1709 Blog: for all the copyright community

Thursday, 22 May 2014

Picasso and Potato Chips

Le Tricorne (detail)
In the lobby of the Four Seasons Hotel on East 57th Street in New York, hangs a mural. Anyone who has visited the hotel has walked by it, and many may have stopped for a moment, at least, to look. It is known as “Le Tricorne,” and was painted by Picasso as a set decoration for a performance of Diaghilev’s Ballets Russes. It has adorned the lobby of the hotel since 1959.

Not everyone thinks that it’s a good Picasso. The current owner of the hotel, reportedly, has never liked it. As part of a renovation planned in the hotel at large, he now hopes to remove it. And, strangely enough, the proposed move has caused an outcry in New York City. The owner is dealing with his own property. Why would his rights to do so be limited?

In New York, two answers to this question seem to be emerging: first, that the public may have some interest in the Picasso as an artwork in a public locale, even if that locale is privately owned; and, secondly, that undertaking the risk of destroying an artwork, particularly one by a major artist, may violate that public interest. It is curious that both of these views seem to take precedence so readily, for at least some New Yorkers, over private property interests.

The problem is a practical one: the painting is mounted on a wall, and removing it is almost certain to cause damage. The work is so delicate that attempting to remove it could, apparently, make it “crack like a potato chip”. If the project goes ahead, we could witness a a potential replay on American soil of the scenario in the notorious Indian case of Amar Nath Sehgal v Union of India. In that instance, a mural painted by one of India’s most eminent artists, appreciated by then-Prime Minister Jawaharlal Nehru and considered a “national treasure of India,” was removed from the walls of a government building in Delhi. The mural was badly damaged in the process – even the part of the mural containing the artist’s signature was broken off the artwork – and Mr Sehgal spent the better part of three decades pursuing action against the Indian government. His claim was grounded in moral rights, strongly protected in the Indian Copyright Act of 1957, but the litigation raised a number of interesting questions about the interpretation of an Act closely based on Article 6bis of the Berne Convention in most relevant respects. Notably, given the scale of the damage to Sehgal’s work, and the potential for further damage, was outright destruction of an artwork prohibited under Indian law? In 2005 the Delhi High Court responded with a resounding “yes.” The Court’s reasoning was innovative, revolutionary: it said that a high standard of protection must be applied to artworks of national importance, confirmed, in this case, by India’s membership in international treaties for the protection of cultural heritage. Indeed, membership in these treaties constitutes the background to India’s section 57 provisions on moral rights, and the context in which they are (now) subject to judicial interpretation.

Where the destruction of artworks is concerned, American law, which generally does not recognize the moral rights of authors, is exceptionally strong. Many readers will be aware that the United States has no generalized protection for moral rights in its copyright law – and, arguably, after the Dastar case, no strong alternative doctrine for the protection of an author’s right to attribution and the integrity of his or her work, either. However, it does have a well-known statute for the protection of the moral rights of artists who create works of visual art, the Visual Artists Rights Act of 1990, known as VARA. The enactment of VARA followed closely on the heels of U.S. membership in the Berne Convention in 1989, and probably owes its pedigree, at least to some extent, to art protection statutes in U.S. states such as California’s Art Preservation Act (CAPA, 1979) and New York’s Artists Authorship Rights Act (1984). The provisions of VARA are controversial in some respects. For example, if a work is treated derogatorily, a possible solution is for the artist to request the removal of his or her name from public presentations of the work in the altered form (as in the earlier New York statute). In this regard, the provision offers protection to the artist’s reputation, but not to the integrity of the work per se, which may well be compromised in these circumstances. VARA also introduces the balancing concept of intention, superimposed on the requirement of showing damage to the artist’s honour or reputation as in Article 6bis of Berne, and effectively replacing it (1); where intention to harm is shown, the requirement of damage to reputation is waived.

This statute may be unique in the world in prohibiting the destruction of artworks. This applies particularly to “works of recognized stature.” William Landes, writing in 2002, commented that the idea of “recognized stature” had a “relatively well-settled meaning[...],” and case law at the time supported that view; but the recent incident of the destruction of the 5Pointz mural complex in New York City [discussed on the IPKat by Miri Frankel, here] brings out some potential difficulties. The 5Pointz muralists are now suing for damages, and may well be able to show that the court got things wrong – though nothing, of course, can now bring the works back (see here and here).

Where does this leave things with Picasso’s mural? Given its authorship, the ease of establishing that the Picasso is a work of “recognized stature” seems fairly straightforward. Accordingly, VARA could be invoked by the New York Landmarks Conservancy, which owned the Picasso after it was donated to the group in 2005, to prevent its possible destruction by removing it from its place in the Four Seasons Hotel. Such a ruling can be predicted with reasonable assurance in only a few jurisdictions in the world – including India, strongly pro-moral rights, and the United States, strongly ambivalent, which both agree on the principle that destruction of a work should be prevented, in so far as possible, by artists’ moral rights.

Above all, the case fascinates because of Picasso’s absence from the debate. Moral rights are often said to serve the aggrandizement of individual artists or (gasp) their heirs. In this case, however, the dispute would seem to have little impact on Picasso’s reputation or the wealth of his heirs. On the other hand, the painting has aptly been called “Picasso’s most readily accessible painting” (Terry Teachout in the Wall St J, cited here), and it presents the alluring image of art interwoven with the fabric of life in ways that are not usually possible in Western cities. In this case, at least, moral rights are widely perceived as a public interest issue. Mr. Rosen finds himself in the eye of an unusually powerful storm.
(1)  (3) subject to the limitations set forth in section 113 (d), shall have the right—(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
This blogpost, composed by Professor Mira T. Sundara Rajan, was posted for her by Jeremy.

