Wednesday 10 December 2014

Annual Art Law Institute Presented by Washington Lawyers for the Arts

This is a reminder to our Seattle-area readers that the annual Art Law Institute presented by Washington Lawyers for the Arts will be held on Monday, December 15.  This all-day CLE program includes presentations on copyright year in review, trademark year in review, a panel on international intellectual property issues with special focus on international issues for artists (moderated by yours truly), design patents, legal and policy issues for streaming media, and ethics.  Register here.

Wednesday 26 November 2014

Swiss museum decides to accept Gurlitt's collection

The trustees of the Kunstmuseum Bern announced yesterday that the museum has decided to accept the bequest of Cornelius Gurlitt's art collection.

We have already spoken herehere and here about Gurlitt's art collection, which was discovered in a Munich apartment in 2012 during a routine tax investigation. The majority of the collection is believed to have been amassed by Gurlitt's father, the Nazi-era art dealer Hildebrand Gurlitt, who told US authorities after World War II that his collection had been destroyed by Allied bombing.  

After Gurlitt's death last May, the Swiss museum took the full six months allowed by German probate law to decide whether to accept or reject the gift.  At a joint press conference, the chairman of the museum's board of trustees announced that works that are believed to have been looted will stay in Germany, while a team of researchers investigate their provenance. In this regard, the Kunstmuseum announced today that it has set up a provenance department.

The decision to accept Gurlitt's bequest is likely to open the Kunstmuseum up to years of litigation, as the President of the Jewish World Congress, Ronald Lauder, has already warned.

In addition, the Kunstmuseum's decision to accept the bequest comes just a few days after Gurlitt's cousin, Uta Werner, announced that she has submitted a certificate of inheritance to the Munich probate court, challenging the testamentary capacity of Cornelius Gurlitt to bequeath his collection to the Kunstmuseum. If this were the case, Gurlitt's cousin and other heirs would inherit the whole art collection. Gurlitt's heirs have already said that – unlike the Kunstmuseum – they will return each artwork to their rightful owner.

We shall have to wait and see who will eventually manage Gurlitt's collection.

Tuesday 18 November 2014

Orphaned and abducted cultural fragments: a forthcoming seminar

Here's some information concerning a fascinating event which is coming up early next month, and which Art & Artifice blogger Liz Emerson will be attending. If you are going to be there too, do make a point of saying "hello" to her!  If you want to get in touch with her or have any questions to ask her, just email her at

Monday 17 November 2014

New Bill Proposed to Amend U.S. Copyright Act to Protect Inheritance Rights of Same-Sex Spouses

On November 12, 2014 Senator Patrick Leahy proposed Bill 2919 which would amend the Copyright Act to insure that all married couples are treated equally under the Act.

As many of our readers know, generally the term of a copyright lasts decades beyond the death of the author, and that copyrights may pass to an author's heirs upon death. Section 203 of the Copyright Act also endows an author's heirs with the right to terminate transfers and licenses made by the author during his or her life under certain conditions. Importantly, the acquisition of these rights by an author's heirs may rely upon the Copyright Act's definition of "widow" and "widower" contained in 17 U.S.C. § 101. Under this definition an author's "widow" or "widower" is the author's surviving spouse under the law of the author's domicile at the time of death. Essentially, this means that a same-sex couple legally married in Vermont would not have the same rights under the Copyright Act if, at the time of the author's death, they live in a state that does not recognize gay marriage, such as Georgia. Senate Bill 2919 would cure this inequity by amending the definition of "widow" and "widower" to hinge upon whether the author's marriage would be recognized by the courts of the state where the author was married at the time of the author's death. As Senator Leahy stated when introducing Senate Bill 2919, the bill "amends the Copyright Act to look simply at whether a couple is lawfully married--not where a married couple happens to live when the copyright owner dies. It will ensure that the rights attached to the works of our Nation's gay and lesbian authors, musicians, painters, photographers, and other creators pass to their widows and widowers. Artists are the creative lifeblood of our Nation, and our laws should protect their families equally."

The full text of the proposed bill is available here, and the transcript of the entirety of Senator Leahy's introduction here. The bill is presently in committee and has not yet been signed into law.

Tuesday 28 October 2014

A tale of two Schieles

We have quite regularly discussed different cases of art stolen from Jewish families by the Germans during World War II on this blog. The one point they all have in common is that it is always difficult to predict the outcome. There is never a straightforward answer to whether the art will be returned.

A recent case illustrates the incongruent approaches to the cases. 

Two paintings by Austrian artist Egon Schiele are being auctioned next month. One by Christie’s and one by Sotheby’s.

Schiele's "Seated Woman with Bent Left Leg"
Schiele's "Town on the Blue River"

The result of the sales will, however, be very different for the family of Fritz Grünbaum, who once owned both pieces.

As reported by The New York Times:
Christie’s is selling Schiele’s 1910 watercolor “Town on the Blue River,” on Nov. 5 in conjunction with a restitution agreement that treats the work as looted art and provides compensation to Grünbaum’s heirs. 
Sotheby’s is selling a 1917 gouache and crayon work, “Seated Woman With Bent Left Leg,” on Nov. 4 under an arrangement that will not compensate the family. The auction house is relying on rulings by United States federal courts that found the family waited too long to file its claim and that there was insufficient evidence to conclude “Seated Woman” had been stolen.
The different approaches apparently stems from the fact that it all comes down to the word of a Swiss art dealer who says he bought dozens of Schieles from Grünbaum’s sister-in-law.

Grünbaum had accumulated a substantial art collection prior to 1938 when he was sent to Dachau and all his art was seized. His collection included 81 Schieles, however, it is not clear whether these two paintings were part of it.

After the collection was seized, it was moved to a storage depot in Vienna. Grünbaum died in 1941, and his wife, Elisabeth, died in 1942, in a concentration camp.
 The New York Times continues:
The next time any of the works from Grünbaum’s collection surfaced on the art market was in the 1950s, when the Swiss dealer, Eberhard Kornfeld, sold some. Mr. Kornfeld later said he had purchased them from Elisabeth Grünbaum’s sister, Mathilde Lukacs-Herzl, who died in 1979. Mr. Kornfeld produced correspondence with Ms. Lukacs-Herzl, tax stamps and other documentation to support his account. 
Jonathan Petropoulos, the former art research director for the Presidential Advisory Commission on Holocaust Assets in the United States, has called Mr. Kornfeld’s story suspicious, in part because the documents carry varied spellings of the name “Mathilde” in penciled signatures and because he did not identify her as the source of the works until decades after her death. In any case, Mr. Petropoulos, who was hired by the Grünbaum family legal team, argues that Ms. Lukacs-Herzl did not have title to the art because she was never declared Grünbaum’s heir by an Austrian court, as required.  
So, on the one side Sotheby’s is taking Kornfeld's word that he acquired the paintings lawfully. On the other, Christies's acknowledge that the position is complicated and therefore will treat the painting as looted art and compensate Grünbaum’s heirs.

