Sunday, 31 October 2010

When is a photo not a photo?

Last Friday took me to the V&A’s Friday Late which was dedicated to their current exhibition – Shadow Catchers or Camera-less photography. It was the usual fun and fascinating evening that I have come to expect from Friday Lates including a Q&A with Martin Barnes, curator of photography at the V&A.

The world of photography has transformed in the last ten years. The advent of digital photography and, in particular, the fact that most mobile phones now include a digital camera, means that millions more photos enter the world on a daily basis (although few of these photos are ultimately printed).

The concept of digital photography was, to my knowledge, not even conceived when the Copyright Designs and Patents Act was drafted yet the definition was cleverly crafted to include all possible variants:

"Photograph" means

a recording of light or other radiation

on any medium on which an image is produced or

from which an image may by any means be produced

and which is not part of a film.

A little long winded perhaps. Almost poetic. It covers all the images in the exhibition and elsewhere in the gallery. Even those the photographic community would not necessarily deem a photograph such as an x-ray of a jacket or the heat impression from some lace gloves on chemically treated paper. It is worth remembering that what we consider to be a sculpture, building, photograph etc may not necessarily marry up with what the stereotype associated with that word conjures up.

I tried and failed to think of an example of something we might consider to be a photograph but fails to fall within the CDPA definition. If any readers have any good examples, please comment below.

Prison Art: Russia 1948-1986

For those of you who have been interested in the recent Russian themes explored on A&A, you may want to take yourself down to the Russian Criminal Tattoo Archive exhibition at 4 Wilkes Street in London’s East End. The exhibition, which opened yesterday, shows around 120 of the 3000 plus original ink drawings made by Russian prison attendant Danzig Baldaev. The drawings date between 1948-1986 when Baldaev worked as a warden in Kresty, an infamous Leningrad prison. Baldaev himself was an ‘orphan’ of the soviet system; his father having been denounced as an enemy of the people, Baldaev grew up in a Russian children’s home.

Having published three volumes of Baldaev's drawings in the Russian Criminal Tattoo Encyclopaedia series, Murray and Sorrell now launch their first exhibition, giving the public a rare chance to see the original drawings for the first time. The public may never have had the chance to see these works had Damon Murray and Stephen Sorrell of the design publishers Fuel not heard about it from a Russian literary agent. Upon hearing about the works they visited his widow in St Petersburg, where they found thousands of drawings of inmates tattoos stacked in bin liners. Baldaev’s widow did not know what to do with them, but she was concerned that her family would throw them out when she died. Murray and Sorrell bought them off her and published what became a hugely popular book series entitled the Russian Criminal Tattoo Encyclopaedia.

The tattoos formed a service record of a criminal's transgressions and whilst the KGB knew about Baldaev's project, surprisingly they sanctioned it, acknowledging the value of information recorded about a prisoner on their bodies. Each tattoo has a unique meaning: skulls denote a criminal authority; a scorpion a bodyguard; a cat a thief; crosses on knuckles show the number of times the inmate had been to prison; and a shoulder insignia marked solitary confinement. But tattoos also told a political story; a swastika was not indicative that the wearer was a fascist supporter, but instead represented a refusal to accept the rules of prison society, whilst a larger tattoo of manacled hands holding the Kremlin ironically refers to how the State is founded on corruption and signifies a "don" or boss.

The accompanying photographs by Sergei Vasiliev act as an important counterpart to Baldaev's drawings and allow us a glimpse into this compelling and extraordinary world. These incredible images allow the viewer a rare opportunity to delve into the ever-changing folklore of the Russian criminal underworld.

Don’t miss this opportunity to see this wonderfully unique and informative exhibition.

Friday, 29 October 2010

One Man’s Rubbish is Another’s Treasure

Hackney Council in East London are seeking to paint over a piece of street art (to be precise a 3.5m (12ft) rabbit on the side of a recording studio) by internationally renowned artist ROA. The owners of the building had originally granted ROA permission to create the piece, but they have been served with a removal notice by Hackney Council, warning that unless they "remove or obliterate the graffiti" within 14 days, a council contractor will paint over the wall and charge them for the service.

Hackney Council seemed to have deemed the work a ‘blight’ on the local environment; news to local residents and the building owner who have a lot of positive things to say about the work. By locals it has been hailed as something which adds to the local area.

This is not an unfamiliar story. In 2007 a Banksy piece showing a monkey preparing to blow up a bunch of bananas at Waterloo station in London was painted over by staff. In October 2008 Westminster city council removed a mural from Newman Street in central London after the deputy council leader, Robert Davis, said keeping it would be "condoning" graffiti. Last year Hackney was criticised after it painted over a Banksy cartoon of the royal family that had been present on a block of flats for over eight years.

