Transformative use of a building: does it infringe architect's moral rights?

A recent article in the NL Times, here, raises an issue which reflects a popular exam question for copyright students. The article is "Architect sues Leiden museum on copyright charge" by Hanna Daych and it reads, in relevant part (with links added):

Architect Fons Verheijen is planning legal action against the Naturalis Museum in Leiden, whose exhibition space building he designed. He argues that the museum is violating Dutch copyright laws by transforming the exhibition space into a storage facility and office space.

“They’re mutilating the building,” Verheijen told NL Times. “Somebody who creates art cannot have their work mutilated. Transforming my exhibition space into a storage space is mutilation.” ... [H]e plans to begin legal proceedings against the museum in April. His aim is to force the museum to scrap its current plans. ...

“My building is of a high architectural quality; it should not be used for storage,” Verheijen said. He insists that the existing exhibition space should be maintained and recommends the museum instead build an extension onto the current space for the office and storage requirements. “I’m not against another architect designing that,” he noted.

Architect Michiel Riedijk understands Verheijen’s disappointment. “But a client always has the right to make modifications to a building. Our work is a product and not an autonomous work of art, such as a painting. We are articulating his design rather than inflicting an injustice to it,” he said in an article in de Volkskrant. ...

This blogger loves the line about "we are articulating his design rather than inflicting an injustice to it" and wishes he had composed it. Having said that, copyright does not impose a binary system on the outcomes of intellectual creativity. It is open to an initiative to be both an articulation of a design and injustice to it.  Since there is no accounting for taste, no attempt will be made here to predict the outcome of the forthcoming legal proceedings -- though readers will doubtless have their own opinions.

Thank you, Chris Torrero, for this link.

ArmaLite in Italy's sights over Gun-Toting David ad

Here's a guest post from Ironmark Law Group IP attorney and blogger Lucas Michels on some of the copyright-related aspects of a news item that has attracted a lot of attention in European copyright circles -- ArmaLite Inc's decision to harness the iconic image of Michelangelo's David in a recent marketing campaign.  This is what Lucas has to say:

U.S. Gun Manufacturer in Copyright Dispute With Italian Government Over a Gun-Toting David

Several news outlets reported earlier this week that U.S. weapons manufacturer ArmaLite Inc. is in a copyright dispute with the Italian government over ArmaLite’s advertisement depicting Michelangelo’s David brandishing an ArmaLite AR-50A1 rifle. The ad first came to the Italian government’s attention when ArmaLite published it in the Italian magazine L’Espresso. Following the ad’s publication, Italian cultural minister Dario Franceschini warned ArmaLite that, beyond being offensive, their ad violated Italian copyright law and that the Italian government would take action to stop the ad.

The Italian government can likely take such action because it claims ownership to Michelangelo’s David and the moral rights associated with the famous work. Although no legal claims have been filed in Italy or the United States, the Italian government would likely claim that the ad constitutes a moral rights violation under Italian copyright law because it is “prejudicial to the honor or reputation” of Michelangelo and it is a “distortion” and/or “mutilation” of David pursuant to Article 20(1) of the Protection of Copyright and Other Rights to Exercise (Law No. 633 of 22 April 1941).

This possible claim is by no means novel, even for an IP attorney from a weak moral rights jurisdiction like United States. Yet, what makes this dispute interesting is the possible defenses that ArmaLite could assert. ArmaLite could not likely argue that their ad is permitted as fair use, even under more lenient U.S. fair use standards (17 U.S.C. § 107), because the ad has a commercial purpose and uses the work in its entirety. An Italian Court would accept a fair use defense even less as Italy does not recognize the fair use doctrine under its statutory law, and has only acknowledged a few permissible exceptions to the unauthorized use of a protectable work.

