Good news for EU and Korean artists, sculptors ... and DJs

Not every reader of this weblog will be intimately familiar with the European Union's [Long title warning: name starts here ...] Council Decision of 16 September 2010 on the signing, on behalf of the European Union, and provisional application of the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part [... and ends here], which was published on the EU's Official Journal website last week. However, artists might be interested to know that -- as between the EU and South Korea at any rate -- their interests are being taken to heart. According to the Protocol on cultural cooperation which is tacked on to the vast main document, Article 4 states as follows:

"Artists and other cultural professionals and practitioners

1. The Parties shall endeavour to facilitate, in conformity with their respective legislation, the entry into and temporary stay in their territories of artists and other cultural professionals and practitioners from the other Party, who cannot avail them selves of commitments undertaken on the basis of Chapter Seven (Trade in Services, Establishment and Electronic Commerce) and who are either:

(a) artists, actors, technicians and other cultural professionals and practitioners from the other Party involved in the shooting of cinematographic films or television programmes; or

(b) artists and other cultural professionals and practitioners such as visual, plastic and performing artists and instructors, composers, authors, providers of entertainment services and other similar professionals and practitioners from the other Party involved in cultural activities such as, for example, the recording of music or contributing an active part to cultural events such as literary fairs and festivals, among other activities, provided that they are not engaged in selling their services to the general public or in supplying their services themselves, do not on their own behalf receive any remuneration from a source located within the Party where they are staying temporarily, and are not engaged in the supply of a service in the framework of a contract concluded between a legal person who has no commercial presence in the Party where the artist or other cultural professional or practitioner is staying temporarily and a consumer in that Party.

2. The entry into, and temporary stay in territories of the Parties under paragraph 1, when allowed, shall be for a period of up to 90 days in any 12 month period.

3. The Parties shall endeavour to facilitate, in conformity with their respective legislation, the training of, and increased contacts between, artists and other cultural professionals and
practitioners such as:

(a) theatrical producers, singer groups, band and orchestra members;

(b) authors, composers, sculptors, entertainers and other indi­vidual artists;

(c) artists and other cultural professionals and practitioners participating in the direct supply of circus, amusement park and similar attraction services; and

(d) artists and other cultural professionals and practitioners participating in the direct supply of ballroom or discotheque services and dance instructors".

So now you know.

Pope sculpture "looks like Mussolini"

Rome is apparently in uproar over the unveiling last week of a sculpture intended to portray the late Pope John Paul II, but which its detractors say looks like wartime dictator Benito Mussolini.  The work, which occupies a position in the piazza outside Rome's main railway station, has been described as "modern and evocative" by the city's mayor -- but others are not so sure.  Says Antonio Stampete, a Rome city councillor,

"Installing this outside Rome's most important travel hub, where thousands of Italian and foreign tourists arrive every day, is embarrassing".

The Vatican has also criticised the work, even though the Pontifical Commission for Culture is reported to have approved the original sketches.

It has not been suggested that there is any legal basis on which removal of the sculpture could be compelled. Indeed, it is the reputation of the sculptor, Oliviero Rainaldi, which the laws relating to moral rights seek to protect. There's not much good news for Mussolini either: it seems that his own well-publicised miracle -- making the Italian trains run on time -- is only a myth.

Source: "Pope John Paul II sculpture criticised for resembling Benito Mussolini" by Nick Squires, Telegraph, 20 May 2011

Ay Ay - time for an update?

With the members of the A&A team in various national and international manoeuvres, the “latest” in art and law has become the “most recent”. Therefore, it seemed like a good time for an update of all such recent news.

Ai Weiwei still missing

Firstly, by way of update, following on from my report here, there has still been no sign of Ai Weiwei since he was detained at Beijing airport at the beginning of April.

Still little information is available. All the police have said is that he is under investigation for economic crimes. However, his family have not been notified of his detention, as is said to be usual.

It is worth remembering that such blatant violations of basic human rights continue to take place around the world.

Meanwhile in the Forbidden City

A man has been arrested after thieves managed to break in and steal several pieces of art from a temporary display in a museum in the Forbidden City in Beijing. A couple of pieces were subsequently recovered nearby, however it does not appear that the arrest has lead to the recovery of the rest of the works.

While the Forbidden City will now no doubt bulk up their security, because the works in question were on loan from the Liang Yi Museum in Hong Kong, it remains to be seen is whether the incident nevertheless has an effect on art works being loaned to China by foreign galleries and museums.