So who is ROA?

ROA is a secretive Belgian street artist who has risen to prominence over the last two years after. He began by painting animal forms in a disused warehouse close to his native Ghent, Belgium. His work can now be seen in across the USA, Europe and as far away as Brazil. His first solo show in the UK was staged in 2010 at the Pure Evil gallery in Shoreditch, which specialises in Street Art.

Does Anybody Think it Should Stay?

Mark Rigney, who runs a walking tour featuring ROA's work, said: "Hackney council should realise that this art movement is a huge tourist attraction and people are crossing London and the globe to see the art upon the streets of Hackney, Islington and Tower Hamlets – areas which are often referred to as the epicentre for London street art."

Charley Edwards, who runs the Pure Evil gallery, said that the ROA show “was the most successful show we've ever had in terms of people coming. You could hear the gasps as people walked in and saw his pieces.”

Julia Craik, managing director of Premises music studios and cafe says "If it was some horrible graffiti then they'd have a point, but it's a thing of beauty in Hackney Road, which is not the greatest area in the world. Among the bingo halls and shops you've got a really nice artwork, which really adds something."

An interesting comment, which begs the question: should the local authority be nominated as overseer as to what constitutes ‘good street art’ versus ‘bad graffiti’? A question that Hackney Council seems to tackle head on Hackney: "The graffiti ... is clearly visible from the road and, whilst it is not the council's position to make a judgment call on whether graffiti is art or not, our task is to keep Hackney's streets clean.

"As part of our enforcement policy, which is informed by Defra guidance, we initially contacted the property owner on an informal basis and offered advice, including what they needed to do if they wished to retain the piece of graffiti. This was followed by a letter and another visit to the property before the removal notice was served. However, we are currently holding our enforcement action to allow the owner a further opportunity to seek planning advice about retaining the piece."

Other councils have adopted novel solutions to deciding whether or not a piece of graffiti should remain. Sutton invited residents to vote on whether a Banksy should remain. More than 90% of respondents wanted it to stay, but the mural was defaced by taggers before the vote closed.

Do YOU Think it Should Stay?

Supporters of the work have started a petition to save it and at the last count there were 1617 signatories. If you think the Rabbit should stay click here to show your support.

The Bigger Picture

The destruction of street artworks such as graffiti, which by its very nature is likely to be on someone else’s property, begs an even bigger question: should the ROA as the artist have the right to object to derogatory treatment of his work in accordance with sections 80-83, of the Copyright Design and Patents Act 1998 in the same was as afforded to other artists? Are his Moral Right’s as an artist in fringed? Or does the Council’s right to obliterate such works fall squarely within the provision of section 81? Fellow Blogger Tomasz Rychlicki raises similar interesting points in his Legal questions about illegal art article if you have time to read more.

Craik said she had replied to Hackney Council in writing after receiving their letter this month, but was yet to receive a response. "It could happen at any moment," she said. "We're constantly thinking 'are we going to come in tomorrow to no rabbit, and a massive bill.'"

For More Images of ROA’s work click here.

Source: Guardian Online Monday 25 October 2010 23.12 BST

Wednesday, 27 October 2010

Art Scam backfires

An American art auctioneer who sold fake artwork on a national auction TV show was this week sentenced to five years in jail after pleading guilty to mail fraud, conspiracy to commit wire fraud, interstate transportation of stolen property and failing to file a tax return.

James Mobley sold the forged art in association with the Fine Art Treasures Gallery, located in Pasadena CA. The owners of the Gallery had already been sentenced to a total of eleven years jail, having also pleaded guilty to numerous charges including conspiracy, interstate transportation of stolen property and filing false tax returns. $3.8 million had also been seized from their bank accounts.

The way the scam had worked was that fake or forged art was bought from suppliers or created by the Gallery owners and then passed off as the authentic works of artists such as Picasso and Dali. Forged certificates of authenticity or fake appraisals were often drawn up for these pieces. Also, to make it seem more plausible that the art was real, the Gallery claimed that they sourced the worlds from worldwide estate liquidations. The scam did not stop there, however. Mobley then auctioned the works live on TV in an art auction show, where the auction bidding process was also rigged such that fake bids were announced on the program to falsely drive up the prices.

The scam operated for 4 years and over that time more than $20 million is said to have been conned from thousands of people.

This case serves to confirm the old adage that if it seems too good to be true, it probably is.