While the lack of consistency is not surprising, it is nevertheless disappointing particularly since it is very likely that the paintings came from the same collection. And while there are several organisations that are still working to right wrongs that took place over 70 years ago, as those events become ever more distant it becomes even more likely that the disparities will only increase.

Source: The New York Times, 24 October 2014

Monday 27 October 2014

Cardsharps in court -- but are they Caravaggio's?

Jane Peel, on the BBC website, reports on litigation over a professional negligence claim hinging on the attribution of the painting illustrated above, "The Cardsharps". She explains:
A painting sold by Sotheby's in London for £42,000 is at the centre of a legal battle amid claims that it could actually be the work of Italian baroque master Caravaggio and worth up to £11m. Former owner Bill Thwaytes, of Penrith in Cumbria, has accused the auction house of "professional negligence". When it was sold in 2006, it was attributed to a follower of the artist. Mr Thwaytes said more should have been done to determine whether it was by Caravaggio, who died in 1610.
The oil painting The Cardsharps depicts a wealthy man falling victim to two cheats at a card table. It was bought by the Thwaytes family in 1962 for £140.In 2006, Mr Thwaytes asked Sotheby's to value the work and the auction house concluded that the painting was one of several copies made of the original, which is on display at the Kimbell Art Museum in Fort Worth, Texas.

In the 1950s, the Thwaytes family sold a genuine Caravaggio, The Musicians, to the Metropolitan Museum of Art in New York. Mr Thwaytes suspected his version of The Cardsharps was also likely to be authentic. But Sotheby's decided the copy was not created by the Italian master himself and attributed it to a 17th Century follower. The painting was sold for £42,000. But its new owner - a British collector - has declared it to be by Caravaggio and worth millions.  
... Henry Legge QC, for Mr Thwaytes, said the issue was not whether it could be proved on the balance of probabilities that the painting was by Caravaggio. The core of the case, he said, was a claim of negligence. He said Sotheby's had failed to thoroughly research the painting, consult outside experts or properly advise Mr Thwaytes. Sotheby's ... has described suggestions the painting is worth £11m as "preposterous".

In papers submitted to the court, the auction house said its experts were competent to assess the artwork and none of the leading scholars who have examined it since it was sold think it is by Caravaggio. Mr Thwaytes and some of the world's leading Caravaggio experts will give evidence at the trial, which is due to last for four weeks.
 This case can have a number of outcomes, including the following:

  • Sotheby's are professionally negligent and the painting is (probably) a genuine Caravaggio
  • Sotheby's are professionally negligent and the painting is(probably) not a genuine Caravaggio
  • Sotheby's are not professionally negligent and the painting is (probably) a genuine Caravaggio
  • Sotheby's are not professionally negligent and the painting is (probably) not a genuine Caravaggio

Discounting the possibility that Sotheby's are negligent, that the painting is actually the original and that the Kimball one is a copy, it looks as though most of the outcomes are likely to be of little benefit to the Thwaytes family.  Still, it will be good to see what findings of fact the court makes with regard to the standard of care that an auction house must achieve in order to avoid the risk of liability for professional negligence.

Saturday 25 October 2014

Surprise: Art can be a business for tax purposes

In the recent US case Crile v Commissioner, the IRS sought to show that the forty-year career of a well-known artist, some of whose works hang in the Metropolitan Museum of Art and the Guggenheim, was not a business, but merely a hobby. 

The case turns on the following point. Relevant US law permits taxpayers to deduct the expenses of their trade or business from the taxable profits of that business. And, if the expenses are greater that the profits, then the taxpayer may generate a net loss. That loss may be of value to the taxpayer if she or he has other profits against which the loss can be set, thereby reducing the overall tax bill payable. 

Suffering is not a pre-requisite to deductibility:
The Comic Almanack, 1847
© The Trustees of the British Museum

But if the taxpayer's activities are not a business but a "hobby", then the deduction position is different. The expenses of a hobby can be deducted against any profit it may make, but only to the extent of those profits. Where the expenses of a hobby are greater than its profits, the taxpayer is not entitled to generate a loss. This is intended to prevent a taxpayer from running a profit-making business and at the same time enjoying a loss-making hobby activity (such as horse breeding or drag racing) - and using the losses generated in their spare time to reduce their business tax bill to nil. 

In the case of Crile the artist made a profit working as an art professor, but a loss working as an artist. When she sought to offset the two, the IRS argued that her losses as an artist were not allowable since her artistic production was a hobby. 

In determining whether an activity is a hobby or a business, the IRS will consider whether the activity is carried on with the objective of making a profit, or whether the real objective is  the taxpayer's own entertainment. In coming to a decision the IRS will apply the "hobby loss rules". These are nine different factors to be considered, such as whether the taxpayer keeps accurate books and records of the activity, how much of the taxpayer's time an activity is expended on the activity, to what extent the activity has elements of personal enjoyment or recreation and so on. 

The outcome of the case, hailed as a "victory" for artists, was that the taxpayer's long and distinguished career - on which she kept detailed records, used a bookkeeper and agent, and spent much of her working time, although she typically lost money - was indeed a business. The court acknowledged that given the unusual nature of the art world, an atypical profit structure - such as a string of losses over many years, or sudden success following a successful show or review - would not necessarily be taken as evidence of a hobby. Nor would a business "be turned into a hobby merely because the owner finds it pleasurable" which is a relief - it would certainly be harsh tax result if it was necessary to dislike your own business in order for your expenses to be deductible. "Suffering," the court confirmed, "has never been made a pre-requisite to deductibility."  

It has been pointed out however that the deductions which the IRS sought to disallow in this case were suspiciously large, and in some instances were of a personal nature which should not in any event have been deductible. The taxpayer's approach to deductions, the court noted, was that "most experiences an artist has may contribute to her art and that most people with whom an artist socialises may become customers or otherwise enhance her career" - on which basis she deducted a great many expenses which did not pertain directly to her career as an artist, such as cable television bills, taxis to the opera, and tips to doormen. 

The IRS therefore made a twofold argument: firstly that the taxpayer's activities were a hobby and as a second (and more reasonable) line of defence that, if the activities were a business, then the expenses in question were not all "ordinary and necessary" for that business and therefore not deductible. While the court's decision as to the first argument will be a relief for US artists, the decision on the second may not be good news for this particular taxpayer. 

