Monday 27 February 2012

Would Germany and France find the red bus photo infringed?

You will be relieved to know that this is my last post, for the time being, on the red bus case...

France and Germany - moving towards both politcal and copyright law unity
[I've run out of red bus photos]
Again the inspiration for this post comes from the 1709 blog organised red bus seminar last week. Brigitte Lindner provided a fascinating comparison of the way the German and French courts would have approached the red bus problem. A very general summary of her talk is below.

France follows a fairly similar approach to the UK. A photograph attracts copyright protection if it is original and carries the “imprint of the personality” of its author. What this means in practice largely accords with the principles applied in Temple Island i.e. the court will look at a combination of the exposure, lighting, composition etc to determine whether a work is original.

By contrast Germany has a two-tier approach to photographic protection. A mere “photograph” i.e. any old photo with no creativity or artistic quality is treated as a “relative right” and protected for 50 years from the date of publication. The title of “photographic work” is awarded to “personal intellectual creations” which are similar to the French original photographs (angle, focus, colour etc are all important in this assessment).

Whilst Brigitte considered that the Claimant’s red bus photo would be protected as a photographic work in both France and Germany, she noted that it would definitely have been protected in Germany as a photograph at the very least. [Or would it, if the heavily manipulated image was arguably a collage?].

France has only one very broad test for infringement which includes making adaptations and is general enough to encompass not just unchanged copying but cases where “characteristic and original elements” have been taken.

Germany has two types of infringement (1) reproduction – which covers unchanged copying and (2) adaptation – which covers alterations of an existing work.

A defence of “free use”?
Although Brigitte considered that the defendant’s images would have infringed in both France and Germany, she considered the potential for the Germany “free use” defence to apply.

Not to be confused with “fair use” (US) or “fair dealing” (UK), free use is essentially a freedom of expression defence. In order to qualify for the defence the new work must be so separate from the original that the first work “fades” in comparison. [This surely incorporates a judicial assessment of aesthetic quality]. Birgitte considered that the defendant would have needed to move further away in order to qualify for this sort of protection and could not rely on the defence in Germany.

Does anyone have experience of French or German law and can offer an insight into how this approach to photographic subsistence and infringement applies in practice? I noted a recent case in France (reported by TechDirt and the BJP) where the Le Corbusier Foundation appears to have successfully sued Getty for stocking some photographs of Le Corbusier chairs without its permission. Any information on that case would be of particular interest.

Sunday 26 February 2012

Is a cropped photo always a "substantial part" of the original image?

Publish Post: A red bus yesterday
The Red Bus case spawned a dedicated 1709 blog seminar at Olswang last Tuesday. The panel of speakers consisted of Michael Edenborough QC who represented the successful claimants, Brigitte Lindner, an expert in civil law and Sam Ricketson, an Australian academic.

One of Michael Edenborough’s more interesting arguments was that a cropped photo is, by its very nature, a substantial part of the original photograph.  Whilst there is a logic behind such a presumption it is unnecessary and potentially misleading to incorporate it into the test for what is a “substantial part”.

Is the photo on the right a substantial part of the one on the left?
[Almost certainly].

But does it follow that the photo on the right uses a substantial part of the photo on the left?
This proposition was taken a step further by Edenborough who suggested that the cropped photo (i.e. a substantial part of photo 2) would [inevitably] infringe photo 1 (on the left, above).  I'm not convinced that such a solution is helpful or even sensible and incorporates a measure of distance from the original copyright work which is not envisaged anywhere in the legislation or case law.  In my opinion (and based on my understanding of Designers Guild) a substantial part of photo 1 could very easily be an insubstantial part of photo 2.

It would be interesting to better understand the reasons and motivations for cropping photographs in the first place.  If the photographer readers out there (Tom Ang, I'm particularly talking about you) could provide some insight, it would be much appreciated.