So, if you are thinking of investing in some art, try and get the opinion of a professional appraiser or qualified authenticator beforehand. After all, you wouldn’t buy a house without a survey. The purchase of art, especially as an investment, should be treated in the same way.

<------For future reference: a fake picasso

Source: Los Angeles Daily News, 26 October 2010.

Monday, 25 October 2010

Pictures of polaroids

A recent article in The Guardian inspired today's trip to the Colnaghi Gallery to see the current exhibition of Julian Schnabel's work. He uses a 1970s handmade polaroid camera to great effect:

"It is as if you were Xeroxing your own face. The pictures have such physicality: their surface is like fine leather, stained from chemicals. Each one has a body and is more than an image."

The pictures that he creates are extremely varied, some in sepia, some are covered in paint to greater or lesser effect. My favourites were two of Mickey Rourke looking surprisingly unlike his public image and one of a man (possibly the artist) painting in a garden.

Why the art review? Partly because I felt like it. But the IP twist on the tale is the gallery's attitude towards photography: "No flash and not too many." Use on a blog was "ok." Hence the couple of pictures uploaded here. This strikes me as a perfectly reasonable standpoint and contrasts with my experience of a number of museums and galleries who have attempted to restrict photography on the basis that to photograph their pictures and in some instances the building itself would be copyright infringement. More often than not both the paintings and the buildings are hundreds of years old.

No one wants to wander round a gallery while every second person is taking a photo rather than appreciating the art but to outright ban photography in the name of intellectual property has long been a source of personal annoyance. Particularly where the art in question is based on a number of sources and may even directly copy other images. My photographs are not good quality but they will serve as a reminder and an illustration.

Julian Schnabel's Polaroids exhibition is at Colnaghi gallery, 15 Old Bond Street, London W1 until 12 November 2010.

Own Art

A trip to the Bankside Gallery this weekend allowed not only a viewing of the Royal Watercolour Society’s Autumn Exhibition, which it is currently hosting, but also the opportunity to see the Own Art programme in action.

For those who aren’t in the know, Own Art is the Arts Council England scheme which aims to make it easy and affordable for everyone to buy a contemporary work of art. The scheme is run by the Arts Council through its trading company ArtCo Trading Ltd in partnership with by Hitachi Capital Consumer Finance. To summarise; you can apply for a loan for any amount between £100 – £2,000 to buy a piece of art, the credit is provided by Hitachi and then you pay back the amount you borrow in equal instalments over 10 months interest free. The loan is interest free as it is subsidised by the Arts Council who pays the interest to the bank instead of you.

The scheme can be used to buy most pieces of contemporary art, including paintings, sculptures, textiles, jewellery, fashion, furniture, glass, ceramics and multi media works as well as prints and multiples, so long as they are in limited edition. But, the artists must be living.

Seeing the scheme in practice, it is easy to be seduced by the sudden affordability of some great pieces of art, which in other circumstance would seem far out of reach – especially when the price besides each work is helpfully broken down into 10 monthly instalments. I was certainly tempted by several works and figured that if I did take advantage of the scheme I would easily be able justify the monthly outgoings by, for example, reducing my night outs each month by one.

However, despite the apparent ease with which art can be acquired, it is important not to forget or ignore the legal side. A loan agreement is a legally binding agreement to repay a certain amount of money. Therefore, applicants to the scheme must ensure that they are fully aware of what they are agreeing to do and the penalties for defaulting on the loan. There is also the matter of the purchase agreement with the gallery. The purchaser should be clear on issues such as when the title and risk in the artwork pass and whether there are any there are any conditions on resale of the work,

On the other side, the galleries which are members of the scheme are bound certain legal obligations as well as the
Own Art Scheme Rules. For instance, they are required, under the Consumer Credit Act 1974, to hold a Standard Licence covering at least credit brokerage as they will be involved in activities relating to credit. Indeed, failure to hold such a licence at all times may amount to a criminal offence and result in the inability of that gallery to carry out any consumer credit business in the future. The galleries also have to be independently registered with the Office of the Information Commissioner for data protection activities particular to their business.

Thus, by all means invest in some eye-catching art, but always keep your other eye on the legal picture.

Kata Tjunta (Australia) by Simon Pierse

Currently on display at the Bankside Gallery
Price: £780.00 or £78/month for 10 months through Own Art

All the details of the Own Art scheme here.

