Wednesday 30 January 2013

New "Dolce vita" for the Trevi fountain thanks to Fendi?

A famous scene taken from the Fellini's movie "La dolce vita"
with Anita Ekberg and Marcello Mastroianni
in the Trevi Fountain
One of the most important Italian fashion house, Fendi, will fund the restoration of five of Rome's most important fountains, beginning with the Trevi one. 

The Trevi Fountain, completed in 1762 and set of one of the most famous scenes of Fellini's movie "La dolce vita", was last restored in 1989 but a new restoration seems strongly needed after chunks of stone crumbled and fell from the fountain's façade last June.

The project, titled "Fendi for Fountains", will also cover the restoration of the Four Fountains located at the insersection of Via delle Quattro Fontane and Via del Quirinale in Rome. Fendi has given € 2.1 million to restore Trevi, while giving a "significant contribution" of € 320,000 for repairing the other Four Fountains.

The restore of the Trevi Fountain will last 22 months ending within 2015. Such works are announced as a real "gift", an act of cultural patronage from the fashion house to the city of Rome without being a sponsorship. 

In this regard, the mayor of Rome informed that the city approved a new resolution encouraging not only sponsorship but even free donation with the aim of protecting and enhancing Italian cultural goods.

Such donations have the obvious effects to help cultural entities - with a more and more reduced cultural budget - to preserve the artistic patrimony saving the cultural memory of Italy. In addition, since it deals with a donation rather than a sponsorship, there will be no Fendi's advertisement on the restoration . 

However, charitable monetary donations for cultural purposes have at least two undeniable advantages for companies:  an effective marketing return but, above all, they are wholly tax-deductible (with no upper limit contrary to sponsorship) from the company income according to Art. 100, paragraph 2, lett. m) of the Italian Income Tax Code. 

Such benefits can better explain why many Italian fashion companies are helping Italy's chronically underfunded cultural heritage, as the footwear company Tod's which will fund the restoration of Colosseum for 25 milllion €. 

Monday 28 January 2013

A Win for Photographers: Developments in AFP v. Morel

On 12 January 2010, Haiti was struck by a severe earthquake, and photographer, Daniel Morel, was there capturing the devastation with his camera.  Later that day, Morel posted his images on Twitter.  The images were then shared (or more aptly--retweeted--by other users), and at least one user falsely claimed ownership of Morel’s images.  The Director of Photography for North and South America at Agence France Presse (AFP) located Morel’s photos on Twitter on another user’s account and then sent them into AFP’s system for captioning and distribution on AFP’s newswire.  Once in AFP’s system the images also became part of Getty Images’ library, through its reciprocal license with AFP.  When Getty first received the images they were improperly credited to another Twitter user.  Eventually, the error was corrected and the images were properly attributed to Morel.  The images were picked up by several publications, including the Washington Post.  Morel’s counsel as well as counsel for Corbis, another image licensing company that had an exclusivity agreement with Morel, contacted the organizations regarding use of Morel’s images.  Although the photos were eventually removed from AFP’s database as well as Getty’s due to copyright issues, infringing images remained on the Washington Post’s website.

On March 26, 2010, AFP sued Morel in U.S. District Court for the Southern District of New York for a declaratory judgment stating that it had not infringed on Morel’s copyrights and alleging commercial defamation.  In response, Morel filed counterclaims against AFP, Getty, and the Washington Post for copyright infringement and violation of the Digital Millennium Copyright Act (DMCA).  This month, the court addressed the parties’ competing summary judgment motions, conclusively ruling on some issues presented by the case.

With respect to Morel’s claim for direct liability for copyright infringement, AFP argued that the Twitter user license (which applied to the images when they were first posted by Morel), allowed AFP to use and license the images.  After evaluating Twitter’s terms of service, the court disagreed, finding that the user agreement provided a limited license, but did not give permission for AFP to engage in the conduct at issue.  As the court provided, “Indeed, this is the fatal flaw in AFP's argument: it fails to recognize that even if some re-uses of content posted on Twitter may be permissible, this does not necessarily require a general license to use this content as AFP has.” 

