Street Art Conference in Gaeta

Today and tomorrow will take place in Gaeta a Street Art Conference where art bloggers, art critics, art historians, curators and I as art lawyer will discuss on street art. The Conference is part of Memorie Urbane street art festival that for the second year is invading two beautiful cities as Gaeta and Terracina.

Street artists as Lucamaleonte, Martina Merlini,Sam3, Faith47 and Daleast, just to name few, are realizing their amazing works in many points of the cities on the coast near Rome.

You can find more information here

New book coming out on legal dimensions of art collecting

The Art Collecting Legal Handbook, edited by Bruno Boesch and Massimo Sterpi, has just been published by Sweet & Maxwell.  Art & Artifice looks forward to reviewing this title in due course, not least since this blogger is a great admirer of Jacobacci Avvocati partner Massimo Sterpi -- a tireless visionary and enthusiast who currently serves on the Council of MARQUES, the European trade mark organisation. In this venture Massimo teams up with Bruno Boesch, a partner in the Swiss law practice of Froriep Renggli and an expert in the highly specialist area of long-term art collection care. The editors have put together an impressive team spanning the best part of 30 countries, including both those in which famous collections are built up and those from which many collectables originate.

This is what the publishers say about this work, which is published at the end of May:

Collecting, preserving and promoting cultural goods, whether fine art, archaeological objects or decorative arts, is now global. Oddly, rules and practices have remained very local, save for ICOM’s efforts at the institutional level and UNESCO’s endeavours to help preserve national cultural heritage and combat illicit trafficking.

This book is designed to help the collector and their advisers navigate the maze on an international level. Each chapter of The Art Collecting Manual addresses a number of issues from the perspective of a different jurisdiction to help collectors making errors that could be potenitally illegal. The format of the chapters follow a question and answer style thus enabling readers to make quick and accurate comparisons in multiple jurisdictions covering property law, insurance, customs, tax, inheritance, intellectual property and more.

A collectable in itself, this title crosses the line between highly functional and aesthetically pleasing, the perfect addition for anyone who works in international art dealings".

Apart from this, there's some further information as to what the book covers:

• Cultural Heritage and Art Market: regulations; legislation features and treaties; data about art and cultural property market: trade volume; dealers 

• Purchase and Export: due diligence, local law features; remedies in case of fake, forgery or counterfeit; VAT/sales tax; artist’s resale right; export restrictions; “free ports” 

• Peaceful Enjoyment: import customs; protection against claims; restitution assistance; repatriation of illegally exported cultural property; anti-seizure guarantee 

• Sale: due diligence; temporary import for sale; remedies against a defaulting buyer 

• Art Philanthropy: rules and practices; private foundations and museums 

• Tax: wealth tax; capital gain tax; inheritance tax; tax breaks; taxation of private foundations and private museums 

• Practical information/references

Bibliographic details: hardback, ISBN 9780414026933.  Price: £80. Book's web page here.

Exciting news: our very own Angela Saltarelli has co-authored the Italian chapter of this book together with Massimo Sterpi.

Did Doig do it?

A claim has been filed in the US Federal Court against Scottish artist Peter Doig, Doig's art dealer and Doig's lawyers seeking a declaration attributing this painting to Doig.

 
The Plaintiff, Robert Fletcher, claims that this painting, that he owns, is an early Doig painting worth millions, but that Doig refuses to acknowledge it as his work.

The Complaint explains that Fletcher was a correctional officer at Thunder Bay Correctional Facilities in Ontario in the 1970s. At this time, an individual called Pete Doige became an inmate. Fletcher became friends with Pete Doige who then sold him the painting which he had painted in his art class at Thunder Bay.

The Courthouse News Service reports that it is also alleged that:

Fletcher claims he helped Doig apply for parole, and was assigned as his parole officer.

Fletcher helped Doig in his search for employment, and helped him to obtain employment through the Seafarers Union in Thunder Bay...

Fletcher also encouraged Doig to pursue his artistic talent, and accepted Doig's offer to sell the work to Fletcher for $100.

Since that day in or about 1976 and to the present, Fletcher has owned the work.  

He claims that "many years later, a friend staying with Fletcher commented on the work hanging in Fletcher's home, mentioned that it might be by Peter Doig, and began doing research on the artist and the painting, which was later continued by Bartlow [the Second Plaintiff] on Fletcher's behalf."  

But VeneKlasen, on behalf of Doig, denied that the painting was by Doig, and denied that Doig had ever been to Thunder Bay. 

Back in November 2012, a HuffPost article on the dispute noted that Fletcher just wanted to establish the truth. Seeing as he is now seeking punitive damages for interference with prospective economic advantage, it seems that he now has his eyes on a greater truth.

