Art and Artifice event: save the date!

On 24 October we're having an Art & Artifice get-together. The location will be in Central London and our guest speaker will be Michael Edenborough QC, who acted for the successful claimant in the celebrated Red Bus case (here,  noted on this weblog by Rosie here). Michael will be speaking about this case -- which still has the power to shock and surprise people -- and its aftermath, following which a panel of enthusiasts, including some members of the Art & Artifice blog team, will make some pertinent comments of their own.  Refreshments and a spot of pleasant networking will then spontaneously occur.  Further details will be provided once they are finalised.  In the meantime, save the date, and indeed the time (registration at 5 pm; event starts at 5.30 pm and ends at 7 pm).

See you there!

Detroit - the nightmare continues

By way of update to Detroit's financial woes, reported here, many will have heard that the city has now filed for bankruptcy.

The Detroit Institute of Arts, nevertheless, remains at the centre of the debate as to how the city could reduce its debt.

The Art Newspaper reports that "At some point in the past two months, Christie’s auction house sent two employees to Detroit to assess DIA’s collection...The auction house did not show up uninvited, according to a source familiar with the situation, but it is unclear who requested Christie’s services."

It is still unclear, however, whether the city is entitled to use the art collection in this way. The Art Newspaper explains the situation:

"Unlike most museums, DIA’s collection and facilities are owned by the city, which makes them vulnerable to creditors if Detroit successfully files for bankruptcy...But according to many museum advocates, as well as the Michigan state attorney general Bill Schuette, the collection is not a traditional asset because it is held in a charitable trust for the people of Michigan. The city, according to a formal opinion issued by Schuette on 13 June, is “limited to using the assets for the designated purpose of [the] trust” — in this case, the acquisition of art.  

Whether the attorney general’s opinion amounts to state law is open to interpretation and could be subject to a legal fight...A bill to protect the collection, passed by the state Senate on 11 June, currently awaits a vote in the House of Representatives." 

Thus, it remains a case of wait and see.

Source: The Art Newspaper, 24 July 2013

Refired art

As an update to my post on the potential destruction of the paintings from the Kunsthal gallery in Rotterdam, I have been alerted to an interesting post on The 1709 Blog looking at whether the law provides any remedy to such acts. The post, composed by Mira T. Sundara Rajan, can be found here.

Art to Ashes

Last October, thieves broke into the Kunsthal gallery in Rotterdam and stole seven extremely valuable paintings off the walls.

The thieves took the following works:

Pablo Picasso's Harlequin Head

Claude Monet's Waterloo Bridge, London

Claude Monet's Charing Cross Bridge, London

Henri Matisse's Reading Girl in White and Yellow

Paul Gauguin's Girl in Front of Open Window

Meyer de Haan's Self-Portrait

Lucian Freud's Woman with Eyes Closed

It now, horrifyingly, appears that these works of art may have been burnt in an attempt to destroy the evidence of the crime.

By way of background, three Romanians were arrested in January 2013 on suspicion of having stolen the paintings, however these were not found. Subsequently, Olga Dogaru, the mother of one of those charged with stealing the paintings, claimed that she had buried the paintings in an abandoned house, but later dug up the art and burned them after police began searching the village for the stolen works.

The Associated Press now reports that forensic experts have determined that ash from Dogaru's oven contained "'small fragments of painting primer, the remains of canvas, the remains of paint' and copper and steel nails, some of which pre-dated the 20th century." But that "Ernest Oberlander-Tarnoveanu, director of Romania's National History Museum...refused to say definitively that the ashes were from the stolen paintings. He said justice officials would make that decision. He did venture, however, that if the remains were those of the paintings, it was 'a crime against humanity to destroy universal art'."

The Associated Press explains that the next step will be to compare the ashes to what was known about the missing paintings to determine if the remnants are consistent with the stolen works. Let's hope by some miracle that they are not.

Source: Associated Press, 17 July 2013

Will Cariou v. Prince case be heard by the US Supreme Court?

