Saturday 31 March 2012

Who owns the copyright in the original painting on your wall?

But what if it is a painting on a wall?
This photo of "Finestra sulla valle" 1969, by Contini Emilio, was taken by Sergio Bertolini
in Dozza, a medieval Italian village known for its festival of the painted wall

This blogger is still recovering from a fantastic holiday in Sri Lanka where she had the opportunity to read Art & Copyright (second edition) on the beach (yes, really).

The book provides a fantastic overview of the different IP (and other legal) issues that affect the art world, primarily in the UK. It also includes a number of more academic nuggets of information (most of which are located in the footnotes and subtext, as Jeremy pointed out in his review). One of the more unexpected footnote discoveries concerns the connection in terms of ownership between the physical work of art and the copyright in the work.

This blogger had understood that ownership of the physical object and ownership of the copyright in the work were very distinct concepts. Whilst on many occasions the copyright owner and the owner of the artwork may be the same, ownership of the physical work by no means guarantees ownership of the copyright in the work. Thus, for example, whilst a gallery may own (or have been loaned) an artwork, they may not necessarily be able to make and sell postcards, t-shirts etc of the relevant work. However, as with every rule there is at least one exception in the CDPA.

The exception of particular interest is explained in footnote 23 (page 6) of Art & Copyright. In essence if you leave to someone in a will an “original document or other material thing” recording or embodying an unpublished artistic or other work, unless there is a contrary indication in the will, the bequest includes the copyright in the work. See section 93 CDPA for more details. NB unpublished sound recordings and films are also included in this exception.

Finally, Simon Stokes’ book notes a further exception for pre CDPA photographs (which along with original prints and similar works where there can be many ‘originals’ must surely cause problems when this provision is applied?). Unfortunately the book does not provide the detail of this section merely a reference... If anyone has Copinger (para 5-02) to hand and would like to share the relevant details, it would be much appreciated!

Monday 26 March 2012


I would like to highlight to all people interested in art law issues the forthcoming Conference that will take place on 17 and 18 of May in Rome at MAXXI (Museum of XXI century arts). This conference, jointly organised by the Art, Cultural Institutions and Heritage law Committee of the International Bar Association and the Italian Contemporary Museum, will have top international speakers (lawyers, artists, art critics, museum directors).

MAXXI, interior view
Attendees will enjoy a unique opportunity to get acquainted on new art trends that have emerged on the art scene in the few last decades such as: digital art, holograms, Art 2.0, bio art, performances and enactments, language and law based art, appropriationism and sampling, sound and ambient art, street art and so on.

These art trends challenge the legal definition of "artwork", because of the discrepancy existing between what can be considered art in the art world and what can be deemed art according to legal standards.

For instance, appropriationism and sampling could raise problem whether the concept of originality can be considered still a criterion to define an artwork.

In addition, new challenging forms of artistic expression can create several legal problems:  language based art with copyright, sound art and its difference with music, street art with the right of ownership and so on.

Then, speakers will talk about problems raised by the immaterial character of performances and enactments, besides legal issues concerning digital and internet based art.

Finally, speakers will focus on : how to acquire new kinds of art; exhibition problems; storage and maintenance (e.g. ephemeral or self-destructing works); technology changes and reproductions problems; obscene and blasphemous works; merchandising; loans; reproductions in catalogues.

 See here to look at the Conference's program.

Friday 16 March 2012

Germany's knuckles rapped by the EU

It's not often that governments are told off for undercharging on taxes. But Germany has been told that it must increase the 7% VAT rate it currently requires on works of art and collectors' items up to 19%. According to the European Commission's press release, member states of the EU are only allowed to charge reduced rate VAT on a specified list of goods and services - upon which works of art do not feature.

The Commission has therefore issued Germany with a 'reasoned opinion' (the second step in EU infringement proceedings) stating that the VAT rate on art must be increased to the standard amount in order to avoid competitive distortions within and between Member States.

Distortion or not, German galleries are not impressed with the Commission's thinking. Many, including the Deutscher Kunstrat (German Council of Fine Arts) and the Federal German Gallery Association, are trying to prevent the threatened tax increase. Some have also pointed out that German galleries are already required to pay additional taxes which those in other countries are not, and that the artists' resale right is strictly enforced in Germany - leaving them particularly vulnerable.

Germany has until the end of April this year to bring its VAT laws into compliance. If it does not do so, the Commission may choose to refer the matter to the European Court of Justice.

Wednesday 14 March 2012

Art and Copyright: a new edition

If any book is described as having "missed the bus", those words are usually taken as a reproach to the author or publisher. In this case, however, we have the reverse situation -- it is the bus that has missed the book.  It is with deep regret that I must acknowledge that the "red bus" manipulated photo copyright infringement action in Temple Island Collections v New English Tea (see here, here and here if you are a recent reader of this weblog) came too late for analysis and inclusion within the excellent and enjoyable second edition of Simon Stokes' Art and Copyright, which was handsomely published by Hart last month. Simon, if you don't already know of him, is a partner in the London office of Blake Lapthorn, a Visiting Research Fellow at Bournemouth Law School and, though this isn't officially written down anywhere, a true enthusiast and a nice guy.