Monday 13 October 2014

At Geek Girl Con: An Exploration of Fan Fiction and the Law

This weekend I had the pleasure of participating in a panel presented by Washington Lawyers for the Arts at Geek Girl Con in Seattle.  For those not in the know, Geek Girl Con is a conference dedicated to connecting women and celebrating the legacy of women contributing to science, technology, comics, art, literature, and game design, among others.  Our panel was dedicated to the legal issues surrounding the creation of fan fiction including the basics of U.S. copyright law and the public domain. We also explored the potential attachment of copyright to specific characters or settings, which requires a certain level of delineation by the original author so as not to grant a monopoly over more generalized ideas, stock characters, plots, or themes.  In addition, we discussed fair use as a defense to accusations of copyright infringement including issues around parody, good faith, and degrees of transformativeness.

Our audience posed many thoughtful questions, giving us an opportunity to reflect on the disconnect between the law of copyright and the business realities of suing fans for making fan art as well as a chance to debunk some myths about supposed bright line rules in fair use. The difficulty of course, as I've reflected on recently, is that we are left with rather vague guidelines for artists who are creating work involving appropriated materials. Despite these circumstances some excellent resources, such as Columbia University's Fair Use Checklist, may help those working with appropriated materials spot potential trouble. Other resources, including our slide deck from the presentation, are available on the Washington Lawyers for the Arts website. Although the legal issues may be aggravatingly imprecise, education is the best way to prevent unnecessary self-censorship, allowing artists to explore (or more aptly, appropriate) with awareness.

Friday 10 October 2014

Met rescues an Egyptian treasure from auction

New York's Metropolitan Museum has acquired the nearly 4,000 year old Egyptian "Treasure of Haregeh" from Bonhams after it was withdrawn from public auction.

Some pieces of the Haregeh treasure

The Treasure consists of 37 pieces from the Middle Kingdom’s 12th Dynasty (1897-1878 BC) found within the burial tomb of a rich woman of that period. It was excavated between 1913 and 1914 by the British School of Archaeology in Egypt, and was exported from Egypt to London following permission from the Egyptian authorities under the terms of the contemporary excavation license. The Treasure was then passed on to the St Louis Society, as consideration for the latter’s financial contribution towards the excavation. It has been said that the St Louis Society, an independent non-profit organisation associated with the Archeological Institute of America, received the items on the condition that they would always be shown in a public collection.

For a century, the treasure was held at the St Louis Art Museum, until the St Louis Society decided to sell the pieces at auction in London, as the annual storage cost had become too high for the organisation The treasure was included in Bonham’s catalogue for its antiquities auction on October 2 for the estimated price of between £80,000 and £120,000 (US$ 130,000-200,000). It featured prominently on the auction house’s website, but was then withdrawn before the lot came under the hammer.

The withdrawal probably occurred since the St Louis Society's decision to sell the treasure was widely criticised by art experts as a loss of a public cultural resource.

The national office of the Archeological Institute of America, the UCL Petrie Museum of Egyptian Archeology and the Egypt Exploration Society insisted that the sale would have contravened the public display condition in the original agreement.

Moreover, those experts stressed that the legal sale of antiquities could provide incentives for global criminal activity. Dr Naunton of the London-based Egypt Exploration society said "While there is a market and while antiquities fetch very high prices, there is incentive for people on the ground in Egypt to continue to find objects and sell them. In this way, legal sales are driving illegal trade". 

Other experts also criticised the sale on the grounds that it would be unethical for publicly-owned collections to be put up for sale to private collectors. Public museums offer the best hope that antiquities are safeguarded against loss or deterioration, and that they remain accessible to scholars and the wider public for study and enjoyment.

Fortunately, the Met intervened by purchasing the majority of the treasure from Bonhams, except for an alabaster travertine headrest which was sold to a private buyer. In a press release, a spokesman for the St. Louis Society's said : "The Metropolitan Museum in New York is the best home for the treasure. We are looking forward to seeing objects and jewelry on exhibition".

Thursday 2 October 2014

Keep off our worms? No, keep off our walls ...

The United Kingdom, like any modern multiracial and multicultural society, takes great pains to protect minorities from the hostility and prejudice of others.  The same jurisdiction is also accused of being the bastion of unthinking and self-defeating political correctness.  Bearing this in mind, readers are invited to draw their own conclusions regarding the following item on the BBC website:
A new Banksy mural showing a group of pigeons holding anti-immigration banners has been destroyed following a complaint the work was "racist". The mural in Clacton-on-Sea -- where a by-election is due to take place following the local MP's defection to [the politically incorrect] UKIP [whose policy on immigration and border control can be found here] -- appeared this week. It showed four pigeons holding signs including "Go Back to Africa", while a more exotic-looking bird looked on. The local council, which removed it, said it did not know it was by Banksy [Obviously the council was fooled by the style and the content. Maybe they thought it was a newly-discovered fresco by Leonardo]. 
Tendring District Council said it received a complaint that the mural was "offensive" and "racist".  
Nigel Brown, communications manager for the council, said: "The site was inspected by staff who agreed that it could be seen as offensive and it was removed this morning in line with our policy to remove this type of material within 48 hours. We would obviously welcome an appropriate Banksy original on any of our seafronts and would be delighted if he returned in the future." ...
Now why would be want to do a thing like that?

This blogger must confess that, when he saw the offending artwork, he thought it a brilliant way of poking fun at what he suspects as being the artist's view of the social attitudes and voting intentions of the good folk of Clacton-on-Sea and that, if anyone was going to be offended by this message, it should be them.

Presumably a banning order should also be placed on "The Ugly Duckling", which has presumably upset and humiliated generations of swans.

Wednesday 1 October 2014

The quantification of estate taxes: even more obscure than the valuation of art?

A recent decision of the United States Court of Appeals for the Fifth Circuit has been lauded as a victory for art collectors. More accurately, however, it appears to be a victory for the extremely wealthy seeking to avoid paying taxes.

While a lengthy, rather technical, case, it is hoped that the essential elements have been reproduced below.

James A. Elkins, Jr. and his wife collected 64 works of art during their lives. The collection included pieces by Jackson Pollock, Henry Moore, Pablo Picasso, Rene Magritte, David Hockney, Paul Cezanne to name just a few. At the same time, they were thinking ahead, both creating a Grantor Retained Income Trust (GRIT) that held title to their respective interests in the works, and entering into various agreements which also partitioned and allocated their interests in their art.

The result was that at the time of death of Mr Elkins in 2006 (his wife had died in May 1999), the art was jointly owned in varying percentages by Mr Elkins and his three adult children.

In 2007, his children filed a United States Estate (and Generation Skipping Transfer) Tax Return (estate tax return) in which they reported a Federal estate tax liability of over $100million. It listed, among other assets, fractional interests in various items of real and personal property, including the artworks.

