Man fined for stealing sketches from Gerhard Richter's trash

A 49-year-old German man was recently found guilty of theft in relation to four artworks, which had been thrown in the garbage by world-famous artist Gerhard Richter in July 2016. 

Richter became aware of the scam when the Gerhard Richter Archive was contacted by the defendant with a request to issue certificates of authenticity, before selling the works at auction in Munich.

Dietmar Elger, the head of the Archive (which is now part of Dresden State Art Collection) became suspicious as the sketches – though authentic - were unusually unframed and unsigned. The man claimed to have received the sketches from a painter, who in turn would have obtained them directly from Richter. The Archive then informed the latter, who decided to file a complaint against the defendant, also requesting the destruction of the works. A few days ago, a judge of the Cologne District Court held that - although the works were discarded and thrown away – they still belonged to the artist, who decided to hand them over to a waste disposal facility for the purpose of disposal. The man was thus fined EUR 3,150 for theft and the works -valued at approximately EUR 60,000 – were seized.

Gerhard Richter, Yusuf, 2009

This case raises some interesting legal issues.

First, whether a work which is thrown away by an artist still belongs to the latter or, instead, shall be considered as an abandoned property, belonging to the first taker, who can subsequently sell it as an authentic work of art.

Second, and most importantly, it concerns the artist’s right to disown and request the destruction of authentic works, if they do not correspond any longer to their artistic feelings. In 2015, for instance, Richter decided to exclude some early works of his West German period from his catalogue raisonné to better shape his artistic legacy. The artist is known for editing his oeuvre and these artistic choices often bring criticism and uncertainty to the art world. The artist’s right to change their mind about the worth of their own artistic production often conflicts with the owner's right of the disowned works to dispose of them.

Authentic or not? That is the question.

Concetto spaziale, Attese, Lucio Fontana 1965

The certificate of authenticity is one of the most important documents for a work of art.  

Authentication of contemporary or modern art can also occur indirectly, through the publication in the artist’s catalogue (raisonné or general). Accordingly, many art disputes raise from the refusal of artists’ foundations or archives to include certain works in the artist’s catalogue, implicitly denying their authenticity, and thus decreasing or altogether removing their economic value.  

Recently, the Court of Milan decided a case concerning one “cut” made by Lucio Fontana, that his foundation refused to include in the artist’s catalogue.  According to the foundation, after realizing the work, the artist would have discarded it, being irremediably damaged by the joining of the frame to the canvas while the color was still fresh.  The fact that the work was discard would be further proved by the lack on the work of either the date and the artist’s signature, these being two elements which usually characterize Fontana’s original works.

The Court reversed Lucio Fontana Foundation’s decision and held the work authentic. More specifically, the Court found that no accident occurred, and that the lack of date and signature cannot be considered decisive in determining whether the work was discarded by the artist or not. The Court considered the artwork as an atypical piece in Lucio Fontana’s artistic production, compared to other artistic and similar artworks already included in Lucio Fontana’s catalogue.

The decision is interesting as the Court – though considering the work authentic- rejected the plaintiff’s request to include the work in the artist’s catalogue. The Court implicitly recognized a link between archiving and authentication, stating that the freedom of opinion cannot be compressed and that the Foundation is free in certifying the authenticity of artworks on owners’ request.

The decision of the Court of Milan can still be appealed. Meanwhile, it will be interesting to see how the market will consider the work: as an authentic work or not? The sale price will likely be the main clue. 

A Rose by Any Other Name? Moral Rights, Plagiarism, Lehrer and Zakaria

Well, one of them must
have been the original ...!

In this, the sixth and final article in her series of guest pieces on copyright and moral rights for the 1709 Blog, Mira T. Sundara Rajan looks at two very public instances of plagiarism by high-profile "brand" authors -- and at the attitudes and responses generated by their plagiarism:

A Rose by Any Other Name? Moral Rights, Plagiarism, Lehrer and Zakaria

What do Jonah Lehrer and Fareed Zakaria have in common? Apparently, bad judgement. Both have been involved in matters of plagiarism. In Zakaria’s case, plagiarism led to suspension from his duties at CNN and Time, followed by swift reinstatement. In Lehrer’s case, an episode of so-called “self-plagiarism” was followed by the discovery that he had fabricated facts, and led to his resignation from his position as a staff writer at the New Yorker.

From a moral rights standpoint, both cases are worth a closer look.

The cases involved plagiarism, and the plagiarism has been described in terms of mis-attribution, or failure to attribute material. In a culture where moral rights seem to provoke a good deal of controversy, the concept of attribution still meets with universal acceptance.

And, indeed, extraordinarily high standards are applied to condemn any possible crossing of the line between original and “copied,” or unattributed, material – even if, as in Lehrer’s case, it was copied from himself. Lehrer’s articles for the New Yorker included extensive “unattributed” passages from his blogs and other writings. His offense amounted to passing off old material as fresh thinking (Or fresh “ideas”: see Kelly McBride’s fascinating discussion, entitled “What’s wrong with Jonah Lehrer plagiarizing himself (at least 13 times)” Poynter, 20 June 2012, available here). He did not lose his job at the New Yorker over “self-plagiarism.” He was reprimanded, and apologized. In a sense, it is remarkable that the incident generated as strong a response as it did. Once again, Lehrer was held to a very high standard of originality with respect to his New Yorker publications. Attribution was required, even if it was attribution of his own, earlier work. He should not have used his earlier work and claimed, by implication – through its publication in the New Yorker – that it was new, original work.

