No Longer Ironic? Taking another look at Charles Krafft

In the United States, the creation of artistic works goes hand-in-hand with the First Amendment rights of individuals to speak.  That is, the First Amendment protects the creative freedom of artists to make pieces that may be shocking or politically critical and to openly discuss their works with others.

Seattle artist Charles Krafft is well known for his postmodern ceramics, which often incorporated delicately painted Nazi imagery such as his ceramic Hitler bust tea pots.  Common thinking on Krafft's work was that it was ironic, provocative, absurdist, and darkly satirical.  Krafft's pieces are held by museums and private collectors alike.

However, more recently, Krafft's public remarks and participation on a white nationalist podcast have led some to conclude that Krafft is a Holocaust denier and Nazi sympathizer.  While coverage of the issue began with local Seattle paper The Stranger, larger publications and art blogs also picked up the story.  These events have changed the manner in which his works are perceived by some and will likely affect how Krafft's pieces are valued and resold (creating taxation and estate planning issues for collectors).  As Phil Campbell wrote in the HuffPost Arts & Culture Blog, "We should be able to judge art apart from the personal politics of the artist, but Krafft's work doesn't allow for that."  While the First Amendment protects Krafft's controversial speech, Krafft's exercise of his rights may have a lasting, if not devastating, impact on his artistic legacy.

Inept thief charged with stealing Dali

Cartel de Don Juan Tenorio by Salvador Dali

There are widespread reports this week of the case brought by the New York authorities against a Greek man in relation to a bungled attempt to steal this Dalí painting from New York gallery, Venus Over Manhattan.

Last June, in broad daylight, Phivos Istavrioglou walked into the gallery, pulled the painting off the wall and put it in his shopping bag – in front of security cameras and leaving fingerprints in the process. Once photos of him from the security cameras started to circulate, Istavrioglou was scared into removing the picture from its frame, rolling it up and sending it back to New York.

Gotcha!

Unfortunately for Istavrioglou, New York detectives were able to lift his fingerprints from the package, which they then matched to those taken from another shoplifting incident, and were thus able to identify Istavrioglou. As a final step, an undercover policeman posed as an art gallery owner and convinced Istavrioglou to return to New York with the offer of a consultant position. Upon his touch down at JFK, Istavrioglou was arrested.

Istavrioglou has pleaded not guilty to grand larceny. Bail has been set at $100,000 (£65,000).


Source: New York Post, 19 February 2013, The Guardian, 20 February 2013

The Cheapest Caravaggio: Sotheby's sued by former client

Sotheby's is being sued in the High Court by a former client over a painting attribution, the Art Newspaper reported last week.

The painting in question is very similar to Caravaggio's The Cardsharps, on display in the Kimbell Art Museum, Texas. But Sotheby's considered it to be of lower quality than the Kimbell version and, when it sold the painting in 2006, the auction house described it as being the work of a "follower" of Caravaggio. Imagine the chagrin of its former owner Lancelot Thwaytes when it was bought for a measly £50,400 by eminent scholar and collector Sir Denis Mahon, who then announced it to be a genuine Caravaggio worth an estimated £10m for export licence purposes. Some reports even estimate its worth at up to £50m. Why, Thwaytes must have asked himself, did Sotheby's not realise that my painting was the real thing, thus leaving me over £9.9m out of pocket? It is perhaps understandable that father thinking the matter over in the intervening years, he has decided to sue for damages which, given the discrepancy between even the modest valuation for a Caravaggio and the price Mahon actually paid, could be substantial. 

The attribution of a painting is often a matter of expert opinion rather than fact. The identity of an artist may be impossible to prove or disprove. In this case there are Caravaggio experts on both sides of the argument. Sotheby's itself sticks to its original view that "the painting is a copy and not an autograph work by Caravaggio". Thwyates on the other hand is arguing that the auction house did not carry our adequate research to back this position up, and his claim lists several art experts who like Mahon believe the painting to be an original Caravaggio. 

The case is one of several in recent years which demonstrate the potential dangers of offering a professional view on the attribution of artworks. "Auction houses have pages of small print and teams of lawyers," the Art Newspaper said in its article The Law vs Scholarship on scholars who fear giving opinions on attribution. "None of this has prevented  number of high profile lawsuits". 

