Sunday 29 April 2012

Vogue Spain’s uncredited use of Instagram photos

What a misappropriation looks like.
Many thanks to the Next Web for this comparison
Photographers may often feel like they are in a never ending battle against online appropriation of their images. It is recognised and even, perhaps, accepted that some uncredited use can happen in the social media world by inexperienced people keen to share images but failing to credit the origins of those images. However, photographers generally don’t expect one of the largest magazine publishers in the world to be taking their images, manipulating them and passing them off as their own. Yet, that is exactly what has recently been happening on Vogue Spain’s Instagram page. The misappropriation appears to have started with Sion Fullana’s work but when he raised awareness of the breach other examples came forward. Vogue has now apologised, via Instagram, and appears to be in negotiations with the relevant artists.
Part of Vogue's apology
(and the social media backlash)
In terms of the UK copyright position (which almost certainly doesn’t apply but let’s ignore the rules on jurisdiction for the purpose of this blog), Vogue Spain has clearly copied the whole/a substantial part of the works and communicated them to the public. Copyright infringement is pretty much a given. Somewhat ironically, the damage has really been more on Vogue Spain’s side thanks to a public backlash but that doesn’t prevent a cause of action from arising.

 The moral rights situation is (from a purely geeky perspective) far more interesting. In a couple of instances, Vogue applied a new filter to the appropriated images - is this change a derogatory treatment? Probably not, unless the artists can establish that their reputation was lowered in the mind of the public through these manipulations. Tidy v Trustees of the Natural History Museum (1995) 39 IPR 501* has taught us that this is a difficult test to meet – a reproduction in smaller dimensions was found to not be a derogatory treatment in the mind of the public (as opposed to the mind of the artist – who clearly wasn’t happy).

The failure to identify the relevant artist and arguably the false identification of the images as belonging to Vogue Spain, could constitute a breach of the paternity right and false attribution right respectively.  Judging by the various comments from the artists it is the false attribution which has, understandably, caused the greatest upset. This raises a further question, what is the use of ‘moral rights’ to the modern artist? The public pressure brought by blogs, tweets and posts on Vogue’s Instagram account achieved a more immediate response than any moral rights action could have achieved.

The fact that Vogue Spain allowed this to happen in the first place demonstrates a lack of understanding of (a) copyright & moral rights law and/or (b) social media. Even if an intern was responsible for these uploads, as some have speculated, the fact that such a junior (and clearly untrained) person was put into this position of power is mildly alarming and will hopefully cause Vogue to rethink its social media strategy.

 Read more on the Next Web here and here. Many thanks to Nancy Messieh for offering such an interesting and detailed insight into the story as it unfolded.

*sadly Tidy v Natural History Museum isn't on BAILII, if anyone has a copy or a link please share the knowledge using the comments feature below.

Saturday 21 April 2012

Stolen art returned

It is not often easy to predict which way decisions in respect of Nazi stolen art will go, so some good news from the Courthouse News Service.

This week, the US government returned the 400 year old painting of "Cristo Portacroce" (Christ Carrying the Cross) by Italian artist Girolamo Romano to the family of former owner, Federico Gentili di Giuseppe.

Giuseppe had purchased the painting at the beginning of the 20th century. However, when he died in 1941, in Nazi-occupied France, his estate was auctioned off and his heirs were prohibited from claiming the painting due to the anti-Semitic laws in place at the time. As a result, the painting was illegally sold in a forced sale in 1941.

The Courthouse News Service reports that:

Giuseppe's grandchildren reached a watershed moment in their efforts to reclaim the artwork in 1999, when the Paris Court of Appeals forced the Louvre to return five paintings in a landmark decision for World War II plunder.

In March 2011, "Christ Carrying the Cross" was imported into the U.S. for a temporary exhibit at the Mary Brogan Museum of Art and Science in Tallahassee, Florida.

On a lead from Interpol, the U.S. Attorney's Office seized the painting months later and returned it to Giuseppe's heirs…

Source: Courthouse News Service, 19 April 2012

Friday 20 April 2012

More art and tax

In further art and tax news, and by way of an update on much featured artist Ai Weiwei (including here, here and here), after his detainment, and the subsequent imposition of an enormous tax bill, by the Chinese authorities, it seems that Ai Weiwei is now suing the Beijing tax office.

Ai Weiwei is reportedly claiming that the Beijing tax office violated the law when it imposed the $2.4 million penalty for unpaid taxes and fines (as we reported here) on his company, Beijing Fake Cultural Development Ltd, and asking the Beijing court to overturn the penalty. He told Reuters that "In the handling of the whole process for [the company], some of [the tax office's] actions were illegal and violated regulations." In particular, it is claimed that the tax office failed to produce any original documents with evidence of the alleged tax evasion.

However, it seems that dealing with any Chinese authorities is not easy. Reuters reports that:

Ai's wife, Lu Qing, the company's legal representative, was due to hear by Friday whether Beijing's Chaoyang District Court would accept the suit challenging both the penalty and the lack of access to evidence and witnesses.

