Wednesday, 16 September 2015

Anish Kapoor sued for leaving racist graffiti on his sculpture at Versailles

The British artist Anish Kapoor recently announced that right wing Versailles municipal councillor, Mr Fabien Bouglé, had filed a lawsuit against him and the president of the Palace of Versailles, Catherine Pégard, for choosing not to remove some racist graffiti from his sculpture "Dirty Corner".
Dirty Corner by Anish Kapoor
The complainant, Bouglé, said that the vandalized artwork now incites racial hatred and insults and should be cleaned.
The sculpture was installed last June in the gardens of the French Palace of Versailles and has since been vandalised twice. The first time, the artwork was cleaned after being splattered with yellow paint a few days after its installation, but, after the second attack, the artist decided to leave the anti-Semitic messages on the sculpture's exterior. 
Although Kapoor strongly condemned the racist messages, he decided to leave them on the sculpture as a reminder of the intolerance and hate in the society. "I had already questioned the wisdom of cleaning it after the first vandalism. This time, I am convinced that nothing should be removed from these slurs, from these words which belong to antisemitism that we'd rather forget" Kapoor told le Figaro.
His choice has opened a public debate. On one side, the French President, François Hollande, expressed his support for the artist, agreeing with Kapoor's decision. Likewise, the French Culture Minister, Fleur Pellerin, said she respected Kapoor's choice, and said that the public debates surrounding Kapoor's decision were "extremely interesting and raise the question of creative freedom".
On the other side, Kapoor's choice was criticised by Jonathan Jones of the Guardian. Jones believes that Kapoor should reconsider his decision and clean the work, thereby not offering the vandals any publicity. According to the British journalist, the sculpture should be properly protected by the French Police and become a permanent addition to Versailles: that would be the true victory for culture over barbarism. 
For the moment, notices explaining the vandalism to visitors have been installed next to the work, while the French lawsuit against Kapoor is ongoing.  
Photo: Francois Guillot/ AFP Le Figaro

Sunday, 13 September 2015

Art Buff returns to Folkestone

Art Buff
"Banksy artwork set to return to Folkestone after lengthy legal battle" is the title of this item, reported a couple of days ago in the Guardian. It reads, in relevant part, as follows:
A Banksy artwork ripped from a wall in Folkestone and shipped to the US is to be returned to the seaside town after a lengthy legal battle, in the first example of a Banksy being returned to public ownership. A British judge ruled on Friday morning that the mural, titled Art Buff, was to be returned to the place where it was originally daubed by the elusive graffiti artist during the Folkestone Triennial last year.

The artwork, which depicts a woman looking at an empty plinth while listening to headphones, appeared overnight last September. It was verified by the elusive artist on his website, with the words: “Part of Folkestone Triennial. Sort of.” The piece attracted hundreds of visitors but just weeks after its appearance the owners of the amusement arcade on which it was painted chiselled it out of the wall and sent it to a gallery in New York – which valued it at almost half a million pounds. It was later sent to an art fair in Miami where it failed to sell.

The legal challenge to return the artwork to Kent was launched by Folkestone-based arts charity the Creative Foundation, with the financial backing of a benefactor, who felt that Art Buff belonged to the people of Folkestone and not to a wealthy collector.  ... 
The piece, he said, had been cut out under the supervision of art dealer Robin Barton who trades under the name of Bankrobber and specialises in Banksy pieces.

After investigating the matter, lawyers acting for the Creative Foundation discovered that the Godden family, who had ordered the removal and sale of the Banksy, only owned the leasehold – not the freehold – of the arcade where Art Buff had been drawn. An injunction against selling the artwork was taken out in early 2015, and on Friday morning judge Richard Arnold ruled that the tenant had “no reasonable prospect of establishing that it was entitled, let alone obliged, to remove the mural” and ordered its return to Folkestone. ...

In the past Bansky has condemned the removal and private sale of his artworks as disgusting. In April last year 10 of Banksy’s most expensive murals, all of which had been removed from public spaces, were sold at auction in London for between £100,000 and £500,000 each.