Getty also asserted an affirmative defense under the DMCA, arguing that it was not liable for infringement because it qualified for the safe-harbor provision of the law, which was intended to protect service providers from liability for copyright infringement when unwittingly hosting infringing materials or engaging in certain other passive activities.  The court declined to find on summary judgment that Getty qualified for the safe harbor, noting that a jury could infer that Getty took affirmative acts to distribute the Morel’s photos, such as entering a license agreement with AFP, actively licensing the photos, and setting a price for the photos.

Morel also sought elevated statutory damages from AFP, Getty, and the Washington Post, asserting that each party had acted willfully in infringing on his copyrights.  The court declined to rule on this issue as well, leaving it for a jury to determine whether the conduct at issue was willful.

Ultimately, the court granted Morel’s motion for summary judgment that AFP and the Washington Post were liable for copyright infringement, but rejected Morel’s arguments regarding the scope of statutory damages available under the Copyright Act and the DMCA.  The court otherwise denied the parties’ cross-motions for summary judgment.  The case, which has been in litigation since 2010, is scheduled to go to trial on the remaining issues with all trial materials due to the court in late March.

Thursday 24 January 2013

Qing chains chopped

It looks like the seller of the 18th century antique Chinese vase that broke all the records when it was "sold" at auction in 2010 will finally see a return.
Many will recall that back in 2010 this vase, created in China during the reign of Emperor Qianlong (1736-95), was sold at auction for £43m. The buyer, reportedly one of the richest men in China, was to pay this sum, plus the auctioneer's, Bainbridges, commission of £8.6 million. The Sellers, who had found the vase in their attic, were set for an incredible pay day.

Unfortunately, the deal stalled when seller refused to pay the Bainbridges' commission. It seems that it was part of the conditions of sale imposed by Bainbridges that a flat commission of 20% of the purchase price be paid, rather than using a sliding scale, often used by the larger auction houses.

The Sellers were unable to do anything, due to the terms imposed on them by Bainbridges – preventing them from selling the vase through another auctioneer.

And Bainbridges could not move from their 20% without the risk of legal action from the underbidder.

There was then a lot of speculation as to what was actually happening, which Bainbridges could not address having signed confidentiality agreements with both the seller and the buyer.

Those darn lawyers and their contracts!

There then followed almost two years of negotiations between Bainbridges and the buyer – to no effect.

The good news is that Bonhams swooped in to save the day. They were approached by an interested party and were able to successfully broker a deal with Bainbridges and the seller. The result: an unidentified buyer from the Far East is believed to have paid around £25 million for the vase. The majority of this money is said to be going to the seller, but Bainbridges will also be compensated. In any case, I'd say there was plenty of pie for everyone. Hopefully, it is all written down in a helpful contract!

Source: The Telegraph, 16 January 2013

Wednesday 16 January 2013

Do you like modern art, speak French and know about European copyright ...?

Note: this post also appears on The 1709 Blog

From Atiq Bhagwan (Legal and Enforcement Officer, The Design and Artists Copyright Society -- DACS) comes news that DACS has an opening for a Copyright Adviser. The deadline for submitting applications is 24 January 2013.  The details, as they appear on the DACS website, look like this:
"A challenging opportunity has arisen for a confident and enthusiastic individual to join our high profile legal team as Copyright Adviser. 
But is he keen on art?
DACS is looking for a qualified lawyer with experience in a comparable legal and/or copyright and related rights advisory environment [well, that limits the field a bit!]. A high level of understanding of UK copyright [ditto] and contract law, together with a broad understanding of copyright regimes in operation in other European countries and the importance of copyright law and its significance to creators of artistic works is required [if members of the Court of Justice of the European Union were thinking of applying, some folk might think that this would rule them out too ...]. 
An excellent command of the English language with the ability to communicate effectively in person and in writing will also be a priority. These skills should be coupled with a commitment to excellent customer service and the ability to act with discretion. 
The role will be responsible for providing a well-established telephone based copyright advice service for DACS members, and to provide copyright advice and more general legal advice to other DACS teams and to support the enforcement activities DACS carries out on behalf of members. 
A keen interest in the contemporary art market would be beneficial as well as knowledge of French and/or any other European language".
You can download the application pack here.