But the court told Lu on Thursday to produce the seal - a stamp embossed with the company's name which is used in China on all official documents - that was confiscated by police when Ai was detained last year.

"We can't get the seal back," Ai told Reuters by telephone. "It's in the hands of the police. It's very much a Catch 22."

Ai said Lu was giving the court an explanation on why the seal was missing in the hope it will waive the requirement. The court told Lu she will hear whether the lawsuit is accepted within the next seven days.
Given that there are clearly political, rather than legal, motivations behind the penalty, and now the difficulties with the court, it would be very surprising if the case was heard, let alone successful.

Source: Reuters, 19 April 2012

Thursday 19 April 2012

Taxing Art

While Angela reports on art being destroyed as a protest against budget allocation, in the US, artist Chad Person, in his so-called "Taxcut – Money Art" series, has been destroying money to create art, and to lower his taxable income.

ABC News reports that:

The California-based designer is cutting up dollar bills – actual, paper dollars – to create collages of military weaponry, and then deducting those dollars from his taxable income. As materials for his business, the sliced and diced dollars are exempt from some taxes, thereby lowering Person’s overall tax rate.

"Rather than buying $200 of paint today, I withdrew $200 and chopped it up and turned it into paint essentially," Person said, describing his collages. "It greatly reduces my liability."
As well as reducing his taxes, Person's aim is also said to be to reduce his personal contribution to the government's funding of the military. As stated on his website:

I have destroying money for my work for the past two years. As a professional artist, I deduct my material expenditures as a write off. If I slice up a hundred dollars to make an image, or a thousand, or just five, I am taking it out of the IRS coffers. Imaging the weaponry that I'm not buying with those dollars is a reminder for me that a little creativity can be quite empowering.
ABC reports that to date Person has created about 60 to 70 of these collages, and that although cutting up cash likely amounts to defacing of dollar bills, which is against the law and punishable by a small fine and up to six months in prison, offenders are rarely prosecuted.

So, it seems that cutting up your money to make art might be a legitimate way to reduce your taxable income. On the other hand, if tax avoidance is the aim, it may restrict your ability to profit through your art. Indeed, if you became too successful, certainly in the UK, taxes on the sales of such works would be liable to amount to more than those you had originally saved.

A collection of Person's works can be see

Source: ABC News, 13 April 2012

Wednesday 18 April 2012

Art War: an Italian Museum begins burning artworks

The Casoria  Contemporary Art Museum  (CAM), in the neighborhood of Naples, is burning its artworks to protest against the Government harsh budget cuts that have left many cultural institutions out of pocket, giving only the 0.21% of the Italian budget to the Culture.

The CAM Founder and Director, Antonio Manfredi, burned a work of the French Artist, Séverine Bourguignon, who was in favour of the protest and has confirmed the decision to destroy her work belonging to the Museum collection, a decision which she called “political, necessary, and compelling in the face of these adverse circumstances". 

Antonio Manfredi's burns a painting from the French artist
Séverine Bourguignon in front of the Casoria Museum
This incendiary anti-austerity protest follows Manfredi's threatens to set fire to the CAM permanent collection and the March exhibition  called "Camouflage" where the Museum exhibited only the photographs of its artworks without exposing the originals. 

The Director plans to burn three works a week in an initiative dubbed "Art war" affirming that "If a government allows Pompei to fall then what hope does my museum have?,'' following a number of incidents at the world-famous ancient Roman city buried by a volcanic explosion in 79 AD.

In the so called "Gomorra land" the museum has become known for daring exhibitions against the power of the Naples-based Camorra and has suffered intimidation.

Manfredi last year announced he had written a letter to German Chancellor Angela Merkel asking for asylum, saying he was fed up with mafia threats and the government's failure to protect Italy's rich cultural heritage. He said he would take his entire museum with him if the asylum was granted.

Manfredi never received a reply from German authorities but the famous Tacheles squat in Berlin offered "artistic asylum'' to the museum and hosted an exhibition in May 2011 of some of the museum's works against the mafia.

Today, again at 6 pm, Neapolitan artist Rosaria Matarese will set fire to one of her works: CAM, meanwhile, is waiting for someone to intervene.

Sunday 15 April 2012

Collector Sues over new Eggleston “Limited Editions” entering the market

Will Sobel's claim end up on ice?
William Eggleston, Freezer
Can you stop a photographer from making more prints in the future when you bought an original print on the basis that it was a “limited edition”? Does it matter what medium is used for the reprints (i.e. digital or dye-transfer)? Does the print size matter?

Jonathan Sobel, a photograph collector recently issued proceedings against William Eggleston, the photographer widely credited with popularising colour photography.

As the writ explains, “The gravamen of [Sobel’s] Complaint centers on the sale of eight photographic images …the reprints are identical in image to original photographs which Eggleston had earlier created and designated as individually numbered limited edition works… A principal factor in Sobel’s decision to purchase photographs ... was that these photographs were, in fact, limited editions.”

Whilst Sobel owns a number of physical prints, clearly the copyright in the prints remains with Eggleston as the “author”. Therefore, from a copyright perspective, at least, there is nothing to stop Eggleston from making further prints.