Upton said he hoped the case, which was the first example of a Banksy being returned to public ownership, would inspire others in the future. “People should fight to keep these works in the public realm,” he said. “That’s how they came about and where they were intended to stay – not that I have any idea what Banksy’s intentions are.”
While it's good to see that this piece of artwork has been saved, it is worrying that the fate of a piece of art should be made to hinge on something as arbitrary was whether the wall upon which it was painted was held by a leaseholder or by the freeholder.

Tuesday, 18 August 2015

The Art of Protecting Design

We are lucky to have another guest post from the wonderful Molly Torsen Stech: Knowing that other attorneys gracefully bridge the different bodies of intellectual property law more often than I, I recently found a post on the 1709 Blog very interesting; it considered the various ways in which interior design might be protected by intellectual property laws. In particular, it considered copyright, design rights, and trademark rights; and it generated some interesting comments.

Of course, “interior design” can comprise a wide array of meanings. Is it the totality of the look and feel of a single room in a home or is it a hotel’s overarching color scheme and atmosphere, complete with floral arrangements, wallpaper, and furniture style and placement that comprise interior design? Given that Serbia has recently amended its design law, Israel is considering a new design law, the European Commission may publish the results of an evaluation of the legal and economic aspects of its design protection in early 2016, and given the fascinating designs on view at the ongoing Expo in one of my favorite cities, some esoteric musings on the nexus of IP laws are perhaps warranted.

In struggling to understand the term “interior design,” it is also useful to spend some time parsing the term “industrial design” (and even just “design”), in an effort to understand how to differentiate design from art; and art from commercial identification, and so on. Needless to say, none of this is straightforward. As McKenna and Strandburg note, “[p]roduct design lies at the intersection of the patent, copyright, and trademark regimes. Useful articles often have both utilitarian and aesthetic aspects, and at times their features serve as source identifiers in the marketplace.” The United States handles these amorphous questions under copyright law, design patent law, and/or sometimes trademark (trade dress) law.

Unlike the European Union, and other intellectual property regimes, it does not have a sui generis design law under which to protect designs specifically, although the United States did recently implement the procedure-oriented and WIPO-administered Hague Agreement Concerning the International Registration of Industrial Designs. Given the nearly undefinable nature of “design,” and the often patentable or copyrightable objects to which design is affixed or in which it is embedded, it is of course arguable whether a domestic sui generis design law is helpful. The United States Patent and Trademark Office, in its definition of “design,” through the lens of design patents, notes:
Since a design is manifested in appearance, the subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation. Design is inseparable from the article to which it is applied and cannot exist alone merely as a scheme of surface ornamentation. It must be a definite, preconceived thing, capable of reproduction and not merely the chance result of a method.
But to obtain a design patent, the subject matter must be an article of manufacture (a tangible, man-made object); and it must be original, novel, non-obvious, and ornamental; the characteristics of these adjectives have developed through case law. U.S. copyright law does not protect design (with the improbable exception of a vessel hull design) embodied in a useful article (including clothing, furniture, and household appliances) unless the thing is expressed separately from that useful article. Fabric design, for example, can be copyrighted if it is creative enough, but a dress design made of that fabric cannot be copyrighted because U.S. copyright law perceives the dress as a useful article. 

Copyright does not protect the mechanical or utilitarian aspects of. . .works of craftsmanship. Copyright may, however, protect any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object. Thus a useful article can have both copyrightable and uncopyrightable features. For example, a carving on the back of a chair or a floral relief design on silver flatware can be protected by copyright, but the design of the chair or the flatware itself cannot, even though it may be aesthetically pleasing.

The Alessi Fior d'Olio
What, then, does a company do with something like Alessi’s Fior d’Olio, designed by Marta Sansoni, for example? What is its protection strategy in the United States versus other jurisdictions, keeping in mind that forms of protection are generally not mutually exclusive?