Read more here and here.

See some Doig paintings here.

Source: Courthouse News Service, 2 May 2013. Photo of painting by Peter Bartlow.

US Court of Appeals reverses the previous decision on Prince v. Cariou. A victory for appropriation art?

Richard Prince "Graduation" (2008)

The Court of Appeals for the Second Circuit on April 25 reversed the decision on the Prince v. Cariou case in favour of fair use. 

As already exposed here, in 2011 Cariou sued Prince and the Gagosian Gallery alleging that Prince's works and exhibition catalog infringed his copyright. Indeed, the famous appropriation artist Richard Prince altered and incorporated the Cariou's Yes Rasta photographs, creating a series of paintings and collages called Canal Zone, that he exhibited in 2007 and 2008 first at the Eden Rock Hotel in St. Barth's and later at the New York's Gagosian Gallery. 

In the first instance, the US District Court for the Southern District of New York held Prince's works infringed Cariou's copyright, not recognizing any fair use. In order to be qualified as transformative, the Court required a new work of art  in some way  to comment on, to relate to the historical context of, or to critically refer back to the original work. Since Prince did not intend to appropriate the photos for the required puposes, the Court rejected the defendant's fair use defense.

But the Court of Appeals reversed the previous decision finding that "the law does not require that a secondary use comments on the original artist or work, or popular culture" to be considered transformative and may constitute fair use even if it serves other purposes than those included in the Statute preamble of the 1976 US Copyright Act (criticism, comment, news, reporting, teaching, scholarship and research). The Court affirmed that copyrighted images can be used as raw materials for new works of art, even when the artist has nothing to say about the images he altered.

The Court held that twenty-five out thirty Prince's artworks constituted fair use of Cariou's copyrighted photographs, while the remaining five works presenting closer questions will be judged again by the district court according  to the four fair use standards, as interpretated by the Court, and namely:

 (i) the purpose and the character of the use

This first factor requires considering whether the allegedly infringing work has a commercial or non profit purpose and, usally, only the latter purpose is considered as fair use. But the Court, though commercial, found Prince's artworks much transformative, then it held that the other factors should be considered more important in determining fair use than this one.

(ii) the nature of the copyrighted work

The Court found that the Prince's creative works of art had a substantially transformative purpose and, therefore, a different nature when compared to Cariou's ones.

(iii) the amount and sustantiability of the portion used in relation to the copyrighted work as a whole

This factor involves considering whether the quantity and the value of the original artwork are reasonable in relation to the purpose of copying. The Court interpreted such third factor saying that the inquiry must take into account that the extent of permissible copying varies with the purpose and character of the use.

The peculiarity was that many Prince's works copied the entire source photograph. Contrary to the District Court - which affirmed that Prince's taking was substantially greater than necessary - the Court concluded that the law does not require that the secondary artist may take no more than is necessary, affirming that Prince transformed those photographs into something new and different in twenty-five works out thirty.

(iv) the effect of the use upon the potential market for the value of the copyrighted work.

Contrary to the District Court, the Court of Appeals affirmed that the question does not focus on the damage to Cariou's derivative market, but rather whether the secondary use usurps the market of the original work or not. The more transformative the secondary use is, the less likelihood that the secondary use substitutes for the original. Since the Prince's works are very transformative, the Court found that they did not usurp the market of Cariou's works.

***

Only one Judge of the Court expressed a dissenting opinion arguing that all works,  and not only  the five ones which were too aesthetically simalar to Cariou's ones, should be turned back over to the district court admitting that " I am not an art critic or expert, I fail to see how the majority in its appellate role can "confidently" draw a distinction between the twenty-five works that it has been identified as constituting fair use and the five works that do not readily lend themselves to a fair use determination".

The Dresses of Ellsworth Kelly - Considering Legal Protection in Fashion

Méditerannée, 1952 - Ellsworth Kelly

While flipping through the pages of Vogue's latest U.S. issue, I came upon an article about two dresses designed by world-renowned painter Ellsworth Kelly.  The New York Times also features an informative piece on the the Kelly dresses.  As clothing, or as a artwork, I think they are fantastic, and it's also a great opportunity to blog about legal protection in fashion, a topic I just spoke on last week.  The new dress, designed by Kelly and created by Francisco Costa of Calvin Klein is basically a remake of a dress that Kelly originally designed in France in 1952.  Kelly's original dress was made using brightly colored cotton that he purchased in the South of France.  Kelly used some fabric for a five-panel painting in cloth.  He gave the remaining fabric to a friend, Anne Weber, asking her to make the dress to his specifications (although in the end he was very bothered that she left the bottom blue panel so long).  The dresses feature color blocks that evoke Kelly's paintings.