As a result, the writ is based on the following causes of action (notably, not breach of contract):

(1) Violation of New York Arts and Cultural Affairs Law Section 11.01(1) [this section defines a “limited edition” as “works of art produced from a maser, all of which are the same image and bear numbers or other markings to denote the limited production thereof to a stated maximum number…”];
(2) Fraudulent misrepresentation [Yes, really!];
(3) Negligent misrepresentation [on the basis of a “special or privity-like relationship … between Sobel and the defendants, imposing … a duty to impart to Sobel … true and correct information pertaining to the edition size of these works"];
(4) Unjust enrichment;
(5) Promissory estoppel [i.e. Sobel relied on the “clear and unambiguous promise” that the photographs were in fact limited editions when he purchased them and this promise was “false”.]

Whilst I do not pretend to be an expert in American law, it looks like a stretch for Sobel to succeed in any of these claims.

Eggleston's, untitled woman in colour 
from Los Alamos 1966-74.
She doesn't look convinced by the claims
According to the NY Times, Eggleston’s lawyer told the Wall Street Journal that the “lawsuit had no merit and that printing vintage works in new formats falls within [Eggleston’s] creative rights”. Whilst this is an unsurprising position for Eggleston’s lawyer to take, it appears unusually warranted in the circumstances.

I am unfamiliar with the laws surrounding limited editions, however, as Daniel Grant’s blog on the Huffington Post eloquently explains, “important exceptions [to various state laws on limited editions] are made for earlier limited editions that are of different sizes (a 10" x 8" photograph produced in a 5" x 4" format), different production techniques (a gelatin silver print produced as a platinum print or a photogravure) or different numbering (Arabic numbers on one edition, Roman numerals on another).” In other words, limited editions are only limited by the number of a particular type of print and the sale of a limited edition dye-transfer print does not provide the purchaser with a right to prevent the artist making further prints of his work (in a different medium) in the future.  Had further dye-transfer prints in the same size etc been made Sobel might well have a cause of action but as it stands...

Even if it is ok to make new prints from a legal perspective, is it worth potentially alienating your market by bringing out new editions on a regular basis? Clearly if an artist regularly brings out new “limited editions” he or she will ultimately erode the value in all previous works and reduce the likelihood of purchasers continuing to buy the work.

Or will they? For a business/art world insight on the case, see Felix Salmon’s Reuters blog on the case. He notes that “[i]n reality ... Sobel’s prints have probably gone up in value, not down, as a result of Eggleston’s splashy reintroduction to the contemporary art market, in the form of a Christie’s sale which raised $5.9 million and set a new record price for the artist.” So Sobel does not appear to have a cause of action and, even if he did, may not even be able prove damage. Why has he brought the claim then? Is this just the result of poor legal advice or is this the start of some groundbreaking changes to the art world? It is worth noting that Sobel has requested a jury trial. If a jury is indeed appointed (which I understand is no longer a foregone conclusion in US civil proceedings) they may well decide the case against all expectations - there is no such thing as a foregone conclusion in litigation.

Eggleston, The Red Ceiling

Would Eggleston have felt the need to make new prints if there was an artist’s resale right across all States (and one which was adequately enforced)? All the large price tags have been in relation to recent sales of old prints (none of which, as I understand it, were still in the artist’s possession although one was purchased from Willliam Eggleston III).

Wednesday 4 April 2012

Don't Say You Don't Like Damien

Journalist Julian Spalding was barred on Monday from Tate Modern's Damien Hirst retrospective, the Independent reports.

Presumably this unfriendliness was connected with Spalding's new book Con Art: Why you ought to sell your Damien Hirsts while you can.  He has been outspoken about Hirst's works to say the least, saying last week that they have 'no artistic content and are worthless as works of art'. He added that anyone who's bought one had better sell it fast before we all realise they are worthless in financial terms too. Hirst himself has said stoically that criticism of his work is 'to be expected' but it seems Tate not only expects criticism, but wishes to head it off at the pass.

Spalding had planned to give interviews to the BBC and other stations from inside the exhibition. But when a BBC reporter asked to bring him inside, Tate's staff apparently 'went ballistic' and refused to let him in (we can assume they don't subscribe to the feeling that all publicity is good publicity). He gave his interviews outside the building instead.

It would be interesting to know the grounds on which Spalding was excluded. A quick glance at the gallery's online policies gives no obvious answers, unless Spalding's interview could be deemed 'noisy and improper' or possibly 'threatening behaviour', two reasons for which Tate reserves the right to get rid of troublesome visitors.

But 'not liking the exhibits' is not normally considered a sound basis for excluding viewers from a public gallery - particularly not when that gallery received 40% of its funding from taxpayers.      

Tuesday 3 April 2012

Breaking art news

The Google Art Project which launched in February last year (as reported here) has re-launched this week – bigger and better than ever.

The Project, which takes Google's street view cameras into some of the world's best galleries, has expanded its reach to cover over 150 galleries worldwide.

There is an amazing collection of works to browse if you have the time, including works from private collections, such as The White House.

Explore the galleries