In assessing the federal estate tax due on Elkins' estate, the Internal Revenue Service decided that tax should be paid on the full value of the art, refusing a discount based on Elkins' pro rata share—his fractional-ownership interest— of the art.

In 2010, the Executors of the Estate petitioned the United States Tax Court to review the assessment on the basis that there should have been a fractional-ownership discount applied when determining the taxable values of Elkins' fractional interest in the 64 items of art.

The Tax Court rejected the IRS' zero-discount position, but also rejected the quantums of the various fractional-ownership discounts adduced by the Estate through the reports, exhibits, and testimony of its three expert witnesses. Instead, the Tax Court concluded that a “nominal” fractional-ownership discount of 10% should apply across the board to from pro rata fair market value of Elkins ratable share of each of the works of art.

Still unhappy with the decision, the Estate appealed again and the case was heard by the US Court of Appeals for the Fifth Circuit.

The only question to be resolved was whether the federal estate tax due on the artworks was to be calculated based on Elkins' undiscounted pro rata share of the art (as the IRS contended) or should there be a fractional-ownership discount of either (i) a uniform 10% (as held by the Tax Court) or (ii) the various percentages that the Estate advanced through the testimony and reports of its expert witnesses?

The Court found:
  • Just as it was obvious to the Tax Court that the IRS had no viable basis for rigidly insisting that no fractional-ownership discount was applicable, it should have been equally obvious that, in the absence of any evidentiary basis whatsoever, there was no viable factual or legal support for the the Tax Court’s own nominal 10% discount. 
  • The Estate was entitled to apply a fractional-ownership discount to the tax due on Elkins' ratable share of the each of the 64 works of art. 
  • The answer to the question of the correct quantum was to be found with the proper administration of the willing buyer/willing seller test for fair market value: 'the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of relevant facts.'
  • The Estate's evidence was that the sale of Elkins' undivided interests in the artworks would produce prices substantially below his pro rata share of the works as any hypothetical willing buyer would demand significant fractional-ownership discounts in the face of becoming a co-owner with the Elkins descendants (given their financial strength and sophistication, their legal restraints on alienation and partition, and their determination never to sell their interests in the art).
  • The correct quantums of the fractional ownership discounts applicable to Elkins' pro rata share of the various artworks were those determined by the Estate’s experts. 

The full list of the 64 artworks and the discounts can be found in Appendix B to the Tax Court’s decision. The discounts range from over 50% to just under 80%. A substantial difference from the Tax Court's nominal 10% discount. As a result, the Court ordered a refund payment to the Estate of $14,359,508.21, plus statutory interest, for overpaid taxes.

While apparently "nothing is certain except for death and taxes," you could add to that the certainty that those with enough money will seek to avoid both. And that, in itself, is an art form. But that is just a [reckless] opinion....what do you think?

Source: Forbes, 24 September 2014

Friday 19 September 2014

Art vs Vandalism

Is defacing a Banksy art or vandalism?

Well, from the US point of view, it is certainly a crime worthy of punishment from anywhere between jail time to fines in the thousands of dollars.

It has, therefore, not been a fruitful year (artistically speaking, or otherwise) for David William Noll, who either has a big issue with Banksy's works or, whose artistic creativity, in defacing Banksy's art and then posting it on YouTube, has not been recognised.

In April this year, American "artist" Noll was charged with a vandalising several Banksy murals in separate incidents in LA and Park City, Utah.

In LA, Noll was charged with felony vandalism for painting over two Banksy works. For those charges, he pled no contest and was given three years of felony probation and 60 days of community service.

Girl on Swing – one of the Banksy works in LA that was vandalised

Around the same time, Noll was also charged with a vandalising two Banksy murals in Park City. After Noll failed to appear for a court hearing to face charges of criminal mischief for defacing those pieces, a warrant for his arrest was issued in August. At that time, it was speculated that, if convicted, Noll faced as many as 15 years in jail.

At the beginning of this week, however, Noll pleaded guilty to defacing the two Park City murals, and, as part of a plea deal, will not face jail time if he pays $13,000 in restoration costs before a November sentencing hearing.

So, could it be said that it is not a crime to paint on a wall if it looks nice/is carried out by a famous artist? But, it is a crime to paint over the works of famous artists? If this is the case, how does this fit together with instances where owners of the walls adorned by Banksy works decide to deface them?The challenges with protecting Banksy works continue to mount, even though it doesn't seem like it's an issue to Banksy.

Source: Associated Press, 16 September 2014

Thursday 18 September 2014

Wrangling over Rothko

Mark Rothko, Untitled (1961)
At least four years of legal wranglings over the sale of this Mark Rothko painting appear to have come to an end with little to show except substantial legal costs for all parties.

At the heart of the dispute, a confidentiality clause, which is now anything but.

By way of background, back in 2007, Marguerite Hoffman (the Plaintiff) sold this Rothko painting for $17.6 million to David Martinez (Second Defendant), via his company Studio Capital, Inc. (Third Defendant), under the terms of a letter agreement.

The agreement was signed by now defunct New York gallery L&M Arts (First Defendant) acting on behalf of Studio Capital. The relevant clause of the agreement provided that: “[a]ll parties agree to make maximum effort to keep all aspects of this transaction confidential indefinitely. In addition, the buyer agrees not to hang or display the work for six months following receipt of the painting.”

Following the 2007 sale, Studio Capital kept the painting in storage, eventually consigning it to Sotheby’s for sale in 2010. Sotheby’s auctioned the painting on 12 May 2010, and sold it for over $31 million.

Not long after, Hoffman sued L&M, Martinez and Studio Capital for damages for breach of the confidentiality clause of the letter agreement, on the basis that when she sold the Rothko painting privately, she had done so at a substantial discount in exchange for the promise of strict confidentiality, forfeiting the additional millions of dollars that the painting would have brought if sold at public auction.

Earlier this year, a Dallas jury decided that Hoffman had proved her breach of contract claim against L&M, Martinez, and Studio Capital, and awarded compensatory damages of $500,000 – far below the $22.4 million claimed by Hoffman – which the court subsequently slightly increased to $1.2 million.

As a result, the defendants filed motions for judgment as a matter of law. This is a US cause of action which argues that the evidence used to support an issue is legally insufficient and no reasonable jury could find for a party on that issue. [US lawyers: please feel free to correct this very basic summary.] 

