Artwork cannot be cut up to realize watch faces, Danish court rules

Paris Chic, Tal R, 2017

Copenhagen's maritime and commercial court was recently asked to decide whether Dann Thorleifsson and Arne Leivsgard - a duo of Faroese art provocateurs and founders of Kankse and Letho watch brands - could cut up Tal R's artwork "Paris chic", which the duo had purchased last August for 70,000 £ at the Victoria Miro Gallery in London. The duo wanted the painting fragments to decorate the faces of their latest watches, each of which they planned to sell for at least DK 10,000. 

The Danish court issued a ruling yesterday in favor of the Danish artist. Consequently, the two watch designers cannot use Tal R's painting as a raw material and have to pay DK 31,550 in legal costs.

The Danish court awarded an injunction under the Danish Act on Copyright, protecting copyrights and moral rights. Indeed, the Court accepted Tal R's argument that the duo's project would have been an illicit alteration of the artist's work rather than a destruction of same, as contrarily argued by the duo's lawyers. Tal R's lawyer alleged that the watch brand planned to market the watches as fragments of a Tal R's work. The artist's lawyer also argued that whilst the purchasers of Tal R's art could sell it or even destroy it, they could not alter it, as to do so would infringe Danish copyright law. 

While the duo is still considering whether to appeal the ruling or to reach a settlement, this case questions again the boundaries of  copyright and ownership of artworks, and namely whether a work of art can be freely destroyed by its owner. In this last regard, the answer seems to differ from country to country: in Denmark, for instance, is considered permissible. 

Saving Picasso’s Le Tricorne and other pre-1991 Artworks: Can VARA help?

Mira T. Sundara Rajan's blogpost last month, "Picasso and Potato Chips", on this weblog here, attracted a good deal of attention and a number of comments.  In this, a sequel to her earlier blog post, Mira elaborates on the theme of art works that are damaged or destroyed when moved, also addressing a number of issues raised following her earlier post. This is what she writes:

Saving Picasso’s Le Tricorne and other pre-1991 Artworks: Can VARA help?

Many thanks to readers for their interest in the issue of moral rights in the Picasso artwork whose fate quite literally “hangs” in the hands of the owners of the Four Seasons Hotel property in New York. In my earlier piece, I focused on the concept of using law to prevent the destruction of artworks. This issue has been debated by copyright experts over the years because, it is argued, the destruction of an artwork may or may not have a negative impact on the reputation of the artist – the test established by Article 6bis of the Berne Convention, and mirrored in most copyright laws in the world, for claiming a violation of the artist’s right of integrity (in the context of Amar Nath Sehgal v Union of India, I commented: “destruction of a work can prejudice an author’s reputation by reducing the volume or quality of his creative corpus”, language reproduced by the court in para 31 of the judgment; see also para. 41). I noted the interesting point that U.S. law, in the form of the Visual Artists Rights Act of 1990, explicitly seeks to prevent works from being destroyed.

To be precise, section 106A (a) (3) (B) provides that the author “shall have the right— ...(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 provision is “subject to the limitations set forth in section 113 (d),” which deals with artworks incorporated into, or installed in, buildings. In the case of a work that is “incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction...of the work,” and the artist has “consented to the installation of the work in the building either before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal,” the right to prevent destruction “shall not apply.” If, on the other hand, the work “can be removed from the building without the destruction... of the work,” then the owner needs to make a “diligent, good faith attempt ... to notify the author of the owner’s intended action affecting the work of visual art.” Once such notice has been provided, the onus is on the artist to respond, and to “remove the work or to pay for its removal.” If the artist fails to respond to good faith attempts to notify him or her of the intention to move it, the owner is within his or her rights to remove the artwork after 90 days.

The scheme overall seems well-focused on protecting murals and other works installed in buildings, like the Picasso, from destruction (the approach under California’s Art Preservation legislation was different; see California Civil Code, s. 987(h). Presumably, this provision has been pre-empted for post-VARA works, and those pre-VARA works that qualify for VARA protection). As I noted previously, when compared to moral rights legislation worldwide, and to Berne, U.S. law seems quite ambitious in this respect.

The specific question of whether VARA could apply to the Picasso artwork in this case, or to another artwork in similar circumstances, calls for several legal hurdles to be leapt. The key issues are the passage of title in the original work, duration of VARA rights, standing, and the concept of a work of “recognized stature” under VARA.