Friday 24 February 2012

The New Economy of Art

Artists need new business models, not hand-outs:
how best can lawyers help them?
On Wednesday 14 March a debate is to be held at Conway Hall, 25 Red Lion Square, London, WC1R 4RL.  The title of the debate is "Market Matters" and it's the first in a series of events under the banner of The New Economy of Art -- a collaboration between Artquest, the Contemporary Art Society and the Design and Artists Copyright Society (DACS). According to the promotional information,
Market Matters will explore the complex and overlapping motivations behind various kinds of ‘art market’ from commercial galleries, private dealers and auction houses to art fairs, online selling and gift economies. The debate will provoke thinking about how artistic practice intersects with and creates its own economies.

Speakers Louisa Buck, Kate MacGarry and Matt Roberts will set the scene before an open dialogue with the audience.

This debate is part of The New Economy of Art – a series of open discussions that focus on the economic developments and opportunities in the cultural sector that impact on artists. It will share knowledge and provoke action to enable artists to influence the future ecologies and economies in which they operate".
The debate runs from 6.30pm to 8pm and is followed by drinks. Admission is for the very modest fee of £4.  For more information click here; to book online click here.

Given that lawyers have such an important part to play in helping to transform "opportunities in the cultural sector" into some sort of income for artists and designers on one hand and commercial purchasers and licensees on the other, it's hoped that there will be plenty of them in attendance.

Thursday 23 February 2012

Will a lawsuit prevent Land artist Christo from draping the Arkansas river?

Wolfgang Volz's photograph of a 1992 drawing from Christo's
"Over the River" project for the Arkansas river in Colorado 

Christo and his wife, Jeanne Claude, requested  twenty years ago  to U.S. Federal Authorities to realize their project called “Over the River”, which consists in draping with aluminum-coated fabric approximately 10 km over 67 km stretch of the Arkansas river in Colorado. 

The project website shows that plans are to display the fabric for two weeks by August 2014. In order to cover the cost of this project, which will be around USD 50 million, the artist intends to pay for it through the sale of original artwork linked to the exhibition.

This project is strongly challenged by an environmental group called “Rags over the Arkansas River” which filed a lawsuit on February 1, which targets the U.S. Bureau of Land Management, which approved the project. The plaintiff argues that this project would mostly benefit outsiders and diminish Colorado’s wild life and nature: indeed, for at least two years, there will be drilling holes in the canyon to place rock-bolts and anchors to hold the drape in place, with potential negative effects on animals as: bats, birds and sheep. Therefore, the organization deems the project must be considered and valued as a massive resource extraction plan under federal law rather than as a work of art.

On the other hand, Christo’s lawyers counter argue that the project will be entirely financed by Christo and would promote Canon City, a part of Colorado where economy is still bad.

British Land artist Chris Drury, who has constructed similar art installations involving nature, questioned Christo’s motivations behind “Over the River" saying that “Any work of art that adversely affects a whole ecosystem has to be utterly thoughtless, ego-driven statement which I would condemn, Land or Earth art can effectively question how we live and relate to our fragile planet. I am not sure that such questions have ever concerned Christo”.

What do you think? Do you think that potential harm to wildlife and nature outweighs the artistic benefit of Land art?

Sunday 19 February 2012

When the chips are down (or lost) the courts can still award compensation

In a recent German case, first reported on the IPKat here, an artist was awarded €2,000 for the loss of some 22 year old chips (known elsewhere in the world as "fries" (French or freedom). The chips were used as the basis for "pommes d'or" (a golden cross made from two chips).

An alternative to the golden arches?
Photo: Stefan Bohnenberger
The golden chips were the work of artist Stefan Bohnenberger. Mr Bohnenberger argued that both his Golden chips and the more biodegradable template were works of art and that he was entitled to compensation from the gallery for the loss.