Thursday 10 January 2013

Seeing double: Chongqing architects accused of copying Zaha Hadid's last project in China

Imitation in China may have reached new heights with a set of towers that strongly resemble ones designed by the world famous architect Zaha Hadid, who has become a superstar also in China where she is realizing 11 projects across the country. One of her project seems to have been pirated: the Wangjing Soho, a complex of three towers similar to curved sails, sculpted in stone and etched with wave-like aluminium bands.

Zaha Hadid's Galaxy Soho in Wangjing
A team of Chinese architect projected buildings in Chongqing, a megacity near the eastern edge of the Tibetan plateau, which appears to be a carbon copy of the Hadid's one, with the round contours and white stripes.

Meiquan 22nd Century in Chongqing
The archistar is willling to take legal action but the developer's of Meiquan's building claim innocence, insisting at a press conference that the project was inspired not by Hadid's curves, but rather by the cobblestone on the bank of the Yangtze river by whcih Chongqing was built.

As to a possible lawsuit for copyright infringement, China's copyright law includes protection for works of architecture. Yet, You Yunting, a Shangai-based lawyer and founder of an online journal on intellectual property issues, said that Hadid could have good chance of winning litigation, but the court will probably not force the infringer to pull the infringing building down, but  only order the payment of compensation.

Hadid's copy is one of the most copycat cases currently happening in China, though in most of them the architect is dead since a long time or impossible to name. We can find in China a 108 meter Eiffel Tower on Champs Elysées Square in Tianducheng near Shangai, or even the exact replica of the Austrian alpine town Hallstatt in Guandong Province or a residential complex which recreates the British city of Dorchester in Chengdu and so on.

Archeologist Jack Carlson, writing in foreign policy magazine argues that copying of architectural culture is a  way for China to assert global primacy. What do you think about that?

You can see more on the guardian 

For more information look here

Friday 4 January 2013

The Priceless Rauschenberg

What's an art work worth if you can't sell it?

An unusual art valuation case has recently been resolved in the US tax courts. It began in 2007 when art dealer Ileana Sonnabend died, leaving her heirs with an art collection valued at US$876m and which included works by Jeff Koons, Andy Warhol and Robert Rauschenberg. The heirs duly sold many of the works in order to raise money to cover estate duties of over US$470m.

One of the works in Sonnabend's collection, however, was listed as having a fair market value of nothing at all. This was a well known work by Rauschenberg entitled 'Canyon', part painting and part sculpture, which was then hanging on loan in the Metropolitan Museum of Art. Why was a famous Rauschenberg worth nothing? Because it was unsaleable thanks to the stuffed bald eagle standing at the foot of the painting.

Robert Rauschenberg's 'Canyon', 1959

The US's Bald and Golden Eagle Protection Act (the Act), first enacted in 1940, provides that it is an offence for any person to 'knowingly, or with wanton disregard for the consequences of his act take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner, any bald eagle commonly known as the American eagle, or any golden eagle, alive or dead, or any part, nest, or egg thereof of the foregoing eagles . . .'. For a first offence, the penalty is up to US$10,000 and one year in prison. The Act meant that Sonnabend's heirs could not legally sell the work, nor export it for sale outside the USA.

The IRS however had other ideas. According to Forbes, it told the heirs that a market could exist for the work despite the Act - there might, for example, be a 'reclusive Chinese billionaire' willing to buy the work and hide it. The IRS valued Canyon at US$65m and sent a bill to Sonnabend's heirs requesting an additional US$29m in unpaid tax, plus a penalty of US$11.7m for mis-valuing Sonnabend's estate.

The heirs appealed the tax bill in court and at the end of 2012 the IRS decided to settle out of court, presumably feeling that their position over Canyon wasn't particularly tenable. No tax is payable under the settlement, and the Rauschenberg has been donated to the Museum of Modern Art . The case has left no guidelines as to whether the IRS would in another case be entitled to set a value on a legally unsaleable artwork, but in this instance common sense seems to have prevailed.

