Friday, 19 September 2014

Art vs Vandalism

Is defacing a Banksy art or vandalism?

Well, from the US point of view, it is certainly a crime worthy of punishment from anywhere between jail time to fines in the thousands of dollars.

It has, therefore, not been a fruitful year (artistically speaking, or otherwise) for David William Noll, who either has a big issue with Banksy's works or, whose artistic creativity, in defacing Banksy's art and then posting it on YouTube, has not been recognised.

In April this year, American "artist" Noll was charged with a vandalising several Banksy murals in separate incidents in LA and Park City, Utah.

In LA, Noll was charged with felony vandalism for painting over two Banksy works. For those charges, he pled no contest and was given three years of felony probation and 60 days of community service.

Girl on Swing – one of the Banksy works in LA that was vandalised

Around the same time, Noll was also charged with a vandalising two Banksy murals in Park City. After Noll failed to appear for a court hearing to face charges of criminal mischief for defacing those pieces, a warrant for his arrest was issued in August. At that time, it was speculated that, if convicted, Noll faced as many as 15 years in jail.

At the beginning of this week, however, Noll pleaded guilty to defacing the two Park City murals, and, as part of a plea deal, will not face jail time if he pays $13,000 in restoration costs before a November sentencing hearing.

So, could it be said that it is not a crime to paint on a wall if it looks nice/is carried out by a famous artist? But, it is a crime to paint over the works of famous artists? If this is the case, how does this fit together with instances where owners of the walls adorned by Banksy works decide to deface them?The challenges with protecting Banksy works continue to mount, even though it doesn't seem like it's an issue to Banksy.

Source: Associated Press, 16 September 2014

Thursday, 18 September 2014

Wrangling over Rothko

Mark Rothko, Untitled (1961)
At least four years of legal wranglings over the sale of this Mark Rothko painting appear to have come to an end with little to show except substantial legal costs for all parties.

At the heart of the dispute, a confidentiality clause, which is now anything but.

By way of background, back in 2007, Marguerite Hoffman (the Plaintiff) sold this Rothko painting for $17.6 million to David Martinez (Second Defendant), via his company Studio Capital, Inc. (Third Defendant), under the terms of a letter agreement.

The agreement was signed by now defunct New York gallery L&M Arts (First Defendant) acting on behalf of Studio Capital. The relevant clause of the agreement provided that: “[a]ll parties agree to make maximum effort to keep all aspects of this transaction confidential indefinitely. In addition, the buyer agrees not to hang or display the work for six months following receipt of the painting.”

Following the 2007 sale, Studio Capital kept the painting in storage, eventually consigning it to Sotheby’s for sale in 2010. Sotheby’s auctioned the painting on 12 May 2010, and sold it for over $31 million.

Not long after, Hoffman sued L&M, Martinez and Studio Capital for damages for breach of the confidentiality clause of the letter agreement, on the basis that when she sold the Rothko painting privately, she had done so at a substantial discount in exchange for the promise of strict confidentiality, forfeiting the additional millions of dollars that the painting would have brought if sold at public auction.

Earlier this year, a Dallas jury decided that Hoffman had proved her breach of contract claim against L&M, Martinez, and Studio Capital, and awarded compensatory damages of $500,000 – far below the $22.4 million claimed by Hoffman – which the court subsequently slightly increased to $1.2 million.

As a result, the defendants filed motions for judgment as a matter of law. This is a US cause of action which argues that the evidence used to support an issue is legally insufficient and no reasonable jury could find for a party on that issue. [US lawyers: please feel free to correct this very basic summary.] 