11 comments:

Anonymous said...

Interesting and informative especially for those of us that deal with the differences in how artists are protected in the EU vs the US.

Where does the US stand on moral rights and Article 1(4) of the WCT?

Do you have any views on whether the US should adopt the artist's resale right? I seem to recall the Copyright Office has published a new report. In the past it was claimed that the Visual Rights Act was one reason why it was not necessary.

Uncle Wiggily said...

Given that this work was installed in the Four Seasons in 1959, according to Mira, and title in the mural had presumably passed from Picasso by that time, it would seem that any moral rights under VARA would not apply. See the “effective date” provisions in s. 610 of the Visual Artists Rights Act of 1990. http://en.wikisource.org/wiki/Visual_Artists_Rights_Act_of_1990 and 17 U.S. Code § 106A(3)(d)(2) http://www.law.cornell.edu/uscode/text/17/106A#a

What am I missing here? Maybe this is now more a case of “mural” rights than of “moral” rights.

Howard Knopf said...

Dear Jeremy:

This calls out for further comment that is rather more extensive than I can put into the "comment" box. So here it is:

http://bit.ly/1lM5k1B

Best regards,

Howard

Andrew Lopata said...

Another reason VARA doesn't apply here: those rights are personal to the artist and only last for the life of the artist.

john r walker said...

Howard , thank you! I thought the 'story' did not sound right- the picture was originally a stage curtain/backdrop, not a mural painted on a wall.

Mira Sundara Rajan said...

John, thanks for your comment. I actually mentioned in the opening paragraph of my post that the painting was (part of) a set decoration for Diaghilev's Ballets Russes. Information about its history is available from numerous sources (see, for example, http://www.nytimes.com/2014/03/28/nyregion/fate-of-a-picasso-hangs-on-a-court-case.html?_r=0, or http://online.wsj.com/news/articles/SB10001424052702304104504579375293785466778). The important issue in this case is that any attempt to move this artwork would now be challenging: it would be very difficult, and maybe practically impossible, to remove it from the wall without damaging it. That is the basis of the NY Landmarks Conservancy action - that the painting would be destroyed if any attempt were made to take it down.

john r walker said...

Mira
Moving just about any older painting on canvas entails a risk of damaging that painting(especially if it is not done by experienced museum conservators). However I do not see how that risk of damage in moving the picture ,equates to a Moral right for the picture to stay where it is currently hung. And this is especially so in the case of something that was originally made as a temporary stage backdrop I.e was not really intended to last for decades let alone centuries.

Mira Sundara Rajan said...

John, thanks for your comment. Quite true, which is what makes it all the more interesting that this particular artwork seems to have aroused such strong feelings among New Yorkers. I think the key issue here is really that the artwork is in a public space where it is, in a sense, uniquely available - I quoted from Terry Teachout at the Wall Street J, who calls it "Picasso's most readily accessible painting." I've just secured the latest judgement in this case; stay tuned for a follow-up post from me!

john r walker said...

Does the lobby of a privately owned hotel qualify as a Public Place?

Mira Sundara Rajan said...

Anonymous, thanks for your comment about Art 1 (4) of WCT...on compliance with Articles 1-21 of the Berne Convention, with no exception made for Article 6bis of Berne on moral rights. In the United States, the argument has been made that VARA is sufficient to meet Berne requirements, especially as U.S. law has "alternate mechanisms" for the protection of authors' and artists' moral interests - eg. Lanham Act s. 43 (a) (1) on the origin of goods (and misrepresentation of their quality) and common-law actions such as defamation. The trouble is, the application of the Lanham Act has been circumscribed by the Dastar case (2003); and common-law actions like defamation, in contrast to moral rights under copyright law, terminate upon the death of the author. A U.S. regime based on these alternatives cannot be equivalent to Berne, even taking into account the cultural peculiarities of different national legal systems. But the U.S. is not the only country potentially failing to implement Berne standards on moral rights. In the UK, a review of British law in the 1950s found that moral rights did not need to be introduced into the copyright act; a review of the same provisions in the 1980s found that they did. The Copyright, Designs & Patents Act of 1988 then established a framework for moral rights, but it was, not surprisingly, tentative in many respects. UK authors must now "assert" their right of attribution, which would seem to go directly against the Berne specification that authors' rights are to be available without "any formality" (Art. 5(2)). A more subtle issue is apparent in Canada, which has recognized moral rights for a very long time- since 1931, and they first came into Berne in 1928 - and formally meets Berne requirements. The comprehensiveness of Canadian provisions allowing waiver has led to a situation where industry practice is to expect authors to waive their moral rights. This then raises questions about how significant Canadian moral rights really are in practice. The international issue comes up again in relation to TRIPs, with Art 9 (1) telling us that countries must recognize Berne Arts 1-21, but that Art 6bis will not be enforceable under TRIPs and, therefore, the dispute settlement provisions of the WTO will not be applicable to moral rights issues...So, as you can see, international acceptance of moral rights still has some way to go.

john r walker said...

Am a bit surprised that the current owners of the picture can not find a public museum to take what is after all a big Picasso.