Whether the painting is a Caravaggio or not, and whether Sotheby's had adequate reason to say it was the work only of a follower in 2006, are not necessarily the same questions.However it may be that the court is required to answer both the latter question when considering liability, and the former questioned determining damages (if liability is established). As always when a court is required to judge the status of an artwork,  will be very interesting to see the approach taken when answering both questions. 

Read the Art Newspaper's report here. 

An examination of protection for opinions on the authenticity of art

Protection From Legal Claims For Opinions About The Authenticity Of Art is the title of an excellent article by Ronald D. Spencer, the author of The Expert Versus the Object: Judging Fakes and False Attributions in the Visual Arts (Oxford University Press, New York 2004), on legal protection for expert opinions on the authenticity of art.

The article examines the nature of the opinion about authenticity to be protected, the problem of art authentication bodies ceasing their authentication activities due to concerns about incurring legal liability for their opinions, and the protection available to experts and their opinions. It is well worth a read.

Beatles' first single "Love me do" into the public domain in Europe?

The Beatles' first single" Love Me Do / P.S. I Love You" has entered the public domain in Europe.

Under European copyright law, the copyright on recorded music lasted 50 years since a song or an album is first released, while the songwriter's publishing copyright lasts 70 years after the composer's death.

Since "Love Me Do" and its B-side, "P.S. I Love You," were released in 1962, protection for the tracks expired on December 31st, 2012.

To prevent many songs from slipping into the public domain, in the 2000's Cliff Richard, the British pop icon, and others campaigned for a copyright extensions for performers who performed on a sound recording. Then, the European Union passed the so-called "Sir Cliff's Law" i.e. the EC Directive 2011/77, granting an extension  from 50 to 70 years of the term of protection for a sound recording.

Such law hasn't yet come into effect since the changes are still being implemented into the laws of each member state across the European Union. The process of implementation  will set to be complete by November of this year.

Then, for everything recorded before 1963, they technically fall within the public domain in Europe: the copyright for the song remains, but the licensing fees usually provided to publishers has lapsed, meaning that anyone can distribute the original recordings without permission for the record labels.

In another twist, the EU Term Extension conditions include a 'use it or lose it' clause for anything recorded before 1963, so that labels will have to cede control over its copyright to performers, if it does not market the sound recording containing the performance. Labels and performers shall prove that they were still invested in bringing them to new audiences in the following years.

Then, Sony Music and Legacy recordings are doing that for Bob Dylan's song, since the recording copyright are beginning to expire. For instance, Sony released late last year a very limited, 100-copy, of 50th Anniversary Collection box set, including 86 unreleased Dylan tracks dating back to 1962 and 1963 - or, better said, 50 and 51 years.

Voina recognises the virtues of the law?

Our favourite Russian art group is in the news again – but this time it seems they are not protesting the law. Art Info reports that:

Voina (translating to “war” in English) openly rejects the rule of law, yet they have recently taken to the Moscow courts to sue filmmaker Andrey Gryazev for his 2012 documentary about the group, “Tomorrow.”

The film, which reportedly cost just $2,000 to make, follows the everyday lives of the artists as they plot future protests, pee on cars, and shoplift diapers for their youngest member, Kasper, son of Voina leader Oleg Vorotnikov and his wife, Natalia Sokol. The members clearly granted Gryazev broad access, but their lawsuit, filed in a Moscow court in November, claims they were led to believe that the footage was intended for archival use only and that distributing it violates their right to privacy. Voina is seeking about $33,000 in damages.

Voina had sought to prevent distribution of the film in a number all of ways, which were all unsuccessful. Indeed, Gryazev is said to have a contract and on-camera permission from Vortnikov and Sokol. It remains to be seen what the Moscow courts think of Voina's case.