Essentially, the court was asked whether:
(i) a reasonable jury could have found that L&M was acting as agent for Studio Capital and Martinez when it entered into the letter agreement, and that, accordingly, Studio Capital and Martinez were bound by the letter agreement;
(ii) a reasonable jury could have found that L&M breached the letter agreement;
(iii) a jury could reasonably have found that L&M’s breach of the confidentiality clause caused Hoffman damages; and
(iv) the damages Hoffman had elected to recover were legally barred under Texas law.
In respect of the first point, Studio Capital and Martinez claimed that there was no evidence that they ever communicated to L&M or to Hoffman any intent to confer any authority on L&M to enter into the letter agreement on their behalf, and that the undisputed evidence was that this did not occur. (Rather, Studio Capital and Martinez argued, L&M did not act as their agent, but, consistent with art industry practice, as an intermediary, purchasing the Rothko painting from Hoffman and then reselling it to them.)

On the second point, L&M argued that no reasonable jury could have found that the goal of the confidentiality clause was not met. And, on the third, L&M maintained that a reasonable jury could not have found that Hoffman suffered any damages as a result of their breach of the confidentiality clause because she had failed to adduce sufficient evidence of causation.

The final point was [from my point of view!] a complicated issue of the type of damages allowed for the breach of a contract under Texas law.

Earlier this month, the US District Court for the Northern District of Texas (Dallas Division) handed down its ruling on the motions.

Unfortunately for Hoffman, the court agreed with Studio Capital and Martinez. It found that there wasn't legally sufficient evidence for a reasonable jury to have found that Studio Capital or Martinez conferred any actual or apparent authority on L&M to enter into the letter agreement on their behalf. The court, therefore, went on to dismiss the action against them with prejudice.

The court did find that a reasonable jury could have found that L&M breached the confidentiality clause, and, further, that L&M’s breach of the confidentiality clause caused Hoffman's damages in the form of the lost benefit of her bargain. However, as a further blow to Hoffman, even though the jury had offered Hoffman two measures of damages and the judge had ultimately decided the appropriate sum of damages to be awarded, the court held that she was not entitled to recover under the measure of damages that she had elected.

The result of this ruling is that the Hoffman's claim against Studio Capital and Martinez is effectively over and she is barred from filing another case against them on the same claim. Moreover, Hoffman must file a new motion against L&M to alter or amend the judgment in order for the court to award her damages under an alternative measure of damages.

Four year of litigation and no additional millions to show for it....distressing.

Wednesday, 17 September 2014

More support for free access to UK museums and galleries

The government has announced that it will extend the VAT refund scheme which helps to support museums and galleries in providing free access to the public.

Many of the UK’s major museums and galleries allow free entry to their permanent collections. But this creates a VAT problem.

The National Gallery of Scotland

 Museums and galleries must pay for new exhibits and for the services they need to look after their collections (such as climate control or the upkeep of the buildings in which the collection is housed) and they will usually need to pay VAT on those services. Normally, a business can reclaim VAT which it incurs, so long as that VAT is related to the business’s own onwards supply to its customers.

But providing free access to the public is not regarded as a business activity for VAT purposes. Under normal VAT rules, this would mean that any VAT paid on services which relate to the exhibits on permanent display could not be recovered. So in effect the costs of many goods and services purchased by museums and galleries would be higher by 20% (the standard VAT rate) than they would be if the museum or gallery charged for entrance.

However, since the UK government wants to promote free access, a special VAT rule was introduced in 2001 whereby certain specified museums and galleries (including London’s British Museum, the National Museums and Galleries of Northern Ireland and the National Galleries of Scotland) are allowed to reclaim such VAT. According to the government’s website, this scheme provides around £60 million of support for free access annually.

The recently announced extension to the scheme will mean that the V&A Museum of Design, Dundee and the University of Leicester’s arts centre, Embrace Arts, will be able to take advantage of the VAT refund rules. 

Monday, 8 September 2014

Who owns art? Copyright, inheritance and Vivian Maier

Vivian Maier, self portrait New York c1950s
via Wikipedia
She has been compared to Cartier-Bresson. She captured the life on the streets of Chicago and New York for over 40 years and she died penniless and without a will. It is the lack of a will rather than her artistic legacy which has recently been hitting the headlines and threatens to prevent the dissemination of her art to the world that she spent so long photographing.

