid this guarantee in part with donations via wire transfers or from supporters who stuffed cash into envelopes or wrapped bills around fruit and threw the items into his yard. That deposit will automatically be collected by the tax bureau now, artist said.

Ai also claimed authorities have yet to return his passport, effectively barring him from leaving the country. The passport was taken after Ai was detained without explanation for three months last year. Not having the passport prevented him from going to exhibitions of his work and other engagements in Washington, New York and Berlin.

The artist and his supporters have interpreted the penalty as official retaliation against his activism. A sculptor, photographer and installation artist, Ai has used his art and online profile to draw attention to injustices in Chinese society and the need for greater transparency and rule of law.

We guess his celebrity will raise after this final conviction and after a documentary about him, "Ai Weiwei: Never Sorry", which opened in the United States in July 2012, reporting several clashes he had with Chinese regime: in 2011 his studio was destroyed; afterwards police in Sichuan invaded his hotel room in the middle of the night beating him so severely that he had to undergo surgery in Germany for a cranial hemorrhage. When he tried to file a complaint at a police station, his effort was thwarted by bureaucracy.

Sunday 16 September 2012

New Trend in the Art World: Disbanding of Authentication Committees?

"Untitled", Keith Haring, 1984
A trend in the art field seems the end of many authentication committees: several art-authentication boards and artist-endowed foundations have decided that the risks and potential costs associated with determining authenticity are too high.

Few days ago, Ms Julia Gruen - the foundation's executive director of the Keith Haring Foundation - gave the announcement that also this authentication committee will be disbanded. The foundation will be honoring submissions for reviewing requests that were submitted before September 1.

The disbandment comes after the announcements of the Warhol Foundation and the Basquiat Estate that they would end authenticating artworks, because this activity creates many risks of legal actions over such judgement. With reference to the Andy Warhol Foundation, this institution was highly criticized last year for having spent nearly 7 millions US dollars in defending an antitrust lawsuit brought by a collector, Simon Whelan, who had claimed that the authentication committee had denied the authenticity of a 1964 portrait in order to maintain price of Warhol's artworks high.  Also the board decision to downgrade more than 100 wooden Brillo boxes was heavily criticized.In the future, probably most of these Foundations would take care only of the charitable goals and of their catalogue raisonneés. 

How the art market will be affected with so many authentication committees closing? Perhaps, in the future buyers will rely more on provenance, that does not always provide a trustworthy answer though.  In addition, people will be willing to pay more for a work that had been approved by an authentication committee that for one that had not. 

Saturday 8 September 2012

The Stripper and the Taxman: Sexy, but is it Art?

A New York strip club is making headlines with a valiant attempt to avoid paying a rather large tax bill.

The club, named Nite Moves, advertises itself as 'the only gentleman's club in Albany with fully nude private dancers' and is being charged back taxes of between US$125,000 and US$400,000 according to differing sources. But it argued in court this week that its dancers' performances are an art form, and as such the club should be tax exempt. New York state law does indeed exempt revenue from 'dramatical [and] musical arts performances' from tax. But does lap- and pole-dancing qualify?

Nite Moves' attorney, adult industry specialist Andrew McCullough, presented a spirited argument in court that it does. 'It's not the Bolshoi [ballet], but it's good,' he said in praise of the club's dancers, going on to point out that pole dancing is under consideration as an Olympic sport. The judge appeared to disagree; the Associated Press reported him as commenting that the dancers are hired untrained and simply 'do what they do'. State law adds that exotic dancing does not qualify as an arts performance because it is not firmly choreographed.

The law, when asked to define art (often for tax purposes), frequently struggles and sometimes finds itself behind the times. Famously, when Brancusi's bronze Bird in Space was imported into the USA in 1928, it was initially deemed not an artwork but a utilitarian object and 40% import duty was charged on the value of the bronze. As a sculpture it could have been freely imported. However, 'sculpture' was defined for import purposes as representing something real, while Bird in Space was abstract: it didn't actually look like a bird. More recently the EU has held that full VAT (rather than the reduced rate for artworks) was chargeable on works by Dan Flavin and Bill Viola when they were imported into the UK. As the pieces' components were light bulbs, video equipment and other such materials, the EU felt they couldn't be deemed 'art'.

Brancusi's Bird in Space
The arguments raised on both sides in the Nite Moves case as to why exotic dancing is or is not 'art' are illustrative of the difficulties faced when making such a decision; some of them seem only tenuously linked to the question in hand. Why should the fact that the club's dancers are hired untrained, or that pole dancing may become an Olympic sport, make their dancing any more or less an art form? Is a painter less an 'artist' because he or she has not been formally trained? Or is the 100 metre sprint an art form because it's an Olympic sport? Again, is lap dancing less an art form because it may also be considered erotic? On this last point it's interesting to recall that ballet, once considered a dubious profession, today enjoys unassailable status as highbrow art.