Source: ArtInfo, 13 February 2013

Iconic artwork, graffiti tags and a distorting Lens

"Delacroix Liberty painting defaced in Louvre" was the headline of a recent BBC news item. The painting in question is portrayed above.  According to the article:

"French police have detained a woman accused of defacing an iconic Delacroix painting, Liberty Leading The People, at a branch of the Louvre Museum.She was held after being seen scrawling a graffiti tag on the painting, a Romantic masterpiece painted in 1830 to celebrate a French uprising. The museum in the northern town of Lens said the work might easily be cleaned but would be examined by a restorer. ...

The painting by Eugene Delacroix, which featured on the pre-euro, 100-franc French banknote and reportedly inspired the Statue of Liberty in New York, is being exhibited in Lens for a year.French media quoted unnamed legal sources as saying the graffito was a clear reference to a 9/11 conspiracy theory. ...

Just before closing time the previous day, a 28-year-old woman scrawled the 30cm (12in) graffito on the bottom of the painting and was immediately detained by a museum guard, France's 20 Minutes news website reported.

The work itself, which commemorates the July Revolution of 1830, measures 325cm by 260cm.

The mark may be "easily cleaned" but a restoration expert was being sent from the parent museum in Paris, the museum said in a statement.

No decision has yet been taken on whether the painting will have to be removed, the museum was quoted as saying by French broadcaster France 3.

The local prosecutor, Philippe Peyroux, told AFP news agency that the woman in custody appeared to be "unstable" and that he had requested a psychiatric examination. He added that the woman, whose identity has not been released, had a "French-sounding name ..."

Iconic? The parodic effect can be seen as far away
as Australia. See Saddami's Graffiti here

The painting's iconic status may have made it an attractive target for anyone wanting to publicise a 9/11 conspiracy theory, but there are better ways of getting a message across than defacing the original.  The painting is out of copyright and can thus be modified or otherwise exploited without the need to prevent others enjoying the original, as the examples above and below show:

Here's another contemporary take, this time
from Still Full of It

Exercises like this not only strengthen the ability of the original to serve as a reference point but attract copyright in their own right as original artistic works or emanations of the author's own intellectual creation. If the lady with the French-sounding name had imposed her graffiti tag on a copy and pushed it out on to the social media, with some prospect of it going viral, she might have achieved not only more publicity but more positive publicity too.

Tax avoidance for all

With David Beckham being lauded for his savvy tax dodging you may be forgiven for thinking that famous footballers have a monopoly on tax avoidance. Not so.

Also reported today is the news that artist Lucian Freud, who died in July 2011, bequeathed artworks by Corot and Degas in his will to the state under the government's 'acceptance in lieu' (AiL) scheme. Under the scheme, people can offer items of cultural and historical importance to the state in full or part payment of their inheritance tax, capital transfer tax or estate duty. The scheme is said to offer clear tax benefits to owners as items are generally worth 17 percent more if offered in lieu of tax than if sold on the open market at the same price, because tax must be paid on the amount an object is sold for. Once accepted, the works are distributed to museums, galleries and public archival depositories throughout the UK. Thus, in this instance, the Corot works are said to be going to the National Gallery, while the Degas works are to be displayed at The Courtauld Gallery.

So, you don't have to be a famous footballer to get a tax break....being a famous artist is just as good.

More details of the AiL scheme can be found here.

Source: BBC, 4 February 2013

New "Dolce vita" for the Trevi fountain thanks to Fendi?

A famous scene taken from the Fellini's movie "La dolce vita"
with Anita Ekberg and Marcello Mastroianni
in the Trevi Fountain

One of the most important Italian fashion house, Fendi, will fund the restoration of five of Rome's most important fountains, beginning with the Trevi one. 

The Trevi Fountain, completed in 1762 and set of one of the most famous scenes of Fellini's movie "La dolce vita", was last restored in 1989 but a new restoration seems strongly needed after chunks of stone crumbled and fell from the fountain's façade last June.

The project, titled "Fendi for Fountains", will also cover the restoration of the Four Fountains located at the insersection of Via delle Quattro Fontane and Via del Quirinale in Rome. Fendi has given € 2.1 million to restore Trevi, while giving a "significant contribution" of € 320,000 for repairing the other Four Fountains.

The restore of the Trevi Fountain will last 22 months ending within 2015. Such works are announced as a real "gift", an act of cultural patronage from the fashion house to the city of Rome without being a sponsorship. 