Vivian Maier appears to have two male heirs, both French and both first cousins once removed. One of these heirs, Sylvain Jaussaud, has transferred their rights to John Maloof, who was one of the first to discover Maier’s work and has since bought the majority of her negatives as well as helping to create a film which celebrates her work and its discovery. 

The second heir was identified by a photographer/lawyer, David Deal, who believed that Maier’s legacy was being misappropriated and sought to track down any additional relatives who might have a claim. He convinced a second French cousin, Francis Baille, to seek legal heirship in the US courts with Deal as his legal representative.

As all Art and Artifice readers are no doubt aware, there is a fundamental distinction between a work and the copyright in a work. One does not necessarily go with the other. That said, in the UK, at least, if you inherit a work of art, the copyright is deemed to go with it unless there is a contrary intention expressed elsewhere in the will. It is this distinction that is causing the problem, Maloof is the lawful owner of many of the physical photographs and negatives but is not necessarily the owner of the copyright.

Whether or not Maloof is the owner depends on (1) the agreement which he struck with Jaussaud which sounds from the reports like it was a full assignment of rights, and (2) whether Baille has a claim to full or partial ownership of the rights in the photographs as well.

There is now a court case in Chicago to determine who owns the rights.

Unfortunately, whilst the case is working its way through the courts, it will be very difficult to see Maier’s photographs. The Cook County Public Administrator department reportedly sent letters to put all interested parties, including galleries exhibiting Maier’s work, on notice of the rights issue. Any dealing in the photographs is likely to be a challenge until this is resolved.

In the meantime, I have some queries for my US colleagues:

1 A particular quote from the New York Times article which has been circulating around the internet states that: “Under federal copyright law, owning a photograph’s negative or a print is distinct from owning the copyright itself. The copyright owner controls whether images can be reproduced and sold.” That is quite surprising. I can see that copyright could stop a reproduction (and by extension a sale following a reproduction) but how copyright can stop the sale of the photograph or negative itself. There is a clear distinction between the object and the copyright. But if only the object is sold and the copy (i.e. print) was made by Maier (the artist) what is to stop the resale?

2 My understanding is that until the photographs are registered, it is not possible to get statutory damages or legal fees for infringement of the photographs. Is that correct? If so, what will happen if the copyright in the photographs which have been registered by Maloof is found to be owned (or partially owned) by Baille?

Any light you can shed on this and the case in general would be much appreciated.

You can read much more about the background to this story in The New York Times (which takes a more Maloof friendly approach) and in The Independent (which is a bit more suspicious of Maloof's motives).

Sunday, 31 August 2014

Copyright and technology: can you graphically illustrate the relationship? A competition

This blogger's friend and colleague Eleonora Rosati (right, as usual ...) is in action on 1 October 2014, where she is hosting a one-day Copyright and Technology conference in the London offices of ReedSmith LLP.  Registration details can be accessed on this post, which had the misfortune to be promulgated on a public holiday when all respectable IP enthusiasts were enjoying a day away from their screens, indulging in the pleasures that only a day off work can bring.  But what, you may be wondering, does this have to do with the concepts of art and artifice ...?

The explanation is not hard to find.  Eleonora has a complimentary ticket (worth £239) which she will be pleased to bestow upon the winner of a contest which is open solely to full-time students/trainees/apprentices, regardless of their age. This competition requires aspiring entrants to create an artistic work, eg a photograph or (if you find it easier) a work of architecture, that illustrates in the best and/or most humorous and/or saddest etc aspect of the relationship between copyright and technology.

Once you are happy with your "own intellectual creation", says Eleonora, you should email it to, but do so by Monday 8 September 11 pm GMT.

The best entries will be published on the IPKat weblog, so competitors are naturally asked to provide an irrevocable gratuitous and non-exclusive licence when submitting their work.