Absent fair use, one of the only potential defenses that ArmaLite may assert is that the Italian federal government does not own Michelangelo’s David. It was reported in 2010 that the City of Florence (where David now resides) disputed the Italian government’s claim of ownership over David. The federal government asserts that they own David by having paid for moving the statute to its current location in Florence after Italy was unified in 1873. In contrast, Florentine officials claim that the Florence City Hall originally commissioned David from Michelangelo in the 16th century, thereby entitling the City of Florence to ownership over the work. To date, the Italian government and the City of Florence have yet to settle their dispute as to the ownership of David. 

Although it remains to be seen how the Italian federal government will pursue their dispute against ArmaLite, or who has valid title to Michelangelo’s David, the one thing no one disputes is that ArmaLite should have known that displaying David with an assault rifle in an Italian publication would have an adverse fallout in Italy.

Art Attacks

Until very recently few had ever heard of Yellowism, an art movement that gained some notoriety in October 2012, when self-proclaimed Yellowist Vladimir Umanets wrote on one of Mark Rothko's paintings at the Tate Modern.  Umanets signed his name on Rothko's "Black on Maroon" and also wrote the phrase “A potential piece of yellowism."  It is difficult to discern exactly what Yellowism is, though there is a website for the movement as well as a YouTube channel.  Blouin ArtInfo gives a critical, but thoughtful analysis of Yellowism here.  

Marcin Lodyga, Umanets' partner in Yellowism wrote that Rothko's painting at the Tate, signed by Umanets was still a work of art.  He felt it would not be Yellowism, only potential Yellowism, until the work was placed in "yellowistic chamber," at which point it would express only the color yellow and cease to be a work of art.  Umanets told the BBC, "Art allows us to take what someone's done and put a new message on it."  

Rhetoric aside, appropriation within the art world is not new.  Marcel Duchamp signed a urinal and transformed an industrial design into a work of art.  Artists like Andy Warhol and Jasper Johns incorporated images (trademarks included) from modern culture into their works as if casting a mirror out onto modern society.  However, at some point in the 1970s and continuing until today art began appropriating itself, in the form of physical "attacks" on existing works displayed in galleries and museums. 

These "attacks" present some very unique legal questions.  When someone writes on a Rothko painting or dumps a bottle of ink into Damien Hirst's pickled sheep or draws a clown face on a Goya print, does this act of destruction create a new work of art and with it new copyrights in another author?  

Copyright protects original works of authorship, giving the author exclusive rights and the ability to prevent unauthorized copies or otherwise derivative works. As for art attacks, it would seem that the question comes down to whether the new work would be seen as an unauthorized derivative, or whether the work was transformative enough, and accordingly leaning in favor of fair use.  Still, transformative use is an incredibly difficult question, and often it leaves much to the eye of the beholder.  

One must also consider the moral rights attached to certain works.  In most civil law jurisdictions and some common law jurisdictions, moral rights attach to works of art during an artist's lifetime.  Among other issues, moral rights protect the integrity of the work, barring alteration, distortion, or mutilation of the work even after it leaves the artist's possession or ownership, and even if the artist has assigned the copyrights to another.  While moral rights may not present an issue in the case of long-since deceased artists, they could certainly play an important role in attacks on the works of living artists.

Further, it seems that in most cases those who "attack" works of art are not the legal owners of the physical work of art, thus their acts constitute crimes as well as civil torts.  Even if a new copyright existed, it would likely be rendered worthless as proceeds from the copyright would be viewed as proceeds of a crime.  (In case anyone is still wondering, Umanets was arrested for what he did to Rothko's painting.)  

While art attacks might serve as an end run into the limelight for new artists, the social and legal consequences are considerable.  

Woman’s buttocks make an impression on a Clyfford Still Painting

Potential peeing target:
Clifford Still 1957-J no.2 

On 29 December 2011, the Clyfford Still Museum in Denver was the scene of a rather dramatic display of vandalism (or performance art, depending on your perspective).

A woman, who had apparently enjoyed the alcoholic fruits of the holiday season a bit too much, reportedly pulled her trousers down, leaned her buttocks against against and subsequently slid down an iconic Clyfford Still painting worth more than $30 million. Although the impression of her buttocks caused the most damage, she also punched and scratched the painting and urinated on herself (fortunately the urine does not appear to have damaged the painting). The total cost of the damage to the oil-on-canvas called 1957-J no.2, is an estimated US$10,0000. The woman in question, Carmen Lucette Tisch, was charged with felony criminal mischief.