The Fior d’Olio is essentially an olive oil receptacle, pourer and cap. The cap “fits into the neck of the bottle, allowing you to pour only as much as you need on your food, while controlling the oxidation process that begins as soon as the bottle is opened.” While its description sounds much more functional than it does aesthetic, the Fior d’Olio’s appearance is quite charming and elegant and its lever looks like an olive leaf. Is the leaf conceptually separable from the receptacle so as to achieve eligibility for copyright protection? Perhaps, theoretically, but the leaf piece in itself may not actually cross the threshold to adequate creativity for copyright purposes. Trade dress protection is likely unavailable since a consumer is not likely to immediately recognize the receptacle as an Alessi product (in comparison, consider the shape of a bottle of Dom Perignon champagne, which is recognizable as such.)

This musing is not so timely as it is summertime food for thought. Lawyerly creativity may reach its zenith in creating a strategy for protecting these gems of manufacture that overlap IP regimes, both within a single jurisdiction, and worldwide.

Friday, 7 August 2015

Kindness or Catastrophe? Australia's experience of resale royalty rights

"Artist’s Resale Royalty in Australia: Strong evidence of a catastrophic decline in both sales and prices: Australia's Art Market Down 50%" is the title of an article in AAD (Art Antiques Design) by Australian artist and artists' resale royalty agitator John R. Walker. According to the abstract:
In this article, I shall give an overview of the highly corrosive impact, which the Artist’s Resale Royalty (ARR) has had, and is having on Australia’s Art market. The impact of ARR also appears to have had an entirely adverse reaction on the UK’s Art Market; with trade in a large proportion of valuable secondary market Art works now, quite obviously, taking flight to places like New York, Switzerland and Miami. Below, as you will see, many reputable, and governmental sources have been cited. Due to the implementation of this scheme, we, in Australia, have sadly seen our indigenous Art sector virtually wither away right in front of our eyes since the ARR was introduced back in 2010.

I’m an Australian Artist, I’m not being paid to write this, and the below is an honest appraisal of what we are facing here due to the ARR, and it is written based on my personal experience, and on factual publicly available information.
This article powerfully and persuasively puts the case for taking an urgent look at a scheme which, however well-intentioned its implementation may have been, appears to be in need of careful reappraisal.

To read this article in full, click here

Sunday, 28 June 2015

Web-only art auctions: how will they work?

"Goodman and de Pury launch web-only auctions with promises to keep down fees" is the title of a piece of news from Roland Arkell, writing for the Antiques Trade Gazette ("the weekly bible of the fine arts and antiques industry"), here. According to this piece, in relevant part:
Two senior members of the international auctioneering profession launch separate online-only ventures this week. Tim Goodman and Simon de Pury are embracing the digital revolution, looking to challenge a centuries-old business model with a footloose approach to selling art and antiques at auction.

Goodman's Fine Art Bourse (FAB) hopes to gain traction in the market via an innovative pricing model. Meanwhile de Pury's eponymously titled firm is promising to reduce buyer's fees to 15%.

The headline statistic at FAB is that they will charge vendor's and buyer's fees of just 5% with a 72-hour packing and shipping service - so often a barrier to entry for bidding online - 'free' for both buyers and sellers. They add that transaction charges will be exempt of sales taxes or artist resale royalties, as sales are processed through headquarters in Hong Kong.

However, the devil is in the detail. Alongside the 5% cut, consigners and purchasers will each be billed an additional fixed fee to cover other charges. The 'fixed lot selling fee' of $330 applies for items estimated up to $100,000 and $1000 for items estimated at over $100,000. This covers collection, storage and photography while the 'fixed lot buying fee' at the same rates pays for packing, shipping and delivery.

Sellers will also responsible for paying insurance costs of 1%.  ... the pricing model is designed to reward sellers of higher-priced items, but at lower thresholds it is less attractive.
Goodman believes the traditional auction business model - one where an auction house can take proceeds of up to 50% from the sale of a work of art - is no longer sustainable.

"Something has to give. All we have done is apply digital technology to some of the good old ways and cut costs," he says.  ..."
It will be fascinating to see whether and, if so, how these two new-technology approaches will catch with purchasers who are in many cases both traditional in outlook and idiosyncratic in their habits. Will they take business from the well-established auction houses or will they create and develop new business? And, from a lawyer's point of view, it would be good to know a bit about choice of law and forum for the settlement of any disputes that might arise from the use of these services.