The Higher Regional Court of Munich (OLG M√ľnchen, case reference: 23 U 2198/11) agreed with the artist but refused to rule on the question of whether or not the fries were art (presumably if they were, they would be a sculpture). Instead the court awarded €2,000 on the basis of the chips' economic value. Key evidence appears to have been given by an art collector who said she had offered to pay €2,500 for them. However, as the artist had only asked for €2,000 in compensation, that was the amount the court awarded together with an order that the art gallery pay 90% of the artist's costs.

The award was made on the basis of the gallery's breach of its contract to store the chips securely. It is worth noting that this was an appeal from a lower court ruling which held in favour of the gallery on the basis that it could not see any loss to the artist.

Can a mouldy bit of potato be art? Where should the line be between what the public/artistic community considers to be art and what the courts treat as art? It is worth returning briefly to Lucasfilm v Ainsworth which did not made any hard and fast definitions of sculpture but endorsed the view of Richard Meade QC (in a different case - Metix v Maugham that “a sculpture is a three-dimensional work made by an artist's hand” [35].

Thursday 9 February 2012

California resale royalty: Going nowhere?

Last year a class of artists filed a lawsuit against auctions houses Sotheby's and Christie's in Los Angeles, California, for failing to collect their artists' 5% resale royalty (reported in Art and Artifice here and here). Then the auction houses fought back, filing a motion to dismiss the artists' case on the grounds that the resale royalty demanded by California law is unconstitutional and therefore unenforceable, which the courts have yet to rule on. 

Now, another case suggests that the legal winds may not be blowing in the auction houses' favour. Over a year ago artist Mark Grotjahn sued art collector Dean Valentine for failure to pay the resale royalty on three works of his which Valentine had sold. 

Like the auction houses, Valentine had argued that the resale royalty was unconstitutional, and that therefore he did not need to comply by paying Grotjahn. The Federal court had rejected this argument and the case had been sent back to state court, where the case was due to go to trial in less than a month, on 6 March. 

Mark Grotjahn's Untitled (Red Yellow and Blue Face 821)

But, after court-ordered mediation, a settlement was reached. The LA Times reports that Valentine agreed to pay Grotjahn US$153,255, a sum which includes the 5% resale royalty on one of the paintings sold, plus legal fees. 

Valentine said that the case was stopped because of the expense of pursuing it further, and commented 'It doesn’t change the fact that this is a terribly written law that creates massive problems. Instead of actually helping artists ... it only makes the artistic one-percent richer.' 

Nonetheless, the fact that Valentine settled, rather than play out his argument that the resale right is unconstitutional may be telling in the light of the auction houses' current case. Will Sotheby's and Christie's succeed in bringing the resale royalty down - or is the writing on the wall? 

Monday 6 February 2012

Copyright in a murder case

Some unusual discussions on copyright infringement were raised last month following the sad case of murdered infant Declan Hainey in Scotland.

Declan’s body was found in March 2010, having been hidden for some months by his mother Kimberley Hainey. In December 2011 Kimberley Hainey was convicted of her son’s murder, and last month she was given a life sentence with a minimum term of 15 years. 

Declan Hainey
In reporting the story the BBC wanted to use photographs of Declan which had been produced at trial. However, of the seven photos which the BBC wished to use in whole or in part, all were taken by Kimberley Hainey, who therefore owned the copyright in them. One of the issues surrounding their use was, therefore, that her permission would normally be required to publish them. 

The BBC applied and was refused permission from the Scottish authorities to publish the photographs. It applied again, relying on two clauses in the Copyright, Designs and Patents Act 1988 (CDPA). The first was s45, which states:

"(1) Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings.
(2) Copyright is not infringed by anything done for the purposes of reporting such proceedings; but this shall not be construed as authorising the copying of a work which is itself a published report of the proceedings."

Second was s171(3):

"Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright on grounds of public interest or otherwise."

The judge found that the BBC’s intended use of the images for illustrating reports of ‘judicial proceedings’ was legitimate under s45. Additionally it found that such publication was in the ‘public interest’ and therefore that s171 also applied. 