Clyfford Still was one of the first abstract expressionists who lead the movement after the Second World War. The Clyfford Still Museum opened on 18 November 2011. It constitutes a collection of approximately 2,400 works in a variety of media which were previously sealed off from public and scholarly access following Still’s death in 1980.

Quite apart from the criminal aspect, there is an argument that rubbing your buttocks against, scratching and punching a painting is an example of derogatory treatment and provides a potential moral rights action. Following Confetti v Warner (2003) this would depend on whether there was distortion and mutilation of the painting and “the distortion or mutilation prejudices the author’s honour reputation” (para 150). There is arguably prejudice to Clyfford Still’s reputation by the public nature of the damage (and the subsequent publicity).

Comments from readers, particularly regarding the US position on moral rights would be much appreciated.

Source: The Guardian

Street Artists Fight Back

A Los Angeles based arts organistion, L.A. Art Machine, and three California artists, Mear One, Chor Boogie, and Shark Toof, are reported to have brought a claim in the US federal court against Anschutz Entertainment Group (AEG) and the Ritz-Carlton Residences at L.A. Live, owned by AEG, for destroying $100,000 of their artwork.


In a press release from Zohar Law Firm, P.C., representing the claimants, it is said that the artwork had been loaned to AEG and the Ritz-Carlton Residences for a high-end promotional event held by AEG at the luxury condos located at L.A. Live in conjunction with the 2011 Los Angeles Art Show, but instead of being returned to the artists, the work was dismantled and discarded.

The release continues:

"Part of the event was curated by Bryson Strauss, an internationally-recognized gallery and museum curator and director of the L.A. Art Machine, a community-based arts organization. Mr. Strauss was to supply fine artwork for the real estate marketing event on January 19, 2011, designed to attract potential buyers to the Ritz-Carlton Residences’ multi-million dollar penthouse suite, which remained unsold at the time. Mr. Strauss brought in several famed artists who provided their works for display at the event, including Shepard Fairey, creator of the Barack Obama "Hope" poster, and three critically-acclaimed street artists: Mear One, Chor Boogie and Shark Toof. Other featured artworks at the event were by legendary photojournalist Henri Cartier-Bresson, David LaChapelle, and Garret Suhrie. Following the successful party and the sale of Mr. Fairey's works (which were then removed), AEG asked that Mear One, Chor Boogie and Shark Toof continue displaying their artwork because the penthouse would be shown to more potential buyers in the future. The artists agreed, but on condition that their multiple pieces of artwork eventually had to be returned, and had to be professionally de-installed under the supervision of L.A. Art Machine.

However, several months later, after Mr. Strauss and the artists had already made arrangements with AEG to retrieve the artwork, they were told that the artwork had been ordered removed by AEG and then disposed of as part of a routine cleanup."

Daniel Y. Zohar from Zohar Law says:

"What AEG did was in violation not only of my clients’ economic rights, but a violation of their moral rights as defined by federal and state law…

These renowned artists had agreed to show their artwork at the Ritz-Carlton Residences to help AEG attract affluent potential clientele to their vacant, multi-million dollar condos. Yet in return, their valuable art was coldly destroyed…

My clients were shocked by this admission and expected an apology, as well as payment for their artwork. AEG offered neither…

Apparently they thought my clients lacked the resources and courage to take on such an influential and powerful business. They were wrong."

It will be interesting to get hold of the Complaint and see what the defendants' response will be. If the facts are indeed as stated, it seems outrageous that artworks from these well-known artists were so thoughtlessly destroyed.

Source: Enhanced Online News, 14 November 2011

7th Circuit refuses to rehear case on artists' rights

As reported by the IPKat here, in February 2011, the US court for the 7th Circuit rejected an artist's claim for moral rights in two wildflower gardens.