On the left, a photograph of a Rastafarian taken from Patrick Cariou's "Yes Rasta" (2000); on the right, Richard Prince's work "Graduation" (2008)

We have extensively talked on this blog about Cariou v. Prince case.

The photographer Patrick Cariou won in 2008 a lawsuit for copyright infringement against the appropriation artist Richard Prince, who had used Cariou's photographs of Jamaican Rastafarians in his appropriation artworks.

Such decision was largely reversed in appeal last April, where it was ruled that 25 of 30 paintings from Prince's "Canal Zone" were sufficiently different from Cariou's ones to be qualified as fair use, as we reported here.

Last May, Cariou asked the Second Circuit of Appeal to reconsider the case, claiming that the ruling contradicted the earlier decisions by the same court, not providing any certainty on how to qualify fair use. But the Second Circuit denied his request on June 10.

Therefore, Patrick Cariou’s lawyer recently announced the photographer will file appeal with the Supreme Court within three months, i.e. within 90 days from the Second Circuit's refusal to rehear the case.

Assuming that Cariou will file the Appeal, then the Supreme Court will not necessarily agree to hear it. Indeed, though the Supreme Court receives thousands of requests per year, it agrees to decide on a small percentage (e.g. in 2010 it was only 1%).

Anyhow, a pronunciation from the US Supreme Court could be useful to provide clarity on what can constitute fair use. Indeed, the Second Circuit's decision was largely criticized for not offering sufficient criteria for applying fair use defense in appropriation art cases.

Roadkill: Playboy bunny falls foul of Texas transport law

Drive along Highway 90 in Texas today and you'll see a 40-foot high installation featuring a Playboy bunny and 1972 Dodge Charger towering over you. But don't wait too long, as the Texas Department of Transportation has ordered its removal within weeks.

"Playboy Marfa" by Richard Phillips

The sculpture was commissioned by Playboy Enterprises and created by well-known artist Richard Phillips. Finished in mid-June, it wasn't long before the work attracted complaint. A resident Marfa, a Texan town near the site of the sculpture which is known for its arts community, reported the installation on the grounds that it was not art but unlicensed advertising. The department for transportation looked into the complaint and decided that since Playboy did not have a license for outdoor advertising, the installation had to go.

"A specific permit application for the sign was not submitted," said Veronica Bayer, the transport department's media relations director in Austin. "[We are] treating this case like any other when someone has placed an outdoor advertising display without an active license and permit".

Playboy however describes the sculpture as an art installation rather than advertising. It has issued a statement saying that it does not believe the sculpture "violates any laws, rules or regulations" and that it hopes to resolve the issue - presumably without the removal of the work.

The row raises the ever-interesting question: Where is the line between what is and is not "art" in the eyes of the law? If an artwork has the effect of raising a business's revenues or brand awareness (for example, Warhol's Campbell soup works) then does that artwork become advertising? Or if Phillips had created the sculpture without input from Playboy, would it have been an artwork for the purposes of the department for transportation?

Playboy has a few more weeks to convince the Texas authorities that while Phillips' giant bunny may be promoting the company, that doesn't make it an advert.

"Is this real life? Is this just fantasy?" Mercury estate takes down gorilla

 The BBC has reported on the sad spat between the estate of Freddie Mercury (left) and the organisers of the Go Go Gorilla charity initiative over an alleged infringement of copyright in the distinctive yellow and white suit worn by the late rock star. According to the estate, the spraying one of 53 Go Go Gorillas (right) with a "cover version" of the suit constituted a copyright infringement.  The offending gorilla has since been taken off public display from its plinth in the city of Norwich and resprayed. Local Norfolk artist Mik Richardson, who sprayed the gorilla in question, was most disappointed. According to the BBC report:

"The decision to order its removal was "absolutely shocking". He said: "It's dreadful. It's petty, really. The night I was told I couldn't sleep." Mr Richardson was paid £800 to design and paint the gorilla. "I'm a mural artist and I have to be very careful about copyright," he said. "I didn't copy the suit exactly. I alter enough so that it's fan art, rather than a copy of it.