Friday, 29 August 2014

Street Art: Not Just Up for Grabs

In a recent post Jeremy discussed the copyright infringement case brought against American Eagle Outfitters by street artist, AholSniffsGlue. The artist alleged that the clothing company placed models in front of the artist's murals and then used those photos to achieve a certain look in its summer ad campaign by prominently featuring the artist's work in its billboards, window displays, website, and social media. As many who have commented on this case noted, American Eagle made a particularly egregious use of the artist's work by featuring a photograph of a white, clean cut looking model standing in front of one of the artist's murals holding a can of spray paint, thus implying that the mural was created by the model and not by the Cuban-American artist.

On the heels of this case comes two cases filed on August 19, 2014 by renowned artist, Maya Hayuk, regarding unauthorized reproduction of her mural, Chem Trails NYC, a painting which was located on the Bowery Mural Wall, a well-known, curated outdoor exhibition space in New York City. One case was brought against singer Sara Bareilles, as well as her record company, its parent company, and her publicity and promotion companies.  The second lawsuit is against fashion giant, Coach. The cases were filed in the U.S. District Court for the Southern District of New York (cause numbers 14-cv-06668-VEC and 14-cv-06659-LAK).

The complaint against Coach is not yet available, but according to the complaint against Bareilles, Hayuk painted the mural in the NYC location in February 2014 and also registered the copyright in the work at that time.  (A savvy move, as U.S. law requires timely copyright registration to qualify for statutory damages and a plaintiff must have a copyright registration to file a lawsuit for infringement.)  The artist alleges that Bareilles and the other defendants used her mural, without permission, in the promotion of Bareilles and her upcoming "Little Black Dress" tour. Images in Hayuk's complaint show Bareilles, a small figure in a black dress, posed in front of the mural, and show that such images were used extensively to the promote the singer, and used in her online and social media promotion. Hayuk seeks preliminary and permanent injunction against Bareilles's continued use of her painting as well as damages in either the form of statutory damages (up to $150,000 against each defendant) or an award of profits attributable to the infringement, as well as attorney fees.

It is, at least in my opinion, alarming that large companies with ample legal resources have (allegedly) approached the work of these artists with such recklessness, (allegedly) commercially exploiting these paintings without permission to achieve a certain look in ad campaigns. Perhaps these lawsuits will serve as a cautionary tale that publicly situated murals are not just up for grabs.

Wednesday, 27 August 2014

Comic art, creativity and the law: a new title

Comic Art, Creativity And The Law, by Marc H. Greenberg (Professor of Law, Golden Gate University School of Law, US), has been recently published by Anglo-American publishing house Edward Elgar as part of its ever-increasing IP list, as part of its Law and Entrepreneurship series. According to the publisher:
The characters and stories found in comic art play a dominant role in contemporary popular culture throughout the world. In this first-of-its-kind work, Comic Art, Creativity and the Law examines how law and legal doctrine shapes the creative process as applied to comic art.

The book examines the impact of contract law, copyright law (including termination rights, parody and ownership of characters), tax law and obscenity law has on the creative process. It considers how these laws enhance and constrain the process of creating comic art by examining the effect their often inconsistent and incoherent application has had on the lives of creators, retailers and readers of comic art. It uniquely explains the disparate results in two key comic book parody cases, the Winter Brothers case and the Air Pirates case, offering an explanation for the seemingly inconsistent results in those cases. Finally, it offers a detailed discussion and analysis of the history and operation of the ‘work for hire’ doctrine in copyright law and its effect on comic art creators.

Designed for academics, practitioners, students and fans of comic art, the book offers proposals for changes in those laws that constrain the creative process, as well as a glimpse into the future of comic art and the law.
This is an enjoyable and thoughtful book, part legal analysis, part history, part speculation and part personal reflection. The impact of the law on the fruits of creation is easier to assess than its impact on those aspects of creativity which it may deter or stifle, and the use of comic art as a powerful form of parody, satire or social comment keeps returning it to the point at which freedom of expression meets countervailing rights and interests -- but this book is neither repetitive nor preachy, even though Marc Greenberg never leaves it to his readers to guess his thoughts and feelings.