The artist, Chapman Kelley, who is renowed for his flower and landscape creations, had objected to the modification of two gardens (the “Wildflower Works”) that he had installed in Chicago’s Grant Park in 1984. Kelley had sought relief under the Visual Artists Rights Act (VARA) for infringement of his right of integrity – a right against modification that is prejudicial to the artist's honour or reputation. However, the 7th Circuit held that the gardens were not protected by copyright as they lacked the requisite authorship and fixation required to support copyright. What the Court said was:

"The real impediment to copyright here is not that Wildflower Works fails the test for originality (understood as “not copied” and “possessing some creativity”) but that a living garden lacks the kind of authorship and stable fixation normally required to support copyright...A living garden like Wildflower Works is neither “authored” nor “fixed” in the senses required for copyright...

Simply put, gardens are planted and cultivated, not authored. A garden’s constituent elements are alive and inherently changeable, not fixed. Most of what we see and experience in a garden—the colors, shapes, textures, and scents of the plants—originates in nature, not in the mind of the gardener. At any given moment in time, a garden owes most of its form and appearance to natural forces, though the gardener who plants and tends it obviously assists. All this is true of Wildflower Works, even though it was designed and planted by an artist.

Of course, a human “author”—whether an artist, a professional landscape designer, or an amateur backyard gardener—determines the initial arrangement of the plants in a garden. This is not the kind of authorship required for copyright. To the extent that seeds or seedlings can be considered a “medium of expression,” they originate in nature, and natural forces—not the intellect of the gardener—determine their form, growth, and appearance. Moreover, a garden is simply too changeable to satisfy the primary purpose of fixation; its appearance is too inherently variable to supply a baseline for determining questions of copyright creation and infringement. If a garden can qualify as a “work of authorship” sufficiently “embodied in a copy,” at what point has fixation occurred? When the garden is newly planted? When its first blossoms appear? When it is in full bloom? How—and at what point in time—is a court to determine whether infringing copying has occurred?

In contrast, when a landscape designer conceives of a plan for a garden and puts it in writing—records it in text, diagrams, or drawings on paper or on a digital-storage device—we can say that his intangible intellectual property has been embodied in a fixed and tangible “copy.”This writing is a sufficiently permanent and stable copy of the designer’s intellectual expression and is vulnerable to infringing copying, giving rise to the designer’s right to claim copyright. The same cannot be said of a garden, which is not a fixed copy of the gardener’s intellectual property. Although the planting material is tangible and can be perceived for more than a transitory duration, it is not stable or permanent enough to be called “fixed.” Seeds and plants in a garden are naturally in a state of perpetual change; they germinate, grow, bloom, become dormant, and eventually die. This life cycle moves gradually, over days, weeks, and season to season, but the real barrier to copyright here is not temporal but essential. The essence of a garden is its vitality, not its fixedness. It may endure from season to season, but its nature is one of dynamic change."

Regardless of the right or wrongfulness of the court's reasoning, the effect was the same - the gardens were not works subject to copyright and, as such, moral rights could not be claimed.

This was not the end of the story, however, because on 15 March 2011, Kelley's lawyers filed a petition for a rehearing en banc. What this means, for the non-US lawyers among us, is that they asked that all the judges of the 7th Circuit reconsider the original decision, which was made by a panel of only three of the 7th Circuit judges. There is no automatic right to a rehearing en banc. The parties may request it, but a majority of the active circuit judges have to agree, and, where the case concerns a matter of public importance, often they will.

Unfortunately for Kelley, on 19 April 2011 , the three judges who issued the ruling in February signed off on a court order which stated:

"On consideration of the petition for rehearing and for rehearing en banc, no judge in active service has requested a vote on the petition for rehearing en banc, and all of the judges on the original panel have voted to deny rehearing. It is therefore ordered that the petition for rehearing and for rehearing en banc is DENIED.”

In other words, the three judges who made the original ruling unsurprisingly voted against the case being reheard and, since none of the 7th Circuit judges requested that the judges vote as to whether the case should be reheard, the judges didn’t even bother to vote on the petition. A very sorry state of affairs.