New Nazi art recovery website

Another tool to assist in the recovery of cultural property that was stolen, looted, seized, forcibly sold, or otherwise lost during the Nazi-era has been launched.

In addition to the tools discussed here, here and here, further to the international collaborative efforts of the UK National Archives, the French Diplomatic Artive Center, the Central State Archive of Ukraine, the Belgian State Archives, the Commission on Looted Art in Europe, the Claims Conference, the US Holocaust Museaum, the US National Archives, the German Historical Museum and the Federal German Archives, records of artworks are now available through the International Research Portal.

The collaboration is was established to fulfill the 1998 Washington Conference Principles on Nazi-Confiscated Art, the 2000 Vilnius Forum Declaration and the 2009 Terezin Declaration, in particular on the importance of making all records of Nazi-confiscated art publicly accessible.

Let us hope that the portal improves the location and return of looted and/or lost art to its rightful owners.

A success story

Last month a holocaust survivor had a Gustav Klimt painting, that had belonged to his grandmother before she was arrested by the Nazis and deported to a concentration camp during the Second World Warm, returned.

Back in 1941, Georges Jorisch's grandmother had a collection of Klimt paintings which were seized after her arrest. Jorisch tracked one of those paintings, Litzlberg am Attersee, to the Salzburg Museum which had acquired it in 1944.

In quite a rare move, of which there are unfortunately not enough, the museum accepted that the painting should be returned to its rightful owner.

Origami copyright case

An anonymous reader has helpfully alerted me to an interesting complaint filed, at the end of April 2011 in the US District Court of the Northern District of California by a group of six artists seeking damages for copyright infringement from another artist.

The plaintiffs claim to be experts in origami, and it is the copyright in their origami models that they allege has been infringed. Specifically, it is claimed that the so-called “crease patterns” created and published by the plaintiffs for their some of their origami models have been copied. As the complaint explains: “The lines of a crease pattern represent the folds needed to create a three-dimensional origami model from a sheet of paper, but the intricacy of these geometric diagrams gives crease patterns their own aesthetic appeal. Crease patterns thus lend themselves to derivative works, such as colorized versions.”

The defendant is Sarah Morris, an internationally known painter and film maker, who debuted a set of 37 paintings entitled the “Origami series” in 2007, which has now been exhibited around the world. A plaintiffs allege that a large number of the Origami series painting are based on their origami designs and Morris has merely transferred the crease patterns to canvas and applied paint to the spaces between the lines.

Comparisons of the crease patterns and Morris' works are exhibited to the complaint, and include the following:


More examples can be found here.

Any thoughts on the merits of the claim? Do the origami artists have a good claim?

Governmental free speech puts paid to Rosie

In a curious dispute on the US side of the Atlantic, a federal judge has refused an application to order the tiny North-East state of Maine to return a mural to the state Labor Department office from which it was controversially removed in March. Judge John Woodcock held that the State Governor, Paul LePage, was exercising a constitutional right to "government speech" (the right of government to say what it wishes, regardless of the viewpoint expressed) in ordering removal of a 36-foot-long mural which it commissioned, approved, paid for and owned.

LePage ordered the removal of the mural, saying it presented a one-sided view of history. Critics of his action sued, contending that the governor violated their First Amendment right of access to the artwork. Said the judge:

"It is not the business of the federal court to decide what messages the elected leaders of the state of Maine should send about the policies of the state, to tell a prior administration that its own artwork is too slanted to continue to hang on state office walls, to tell the current administration that it must not remove or replace a prior administration's artwork, or to tell a future administration which piece of state art, the new or the old, must stay or go".

The ruling denied a motion for a temporary restraining order to put the mural back up where it had been displayed. Meanwhile, a larger lawsuit claiming First Amendment violations continues. The action has been brought by a group of plaintiffs which includes a union member as well as artists who object to being denied access to the work.

The mural was installed in 2008 and depicts a range of labour-related scenes which include a 1986 paper mill strike, the fictional World War II icon Rosie the Riveter (right) at work in a shipyard and New Deal-era U.S. Labor Secretary Frances Perkins, the first female Cabinet member, whose parents were from Maine.

Source: "Federal judge nixes request to replace Maine mural", BusinessWeek.

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

Ai Weiwei arrest

While his porcelain sunflower seeds remain scattered across the turbine hall of the Tate Modern, the artist, Ai Weiwei remains in detention in China more than two weeks after he was arrested in Beijing.


As we reported here, Ai Weiwei's installation courted several legal problems when it opened in October 2010. These pale into insignificance however in the context of the artist's current position.