Zakaria’s situation was different. He, too, had copied, but what he copied was an excerpt from a New Yorker article by another author, Jill Lepore, which then appeared in his column in Time magazine. Once again, the problem was failure to attribute. But, in contrast to Lehrer’s case, the problem here is painfully obvious – trying to pass off the words of another as one’s own, “free-riding” on another’s work to maintain one’s own productivity or reputation. Zakaria apologized “unreservedly” to the author of the original article, saying that he had “made a terrible mistake.” The paragraphs from Zakaria’s work and Lepore’s article are virtually identical, but Time and CNN have both taken Zakaria at his word, and reinstated him. The message seems to be that Zakaria blundered, but that he did not have the nefarious intention of stealing another writer’s work and passing it off as his own. He is human, and should be forgiven for his mistakes.

The issues involving these two cases of “plagiarism” bring out some interesting conflicts in our culture. As much as they are writers, Zakaria and Lehrer are both media “brands.” It is understandable that media companies would reinstate people like them – they are hard to replace, and anyone who is expected to produce such a volume of “content” for the various media outlets that now demand it, is at risk of becoming involved in recycling material and making errors. By failing to attribute the work of another – or, in other words, violating Jill Lepore’s moral right of attribution – Zakaria crossed a line that Lehrer did not. However, beyond the scandal of a few days, Zakaria has paid little price for his error.

In today’s media climate, what makes the public, including the employers of these two men, cling so desperately to the ideal of “originality,” and to embrace the concept in such a strict form? The “remix” culture is widely championed, and those who argue in favour of the “freedom” to use and re-use the work of others often enjoy the status of folk heroes. It is not just in music that remixing has become popular. Helene Hegemann, a teenage writer who published a novel that was built out of unattributed passages from other works, affirms that “there is no such thing as originality – only authenticity” (See Kate Konolly, “Helene Hegemann: ‘There’s no such thing as originality, just authenticity,’” Guardian Observer, 24 June 2012, available here. In the current English version of the book, Konnolly notes, “All quotations are now sourced”). Yet the standards applied to Lehrer and Zakaria suggest just the opposite. Not only does originality continue to be recognized, but we are entering the era of a new neurosis of originality. An author should not copy even from himself or herself. But there are probably numerous cases of writers re-working their own material. For example, F. Scott Fitzgerald was apparently known to “use” material from his commercial short stories in his literary novels. In Lehrer’s case, if he had cited his earlier work (and if it continued to be valuable to the New Yorker on that basis), much of the controversy could have been avoided.

Lehrer, though rebuked, was in no danger of losing his position on account of self-plagiarism. But he went on to something much more interesting. Writing about Bob Dylan in a recent book, he invented a quotation and attributed it to Dylan. When those knowledgeable about Dylan came calling, Lehrer tried to maintain the quote’s authenticity, but finally admitted to fabrication. This incident, in contrast to the earlier one, cost him his job.

The right and wrong of this second transgression stood out starkly in black and white. Facts had been falsified – the incident violated the integrity of Lehrer’s subject, and of his book. But there was a subtle irony in Lehrer’s misconduct. David Kinney, writing for the New York Times, notes that Bob Dylan himself was a a great teller of tales about his own life. Of Dylan’s autobiography, Kinney notes, “Mr. Dylan got a longer leash with “Chronicles.” He filled it with knowing winks and nods to its unreliability, and anyone who didn’t know that he’d play around with his story hadn’t been paying attention.”  Was it Dylan’s stature in pop culture that spared him the awkward judgement meted out to Lehrer? Was it the fact that he toyed with his own life and not the life of someone else? Whatever the reason, Lehrer’s offense struck a chord for its impropriety, while Dylan’s history, entwined with self-made myths, is known and accepted.

For the time being, these questions have no easy answers. But two interesting conclusions can be drawn. First, from a moral rights point of view, and despite appearances, the concepts of attribution and integrity are actually quite well-recognized in the culture. But they are recognized under different names: plagiarism, on the one hand, and ethics, journalistic integrity, or just plain truth, on the other. As a result, lawyers who want to encourage the recognition of moral rights may have to work with a wider vocabulary, and within a wider discourse. This is no bad thing: the term “moral rights” is nothing but a poor translation from the French, and finding new ways to describe what moral rights really stand for would probably be helpful in many respects.

Secondly, originality is not dead. It lives – and indeed it has become something of a Frankenstein in the context of new media. Originality and attribution are inextricably intertwined. The right of integrity, too, makes sense here – whether it is integrity of authorship, or integrity of information. But, either way, it is good to remember that the author, himself or herself, is a mere human being. Mistakes happen – temptations arise – and the inhuman demands of technology can have a corrupting influence on the integrity of authorship. Good writing is still something more than “content.” With time and freedom more scarce than ever before, it is harder than ever to produce it.

The 1709 Blog is pleased to announce that Mira is joining the blog team as a regular member.