So is this the end? Well, according to the Council for Artists' Rights, Kelley may be prepared to take his fight all the way to the US Supreme Court. We will have to wait and see whether he does.

Read the full decision of the 7th Circuit here

Sir Anthony Caro asserts moral rights over “mutilated” work

Sir Anthony Caro, an internationally acclaimed sculptor and one of the leading figures on the English abstract art scene, has reportedly objected to the description by Bonhams of one of his sculptures as his work in their catalogue. Instead, he claims, the work been altered in such a way as to misrepresent his original work and, furthermore, infringes his moral rights. Explains The Guardian:

“The five-metre, rusted and varnished steel sculpture entitled Lagoon is part of the 20th Century British Art sale on Wednesday, has had a catalogue estimate of between £100,000-£150,000.

Caro, who was awarded a lifetime achievement award in 1997, said: "It's been mutilated. It had legs welded on to it and it is nothing like the original. It stands several feel higher than the original. It is going on show on public exhibition as a sculpture of mine and it's not.

"I sold it to Peterborough Sculpture Trust, who I understood to be trustees for sculpture to keep for future generations. I didn't know they would use it as something to speculate with. That doesn't make me very happy."

A spokesman for Bonhams said: "The sculpture was commissioned from Sir Anthony by the Peterborough Sculpture Trust, which is now selling the work through Bonhams in order to raise funds for its other activities. The work was commissioned to stand on outside has legs for support. During its long period of exposure to the elements the sculpture has become weathered and at some time was unfortunately spray painted in some areas by vandals. The spray paint has been removed with only minor traces remaining.

"Sir Anthony contends that the legs on which the sculpture stands are not his work although that is not the recollection of the trust's staff who dealt with the installation of the piece on site many years ago. Whether Sir Anthony was responsible for the legs or not they have no impact on the artistic integrity of the piece. They are invisible when the piece is placed in the ground outside as originally intended."

Sir Caro has apparently offered to buy back Lagoon, which he sold to the trust in 1984, but the parties have been unable to agree terms. Neverthless, Caro retains his moral right to object to derogatory treatment of the work – which includes: distortion or mutilation of the work or treatment that is otherwise prejudicial to the honour or reputation of the author. If Sir Caro was not aware of the alterations to his work, the addition of metal legs, the graffiti as well as the deterioration in the general condition of the work due to lack of care, may well be considered sufficiently prejudicial to his honour and reputation, if not to mutilation of the work. Accordingly, he could have a good claim for infringement of his moral rights.

The work in question - Lagoon - in its present state

Source: The Guardian, 8 March 201

Don’t Mess with My Sculpture! Visual Artists Rights in Action

In July 2010, the New Jersey artist David Ascalon started a lawsuit against the Jewish Federation of Greater Harrisburg on the basis that his rights under the US federal Visual Artists Rights Act 1990 (VARA) had been violated in relation to a Holocaust Memorial on the banks of the Susquehanna River in Harrisburg, Pennsylvania’s state capital, which was installed in 1994.

VARA is effectively the US equivalent of moral rights and limits how a work of art may be disposed of or altered. These rights are unaffected by sale of the physical work of art or assignment of the copyright in the work. In other words, even though David Ascalon had sold the memorial to the Jewish Federation, he still retained certain rights in respect of how the Jewish Federation could use the sculpture.

The artist claimed that his rights were violated by the removal of his name from the sculpture’s base and the restoration of a decaying element of the original sculpture in which a rust-colored “barbed wire” serpentine element was replaced with stainless steel. After what was described in the press release as “several months of amicable negotiations among the parties” the parties reached a settlement on 7 February 2011 which includes providing David Ascalon with access to the sculpture to remake the “barbed wire” element and the restoration of his name to the sculpture.



This case offers an important reminder to arts owners that just because you own the physical work of art does not necessarily mean that the work is entirely yours to do whatever you choose.



For images of what the sculpture looked like before and after, see here.
To read the original complaint, click here.