One dress, created in France, and another (presumably) created in the U.S., receive different intellectual property protection.  Clothing designs are allowed far greater intellectual property rights in Europe.  At this point there are two layers of protection, that offered by individual nations and that offered by the EU Directive on Legal Protections in Design.  In France, where the first dress was made, fashion designs are classified as "works of the mind" and enjoy copyright protection.

In the U.S., clothing design receives almost no protection under copyright law because clothing is considered largely inseparable from its utilitarian functions.  U.S. copyright law, loath to protect to utilitarian items therefore only protects things likes original designs on fabric, or possibly non-utilitarin features of costumes.  While some designers are able to bootstrap their way into some level of protection through trademark and trade dress, clothing is largely unprotected and copycats are free to infringe upon new designs.

Only ten of the new Kelly dresses were made.  One was donated to the Metropolitan Museum of Art's Costume Institute, another to the Philadelphia Museum of Art.  With dresses and other clothing items gracing the galleries of some of the nation's premier museums, one would think the U.S. might start seeing fashion a little differently, but the fight to obtain greater intellectual property protection in the United States has been going on for over 100 years.  For the last twenty years, congressional bills seeking to extend some level of limited copyright protection to clothing have regularly been introduced and consistently died in committee, so it does not appear that change is coming any time soon.

Some have remarked that the dresses are so reminiscent of Kelly's paintings, that they really constitute drawings or sculptures, not just ordinary clothing.  Although it might be impractical, I can't help but wonder if these musings could represent an alternative theory for copyright protection of the Kelly dresses in the United States.

Appropriating the copyright symbol: van Roeyen on Scholte

Via a recent Tweet this blogger found himself browsing through the frames of a PowerPoint presentation by his friend Gino van Roeyen (Banning), an engaging and enthusiastic Dutch IP lawyer with whom one's time is generally spent both productively and enjoyably.  By way of introduction to the lecture for which these frames were prepared, Gino explains:

"Although art is generally considered to be the territory of absolute freedom in which creativity should thrive optimal, it can also be the arena of virulent copyright battles. As copyright in a work of art protects against publication and reproduction of that work (including reproductions that cannot be regarded original themselves) without permission of the copyright owner, unauthorized occupation of such a work might be regarded as a declaration of war against the copyright owner. It might ask for forms of retaliation, varying from cease and desist letters to litigation in court. 

Of course, the art of retaliation may depend on the gravity of the infringement. Straightforward pirates (copycats) might risk severe measures of retaliation, like destruction of counterfeit works of art and penalties. But what to do with works of art that are not copies of the original, being in one way or another ‘linked’ to the original?  So called appropriation art cultivates what already exists into art.  This might also involve works of art which are protected by copyright, but also other tangible objects that can be the object of a copyright (like for example the design of a simple household issue like a towel). 

In this lecture this phenomenon will be examined and explained closely by means of several examples of copyright battles in the arts throughout the years. Since Rob Scholte -- who can be regarded as an acclaimed and famous supporter of ‘appropriation’ in art -- will be the keynote speaker at the conference, the lecture will also focus on his work, like for example his famous © work, in which Scholte appropriated the © sign, a sign which can be used freely to denote that copyright is claimed for a work. Paradoxically by inserting the © into his own work – or should we say by reconstructing the © into a work of art – Scholte created a work which is protected by copyright'".

Panel Discussion: Legal Protection in Fashion

For our readers in the Seattle area, I will be participating in a panel discussion on legal protection in fashion this Thursday, April 25.  The panel, comprised of attorneys and fashion designers, is presented by Washington Lawyers for the Arts.  More information and registration available here.

The "Russian Banksy" Pasha P183 dies aged 29 in Moscow

Pasha P183's work

According to reports, the prominent Russian street artist Pavel Pukhov, known with the tag of Pasha P183, was found dead under unknown circumstances last Monday in Moscow, aged 29.

Pasha P183 was often compared to the world famous Banksy, since as the British artist or Keith Haring started out painting graffiti in the dead of night and recalled being arrested numerous times by Moscow police.Many of his street works had political undertones and carried an implied reference to a recent wave of massive street protests in Moscow against president Vladimir Putin's role. He was known for leaving artistic installations and politically fueled murals across Moscow, including riot police painted on subway doors and a masked protester holding a flare that caught fire.

Pasha P183's work

One of his most well-known pieces was a pair of oversized spectacles drawn in the snow with a street lamp serving as the open stem, almost an Oldenburg-sized versions of everyday objects.