Thanks go to John Walker for drawing my attention to this development.

Friday, 5 June 2015

Dammed if you do, damned if you don't: are sculptors worth more than scalers?

"Hoover Dam artist wins $1.3 million in copyright lawsuit" is the striking headline of an article by Henry Brean in the Las Vegas Review Journal, here. According to the author:
"An artist has won almost $1.35 million in a lawsuit over a sculpture commemorating workers who were paid $5 per day to risk their lives during the construction of Hoover Dam. A jury in Las Vegas federal court ruled last month in favor of artist Steven Liguori, creator of the bronze statue known as the “High Scaler” at Hoover Dam.

In 2011, Liguori sued Bert Hansen, longtime owner and operator of the Hoover Dam Snacketeria and the High Scaler Cafe at the dam, after the artist said he was cheated out of royalty payments and his work was used without permission for merchandise and marketing. According to the lawsuit, Hansen commissioned Liguori to create “High Scaler” for a $166,000 fee and a share of the proceeds from merchandise based on the sculpture as well as the artist’s other dam-related creations.

U.S. District Judge George Foley ordered Hansen to pay Liguori $1.2 million for breaching their agreement and $150,000 in other damages.

The sculpture at the center of the legal dispute is modeled on a photograph of a high scaler, a special breed of Hoover Dam laborer willing to clear loose rock from the walls of Black Canyon while dangling from ropes tied to clifftop eye bolts.

“They were the celebrity laborers on the dam,” said Dennis McBride, director of the Nevada State Museum at the Springs Preserve and a leading Hoover Dam historian. “They’d be sitting in their bosun’s chairs, and over the side they went.”

...  The Las Vegas law firm Hutchison &Steffen, which represented Liguori, announced the final judgment in the lawsuit Thursday. “A jury of his peers found that he just wasn’t treated fairly,” Hutchison &Steffen partner Todd Moody said of Liguori in a written statement. “Not only did they breach the contract they had with him, they also infringed on the copyright he had. And to be awarded the highest statutory amount was kind of the icing on the cake.” ...".
Damages for breach of contract and copyright infringement are nothing new and, by the standards of litigation in the United States today -- especially when compared with the massive damages awarded by juries for patent infringement in the same jurisdiction -- $1,3 million seems almost trivial. However, the juxtaposition of that sum against "$ 5 an hour" makes it sound unfairly large.  There is also the implication that it's somehow unfair for an artist to gain more financially from his art than is paid to laborers who risk life and limb while dangling from ropes, though the truth of the matter is that the supply of monumental sculptors is far more limited than the availability of high scalers, a factor that is inevitably going to be reflected in the contract terms offered to Liguori in the first place.

Friday, 29 May 2015

US returns looted art to Italy

This week saw the return by the United States of 26 pieces of art to Italy. Each work had been separately looted and subsequently smuggled out of Italy and into the US.

A Repatriation Ceremony was held at the US Embassy in Rome to celebrate the return of the pieces to Italy. The ceremony was a culmination of a lengthy investigation carried out collaboratively between the US Homeland Security Investigations (HSI) and the Carabinieri Tutela Patrimonio Culturale (TPC).

In his speech at the Ceremony, US Ambassador to Italy, John R. Phillips, noted that:
"Italy is blessed with a rich cultural legacy and therefore cursed to suffer the pillaging of important cultural artifacts. The collaboration between agents from HSI and investigators from the TPC has borne fruit in returning some important artifacts to their rightful home in Italy. 
The plundering of historical and cultural artifacts is among the oldest forms of cross-border organized crime. INTERPOL estimates that the illicit trading in cultural property produces more than $9 billion in profits each year – only human trafficking, narcotics and weapons trades generate more illicit revenue. 
The crime may be ancient, but the perpetrators are very modern. The use of the Internet has provided these criminals the ability to acquire, transport, advertise and sell valuable cultural property swiftly, easily and stealthily and while making it easier to evade detection by law enforcement agencies. 
Fortunately, the customs laws of the United States allows agencies such as HSI and CBP the ability to seize, forfeit and ultimately return cultural property that is brought into the United States illegally." 
Some of the artworks that were returned include:

Sleeping Beauty, a 1,800 year-old, ancient Roman marble sarcophagus lid of sleeping Ariadne, which investigation revealed was smuggled out of Italy. HSI New York special agents seized the sarcophagus lid with a warrant issued from the Eastern District of New York.