Essentially, the court was asked whether:
(i) a reasonable jury could have found that L&M was acting as agent for Studio Capital and Martinez when it entered into the letter agreement, and that, accordingly, Studio Capital and Martinez were bound by the letter agreement;
(ii) a reasonable jury could have found that L&M breached the letter agreement;
(iii) a jury could reasonably have found that L&M’s breach of the confidentiality clause caused Hoffman damages; and
(iv) the damages Hoffman had elected to recover were legally barred under Texas law.
In respect of the first point, Studio Capital and Martinez claimed that there was no evidence that they ever communicated to L&M or to Hoffman any intent to confer any authority on L&M to enter into the letter agreement on their behalf, and that the undisputed evidence was that this did not occur. (Rather, Studio Capital and Martinez argued, L&M did not act as their agent, but, consistent with art industry practice, as an intermediary, purchasing the Rothko painting from Hoffman and then reselling it to them.)

On the second point, L&M argued that no reasonable jury could have found that the goal of the confidentiality clause was not met. And, on the third, L&M maintained that a reasonable jury could not have found that Hoffman suffered any damages as a result of their breach of the confidentiality clause because she had failed to adduce sufficient evidence of causation.

The final point was [from my point of view!] a complicated issue of the type of damages allowed for the breach of a contract under Texas law.

Earlier this month, the US District Court for the Northern District of Texas (Dallas Division) handed down its ruling on the motions.

Unfortunately for Hoffman, the court agreed with Studio Capital and Martinez. It found that there wasn't legally sufficient evidence for a reasonable jury to have found that Studio Capital or Martinez conferred any actual or apparent authority on L&M to enter into the letter agreement on their behalf. The court, therefore, went on to dismiss the action against them with prejudice.

The court did find that a reasonable jury could have found that L&M breached the confidentiality clause, and, further, that L&M’s breach of the confidentiality clause caused Hoffman's damages in the form of the lost benefit of her bargain. However, as a further blow to Hoffman, even though the jury had offered Hoffman two measures of damages and the judge had ultimately decided the appropriate sum of damages to be awarded, the court held that she was not entitled to recover under the measure of damages that she had elected.

The result of this ruling is that the Hoffman's claim against Studio Capital and Martinez is effectively over and she is barred from filing another case against them on the same claim. Moreover, Hoffman must file a new motion against L&M to alter or amend the judgment in order for the court to award her damages under an alternative measure of damages.

Four year of litigation and no additional millions to show for it....distressing.

Wednesday 17 September 2014

More support for free access to UK museums and galleries

The government has announced that it will extend the VAT refund scheme which helps to support museums and galleries in providing free access to the public.

Many of the UK’s major museums and galleries allow free entry to their permanent collections. But this creates a VAT problem.

The National Gallery of Scotland

 Museums and galleries must pay for new exhibits and for the services they need to look after their collections (such as climate control or the upkeep of the buildings in which the collection is housed) and they will usually need to pay VAT on those services. Normally, a business can reclaim VAT which it incurs, so long as that VAT is related to the business’s own onwards supply to its customers.

But providing free access to the public is not regarded as a business activity for VAT purposes. Under normal VAT rules, this would mean that any VAT paid on services which relate to the exhibits on permanent display could not be recovered. So in effect the costs of many goods and services purchased by museums and galleries would be higher by 20% (the standard VAT rate) than they would be if the museum or gallery charged for entrance.

However, since the UK government wants to promote free access, a special VAT rule was introduced in 2001 whereby certain specified museums and galleries (including London’s British Museum, the National Museums and Galleries of Northern Ireland and the National Galleries of Scotland) are allowed to reclaim such VAT. According to the government’s website, this scheme provides around £60 million of support for free access annually.

The recently announced extension to the scheme will mean that the V&A Museum of Design, Dundee and the University of Leicester’s arts centre, Embrace Arts, will be able to take advantage of the VAT refund rules. 

Monday 8 September 2014

Who owns art? Copyright, inheritance and Vivian Maier

Vivian Maier, self portrait New York c1950s
via Wikipedia
She has been compared to Cartier-Bresson. She captured the life on the streets of Chicago and New York for over 40 years and she died penniless and without a will. It is the lack of a will rather than her artistic legacy which has recently been hitting the headlines and threatens to prevent the dissemination of her art to the world that she spent so long photographing.

Vivian Maier appears to have two male heirs, both French and both first cousins once removed. One of these heirs, Sylvain Jaussaud, has transferred their rights to John Maloof, who was one of the first to discover Maier’s work and has since bought the majority of her negatives as well as helping to create a film which celebrates her work and its discovery. 

The second heir was identified by a photographer/lawyer, David Deal, who believed that Maier’s legacy was being misappropriated and sought to track down any additional relatives who might have a claim. He convinced a second French cousin, Francis Baille, to seek legal heirship in the US courts with Deal as his legal representative.

As all Art and Artifice readers are no doubt aware, there is a fundamental distinction between a work and the copyright in a work. One does not necessarily go with the other. That said, in the UK, at least, if you inherit a work of art, the copyright is deemed to go with it unless there is a contrary intention expressed elsewhere in the will. It is this distinction that is causing the problem, Maloof is the lawful owner of many of the physical photographs and negatives but is not necessarily the owner of the copyright.

Whether or not Maloof is the owner depends on (1) the agreement which he struck with Jaussaud which sounds from the reports like it was a full assignment of rights, and (2) whether Baille has a claim to full or partial ownership of the rights in the photographs as well.

There is now a court case in Chicago to determine who owns the rights.

Unfortunately, whilst the case is working its way through the courts, it will be very difficult to see Maier’s photographs. The Cook County Public Administrator department reportedly sent letters to put all interested parties, including galleries exhibiting Maier’s work, on notice of the rights issue. Any dealing in the photographs is likely to be a challenge until this is resolved.

In the meantime, I have some queries for my US colleagues:

1 A particular quote from the New York Times article which has been circulating around the internet states that: “Under federal copyright law, owning a photograph’s negative or a print is distinct from owning the copyright itself. The copyright owner controls whether images can be reproduced and sold.” That is quite surprising. I can see that copyright could stop a reproduction (and by extension a sale following a reproduction) but how copyright can stop the sale of the photograph or negative itself. There is a clear distinction between the object and the copyright. But if only the object is sold and the copy (i.e. print) was made by Maier (the artist) what is to stop the resale?

2 My understanding is that until the photographs are registered, it is not possible to get statutory damages or legal fees for infringement of the photographs. Is that correct? If so, what will happen if the copyright in the photographs which have been registered by Maloof is found to be owned (or partially owned) by Baille?

Any light you can shed on this and the case in general would be much appreciated.

You can read much more about the background to this story in The New York Times (which takes a more Maloof friendly approach) and in The Independent (which is a bit more suspicious of Maloof's motives).