However, the judge denied the BBC permission to publish images of Declan with his grandmother Elizabeth Rodden. He stated that in that instance Rodden’s right to privacy under Article 8 of the European Convention on Human Rights must take precedence over the BBC’s Article 10 right to freedom of expression, despite the BBC’s argument that ‘publication of a photograph of the child with his grandmother would heighten legitimate public interest in case’.

Read more about the case on the IPKat blog here. 

Sunday 5 February 2012

He who D.A.R.E.’s infringe copyright fails… but what’s the damage?

Pictures of drugs can cost a lot of money...
so how much is a picture of drugs and money worth?
Courtesy of Images_of_money on Flickr
There have been a number of recent cases in the Patents County Court for England and Wales which have affected the world of art. The “red bus” decision has attracted the most attention but another case, Hoffman v D.A.R.E, regarding the application of the “innocent infringer” defence and calculation of damages awards for infringement of photographs is, perhaps, of greater practical significance for photography professionals and artists generally.

This was a case where the finding of infringement was relatively straightforward. 19 of Mr Hoffman’s photographs had been used on the defendant’s websites, D.A.R.E did not have Mr Hoffman’s permission to use the images. However, it mistakenly believed that it had a right to use the photographs because they appeared on a Department of Health website and consequently were assumed to be covered by Crown copyright.

The innocent infringer

D.A.R.E claimed that it had not paid Mr Hoffman because it “had not intentionally or knowingly infringed his copyright”. However, the fact that D.A.R.E thought that it had permission is not a defence under section 16 of the Copyright Designs and Patents Act. [Section 16 sets out the various acts that constitute copyright infringement]. By hosting the images on the various websites, D.A.R.E was found to have communicated the works to the public (section 16 (1)(d) as set out in more depth in section 20(2)(b)).

D.A.R.E then sought to rely on section 97 which appears to offer a defence to infringers who are “innocent” of the infringement. As the judgment points out, this is not strictly speaking a defence but rather a bar to damages.

Although D.A.R.E understood that it had the right to use the images, this was not sufficient to rely on the innocent infringer test. As the judgment explains:

“None of this [belief that D.A.R.E had the right to use the images] amounts to a defence under s.97. [D.A.R.E.] understood it had permission under what it understood to be the relevant copyright. This is a very different thing from an argument that the defendant had no reason to believe copyright subsisted at all…. To believe that one had permission under (in this case) Crown copyright is the opposite of a belief … that there is no copyright in existence.” (my emphasis).

This places the requirement for satisfying the innocent infringer test as extremely high and it is hard to think of many occasions where it can be relied upon. Given the low threshold for artistic works, reliance on this defence is likely to only apply where a work is so old that it is reasonable to assume that it has fallen into the public domain.

What’s the damage?

Mr Hoffman assessed his damage as £250 per photograph per year (i.e. £19,000 over the four years that the photographs were on the websites). He also claimed an additional 50% uplift for the use of thumbnails on the websites. This was not the correct approach. Rather “the right sum by way of damages is the sum which a willing photographer in Mr Hoffman’s position and a willing user in D.A.R.E’s position would have agreed upon”.

In reaching the assessment of damage, the judge made the following observations:

“the parties would have agreed a single fee to use an image, having regard to the period of use. I do not doubt the fee would have been larger for a longer period of use but it would not” be the same amount for every year of use.

“it seems to me unlikely that a further fee … would be agreed for thumbnails of the very same image.”

He ultimately reached a figure of £10,000 in damages with interest calculated at 4% (i.e. 1% above the average base rate for the period).

Whilst the exact basis for this sum is unclear, the factors which went into the decision making process are set out above. Finally, it is worth remembering that D.A.R.E was a UK charity [it is now insolvent], this may have influenced the amount awarded.

Are you a photographer? How much would you charge for the use of 19 photographs on two websites? Would that amount change if you were negotiating with a charity? Any other insights into the quantum of copyright are, as always, greatly appreciated.