A 5th century B.C. Etruscan black figured Kalpis, which is believed to have been looted in Italy and smuggled into the United States in 1981. After an investigation, our HSI office in Cleveland, Ohio, seized the Kalpis.

A 5th century B.C. red-figured Attic Volute Krater attributed to the Methyse Painter. This Kalpis was seized by HSI St. Paul, Minnesota.

A 17th century Venetian bronze breech-loading gun, which was seized by CBP officers in Boston as it was being smuggled into the United States. After an HSI Boston investigation, the cannon was successfully forfeited.

Reportedly, no criminal charges have been filed in relation to any of returned artworks since, in some cases, the statute of limitations on any crimes would have expired, and, in others, the paper trail for the piece's import into the US was too difficult to reconstruct. In addition, these pieces represent but a fraction of the art currently circulating on the black market. Nonetheless, as Phillips stated "every victory, every piece that is returned, every bit of cultural history that can be restored to its rightful home is a measure of progress."

Source: The New York Times, 26 May 2015

Tuesday, 19 May 2015

Replica of Old Summer Palace opens despite potential IP infringement claim by Chinese authorities

A full-scale replica of Beijing’s Old Summer Palace has opened to tourists at Hengdian World Studios, a giant film studio located in Zhejiang Province also known as “Chinawood”, amidst threats of legal action by the original Old Summer Palace's administrative office "if the replica infringed intellectual property rights".

Known in Chinese as Yuánmíngyuán (the Gardens of Perfect Brightness), and originally called the Imperial Gardens, the Old Summer Palace in Beijing was destroyed in 1860 during the Second Opium War on the orders of Lord Elgin (who, incidentally, was the son of the Lord Elgin of Elgin Marbles fame).

In a written statement sent to Xinhua News Agency, the Old Summer Palace's administrative office said the complex of pavilions and gardens where the Qing Dynasty emperors resided (the Forbidden City was used for formal ceremonies) is "unique and cannot by replicated. The construction and development of the site should be planned by authoritative national organizations, and any replication of it should reach certain standards."

An aerial view of the replica Old Summer Palace (Photo: AP)
The office offered no further explanation as to how its intellectual property rights might be infringed. Xu Xinming, chief lawyer at the China Intellectual Property Lawyers association, dismissed the threat, commenting that China's intellectual property law only covers 50 years from when a work has been completed, but in any case "the original Old Summer Palace has been destroyed and the replica has nothing to do with intellectual property rights."

Whilst the threat of legal action appears to hold little weight, the incident has led to a wider debate within China about the merits of the project, with Xinhua saying that many have accused Hengdian World Studios, the world's largest outdoor film studio, of "bastardizing a site associated with patriotism."

Visitors leave after a multimedia show at Hengdian's replica Old Summer Palace (Photo: AP)

Hengdian’s studio sets include replicas of the Forbidden City and the Tian'anmen Gate Tower, and Chinese blockbusters such as Zhang Yimou’s 2002 movie “Hero” have been filmed at Hengdian. Xu Wenrong of the Hengdian Group, the conglomerate behind the project, stated: “The Chinese government has never agreed to rebuild the site because its destruction is a national shame. But generations of people have all heard about the garden, they haven't been there and they expect it to be rebuilt."

He said it was natural to charge an entrance fee to an attraction, but asserted that the replica had been built "for the benefit of the people and future generations" rather than to make money. A press officer from Beijing's cultural relics bureau responded that the replica had been built for the purposes of filmmaking and tourism. "It's fully commercial and can hardly be regarded as a decent replica because it's not situated within the Old Summer Palace."