The publishers set out the stall for this new edition by describing it as follows:
"In recent years the intellectual property protection afforded to works of art has received increased attention from artists, museums, galleries, auction houses, publishers and their professional staff and legal advisers, as well as from those teaching or studying copyright and/or the law of cultural property. This was the first text to examine in detail the intellectual property rights protecting artistic works and artists' rights generally in the United Kingdom. 
First published in 2001, Art and Copyright has established itself as a leading text in the field. Now revised and updated, the second edition includes expanded coverage of Artist's Resale Right and the relationship between designs law and artistic works, as well as greater coverage of new media and art, and digital developments generally. It also includes additional precedent materials and checklists. It remains an invaluable work for all those involved in art law and for intellectual property lawyers involved with the exploitation and/or sale of artistic works, as well as for intellectual property academics, researchers, law students, curators, publishers, artists, gallery owners and all those interested in how the law protects artistic works".
Inevitably, given that copyright to a large extent is a "one size fits all" concept, any book on copyright and art must make regular references to cases that involve copyright but not art, and indeed to materials that are focused on neither copyright nor art but which affect that topic. Here the author's peripheral vision enables him to trawl the wider area of intellectual property for data that sheds light on his chosen topic. This is one of the book's greatest strengths: anyone coming to the subject for the first time will learn a good deal about intellectual property in general, in an indirect and fairly painless manner.

The book can however be improved.  For one thing, many of the footnotes contain content which is, in my opinion, interesting and important enough to gain promotion to the main text; it's a shame to leave it down at the bottom of the page where readers might miss it. Secondly, the footnotes as a whole are a bit of a pedant's paradise: they would benefit from some nitpicking (this is something that most readers are probably oblivious too, but I just can't help noticing ...). But none of this detracts from the fact that this is an entertaining, thoughtful and (for a legal work) affordable work by an author who continues to enrich the literature on this subject.

Bibliographic data: publication date February 2012. Paperback, xliv + 261 pages. ISBN 9781849461627. Price £35. Book's web page here.

Tuesday 6 March 2012

Public Art Funded by Law

Having just returned from a break to the US, which included some time in San Francisco, I was interested to learn how a number of the city's public artworks are funded. It seems that there is a great piece of legislation that requires all developers of projects over 25,000 square feet in downtown San Francisco spend at least 1% of the construction costs on onsite art that can be viewed by the public for free. Further, a new bill has now been introduced that would require developers of all large developments citywide to pay the 1% "art fee" and also create a public art fund overseen by the San Francisco Arts Commission to which developers could donate instead of having to commission the art themselves.

Now if we can just get Boris to propose similar legislation for London….

Some public art in San Francisco:

In London:

Source: The Huffington Post, 27 February 2012, San Francisco image: Flickr, Lorianne DiSabato, London image: Flickr, Jeff Van Campen

Monday 5 March 2012

Ugly Renaissance Babies and My Daguerreotype Boyfriend

I may as well admit from the outset that this blog post has only the most tenuous connection with the law. I recently stumbled upon a brilliant website dedicated to Renaissance art… Ugly renaissance babies pretty much lives up to expectations. WARNING: It is a dangerously distracting blog.

Not a fan of the Renaissance? Need something a bit more modern and up to date? My Daguerreotype Boyfriend offers an alternative take on early photography and similar hours of amusement.

In an attempt at adding a legal perspective to an otherwise frivolous blog post, I hereby reopen the debate as to whether a photograph of a painting (or other art work) can ever constitute a separate copyright work. In other words, if one of the submissions to either website is made by someone other than the photographer – is that person (or the website) potentially infringing copyright? It is worth noting that most images on both websites do appear to have been taken by the submitter (and in most cases the copyright has expired).

Luckily, many of these issues have already been considered by Francis Davey in relation to the NPG’s case against a wikipedia administrator who was accused of downloading approximately 3,300 high resolution images from the NPG’s database. This case (presumably) settled - a quick website trawl does not show much happening after the initial C&D letter (but any updates from readers in the know would be appreciated). In essence whilst the position is fairly clear in the US (a photograph of a painting does not attract copyright protection – Bridgeman v Corel), it is less clear in the UK. Rather than rehash the entire article, I refer interested readers to Francis Davey’s excellent blog.

For those less interested in such copyright intracacies, I hope you enjoy one or both of these irreverent takes on old art.

Finally, my haphazard internet browsing has unearthed WIPO’s photographer orientated (& user friendly) summary of the “legal Pitfalls in Taking or Using Photographs of Copyright Material, Trademarks and People”. Enjoy.

Thursday 1 March 2012

Wedgwood museum in danger of closure

A High Court judgment has left the Wedgwood Museum, rated by UNESCO as one of the UK's top 20 cultural assets, in danger of closure. 

Wedgwood's instantly recognisable style
Photo: Lionel Allorge
A Birmingham court held that the museum's collection was an asset of Waterford Wedgwood Potteries, the china and glassware company which went into administration in 2009. The struggling firm had debts of millions, and the judgment means that the museum's collection can be sold off to pay that deficit. 

The collection was separated from the trading arm of Wedgwood in the 1960s and gifted into the care of a trust company, in order to protect it from just this sort of commercial risk. But pensions legislation passed in the 1990s (in response to the Robert Maxwell pensions fund scandal) has had an unexpected effect: it means that the Wedgwood museum company, as the last solvent company among all the insolvent Wedgwood group companies, takes legal responsibility for the entire debt owed by the group's employers - in this case, all £134.7m of it. 

The whole Wedgwood collection is estimated to worth only a fraction of this deficit (somewhere between £11m - £18m). It includes paintings by British masters Reynolds, Stubbs and Romney; two rare Portland vases, valued at £1m each; an archive of over 100,000 documents and manuscripts; and of course a world class collection of chinaware. 

In giving his judgment the judge said that this was 'a sad conclusion for those who are concerned to preserve a collection which is, as everyone recognises, part of our cultural heritage and of immense importance'. However, a campaign has been set up to save the museum following the controversial judgment and the museum itself has said that it will 'strive for a solution which will save the Museum's Collections for the nation and keep them on display'.