Apart from Justin Hughes' encomium, there is no mention of the words "United" and "States" in conjunction with one another and, though there is the occasional reference to some non-US issue, the text is unashamedly US focused, sparing just six pages towards the end for an acknowledgement of the Franco-Belgian and Japanese traditions.  This is not a crime, of course, but it would be appreciated if publishers were to flag single-jurisdictional works as being so, in order that readers and potential purchasers should not be encouraged to think of the work as having some sort of international significance.  For the past 20 years, entrepreneurship in fields like comic art and, dare one say it, creativity, has been looking increasingly to the internet for commercial routes to exploitation, and the internet is not coterminous with the borders of the United States. It is hoped that future editions of this worthwhile and enjoyable book will either be encouraged to spread their focus a little wider or will clearly indicate that they don't.

There's one final, trivial quibble: the illustration on the publisher's website, reproduced above, creates the impression that this book is thicker than it actually is. Following xix pages of preliminaries, the text -- inclusive of the index -- totals just 199 pages.

Bibliographic data: hardback ISBN 978 1 78195 492 8; ebook ISBN 978 1 78195 493 5. Hardback price£70 (online from the publisher, £63). Web page here.

Tuesday, 19 August 2014

The Eagle swoops, the Eye Droops: graffiti goes to court

"Graffiti copyright battles pitch artists against advertisers" is the title of a fascinating piece by this blogger's friend Enrico Bonadio (Senior Lecturer in Law, City University, London), where he teaches Intellectual Property Law and EU Law. Enrico's piece reads as follows, in relevant part (minus links):
" ... A legal row between Miami-based street artist Ahol Sniffs Glue (“Ahol” – or David Anasagasti to his mother) and the clothing retailer American Eagle Outfitters is the latest instance of a growing number of spats. The artist recently sued for copyright infringement in a US federal court after American Eagle began using his work in their promotional material.

Ahol is known for his signature “droopy eyes”, variants of which appear all over Miami. Earlier this year, when looking to support its spring collection advertising with an eye-catching urban touch, American Eagle started using Ahol’s artwork. Droopy eyes popped up on its web adverts, billboards and in-store displays worldwide as well as on Instagram, YouTube and in storefronts across the world. At an opening in Colombia, the store even allegedly hired local street artists to recreate Ahol’s original, complete with American Eagle logo.

One of the images the multinational company used on its billboards depicts a male model wearing American Eagle clothes while standing in front of a legal mural by Ahol named Ocean Grown, after a gallery that commissioned and hosts the work. In the most brazen touch of all, the model carries a spray paint can. Clearly the advertising is not just looking to appropriate the visual effect of the nice background; it’s attempting to grab some of street art’s illicit cool by implying the model had painted the work himself.

Paintings on walls are no different from other artistic works – and they therefore satisfy the requirements for copyright protection, including originality. This it particularly true of legal graffiti works such as the ones created by Ahol in Miami and (mis)appropriated by American Eagle. It would make no sense to deny copyright protection to works that have been legally commissioned.

But still, even illegal graffiti deserves copyright protection. Possible wrongdoings committed by street artists (trespass, vandalism and so on) concern the process through which the works are done: painting on a wall or train, for instance, without the authorisation of the property owner. ...

Street artists thus might find in copyright law an ally, a friend that can help them in giving added value to their works and reacting to “art stealers” and (why not?) making money out of their job, and their passion".
Copyright should be the ally of every artist, and the fact that the graffiti constitutes a criminal act of vandalism or unlawful interference with property should not affect that.  But there is a sense in which unauthorised and uncommissioned graffiti is somehow "public" property too. One can understand why the owner of the wall or other medium (train, truck or whatever) might feel entitled to indulge in some exploitation of a work, commercial or otherwise, if it has been foist upon him against his will -- but why should a third party such as the proprietor of a garment brand be so entitled?