On 3 April 2011, the artist was detained at Beijing airport as he attempted to catch a flight to Hong Kong. The Chinese police have also searched his studio, confiscated his computers and questioned his assistants.

The Chinese foreign ministry has said that Ai is being investigated for economic crimes, but few further details have been supplied. However, as one of China's best known artists, known for his open criticism of the government, it seems that he has, contrary to the claims of the government, been targeted for his social and political campaigning. Indeed, in the weeks leading up to his arrest, numerous other Chinese artists, writers and online commentators were arrested and detained as the Chinese government continues to seek to quash all activists and dissidents. Further, Ai reported that he was being harassed at his Beijing studio and was under constant police surveillance. He said that the “reality of China” was that those who reflected on democracy, opening up, reform and reason were either detained or thrown into jail.

Nothing further has been heard from Ai Wei Wei since his arrest and his detention has triggered criticism from the EU, the US and other Western governments, as well as the UN's working group on enforced or involuntary disappearances. There have also been international protests staged in his support.

It is hoped that the international response to the denial of basic human rights to so many in China does not stop at criticism and that the international community starts taking action.


Source: The Guardian, 17 April 2011

Unintended consequences for the "last man standing": the Wedgwood tale of woe

Here, via Louise, comes a guest contribution from Bruce Tattersall, barrister and sometime curator of the Wedgwood Museum.  Bruce writes:

"Legislation often has implications never envisaged by Parliament.  Recently one of the most egregious examples of the law of unintended consequences was the predicament in which the Wedgwood Museum finds itself.  This fine institution (winner of the Museum of the Year 2009) has fallen foul of legislation intended to penalize companies which go into liquidation and try to evade their pension obligations.  Under this legislation in the Pensions Acts, if there is a subsidiary company still trading it can be liable for all the pensions of the parent company-- the doctrine of the “last man standing”.  This is the unenviable position of the Museum.

When the parent company, Waterford Wedgwood, went into receivership in January 2009 it left a pension debt of £134m in respect of some 7,000 members of the scheme.  There were five members of museum staff in the scheme whose total indebtedness was some £60,000.  The Pension Protection Fund (PPF) has sought to apply the relevant parts of the Pensions Act 2004, 2005 as amended in 2008 also known as the “Captain Bob” (after Robert Maxwell) provisions.

Consequentially the Museum put itself in the hands of the receivers while asking the Charity Commission if the museum collection was inalienable. 

The position of the museum and its holdings is complicated.  The museum was established in 1906 in the Etruria factory.  The initial collection comprised material gathered from all over the factory.  It was not until 1962 that an independent trust, the Wedgwood Museum Trust, was incorporated with trustees from the parent company and the Wedgwood family, then including the historian, C V Wedgwood.  At this point the collection was transferred to the Trust.  It was only in 1998 that it became a charity.  Along the road to charitable status the museum acquired further collections either purchased by the parent company and donated to it; such as the Calland Collection or, as with the Leith Hill collection (donated by Ralph Vaughan Williams), by gift. 

Presumably it was the complex nature of the Museum’s accumulation which led the Charity Commission to make its decision, which is not legally binding, that the collection was not protected and could therefore be sold.  The Commission have not made their finding public, so this deduction can only be speculative. 

The question has now been put to the courts.  What they decide may have serious consequences, not only for the Wedgwood Museum but other trust-based museums.  On a strict interpretation of the law it is possible the Museum will lose.  However, following the mischief rule, it might not. 

Lord Flight in a letter to the Daily Telegraph states, “I was involved with the legislation that set up the Pension Protection Fund; there was no intent that this could result in it taking the assets of a museum which is a charity.” 

If the mischief is what is essentially a form of fraudulent conversion, then the legislation should not apply.  Thus the question to the court is

1.         Is the collection inalienable?  If so there is no claim against it

2.         If not was the legislation intended to apply to cases such as that faced by the Museum?

In a Commons Adjournment debate on 19 October 2010 Tristram Hunt. MP for Stoke Central, pointing out that if the Museum were sold it would scarcely raise a half of the revenue needed ( in fact Christie’s has valued the collection at £20M), raised the issue with Ed Vaizey, Parliamentary Under Secretary for Communication, Culture and the Creative Industries who was fairly uncommitted but emphasized that the final decision lay with the court.  He conceded that they were in a “walk-on part in an obscure Dickensian novel in which a complicated piece of legislation has the most dramatic and unintended consequences.”  He also announced that the Museum had received a grant of £200,000 from the Museums Libraries and Archives Council and £25,000 from his department towards its legal costs.  Bill Cash, in whose constituency the Wedgwood Museum falls, intervened, inter alia wondering if a private member’s bill might solve the impasse.  Ed Vaizey assured members that the government would keep a close eye on developments and would deprecate any dismembering of the collection.

