A German court has ordered a museum to take down photographs of a Joseph Beuys performance work, The Silence of Marcel Duchamp is Overrated, originally staged on live TV in 1964. The court held that the performance piece is protected under copyright law and that the photographs were infringements – as unauthorized adaptation or transformation (Article 23 of Germany’s copyright law). The museum is appealing on the basis that the photos are not artistic transformations or adaptations of the original work but are documentary in nature. The claimant, Beuys’s widow, says the exhibition misrepresented her husband’s work.
The Cardozo Art Law Society blog wonders how else performance art should be documented. With permission, perhaps?
Reductio ad absurdum: Any work produced by reference to a work covered by copyright must necessarily infringe copyright, since to copy is to produce a work with reference to another.
Thus no covered work can be 'reviewed' without license from the copyright holder. Fair use/dealing remaining subject to judicial largesse.
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