Let’s deal with title first, since it affects the other issues. VARA came into effect in 1991, but that leaves us with a factual paradox – a statute that seeks to protect artworks confronted the problem of what to do about artworks that already existed at the time the statute was adopted. Harm to an artwork is harm, after all, whenever the art was first created.

VARA doesn’t exclude pre-existing artworks; rather, it tells us that, for artworks created before 1991, the issue is one of whether or not the original artist has retained title in the artwork. Section 106A (d)(2) provides that, for “works created before the effective date set forth in subsection (a) but title to which has not, as of such effective date, been transferred from the author,” the rights “shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106” – the copyright provisions.

Copyright aficionados will sense a potential issue here, as ownership of an artwork and copyright in that work are distinct from one another. Which, exactly, does “title” mean? According to experienced VARA (and CAPA) litigator, Brooke Oliver, the transfer of “title” under VARA should be taken at face value: it simply means transfer of ownership. In other words, if the artwork has been sold by the artist prior to 1991, VARA cannot be invoked. Oliver cites William Patry’s famed copyright treatise, noting:

“Ownership,” not “title” is the term of art used throughout the Copyright Act when referring to ownership of copyright. The statutory language in Section 106 (a)(d)(2) refers to title to tangible property, i.e., the installed mural or sculpture. The legislative history makes clear that “title” refers to the particular copy. Both the legislative history and rationale are explained in PATRY,COPYRIGHT LAW AND PRACTICE, Vol. II at 1061 (Bureau of National Affairs 1994) c 5, The Visual Artists’ Rights Act of 1990.”" 

He explains:

“The House agreed to limit VARA to copies (including the original) of “works of visual art” created before the effective date (June 1, 1991), the title to which had not, as of that date, been transferred by the author. The term “title” refers to title to the physical copy of the work of visual art at issue, and not to title to any intellectual property rights. Id. at 1061". 

The applicable footnote also explains:

“By focusing on the title to particular copies, VARA permits retroactive application where a work created before the date of enactment may be protected as embodied in some copies, but not others. Where title to a particular copy was not transferred before June 1, 1991, the copy is protected; where title to a particular copy was transferred before that date, that particular copy is not protected.” Id. at 1061". [emphasis removed].

But this perspective is not universally shared: Nicholas O’Donnell, discussing a pending lawsuit on behalf of Los Angeles artist Victor Henderson comments:

“The effective date of VARA is June 1, 1991. This paragraph thus first means that as long as the original author (Henderson) still holds the copyright, his VARA rights will exist as long as his copyright does, and expire at the same time. Assuming that Henderson had never transferred the copyright in the 1969 mural, those rights would not have expired, and his VARA rights would still be enforceable for a previously-created work.”

... An opening for a different approach to interpretation?

William Brutocao and Eric Bjorgum, lead trial attorney and team member in the case of the famed Los Angeles mural of Ed Ruscha by Kent Twitchell point out that “a mural is [a] piece of property comprising separate ownership rights of title, possession, copyright and moral rights”.

In the case of “Le Tricorne,” the work was painted by Picasso for Serge Diaghilev, and a deeper examination would be needed to uncover the intricacies of their arrangements. We can imagine that their relationship was probably informal and not regulated by a written contract. Nevertheless, the work was made for Diaghilev and was also physically delivered into his possession for the purpose of staging the ballet; the existing artwork at the Four Seasons has already been “cut down from its original size” (see here). As noted earlier, the work is not a mural per se, but the different interests identified by Brutocao and Bjorgum would seem to apply to an artwork like this one – part of a set design prepared for a collaborative, interdisciplinary, and creative use by another artist. Per Oliver’s assessment, if title in Le Tricorne passed out of Picasso’s hands into Diaghilev’s, the artworks would clearly be beyond the reach of VARA. If, however, title to the work had remained with Picasso, and passed to his heirs upon his death – and this is something to keep in mind in relation to other pre-1991 works of art – VARA could reach the work despite the fact that it was created long before anyone had ever dreamt of the statute.

The issue of standing is also interesting, and, at a practical level, is related to the question of duration. VARA specifies that the moral rights provided by the statute are personally held by the artist and cannot be waived. For the most part, this will mean that VARA rights can only be exercised by the artist: in works created on or after the effective date of VARA, the rights endure only for the lifetime of the artist. In the case of pre-existing works that are eligible for protection, however, VARA rights will endure after the author’s death (perhaps one of the policy anomalies arising from VARA). In line with copyright practice, the heirs of the artist would be able to act after the author’s death; but, what about other organizations, to whom the artist might bequeath works and, implicitly or explicitly, rights?