Sunday 31 August 2014

Copyright and technology: can you graphically illustrate the relationship? A competition

This blogger's friend and colleague Eleonora Rosati (right, as usual ...) is in action on 1 October 2014, where she is hosting a one-day Copyright and Technology conference in the London offices of ReedSmith LLP.  Registration details can be accessed on this post, which had the misfortune to be promulgated on a public holiday when all respectable IP enthusiasts were enjoying a day away from their screens, indulging in the pleasures that only a day off work can bring.  But what, you may be wondering, does this have to do with the concepts of art and artifice ...?

The explanation is not hard to find.  Eleonora has a complimentary ticket (worth £239) which she will be pleased to bestow upon the winner of a contest which is open solely to full-time students/trainees/apprentices, regardless of their age. This competition requires aspiring entrants to create an artistic work, eg a photograph or (if you find it easier) a work of architecture, that illustrates in the best and/or most humorous and/or saddest etc aspect of the relationship between copyright and technology.

Once you are happy with your "own intellectual creation", says Eleonora, you should email it to, but do so by Monday 8 September 11 pm GMT.

The best entries will be published on the IPKat weblog, so competitors are naturally asked to provide an irrevocable gratuitous and non-exclusive licence when submitting their work.

Friday 29 August 2014

Street Art: Not Just Up for Grabs

In a recent post Jeremy discussed the copyright infringement case brought against American Eagle Outfitters by street artist, AholSniffsGlue. The artist alleged that the clothing company placed models in front of the artist's murals and then used those photos to achieve a certain look in its summer ad campaign by prominently featuring the artist's work in its billboards, window displays, website, and social media. As many who have commented on this case noted, American Eagle made a particularly egregious use of the artist's work by featuring a photograph of a white, clean cut looking model standing in front of one of the artist's murals holding a can of spray paint, thus implying that the mural was created by the model and not by the Cuban-American artist.

On the heels of this case comes two cases filed on August 19, 2014 by renowned artist, Maya Hayuk, regarding unauthorized reproduction of her mural, Chem Trails NYC, a painting which was located on the Bowery Mural Wall, a well-known, curated outdoor exhibition space in New York City. One case was brought against singer Sara Bareilles, as well as her record company, its parent company, and her publicity and promotion companies.  The second lawsuit is against fashion giant, Coach. The cases were filed in the U.S. District Court for the Southern District of New York (cause numbers 14-cv-06668-VEC and 14-cv-06659-LAK).

The complaint against Coach is not yet available, but according to the complaint against Bareilles, Hayuk painted the mural in the NYC location in February 2014 and also registered the copyright in the work at that time.  (A savvy move, as U.S. law requires timely copyright registration to qualify for statutory damages and a plaintiff must have a copyright registration to file a lawsuit for infringement.)  The artist alleges that Bareilles and the other defendants used her mural, without permission, in the promotion of Bareilles and her upcoming "Little Black Dress" tour. Images in Hayuk's complaint show Bareilles, a small figure in a black dress, posed in front of the mural, and show that such images were used extensively to the promote the singer, and used in her online and social media promotion. Hayuk seeks preliminary and permanent injunction against Bareilles's continued use of her painting as well as damages in either the form of statutory damages (up to $150,000 against each defendant) or an award of profits attributable to the infringement, as well as attorney fees.

It is, at least in my opinion, alarming that large companies with ample legal resources have (allegedly) approached the work of these artists with such recklessness, (allegedly) commercially exploiting these paintings without permission to achieve a certain look in ad campaigns. Perhaps these lawsuits will serve as a cautionary tale that publicly situated murals are not just up for grabs.

Wednesday 27 August 2014

Comic art, creativity and the law: a new title

Comic Art, Creativity And The Law, by Marc H. Greenberg (Professor of Law, Golden Gate University School of Law, US), has been recently published by Anglo-American publishing house Edward Elgar as part of its ever-increasing IP list, as part of its Law and Entrepreneurship series. According to the publisher:
The characters and stories found in comic art play a dominant role in contemporary popular culture throughout the world. In this first-of-its-kind work, Comic Art, Creativity and the Law examines how law and legal doctrine shapes the creative process as applied to comic art.

The book examines the impact of contract law, copyright law (including termination rights, parody and ownership of characters), tax law and obscenity law has on the creative process. It considers how these laws enhance and constrain the process of creating comic art by examining the effect their often inconsistent and incoherent application has had on the lives of creators, retailers and readers of comic art. It uniquely explains the disparate results in two key comic book parody cases, the Winter Brothers case and the Air Pirates case, offering an explanation for the seemingly inconsistent results in those cases. Finally, it offers a detailed discussion and analysis of the history and operation of the ‘work for hire’ doctrine in copyright law and its effect on comic art creators.

Designed for academics, practitioners, students and fans of comic art, the book offers proposals for changes in those laws that constrain the creative process, as well as a glimpse into the future of comic art and the law.
This is an enjoyable and thoughtful book, part legal analysis, part history, part speculation and part personal reflection. The impact of the law on the fruits of creation is easier to assess than its impact on those aspects of creativity which it may deter or stifle, and the use of comic art as a powerful form of parody, satire or social comment keeps returning it to the point at which freedom of expression meets countervailing rights and interests -- but this book is neither repetitive nor preachy, even though Marc Greenberg never leaves it to his readers to guess his thoughts and feelings.

Apart from Justin Hughes' encomium, there is no mention of the words "United" and "States" in conjunction with one another and, though there is the occasional reference to some non-US issue, the text is unashamedly US focused, sparing just six pages towards the end for an acknowledgement of the Franco-Belgian and Japanese traditions.  This is not a crime, of course, but it would be appreciated if publishers were to flag single-jurisdictional works as being so, in order that readers and potential purchasers should not be encouraged to think of the work as having some sort of international significance.  For the past 20 years, entrepreneurship in fields like comic art and, dare one say it, creativity, has been looking increasingly to the internet for commercial routes to exploitation, and the internet is not coterminous with the borders of the United States. It is hoped that future editions of this worthwhile and enjoyable book will either be encouraged to spread their focus a little wider or will clearly indicate that they don't.

There's one final, trivial quibble: the illustration on the publisher's website, reproduced above, creates the impression that this book is thicker than it actually is. Following xix pages of preliminaries, the text -- inclusive of the index -- totals just 199 pages.

Bibliographic data: hardback ISBN 978 1 78195 492 8; ebook ISBN 978 1 78195 493 5. Hardback price£70 (online from the publisher, £63). Web page here.

Tuesday 19 August 2014

The Eagle swoops, the Eye Droops: graffiti goes to court

"Graffiti copyright battles pitch artists against advertisers" is the title of a fascinating piece by this blogger's friend Enrico Bonadio (Senior Lecturer in Law, City University, London), where he teaches Intellectual Property Law and EU Law. Enrico's piece reads as follows, in relevant part (minus links):
" ... A legal row between Miami-based street artist Ahol Sniffs Glue (“Ahol” – or David Anasagasti to his mother) and the clothing retailer American Eagle Outfitters is the latest instance of a growing number of spats. The artist recently sued for copyright infringement in a US federal court after American Eagle began using his work in their promotional material.

