1709 Blog: for all the copyright community

Friday, 13 June 2014

Compromise, and a Victory for Moral Rights?

Another day, another Picasso Tricorne blog post! Right on the heels of Mira's piece on the 1709 Blog yesterday, there's a bit of hot news which Mira has swiftly transformed into this follow-up:
Four Seasons: a work of art
facing imminent destruction ...
Litigation is not the answer to everything; a settlement usually is. In this case, Aby Rosen, owner of the Picasso curtain that was threatened with destruction upon removal from its current home in the New York Four Seasons (where it has hung since 1959), has reached a happy agreement with the New York Landmarks Conservancy: Mr. Rosen has agreed to "pay for restoration, moving and reinstallation of the $1.6 million Picasso" in a new home, also accessible to the public, the New York Historical Society (as reported by the New York Post, here).

Their conflict, though undoubtedly painful, led to a valuable opportunity for many of us to consider some difficult issues surrounding artworks - the effort of balancing the interests of artists and the rights of property owners, the status of historical works in a modern context, and the validity of community and public interests in art. A happy ending for the Picasso, and, hopefully, an enriched dialogue on the protection and preservation of artworks, and a city's heritage of public art.


Uncle Wiggily said...

Dear Jeremy:

Given the history and provenance of this work, as widely reported, there never was and could never be any kind of “moral rights” case under the US Visual Artists Rights Act (“VARA”) and 17 U.S. Code § 106A. The facts and the dates just don’t fit. See also the latest available court decision from April 4, 2014 with nary a mention of moral rights or copyright and no indication of any involvement by the Picasso Estate. http://bit.ly/1lzyV2b

Best regards,

Uncle Wiggily

Mira Sundara Rajan said...

Dear Uncle Wiggily,
Thanks for your comment. My personal view is that you're probably right about the Picasso case being a poor fit with the moral rights provisions outlined in VARA. But - "never say never" - as I pointed out in my blog, the issue turns on a number of factual considerations ("history and provenance of this work," as you say). For the sake of completeness, I have to lodge my "1% doubt," and point out that we don't know everything about the history of this work and could, at least in theory, be missing key factual information. In the event, thanks for the link - to summarize for other readers, the case as it was heard by the court was essentially a collision of competing property rights, and the injunction was issued on the standard principle of irreparable harm; the dispute was then settled (as noted in this final blog post on the case). What I wanted to highlight in the follow-up blogs, is that a number of issues of interpretation surrounding VARA are controversial, and could use some clarification. I'm curious to know what you and other readers think about a few of these questions - how to deal with factual uncertainties surrounding the ownership of art, policy inconsistencies within VARA, and the possibility of "community moral rights"... Some of these points represent radical departures from copyright theory, and it's fascinating to see them played out in the United States. All the best, Mira