For example, if an artist were to appoint an organization like the New York Landmarks Conservancy to protect his or her works for the post mortem auctoris period when they would remain under copyright protection, it would seem that the designated organization should be able to assert VARA rights on behalf of the deceased artist. Nevertheless, the general position of VARA is not to recognize the rights of public interest organizations. In this respect, VARA offers more limited protection than state statutes in at least two states, California and Massachusetts, which both allow public interest organizations to sue for integrity. Writing in the year 2000, Christopher J. Robinson aptly commented that this approach amounts to “granting a public cause of action for what are effectively community moral rights” – and these provisions in state law, which go beyond the scope of VARA, should not be pre-empted by the federal statute. Internationally, Russian copyright law, which gained some U.S. exposure in the Russian Kurier case of 1998 provides for such contingencies, stating that “any interested person” can sue for moral rights protection; Russian law also allows an author to designate a moral rights “executor” who will take care of the author’s moral rights after his or her death (see Russian Civil Code Art. 1228.2; Arts. 1266 & 1267).

“Recognized stature” is something that would need to be shown before the VARA provisions on destruction could be invoked. In the case of the Picasso, the test would seem to be easily satisfied; but the recent destruction of the murals at 5 Pointz raises some sobering reflections about the limits of courts (and others) to perceive recognized stature in contemporary and unconventional creative works (see IPKat here and here; Lexology here).

... And, what about the resale right, droit de suite, in works that are no longer owned by the original artist but sold on for ever more fabulous sums by subsequent owners? It’s beyond the scope of VARA, but California, once again in the vanguard, has its own Artists Resale Royalty Act (s. 986 of the California Civil Code, available here). The Act has faced Constitutional invalidation in the United States (2012, currently pending appeal), but the U.S. Copyright Office is interested in introducing a resale royalty in the United States to reflect the harmonized droit de suite in the European Union (see here and here). The title of the latest proposed bill?... “American Royalties, Too” (Feb. 2014).

Posted for Mira by Jeremy

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.

Crime Without a Remedy: The Destruction of Artworks

Is it possible to die twice? When a painter dies, his body dies; but a part of the artist lives on in his paintings. That is one of the seductions of art, the possible boon of immortality – or at least, the illusion of immortality.

But what happens when an artwork is destroyed? In a sense, a piece of the artist dies again. The occurrence is a disturbing one, because, somewhat analogous to a human death, it signifies the destruction of something that will never come again. This holds true whether we are speaking of ancient artworks like the Buddhas of Bamiyan, destroyed by the Taliban in Afghanistan, or the paintings of Picasso or Monet.

It's not just pictures that burn. This one, c.1670, depicts
the damage wreaked by the Great Fire of London

In a stunning recent case involving the destruction of artworks, a Romanian woman claimed to have disposed of seven paintings stolen from the Kunsthal Museum in Rotterdam by incinerating them in her oven. In a bizarre demonstration of maternal affection, she claimed to have destroyed the paintings to remove evidence linking her son to the theft (Liz Alderman, “Romanian’s Tale Has Art World Fearing the Worst” 18 July 2013, here). She now asserts that her story was not true, possibly because the “crime of ‘destruction with very serious consequences’” is the most serious of the offenses with which she has been charged in Romania (Andrew Higgins, “Romanian Denies Burning Stolen Art,” 22 July 2013, here). But investigators were crestfallen to discover paint, and other debris that would have been difficult to fabricate, in the oven.

Can the law do anything to address acts such as these? Ideally, it should accomplish two purposes: providing some kind of deterrent to the destruction of artworks, and offering a legal basis for prosecuting those involved in the destruction. While recognizing the value of both goals, their fundamental futility must also be acknowledged: action can only be pursued after the work has been destroyed. It is too late to find a true remedy for the crime.

The question of liability for the destruction of an artwork is a thorny legal issue. In many jurisdictions, copyright law includes the moral right of an artist to protect the “integrity” of his or her work. The international model for this right can be found in the Berne Convention for the Protection of Literary and Artistic Works. Article 6bis of Berne specifically emphasizes the artist’s right to act when the mistreatment of the work may damage his or her “honor or reputation”.

Curiously, this very provision has limited the applicability of the integrity right to the destruction of artworks. When a work of art is destroyed, so the argument goes, the key question of how the mistreatment of the work might affect the artist’s reputation becomes irrelevant. The work no longer exists. How can there be any question of damage to artistic reputation?