Ahol is known for his signature “droopy eyes”, variants of which appear all over Miami. Earlier this year, when looking to support its spring collection advertising with an eye-catching urban touch, American Eagle started using Ahol’s artwork. Droopy eyes popped up on its web adverts, billboards and in-store displays worldwide as well as on Instagram, YouTube and in storefronts across the world. At an opening in Colombia, the store even allegedly hired local street artists to recreate Ahol’s original, complete with American Eagle logo.

One of the images the multinational company used on its billboards depicts a male model wearing American Eagle clothes while standing in front of a legal mural by Ahol named Ocean Grown, after a gallery that commissioned and hosts the work. In the most brazen touch of all, the model carries a spray paint can. Clearly the advertising is not just looking to appropriate the visual effect of the nice background; it’s attempting to grab some of street art’s illicit cool by implying the model had painted the work himself.

Paintings on walls are no different from other artistic works – and they therefore satisfy the requirements for copyright protection, including originality. This it particularly true of legal graffiti works such as the ones created by Ahol in Miami and (mis)appropriated by American Eagle. It would make no sense to deny copyright protection to works that have been legally commissioned.

But still, even illegal graffiti deserves copyright protection. Possible wrongdoings committed by street artists (trespass, vandalism and so on) concern the process through which the works are done: painting on a wall or train, for instance, without the authorisation of the property owner. ...

Street artists thus might find in copyright law an ally, a friend that can help them in giving added value to their works and reacting to “art stealers” and (why not?) making money out of their job, and their passion".
Copyright should be the ally of every artist, and the fact that the graffiti constitutes a criminal act of vandalism or unlawful interference with property should not affect that.  But there is a sense in which unauthorised and uncommissioned graffiti is somehow "public" property too. One can understand why the owner of the wall or other medium (train, truck or whatever) might feel entitled to indulge in some exploitation of a work, commercial or otherwise, if it has been foist upon him against his will -- but why should a third party such as the proprietor of a garment brand be so entitled?

Thanks are due to Chris Torrero for supplying the relevant link.

Wednesday 13 August 2014

New York art dealer denied tax relief over Beltracchi fake

In 2011, the notorious forger Wolfgang Beltracchi was sentenced to six years in prison for creating and selling “unknown” works, supposedly by various master artists, to unsuspecting art dealers.

One of these dealers was New York based Richard Feigen. The New York Law Journal (NYLJ) reports that in 2004 Feigen sold a painting which he believed was by the Surrealist painter Max Ernst for US$2.5 million. Having sold the piece, the dealer then duly paid sales tax of US$215,625 to the tax authorities.

One of Beltracchi's fake Max Ernst paintings
When the Beltracchi scandal broke and Feigen found that the Ernst was a skilful fake, he bought the painting back from its new owner at the same price for which he had sold it. In turn, the French gallery from which Feigen had bought the painting gave the dealer back the same sum he himself had paid.

However, this still left Feigen short of the US$215,625 sales tax that he had paid in respect of the aborted sale of the Ernst. So in June 2011, following Beltracchi’s trial, Feigen applied for a credit against, or refund of, that sum.

Unfortunately for the dealer, such refunds are permitted only within a three year window and that window had expired, at the latest, in early 2008. “Public policy does not favour the granting of refunds beyond the allowed period of time,” the tax authorities stated. “Anything less than this degree of certainty would make the financial operation of government difficult, if not impossible.”

It is entirely understandable that such limits should be applied in the majority of cases. But in a case where the taxpayer himself was subject to fraud and took prompt steps to correct his tax position once that fraud became apparent, the result appears harsh. 

“I can’t imagine that New York would want to collect a sales tax on a sale that was cancelled,” the NYLJ reports Feigen saying. “I can’t imagine how they can justify collecting tax on a non-sale.”

Given the scale of the art market in New York, this ruling could raise the suggestion that when buying art work the seller be contractually placed on risk for any resulting sales tax as well as for the value of the work itself, in the event that the work is not what it seems.

Read more here.  

Wednesday 6 August 2014

Arts Council England strips museums of their Accreditation

The Arts Council England (ACE), through its Accreditation Scheme, sets nationally agreed standards for museums in the UK.

According to the ACE:
"Accreditation is the UK standard for museums and galleries. It defines good practice and identifies agreed standards, thereby encouraging development. It is a baseline quality standard that helps guide museums to be the best they can be, for current and future users." 
"Accreditation enables museums and governing bodies to assess their current performance, and it supports them in planning and developing their services." 
Unfortunately for two local museums, it seems that they were not up to standard. At the beginning of this month, the ACE stripped both the Northampton Museum and Art Gallery and the Abington Park Museum of their Accreditation

The Museums Association Journal explains:
Arts Council England (ACE) announced today that it has stripped Northampton Museums Service of Accreditation following the disposal of the ancient Egyptian statue Sekhemka.
Northampton Borough Council controversially sold the statue for £15.8m at auction last month and will take home £8m of the proceeds. The remaining share will go to Lord Northampton, whose ancestors donated the statue to the museum. 
Following a hearing last week, the arts council’s Accreditation panel found that the process leading up to the sale and the sale itself were in contravention of the Accreditation standard.
In a statement today, the arts council said: “As a result of this non-compliance the two museums managed by Northampton Borough Council, Northampton Museum and Art Gallery and Abington Park Museum, have been removed from the Accreditation scheme, effective as of 1 August 2014, and excluded from future participation for a minimum period of five years, until at least August 2019.” 
It is reported that the museums were warned that sale of the statue could lead to them losing their Accreditation status. There were also protests outside Christie's prior to the sale calling for the statue to be returned to Egypt if the Council did not want it. Nevertheless, they went ahead and sold it.

The loss of the ACE Accreditation is likely to affect the museums' ability to apply for future grants and funding. It remains to be seen whether it was worth it.

Source: The Museums Association, 1 August 2014, BBC News 1 August 2014

Tuesday 5 August 2014

Artist's Estate Sues Chelsea Hotel

The famous Chelsea Hotel in New York has been a setting for many a scandal. The last few years have seen comparatively milder wranglings over the artworks that used to hang in the hotel, prior to its sale in 2011.

The most recent case to be filed is a claim by the Larry Rivers Foundation (representing late American artist Larry Rivers) against the new owners of the Chelsea Hotel seeking recovery of a Rivers' painting that, the Foundation alleges, was loaned to the hotel for exhibition purposes only.