Thanks are due to Chris Torrero for supplying the relevant link.

Wednesday, 13 August 2014

New York art dealer denied tax relief over Beltracchi fake

In 2011, the notorious forger Wolfgang Beltracchi was sentenced to six years in prison for creating and selling “unknown” works, supposedly by various master artists, to unsuspecting art dealers.

One of these dealers was New York based Richard Feigen. The New York Law Journal (NYLJ) reports that in 2004 Feigen sold a painting which he believed was by the Surrealist painter Max Ernst for US$2.5 million. Having sold the piece, the dealer then duly paid sales tax of US$215,625 to the tax authorities.

One of Beltracchi's fake Max Ernst paintings
When the Beltracchi scandal broke and Feigen found that the Ernst was a skilful fake, he bought the painting back from its new owner at the same price for which he had sold it. In turn, the French gallery from which Feigen had bought the painting gave the dealer back the same sum he himself had paid.

However, this still left Feigen short of the US$215,625 sales tax that he had paid in respect of the aborted sale of the Ernst. So in June 2011, following Beltracchi’s trial, Feigen applied for a credit against, or refund of, that sum.

Unfortunately for the dealer, such refunds are permitted only within a three year window and that window had expired, at the latest, in early 2008. “Public policy does not favour the granting of refunds beyond the allowed period of time,” the tax authorities stated. “Anything less than this degree of certainty would make the financial operation of government difficult, if not impossible.”

It is entirely understandable that such limits should be applied in the majority of cases. But in a case where the taxpayer himself was subject to fraud and took prompt steps to correct his tax position once that fraud became apparent, the result appears harsh. 

“I can’t imagine that New York would want to collect a sales tax on a sale that was cancelled,” the NYLJ reports Feigen saying. “I can’t imagine how they can justify collecting tax on a non-sale.”

Given the scale of the art market in New York, this ruling could raise the suggestion that when buying art work the seller be contractually placed on risk for any resulting sales tax as well as for the value of the work itself, in the event that the work is not what it seems.

Read more here.  

Wednesday, 6 August 2014

Arts Council England strips museums of their Accreditation

The Arts Council England (ACE), through its Accreditation Scheme, sets nationally agreed standards for museums in the UK.

According to the ACE:
"Accreditation is the UK standard for museums and galleries. It defines good practice and identifies agreed standards, thereby encouraging development. It is a baseline quality standard that helps guide museums to be the best they can be, for current and future users." 
"Accreditation enables museums and governing bodies to assess their current performance, and it supports them in planning and developing their services." 
Unfortunately for two local museums, it seems that they were not up to standard. At the beginning of this month, the ACE stripped both the Northampton Museum and Art Gallery and the Abington Park Museum of their Accreditation

The Museums Association Journal explains:
Arts Council England (ACE) announced today that it has stripped Northampton Museums Service of Accreditation following the disposal of the ancient Egyptian statue Sekhemka.
Northampton Borough Council controversially sold the statue for £15.8m at auction last month and will take home £8m of the proceeds. The remaining share will go to Lord Northampton, whose ancestors donated the statue to the museum. 
Following a hearing last week, the arts council’s Accreditation panel found that the process leading up to the sale and the sale itself were in contravention of the Accreditation standard.
In a statement today, the arts council said: “As a result of this non-compliance the two museums managed by Northampton Borough Council, Northampton Museum and Art Gallery and Abington Park Museum, have been removed from the Accreditation scheme, effective as of 1 August 2014, and excluded from future participation for a minimum period of five years, until at least August 2019.” 
It is reported that the museums were warned that sale of the statue could lead to them losing their Accreditation status. There were also protests outside Christie's prior to the sale calling for the statue to be returned to Egypt if the Council did not want it. Nevertheless, they went ahead and sold it.

The loss of the ACE Accreditation is likely to affect the museums' ability to apply for future grants and funding. It remains to be seen whether it was worth it.

Source: The Museums Association, 1 August 2014, BBC News 1 August 2014