The destruction of the Old Summer Palace is still a very sensitive issue in China today, and is frequently referenced in patriotic education campaigns. The Chinese government continues to put a lot of effort into locating and recovering the 1.5 million cultural relics it estimates were looted from the palace by British and French troops in 1860, and by an allied force including troops from the United States, Russia and Britain in 1900.

Monday, 18 May 2015

Romero Britto sues Apple over copyright infringement

Apple was recently sued by the Pop artist Romero Britto over its "Start something new" campaign for using an artwork from the design duo Craig & Karl, that allegedly copies the design style which Britto is famous for. 

A screenshot of Apple's website of the "Start something new" campaign

Britto became aware of the copycat art when Apple launched its worldwide promotional campaign, but he discovered that the two artists had been systematically making art similar to his own for years.

Excerpt of the comparison offered in Britto's complaint

Britto is a Miami-based pop artist, internationally well-known, who works with several brands on advertising campaigns, using bright colours, strong lines and simple designs. According to his complaint, Britto's specific trade dress is "strong, fanciful, non-functional, and inherently distinctive. In addition, the Britto Trade Dress has acquired distinctiveness as a result of uninterrupted promotion and sale of Britto brand products and services".    

The lawsuit was recently filed in the US District Court, Southern District of Florida, against Apple and the graphic design duo for trade dress infringement, trade dress dilution, as well as unfair competition and copyright infringement.

Britto accused the two artists of violating the Britto trade dress and Apple for commercially exploiting the allegedly infringing image. Indeed, Apple uses Craig & Karl's image – representing a patchwork hand on a bright yellow background on one of its iPads in the graphics – to promote its new advertising campaign, describing how this image was realized on iPad Air 2 using IOS apps.

Further to Apple's massive advertising campaign and to the use of Craig & Karl's image in retail stores, many people contacted Britto under the false impression that he had created the infringing artwork. Britto received many incorrect congratulations on his new deal with Apple, as well as messages of dismay from business partners, and inquiries from collectors wanting to know if the image displayed in the Apple stores or on the Apple website came from him.

Britto contacted Apple asking the company to cease using the infringing image, but he did not receive a response. Therefore, he decided to file a lawsuit, asking for an injunction preventing Apple from using the infringing artwork and Craig & Karl from producing or using other copycat artworks, along with damages and attorneys' fees. 

The Reach of the Lens

One of The Neighbors
Huge thanks to Molly Torsen Stech for the following guest post on the Svenson saga. For those not aware of this US case it is what might have happened in Rear Window if Jimmy Stewart was an artist.

Molly is a copyright and trade mark policy attorney based in New York City. She recently joined INTA as Editor-in-Chief and is involved in pro bono work for Volunteer Lawyers for the Arts of New York (VLANY). Before moving to New York, she was Counsel in the Office of Policy and International Affairs at the US Copyright Office, where her portfolio included Europe, Russia, Canada, relevant WIPO committees, and the OECD.

On 9 April 2015, an appeals court in New York State decided a controversy that highlights one of the many discrete qualities of photography that challenges current law. Copyright law itself is not implicated; rather, the jurisprudence in question is based in privacy interests. Artist and photographer Arne Svenson was born in 1952 in Santa Monica, California, and has worked in New York City for three decades.  His work is quite varied; the stylistic approach that best captures it is, to my eye, accurately reflected in his biography: “First and foremost in Svenson's practice is to seek out the inner life, the essence, of his subjects, whether they be human, inanimate, or something in between.” If Mr. Svenson was surprised by the litigation, it could well be that the exhibition that prompted the lawsuit was not dramatically different from some of his prior work

In the first half of 2012, Mr. Svenson began photographing people in the apartment building across from his own in Manhattan. The building’s façade is mostly glass, and Mr. Svenson photographed his subjects without their knowledge, although his lens could of course only capture what was viewable in front of various windows facing him. He selected some of these images to comprise an exhibition he called The Neighbors, which was exhibited in galleries in Los Angeles and New York. During the New York exhibition, various subjects of the photographs learned that their images were included in the show and demanded the withdrawal of those works. The artist and gallery agreed to remove some of them, including one where siblings were photographed together (which they presumably agreed to remove based on a potential viewer’s enhanced ability to recognize them together rather than separately).  In an interview in March of this year, Mr. Svenson noted that he shot the photographs “for the tiny nuances of gesture and posture that define who we are, collectively. The subjects are to be seen as representations of humankind, non-identifiable as the actual people photographed.” His purported aim, then, was not to photograph these particular individuals; rather to photograph vignettes of people, generally, in their homes. 