For many art-lovers, this result will leave a bitter taste on the lips. But this knife-edge approach to the integrity right is far from arbitrary: it probably reflects confusion at the heart of the Berne Convention, itself.

In fact, breaking down Article 6bis of Berne is a helpful exercise. The provision ostensibly protects the “integrity” right. But, in reality, it recognizes two related, yet distinct, interests: the preservation of the integrity of the work, and the reputation of the artist.

The language of Berne creates a sort of interpretive bridge between the two interests. It links the protection of reputation with the integrity of the work by asking the artist to prove damage to his or her reputation as a pre-requisite to the integrity claim. In other words, the Berne framework can be seen as setting a threshold for the level, and type, of damage to a work that will trigger the moral rights protections in Article 6bis. If the damage to the work is egregious enough, and of such a kind that it will harm the artist’s reputation, then a cause of action can be established.

The link between integrity and reputation is a construction of Berne: there is no obvious legal or conceptual reason why the two interests must be linked in this way. In fact, if our true goal is to protect the integrity of an artwork, it may not matter whether, or how, the handling of the work affects the artist’s reputation. And, indeed, a number of countries, including France and, at one time, India, have had open-ended integrity rights in their copyright laws that did not impose a burden of proof on the artist to show damage to his or her reputation.

What was the rationale behind these laws? In France, commentators usually talk about an author-centric approach, which means that the author’s opinion regarding mistreatment of the work is sufficient proof of mistreatment for the court. No argument can be made that the mistreatment “improves” the work (its marketability, for example), or that the impact of the mistreatment is negligible, and therefore, not worth the fight. In India, the approach was slightly different: the tacit goal of the old moral rights provisions was to give recognition, not only to artists, but also, to artworks themselves. The aim was to protect cultural heritage, and this goal, implicit in the Indian legislation, was ultimately articulated by the Delhi High Court in the seminal case of Amar Nath Sehgal v. Union of India.

The Sehgal case involved the destruction of a famous sculpture. In its decision, the court outlined two reasons why, in its opinion, protection of the integrity right should protect this artwork from outright destruction. The first of these, in French style, is an artist-focused point. The court argued that destruction of a single work reduces the overall “creative corpus” of an artist, leading to a decline in quantity and, possibly, quality – and, therefore, to possible damage to the artist’s reputation (Sehgal, paras 31 & 56). But the court’s second line of reasoning raised an issue of much broader scope: the purpose of moral rights, said the court, is to protect the integrity of cultural heritage. In the case of Amar Nath Sehgal’s sculpture, the work in question was considered to be a national treasure of India. It clearly merited protection as an important part of Indian cultural heritage. The sculpture would therefore be protected from destruction by the moral right of integrity under Indian copyright law.

This conclusion was all the more remarkable because, while the Sehgal litigation was ongoing – 1979-2005 – the government had amended the moral rights provisions in section 57 of the Indian Copyright Act. The goal of the 1994 amendment? To redraft the integrity right to match the Berne provision – making it depend on the artist’s ability to prove damage to his or her “honor or reputation” (Sehgal, paras. 34-35). But, said the court, regardless of these changes, the protection of cultural heritage had to take precedence. In its determination, the court relied on India’s membership in international conventions on cultural property.

In paragraph 56 of the judgement, the court stated:

“There would therefore be [an] urgent need to interpret Section 57 of the Copyright Act, 1957 in its wider amplitude to include destruction of a work of art, being the extreme form of mutilation, since by reducing the volume of the author’s creative corpus it affects his reputation prejudicially as being actionable under said section. Further, in relation to the work of an author, subject to the work attaining the status of a modern national treasure, the right would include an action to protect the integrity of the work in relation to the cultural heritage of the nation.” (author’s italics)

The Sehgal case sets a strong international precedent for arguing that the destruction of artworks should be prevented as one of the protections available under the rubric of the moral right of integrity. Another approach to the same problem may be seen in Russian law, which provides for the “indefinite” protection of the integrity right, allowing it to be asserted by the artist’s “heirs, successors or other persons concerned”. This type of provision could be seen as a way of empowering the public to act on behalf of artworks that have become part of the nation’s cultural heritage. The integrity right, which starts out as a personal right of the artist, ultimately becomes, like the work itself, a part of the public domain.

In the case of the paintings stolen from Rotterdam, this approach to the integrity right would allow both the art thieves and the woman who destroyed the paintings to face prosecution, not only for the theft, but also, for the irredeemable act of destruction itself.

This article, composed by Mira T. Sundara Rajan, was posted on her behalf by Jeremy