The United Kingdom does not recognise a defence of "this is an inexact copy for the sake of fan art"; nor has it adopted the notion that the creation of a piece of transformative might be regarded as fair dealing.  However, this blogger wonders what a court might have done with an infringement claim, had a case ever come to trial.  Would injunctive relief or delivery up, for destruction or otherwise, be ordered?  And on what basis would damages be assessed? To put it in a nutshell, if Go Go Gorilla had not withdrawn and resprayed the offending beast, would it have been worthwhile going to court to do anything about it?

The ideal solution would have been for Freddie Mercury's estate to buy the gorilla by making a charity donation, which would have saved a lot of bad publicity and purchased some goodwill into the bargain.

$3.6m damages for copyright infringement?? Buzz off!

There is a lot of questionable content on there, but I am willing to admit it, I really like BuzzFeed. The site consists of posts on the most wide-ranging random content, usually containing videos, images and/or links - some of it very amusing. (You really need to have a look to appreciate...although maybe not on "work-time".)

It turns out that permission of the content creators is not always sought, before it is posted on the site. Now a photographer, whose photo was used in a BuzzFeed post without his consent, has taken a stand and filed a copyright infringement claim against the site.

Reports the Guardian:

The professional photographer, Kai Eiselein, filed a legal claim against Buzzfeed after finding his picture had been used without permission in a comic compilation of football mishaps. His picture of a grimacing player was removed from the article – now titled "The 29 Funniest Header Faces" – after he made an initial complaint in May 2011. 

But in a lawsuit filed in New York, Eiselein accused Buzzfeed of "direct and contributory infringement" and claims he is owed $3.6m after his work was shared widely across the web. 

He wants Buzzfeed to pay $150,000 in damages for each of the 23 sites that used his picture after the initial post, plus a further $150,000 for "contributory infringement" by another site, luuux.com. 

Eiselein confirmed he was taking legal action against the popular site and said: "It is time for creatives to stand up and say 'This is enough'. We work hard at our crafts and others should not be able to profit from our talents without compensating us." 

Asked why he is claiming such an inordinate sum in damages, he added: "In the suit I have asked for the maximum allowed by law. Ultimately it will be up to a judge and/or jury to decide the amount of damages, if any."

BuzzFeed founder Jonah Peretti has previously claimed, in a discussion with the Atlantic, that BuzzFeed’s use of photos are fair use under copyright law because they are transformative, which is the first of four factors considered by US judges in resolving fair use disputes.

If this claim makes it to court, it will open some very hot debates.

Read the claim here.

See the golden photo here.

What Peretti has said.

Source: The Guardian, 18 June 2013, The Atlantic, 30 April 2012

"Prominence Invites Creative Comment"

Warner Bros, maker of the latest Batman film, The Dark Knight Rises, very recently defeated a trademark infringement lawsuit brought by software company, Fortres Grand.  The gravamen of the case was the movie's depiction of a fictional software product called Clean Slate that allowed characters to erase records of their criminal past.  As it would happen, Fortres Grand is the real-life maker of a software product also called Clean Slate.  Fortres Grand filed the lawsuit alleging that the movie's use of the Clean Slate name raised a likelihood of consumer confusion, the judge however disagreed, holding that consumer confusion was unlikely, and further that the movie's use of the name was fair use.

Several months earlier another film, Flight, was involved in a trademark squabble for its depiction of real-life brands without approval of the owners.  In Flight, a pilot's substance abuse problems were portrayed by using many real alcoholic beverage brands such as Budweiser, resulting in a request by Anheuser-Busch InBev, owner of the Budweiser mark, that its brand names be obscured in the film.

These two disputes seem to present a mirror-image of each other.  One in which a fictional work accidentally uses the name of a real brand, and one in which a fictional work portrays a real brand in a manner that the owner of the trademark finds objectionable.  These scenarios may fuel allegations of trademark infringement, tarnishment, false association, or product defamation, but such claims are likely to fail due to the First Amendment rights of filmmakers.  Distilled, the issue is whether trademark law gives brand owners the ability to censor creative works, and the answer is most often no.  When weighed against each other, the property right in a trademark by and large does not prevail over the First Amendment protection of artistic expression.