The Courthouse News Service provides further details.
Rivers [had previously] loaned another work in its series, De Kooning's Father: Portrait of Arshile Gorky," to the hotel, which hung prominently in its lobby before being sold to a third party, according to the complaint.
The foundation claims that Rivers loaned, but never intended to donate, "Dutch Masters" to replace that work. " 
After Dutch Masters was installed at the Chelsea Hotel, managers of the Chelsea Hotel asked Larry Rivers to donate Dutch Masters to the Chelsea Hotel and Larry Rivers refused that request," the complaint states. 
After Rivers died in 2002, his foundation received the title to "Dutch Masters."
It was not, however, until the hotel was sold that the Foundation asserted ownership and tried to recover the painting. After several years with no success, the Foundation was left with little option but to bring this recent claim seeking return of the painting and at least $250,000 in damages for conversion and unjust enrichment.

Considering some of the stories surrounding other paintings which went missing at the same time, success in the claim might not necessarily mean recovery of the painting. But let's hope that this piece was not just thrown in the bin.

Source: Courthouse News Service, 31 July 2014

Monday 4 August 2014

No copyright on milk crate?

On his Facebook page, the Melbourne artist Jarred Kennedy recently claimed that Hany Armanious' new artwork - a giant milk crate - looks similar to his sculpture, the 2005 McClelland Sculpture Prize entry.

Kennedy's post on his Facebook page

Last Wednesday, three public artworks were revealed by Sydney Lord Mayor, Clover Moore, including Hany Armanious' giant 13.7 metre high milk crate 'Pavilion', which the Sydney council decided to install in Belmore Park, near Central Station.

Armanious, whose giant crate is accused of infringing the copyright in Kennedy's work, is one of Sydney's most respected contemporary sculptors and a globally recognised talent. When Armanious submitted 'Pavilion' for review by Sydney's City Centre Public Art Evaluation Panel, it garnered praise from panel member Lisa Havilah, director of Carriageworks. She said that "Sydney is full of milk crates and there was something wonderfully irreverent about making one 40 times larger that people can enjoy in a park".

Kennedy sent a letter to the City of Sydney and to Amarnious with reference to the alleged copyright infringement. The City of Sydney responded with the statement that a copyright infringement needs some act of copying and Kennedy will have to prove that Armanious had previously seen his milk crate.

While the question of whether Armanious' blue milk crate does infringe upon Kennedy's intellectual property rights remains to be answered, this episode leads to the question of the extent to which the law will protect artistic originality. Adaptation and appropriation of previous works by artists have become increasingly accepted by the artistic community, as we saw already in some posts here and here, for instance, in the Cariou v Prince case.

Where do we draw the line between inspiration and imitation?

Tuesday 22 July 2014

Print-a-Pony: golden opportunity, or taking artwork for a ride?

Printed in 3D, they may never look the same again
With apologies for the cross-post, there follows the first part of a blogpost from Iona Silverman on the 1709 Blog, "My Little Pony Gets 3D Printed", here, which focuses on some of the copyright issues arising from a fascinating piece of commercial cooperation 
"3D printing is a bit of a buzzword at the moment and its not the first time that this blogger has written about protection of IP rights in the 3D printer world. Rightsholders need to be thinking about how best to exploit 3D printing rather than how to avoid it, and one company that has done just that is Hasbro. 

Rather than targeting creators of fan art to stop them customising the popular My Little Pony range (because, really trying to stop your fans from enjoying your product is not a great business proposition), Hasbro is going to partner with 3D printing company Shapeways to sell fan art.

Five artists will design My Little Pony figurines which can be printed to order. John Frascott, chief marketing officer at Hasbro, describes the process as "mass customisation" - the figurines don't make sense for mass manufacture but enough people will buy them that Hasbro can justify allowing the artists to create and sell them.

It's not clear whether the artists will be employed by Hasbro or whether they are merely granted permission to create fan art (likely the former, for Hasbro to retain control of any copyright created) but it is clear that this is a clear demonstration that we will see more and more customised goods in future, meaning more and more 3D printing. ..."
Iona then goes on to ask a number of copyright-related questions, as one might expect in a piece written for a copyright law blog, and readers can consider those issues at their leisure.  From the perspective of Art & Artifice, however, it would be good to get some reactions from artists and those who represent them as to what this ingenious use of a 3D-based business opportunity might make to them

Monday 21 July 2014

Fair Use in the Visual Trenches

I've recently been preparing to teach a class on intellectual property to visual artists in Seattle. As I gathered information and images for a slide show, I wondered how to explain to working artists (in the course of a few hours no less) why this is fair use:

And this is not.

Yes, we can talk about the four main factors in a fair use analysis and, of course, transformativeness and parody, but practically speaking how is a working artist to put this to use? If lawyers and judges can't agree, or even explain the concept without discussing how vague and opaque the fair use doctrine is, what is an artist to do?

During my research I located a January 2014 Fair Use Report prepared for the College Art Association. The report addresses concerns that fair use is underutilized by the visual arts community due to confusion and fear about copyright infringement.

Some of the key findings and figures are summarized in the report as follows:
"Visual artists and other visual arts professionals, a term used in this report to include (among others) art historians, educators, professors, editors or publishers, museum professionals, and gallerists, share a common problem in creating and circulating their work: confusion and misunderstanding of the nature of copyright law and the availability of fair use—the limited right to reuse copyrighted material without permission or payment.

Fair use is flexible, available, and even core to the missions of many visual arts activities. 

Members of the visual arts communities typically overestimate the risk of employing fair use, which leads them to avoid it, even in circumstances where the law permits and so doing would not harm personal relationships necessary for their work.

They pay a high price for copyright confusion and misunderstanding. Their work is constrained and censored, most powerfully by themselves, because of that confusion and the resulting fear and anxiety.”
The report further found that approximately one third of those in the field had abandoned or declined to undertake certain projects due to copyright issues, this includes museums failing to digitize collections, curators declining to do shows where copyright permissions may be an issue, and artists who avoid collage and other types of appropriation art.

While I agree that fair use is flexible and available, it is perhaps the doctrine's over-flexibility that has led to many of these problems. Couple this with copyrights of expansive duration, lack of guidance with respect to orphan works, and at times avid copyright enforcement, and it is no wonder that some artists are avoiding the fair use morass all together. The outcome of these matters is so often unpredictable, and the courts' lack of consistency in application has left us with a hyper-flexible fair use doctrine and vague best practices.

Of course, this is not to say artists should be voluntarily ignorant and fearful of copyright law. Education about copyright serves as an extremely valuable tool in preventing unnecessary self-censorship and allows artists to understand and assess on their own terms the risks associated with particular uses of copyright-protected materials. Indeed artists should have an understanding that they themselves are the beneficiaries (not just the victims) of copyright protection and all the rights and opportunities associated therewith.