A further debate in the House of Lords, instigated by the Earl of Clancarty, elicited a reply by Baroness Rawlings who was emollient but inconclusive

“My Lords, I am grateful to the noble Earl, Lord Clancarty, who has tirelessly campaigned on this issue. We hope that museums will learn from this case and make certain that collections held in trust have legal protection to safeguard their objects. The court will determine whether the collection is available to an administrator and is put up for sale. DCMS will attempt to secure the collection for the nation. As the noble Earl said, clearly this is an extraordinary case. DCMS has helped all along, but it cannot provide further funding”,

effectively but elegantly washing her hands of it.

The case is now for consideration by the court in May 2011, the Museum’s lawyers needing more time.  Despite Ed Vaizey’s assurance that the Victoria and Albert Museum could be involved in any dispersal of the collection it may be, in the current economic climate, that the government may be unable or unwilling to organize any rescue.  Such a result would be a disaster for the Museum, Staffordshire and the nation.  Individual items such as the Wedgwood Family portrait by George Stubbs (illustrated at the top of this article) with depictions of Josiah, himself; his wife, Sarah; their daughter Susannah, mother of Charles Darwin; their sons, John a founder of the Royal Horticultural Society and Tom, a pioneer of photography surely would be refused an export licence.  Similarly, the export or dismemberment of the archive would be unthinkable.  Whatever the court’s decision it will have profound impact on the museum world.  The final question is why did the museum not pay the £60,000 to relive itself of the burden?"

MTA threatens MetroCartists

This is apparently what the fuss is all about

New York's financially challenged Metropolitan Transportation Authority (MTA) is reportedly launching proceedings against Victoria McKenzie, a local artist, for selling painted MetroCards, claiming the artist infringed  the authority's trade marked brand and logo. Ms McKenzie is one of a group of MetroCartists who assert the right to use the cards as canvas. She says:

"The use of found objects in art has been around forever, especially the use of iconic New York imagery such as the MetroCard"..

She has been asked by the MTA's marketing and advertising division to cease selling the cards and to remove any MTA-branded items from Etsy.com, an online marketplace which had 17 items on offer here under the search term 'metrocard' when this blogger checked today -- though they appeared to be holders for the card rather than anything else. As an alternative, MTA indicated its willingness to accept a royalty u=in exchange for a licence.  According to the authors of the source of this information.

"The MTA uses unpaid interns to search online for trademark infringement "when they have the time," says Aaron Donovan, a spokesman for the MTA. 

Mr. Donovon says the MTA spots violations on a daily basis and typically works with artists to secure licensing deals rather than pursue punitive measures. 

Through close to 120 licensees, the MTA generates about $500,000 a year in revenue, or about what it expected to save from cutting one express-bus line during a round of service cuts last year. Typically, artists enter into licensing deals with the authority, giving up about 10% of net revenue".

To date, Ms. McKenzie says she has sold only one MetroCard, though presumably the publicity generated by what looks like an ill-judged and unfounded claim may be expected to generate a few more.

Source: "MTA Says Artist on Wrong Track" by Shelly Banjo and Andrew Grossman, Wall Street Journal, 9 April 2011

Wacko Jacko fans issue death threats

The London Evening Standard has reported that the owners of a Hackney music studio who installed "Madonna and Child", a sculpture of Michael Jackson dangling his baby son out of a window (illustrated here), have received death threats from fans. The work, by Swedish artist Maria von Köhler, is scheduled to be displayed at 209 Hackney Road, London, until 1 May. The fans maintain that the artwork, a recreation of a notorious incident when Jackson visited Berlin in 2002, is an insult to the King of Pop's memory.

There is as yet no indication that the threats are being dealt with by the police.  This blogger wonders whether being a Michael Jackson fan would be accepted as evidence of diminished responsibility in any resulting prosecution for murder.

Art and law – in a way...

From the US law blog Above the Law comes an amusing, but, at the same time, sad story about a novel artwork created by a law student.

The unfortunate student managed to accumulate enough rejection letters from law firms to reconstruct the University Virginia School of Law building.

Creative – yes. But legal? Under English law, works of architecture/buildings are protected by copyright law as artistic works. However, the copyright in buildings on public display is not infringed by making a graphic work representing it. Does anyone know whether there is a similar exemption in US law or could the poor student be liable for copyright infringement, as well as unemployed?