I can't help but wonder what it is about film that causes brand owners to object so readily, even when their trademark-related claims are weak.  Perhaps licensing and product placement have conditioned viewers to accept, or assume, that brands appear in films at the will of the brand owner.  Does this situation thus make viewers experience brands in films in a way that is more "real," (or perhaps more confusing)?

Pondering this question, I set about researching trademark disputes related to literary works, wondering when, if ever, trademark owners brought similar claims related to the content of books.  After turning over many stones, I identified many disputes related to book titles, yet was unable to find any cases truly challenging use of brands in books.  The closest case I could find related to a series of books about the "Pee Wee Scouts."  Doubleday, publisher of the books, was sued in federal court in New York for allegedly infringing the trademarks of the Boy Scouts and Girl Scouts.  Citing the title "Pee Wee Scouts" as well as certain content of the books (such as scouts using handbooks or attending national conventions), plaintiffs alleged that consumers would be confused into thinking the books were created or sponsored by plaintiffs.  The court disagreed, dismissing the case on summary judgment, a result that was resoundingly affirmed on appeal.

In a 2006 interview with the Paris Review, Stephen King spoke candidly on his reasons for very frequently using brand names in his works, even when he received literary (non-trademark related) criticism for doing so.  His answer focused heavily on creating accurate cultural references, on enhancing the image a reader may perceive while reading the book (think Jack Torrance taking all that Excedrin in The Shining).  Still these reasons seem just as viable in the context of film.  Indeed, there should be no difference.  As the court provided in the Pee Wee Scouts case, "It is at once apparent, when we deal with the content of a book or motion picture, that we deal with no ordinary subject in commerce. . . . Their importance as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform; . . . books and motion pictures are a constitutionally protected form of expression notwithstanding that their production, distribution and exhibition is a large-scale business conducted for private profit."  Girl Scouts of the United States v. Bantam Doubleday Dell Publishing Group, Inc., 808 F. Supp. 1112, 1120 (S.D.N.Y. 1992) (internal citations and quotations omitted).



Hat tip to Bob Cumbow and the World Trademark Review.

Due regard for diligence

As a lawyer, due diligence is certainly one of my least favourite activities, but I accept that it can sometimes be crucial. This weekend, the Observer highlighted the importance of carrying out sufficient due diligence on potential art sales. It also emphasised the effectiveness of the Art Loss Register (ALR), which I discussed here back in 2010.

The Observer reports:

European auction houses, dealers and collectors are failing to make adequate checks to avoid handling stolen artworks, an art lawyer has warned after recovering from an Italian auction an old master painting taken from its British owner in a burglary more than 30 years ago.

Christopher A Marinello [the ALR's general counsel], who specialises in recovering stolen art and resolving title disputes, said: "We do find a lot of stolen and looted artwork in civil law countries such as Italy, France and Germany. Consigners of tainted works of art often try to hide behind the good-faith purchase laws of these countries while performing little or no due diligence."

He spoke to the Observer after negotiating the return from Italy of a landscape painting by Jan van Goyen, a 17th-century Dutch painter, which was stolen in 1979. Negotiations were particularly delicate because, under Italian law, if someone buys a stolen work in good faith the buyer is sometimes entitled to keep it. Marinello was able to prove to the Italian auctioneer that the painting was one of nine pictures stolen at night by criminals who broke into the home of Paul Mitchell, an antique picture frame specialist in London.

...
[Marinello said]: "The Italian auction house involved did not search the work with the ALR, but the dealer did. While losing out on a potential future sale, the [dealer] protected his reputation and saved himself significant sums in legal fees defending a case over title to the painting." Unless more dealers, collectors and auctioneers make such checks, he added, other stolen items will remain undetected. "It's the same concept as having a survey done prior to purchasing a home. Considering the values involved, why wouldn't you want to know if there were serious title issues before purchasing fine art?"

Source: The Observer, 1 June 2013