Wednesday 2 January 2013

Instagram's New Terms Cause Backlash and a Class Action Lawsuit

Photo sharing site Instagram found itself in hot water when it released updated terms of service on 18 December.  Users and commentators alike speculated that the shifts in the terms of service meant that Instagram intended to employ user content on the site for commercial purposes.  Essentially, the new terms give Instagram the right to use and the ability transfer its right to use, user content without compensation of any kind to users.  The new terms also simultaneously limited the rights of users to engage in class action lawsuits against Instagram, limited damages to $100, waived users' ability to obtain injunctive relief, limited the statute of limitations to one year, and required agreement to arbitration.  The announcement caused an outcry on the internet, and Instagram released a public statement on the site’s blog attempting to clarify the terms and quell the fear and fury surrounding the changes.  The terms have again been modified from the previous proposed version, however much of the terms users find most egregious remain present.  Although there is conflicting information, some reports state that as much as 25% of Instagram’s users deleted their accounts over the new terms, which are to come into force 19 January, 2013. 

However, a loss of users is not the only problem looming for the site—on 21 December, 2012, a class action lawsuit was filed against Instagram in U.S. District Court for the Northern District of California related to the new terms, Funes v. Instagram Inc., 12- CV-6482 (N.D. Cal.).  Essentially, the complaint theorizes that with its new terms Instagram is appropriating users’ property and then shielding itself from liability for doing so.  The plaintiff brings claims for breach of contract for violation of the implied covenant of good faith and fair dealing, for violation of California Civil Code §3344 (the statute protects the individual's ability control the commercial use of his or her name, image, likeness, or other aspects of one's identity), breach of bailment, and for violation of California business law.  The case also seeks declaratory relief regarding the lawfulness of Instagram’s conduct as well as injunctive relief and attorney’s fees.  The lawsuit appears to be the first of its kind.  

Even though Instagram amended its proposed terms of service, attempting to provide some clarification on 20 December, the new terms still grant Instagram “a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service.”  It seems that many photo sharing, blogging, and cloud file storage websites have terms granting some sort of limited license related to user content to the hosting site.  However, the license Instagram proposes has much greater breadth than those included in most standard terms.   

Although it is unclear whether users will have any success in a lawsuit against Instagram, these events have important implications.  This case may signal a shift in the way user content is utilized by host sites, as well as in users’ ability to contest terms they find egregious through legal process.  As more photographers and artists rely on the internet for marketing and the ability to store images via cloud computing, the terms of service employed by hosting sites will be of critical importance to those who are concerned about how and where their images may be used in the future.

Tuesday 1 January 2013

More art enters the Public Domain

1 January is a special time of year for lots of reasons, not least the fact that lots of art enters the public domain (in Europe and several other jurisdictions – for an overview of the copyright terms worldwide – see here). It is also time for the annual Art & Artifice overview of some of the artists whose work has now become available.

Walter Sickert

Sickert - The Camden Town Murder
Sickert is considered by many to be the greatest British painter between Turner and Bacon. He developed a distinctive form of impressionism and was known for his urban scenes. Whilst he was known for his focus on ordinary people he was not above the occasional celebrity painting, including Winston Churchill.

Some, notably Patricia Cornwell have alleged that he was Jack the Ripper (or at least knew his identity) but this claim remains unsubstantiated.

Albert Kahn

Kahn - The Fisher Building, Detroit
Kahn was the architect associated with the development of Detroit. He moved to America from Germany in 1880 and forged a successful career as an architect.

Notable buildings include the Ford Motor Company's Highland Park plant, the Fisher Building, the General Motors building in Detroit and much of the original campus at the University of Michigan.

Grant - American Gothic
Grant Wood 

Wood is an artist best known for his paintings of the American Midwest, particularly the iconic American Gothic.

Ivan Bilibin

Bilibin - Morozco
Bilibin was a Russian illustrator and stage designer.   He was inspired by Slavic folklore and contributed to the Ballet Russes. Bilibin’s fame was established with a series of illustrated Russian fairytales. He lived in Paris for much of his life but returned to Soviet Russia in 1936.  He died in the siege of Leningrad.

Johannes E Akkeringa

Akkeringa was part of the Hague School of painters. He painted a variety of quaint subjects using oils and watercolours.

Mikhail Nesterov  

Nesterov - Taking the Veil
Nesterov was a major representative of religious symbolism in Russian art.