In this regard, the mayor of Rome informed that the city approved a new resolution encouraging not only sponsorship but even free donation with the aim of protecting and enhancing Italian cultural goods.

Such donations have the obvious effects to help cultural entities - with a more and more reduced cultural budget - to preserve the artistic patrimony saving the cultural memory of Italy. In addition, since it deals with a donation rather than a sponsorship, there will be no Fendi's advertisement on the restoration . 

However, charitable monetary donations for cultural purposes have at least two undeniable advantages for companies:  an effective marketing return but, above all, they are wholly tax-deductible (with no upper limit contrary to sponsorship) from the company income according to Art. 100, paragraph 2, lett. m) of the Italian Income Tax Code. 

Such benefits can better explain why many Italian fashion companies are helping Italy's chronically underfunded cultural heritage, as the footwear company Tod's which will fund the restoration of Colosseum for 25 milllion €. 

A Win for Photographers: Developments in AFP v. Morel

On 12 January 2010, Haiti was struck by a severe earthquake, and photographer, Daniel Morel, was there capturing the devastation with his camera.  Later that day, Morel posted his images on Twitter.  The images were then shared (or more aptly--retweeted--by other users), and at least one user falsely claimed ownership of Morel’s images.  The Director of Photography for North and South America at Agence France Presse (AFP) located Morel’s photos on Twitter on another user’s account and then sent them into AFP’s system for captioning and distribution on AFP’s newswire.  Once in AFP’s system the images also became part of Getty Images’ library, through its reciprocal license with AFP.  When Getty first received the images they were improperly credited to another Twitter user.  Eventually, the error was corrected and the images were properly attributed to Morel.  The images were picked up by several publications, including the Washington Post.  Morel’s counsel as well as counsel for Corbis, another image licensing company that had an exclusivity agreement with Morel, contacted the organizations regarding use of Morel’s images.  Although the photos were eventually removed from AFP’s database as well as Getty’s due to copyright issues, infringing images remained on the Washington Post’s website.

On March 26, 2010, AFP sued Morel in U.S. District Court for the Southern District of New York for a declaratory judgment stating that it had not infringed on Morel’s copyrights and alleging commercial defamation.  In response, Morel filed counterclaims against AFP, Getty, and the Washington Post for copyright infringement and violation of the Digital Millennium Copyright Act (DMCA).  This month, the court addressed the parties’ competing summary judgment motions, conclusively ruling on some issues presented by the case.

With respect to Morel’s claim for direct liability for copyright infringement, AFP argued that the Twitter user license (which applied to the images when they were first posted by Morel), allowed AFP to use and license the images.  After evaluating Twitter’s terms of service, the court disagreed, finding that the user agreement provided a limited license, but did not give permission for AFP to engage in the conduct at issue.  As the court provided, “Indeed, this is the fatal flaw in AFP's argument: it fails to recognize that even if some re-uses of content posted on Twitter may be permissible, this does not necessarily require a general license to use this content as AFP has.” 

Getty also asserted an affirmative defense under the DMCA, arguing that it was not liable for infringement because it qualified for the safe-harbor provision of the law, which was intended to protect service providers from liability for copyright infringement when unwittingly hosting infringing materials or engaging in certain other passive activities.  The court declined to find on summary judgment that Getty qualified for the safe harbor, noting that a jury could infer that Getty took affirmative acts to distribute the Morel’s photos, such as entering a license agreement with AFP, actively licensing the photos, and setting a price for the photos.

Morel also sought elevated statutory damages from AFP, Getty, and the Washington Post, asserting that each party had acted willfully in infringing on his copyrights.  The court declined to rule on this issue as well, leaving it for a jury to determine whether the conduct at issue was willful.

Ultimately, the court granted Morel’s motion for summary judgment that AFP and the Washington Post were liable for copyright infringement, but rejected Morel’s arguments regarding the scope of statutory damages available under the Copyright Act and the DMCA.  The court otherwise denied the parties’ cross-motions for summary judgment.  The case, which has been in litigation since 2010, is scheduled to go to trial on the remaining issues with all trial materials due to the court in late March.