In May 2013, some of the photographs that Mr. Svenson had not removed from the exhibition were shown on television broadcasts, which prompted the lawsuit; plaintiff tenants (and subjects of Mr. Svenson’s photographs) sought damages pursuant to the statutory tort of invasion of privacy, and the common law tort of intentional infliction of emotional distress. The trial court granted the defendant’s cross-motion to dismiss the complaint in August 2013, but the appellate court then granted a preliminary appellate injunction. The New York privacy statute, however, focuses on restricting activities that have “advertising purposes;” and activities “for the purposes of trade.” The appellate court noted that the legislature’s use of the “broad, unqualified terms for advertising and trade purposes, on their face, appear to support plaintiffs’ contention” that the statutory terms should apply across the board to items bought and sold, including artistic photographs. But it found that courts “have refused to adopt a literal construction of these terms because the advertising and trade limitations of the privacy statute were drafted with the First Amendment in mind.” It ultimately granted Mr. Svenson’s cross motion to dismiss the complaint. 

Not to be confused with these
There are several questions raised by this case which were not presented to the court. For example, many art critics note the “painterly” quality of Mr. Svenson’s photographs, likening some of his work to the paintings of John Singer Sargent. Extrapolating from this characterization, would paintings based on his photograph also engender claims of invasion of privacy? In January of this year, a civil court in Antwerp surprisingly (at least to this lawyer) found that a Luc Tuymans painting based on a photograph of a politician infringed the copyright in that photograph. In different jurisdictions, could Mr. Svenson make paintings of his photographs to avoid the privacy claim? In other words, is it the nature of photography itself that is the offender here? Or is it the resultant recognizable likeness of the individual, whether on Panalure paper or canvas? Obviously, New York and Antwerp operate under different laws, but the question of what the offense is – the likeness or the medium – is interesting. Recalling the 2004 UK case Campbell v Mirror Group Newspapers Ltd, I wonder whether Mr. Svenson’s photographs would receive more hostile treatment on the other side of the Atlantic (acknowledging, however, that Ms. Campbell is a celebrity, which certainly distinguishes the cases.) 

Another open question is the relative importance of artistic intent or meaning. In the recent Second Circuit Cariou v. Prince copyright fair use decision, the court emphasized that an artist’s commentary on his own art is not necessarily the key to answering the fair use factors under copyright law, but it spent quite a bit of time remarking on the different genres of audiences that the artists in question tended to attract, and did not provide clear guidance on who the appropriate “observer” is in qualifying the four factors of the fair use doctrine. (“Prince’s work appeals to an entirely different sort of collector than Cariou’s. Certain of the Canal Zone artworks have sold for two million or more dollars. The invitation list for a dinner that Gagosian hosted in conjunction with the opening of the Canal Zone show included a number of the wealthy and famous. . .”) In the Svenson case, the appellate court acknowledges Mr. Svenson’s status as a “renowned fine arts photographer” as a factor that favors protecting his work under the First Amendment, but the court leaves the analysis there, declining to go on to focus on the audiences that his work might reach. Copyright case law and privacy case law may simply part ways on that scale. 

As a last point: none of these struggles of balance between art and privacy are new. The Svenson appellate court, at the opening of its decision, references the renowned 1890 Harvard Law Review article by Samuel D. Warren and Louis D. Brandies, The Right to Privacy. Although it does not specifically cite this passage, I find it relevant, and as appropriate in 2015 as it was in 1890: 

If you may not reproduce a woman's face photographically without her consent, how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination ... [However], it is only the more flagrant breaches of decency and propriety that could in practice be reached [by a right to privacy], and it is not perhaps desirable even to attempt to repress everything which the nicest taste and keenest sense of the respect due to private life would condemn.