In a rare interview posted on adme.ru last year, he stated about his work: "I wanted that work to carry the most important message...that a person mustn't sell himself, I made a chocolate bar that can't be bought, using a giant panel of concrete."

Can a collector prevent an artist from making new art?

 William Eggleston's  digital print" Memphis (Tricycle)"

The U.S. District Court in the Southern District of New York recently dismissed collector Jonathan Sobel’s lawsuit against the photographer William Eggleston. 

The complaint, filed in April 2012 claimed that the photographer diluted the value of Sobel's collection by printing larger, digital versions of some of his best-known works and then selling them for record prices at Christie’s. 

The auction house sold in March 2012, 36 poster-size, digital prints of images that Eggleston had shot in the Mississippi Delta more than 30 years ago,  besides others based on iconic works, such as the famous work “Memphis (Tricycle).”

The sale was a huge success: the five-foot “Tricycle” came in on top, selling for a record $578,500 (Sobel owns a 17-inch version of that photograph, for with he paid $250,000.) 

The success of such sale of Eggleston's new digital works was a problem for Sobel, who owns 190 Eggleston works. The collector accused Eggleston of devaluing his vintage dye-transfer prints by selling new pigment prints of the same images, since the commercial value of art is based on scarcity, then it would become less valuable with new editions. 

But the judge disagreed. 

The Judge, Deborah A. Batts rejected Sobel's claim affirming that Eggleston was not in violation of the New York Arts and Cultural Affairs Law.

Article 15 of this NY law states that offering a limited edition constitutes an express warranty that no additional multiples of the same image have been produced. 

According to such provision, the judge affirmed that by offering a limited edition, an artist is required by the law to disclose the total number of multiples existing at the time of the sale.

In addition, Eggleston could have been held liable only if he had created new editions of the limited-edition works in Sobel’s collection using the same dye-transfer process he used for the originals.  But in this case, however, Eggleston was using a new digital process to produce what  the judge deemed a new body of work. 

This decision confirms that artists who works in multiples have the right to use the images they create and are entitled to continue to work with such images to produce new editions, as long as they disclose how many multiples of a photograph have been produced at the time they are offering a new edition. 

U.S. Court Holds First Sale Doctrine Does Not Apply to "Used" Digital Music

Internet startup Redigi founded its business model on the idea that digital music lawfully purchased through iTunes could then be lawfully resold online.  Essentially, Redigi set out to be the used record store of the digital age.  Redigi users sell their lawfully purchased songs by uploading them to Redigi's server, where other users then purchase these songs for less than the cost of buying the song "new" from iTunes.  When a user uploads a song for sale, Redigi's software runs on the user's computer to confirm that no copy of the uploaded song remains behind on the user's computer or personal devices.

Capitol Records, however, disagreed with the lawfulness of Redigi's business model and sued for copyright infringement in January 2012.   

On March 30, 2013 the U.S. District Court of the Southern District of New York ruled on the parties' cross motions for summary judgment and found that first sale doctrine--an affirmative defense to copyright infringement that allows for lawfully obtained copies of copyright protected items to be resold (think used book and record stores)--did not apply to the resale of "used" digital music.  The court's ruling necessarily hinges on the idea that the file is not transported from the original buyer's computer to the Redigi server, but instead that the song is "reproduced" onto Redigi's server.  The court thus found that each and every upload to Redigi's website constituted an unlawful reproduction of the song.  The fact that the original file on the user's computer was deleted was of no consequence because the court considered the file Redigi offers up for sale to be an unlawful copy.  Based upon this conclusion, the court found Redigi liable for infringement of Capitol's reproduction and distribution rights, holding Redigi liable for direct, contributory, and vicarious copyright infringement.  Basically, this means that Redigi was found liable not just for damages attributable to its own infringing activities, but that it was also accountable for facilitating the infringing activities of others.

In a case that, in the court's words, created a "fundamental clash over culture, policy, and copyright law," is there any hope left for Redigi?  As this ruling issued from the district court, appellate review before the Second Circuit Court of Appeals is available.  In addition, the court makes a footnote referencing Redigi's 2.0 version in which users' new iTunes purchases are never actually downloaded to their own devices and instead are directed straight to Redigi's servers.  This way a song is never "reproduced" between the user and the Redigi server.  Because the updated version of Redigi was launched well after the start of the case, the court declined to address whether this new model also constituted copyright infringement.  

Also noteworthy in this opinion are the court's frequent calls for Congress to update U.S. copyright law to better address the quandaries of the digital age, the court opining that it could not condone wholesale application of the first sale doctrine to the digital sphere when Congress has declined to do so.