The court in the Nite Moves case does not have an enviable task in trying to answer the unanswerable question: What is art? So far as exotic dancing goes, the jury is still out. A decision is expected next month.

Read more in the Huffington Post, the Telegraph and the BBC News.

Wednesday 5 September 2012

Ecce Homo: The Plot Thickens

The botched restoration of the Ecce Homo fresco has received quite a bit of attention lately.  As Jeremy wrote in our post of 23 August, the fresco, located in a church near Zaragoza, Spain, was "restored" by an elderly, untrained parishioner named Cecilia Gimenez.  The result of her efforts was to transform the portrait of Jesus into what one individual describes as "a very hairy monkey in an ill-fitting tunic." This gaffe inspired a great deal of commentary and humor around the world.  (One of my personal favorites here).

However, it seems Gimenez's work may have inspired another, more well-known artist.  Over the weekend this image appeared on 9GAG.  Although the piece has yet to be confirmed as genuine, perhaps world-renowned street artist, Banksy, is paying tribute to Gimenez.  The image is not on Banksy's own website, causing many to question its authenticity.  It would appear that the piece is likely a fake, another part of the ongoing Ecce Homo internet meme.

And if the piece were real?  All of this could be viewed as one vandal paying tribute to another.  However, Gimenez claims to have had permission to restore the fresco.  And Banksy?  Banksy's work is known to sell for hundreds of thousands of dollars, if not more.  That being the case, some would argue his pieces no longer constitute vandalism, as properties graced with a genuine Banksy experience significant increases in their value.  In some cases when a building with a Banksy is sold, the art piece tends to comprise most, if not all of the sale price, with the building a mere afterthought.  

Try your hand at a restoration here on BBH London's Cecilia Prize website.

Tuesday 4 September 2012

The Intersection of Creativity and Ingenuity

New art forms—and the artists who practice them—have transformed and inspired the ad world for many years.  Developments in lithography revolutionized advertising by allowing for large-scale color printing in the 1880s.  Fast-forward to today, and the picture becomes far more complex.  In recent decades artists have used their creativity to push the limits of technology, and the internet provides a platform for unlimited publishing and sharing of these ideas.  Yet, it created perils too, as a little-known artist could abruptly find his or her works copied on the other side of the world.

As some readers are likely aware, ad agencies often seem to be at the heart of these creative contretemps.  New York sculptor Ryan Johnson’s 2007 work, “Pedestrian,” bears a marked similarity to an outdoor sculpture UPS advertisement in Jakarta created by Ogilvy & Mather in 2010.  According to Co.Design, Ogilvy defended the works, stating that the resemblance to Johnson’s sculpture was nothing other than mere coincidence.

In 2010, marketing firm Space150 created a Forever 21 billboard in Times Square that was widely criticized for its similarity to a 2009 piece by artist Chris O’Shea.  In each piece a large screen broadcasts a camera view of the crowd below.  In the Forever 21 billboard, a female model then appeared to play with and photograph members of the crowd.  The billboard was predated by O’Shea’s piece “Hand from Above” which featured a hand tickling and picking up members of the real time crowd below.  According to, after some public pressure Space150 later stated that it was inspired by O’Shea’s work.

During the 2012 Olympic games, Cadbury released a swirling animated ad created by ad agency Publicis Dublin, where the movement of the purple and gold animation mimics that of Olympic athletes.  This gorgeous animation bears a striking resemblance to pieces created by artists Memo Akten and Quayola called “Forms” also based on Olympic athletes.  The artists describe these works as “a series of studies on human motion, and its reverberations through space and time.”  The works were published online several months before the Cadbury ad.

“Hand from Above” and “Forms” both raise some really interesting intellectual property questions.  Not only do the works consist of the moving images viewers see on a billboard or computer screen, they also consist of a back end, computer code, written specifically for the piece.  That being the case, the works present two potentially protectable embodiments within a single artwork.  Under U.S. copyright law, copyright protection extends to all copyrightable expression embodied in a computer program, but not to the ideas, program logic, or algorithms that may underlie the program.  The issue of protecting the code becomes further mired in questions of ownership and whether the works consist merely of a cobbling of appropriated bits from creative code projects such as Cinder or OpenFrameworks.  Use of code from these projects may be subject to simplified licensing requirements such as those set forth under the MIT License.  The willingness of these new media and code artists to share with one another is the basis for dynamic, thriving creative communities.  However, this relatively new medium is also fraught with perils as technical know-how can be bought and creativity emulated for commercial purposes.  Here, at this intersection of creativity and ingenuity, it can be difficult to draw the line between copies, inspiration, and contemporary creative dialogue.