An alternative to affordable art: The diamond encrusted saucepan

In stark contrast to the Affordable Art Fair, Russia's millionaires, were cordially invited last Sunday to attend the aptly named Millionaire Fair in Moscow. Whilst no paintings were on sale, a wide variety of luxury items, some of which may fall within a wider definition of "art" were on sale. A diamond encrusted saucepan, luxury cars and fur coats were valued at such high prices that it is hard to comprehend their value.

Art and luxury goods share a similar approach to pricing where so much depends on image and exclusivity. Preserving this image of exclusivity is paramount to the value of the goods. The importance of considering intellectual property rights and taking steps to avoid copying is absolutely fundamental to both industries. Yet, as Louise points out, the art industry has been far slower to utilise all the tools in the intellectual property toolbox.

A little quiz for our reades: when was the last time you saw an artist in court? I'm going to start with when Andrew Goldsworthy's snowball was used by Habitat... More suggestions welcome.

Sunday, 24 October 2010

Art is for Life – Not Just For Christmas

The Affordable Art Fair (AFF) at Battersea Park in London draws to a close today and it was the last chance to get your hands on some of those wonderfully affordable pieces of art from the autumn collection.

In case you have never heard of The AFF the concept is simple – make art affordable. Founded in 1999 this exhibition and art shopper’s paradise ensures you don’t need to be an art expert or a millionaire to enjoy and buy art, as no piece exceeds £3,000. After 10 years in action The AFF is now considered the leading showcase in the UK for contemporary art in this price range, having welcomed over 430,000 visitors who have bought a staggering £73 million of art.

But whilst The AFF has a host of activities and educational events, I am yet to see a workshop that addresses issues of IP in the creative industries. Unfortunately IP is commonly a neglected theme. This gap in the educational programme is largely reflective of the art industry as a whole, who often tackle issues of IP and artworks reactively at the top, and wealthy, end of the chain. Instead I am looking forward to the day when fantastic events such as The AFF reach out to developing artists and budding collectors alike on important topics such as copyright infringement; helping them to recognise the perils of infringing other works early in their artistic development. Important, as old habits die hard and IP actions can easily bankrupt a struggling young artist or collector.

I hope to see events like this grow in the future to include free IP based educational sessions for artists and newly fledged artwork collectors.

But what a great place to have started your Christmas shopping!

Saturday, 23 October 2010

Russia – Art in Revolt

If Simone’s post on the new law that threatens Russia’s art collections interested you then you may want to visit the Chto delat? (What is to be done?) - The Urgent Need to Struggle exhibition at the Institute of Contemporary Art. I’m sure this group of artists and activists will have something to say about this new legislation as their work advances a leftist position on economic, social, and cultural agendas. This project and exhibition seeks to merge political theory, art and activism. It is realised by a Russian collective of artists, philosophers and writers whose ideas and observations are rooted in post-perestroika Russia and in principles of self-organisation and collectivism.

The work is not limited to “art” in its most traditional format, but instead seeks to explore art through less traditional mediums such as publication of a regular newspaper, videos, installations, public actions and radio programmes.

This Free exhibition is well worth a visit, but be warned, it ends tomorrow...

Friday, 22 October 2010

Art sales in the recession

Thinking of selling some art as a quick way of raising some capital to make ends meet? Think again if you are a US art gallery and member of the Association of Art Museum Directors (AAMD).

In 2008, the National Academy Museum in New York sold two of its paintings in order to be able to pay its bills. The sale of Frederic Edwin Church’s “Scene on the Magdalene” and Sanford Robinson Gifford’s “Mount Mansfield, Vermont” raised a total of $13.5 million.

Although this might seem reasonable, since the Academy has more than 7000 artworks and was struggling financially with the economic downturn, the result was that the AAMD imposed sanctions on the Academy for violation of its Code of Ethics.

Among other things, the Code of Ethics provides that:

“A museum director shall not dispose of accessioned works of art in order to provide funds for purposes other than acquisitions of works of art for the collection.”

“AAMD members who violate this code of ethics will be subject to discipline by reprimand, suspension, or expulsion from the Association. Infractions by any art museum may expose that institution to sanctions, such as suspension of loans and shared exhibitions by AAMD members.”

The Academy’s actions were clearly in breach of the Code. The AAMD president, Kaywin Feldman, stating that:

“The National Academy’s actions violated one of our most core beliefs: that the collection is sacred and not a fungible asset … We thought it was very important to make that statement, that they had acted improperly, and that AAMD as an organization did not condone that behaviour. And we also wanted to see positive change for the organization.”
Thus, sanctions were imposed which reflected those envisaged in the Code, namely, the Academy was banned from loans from and program collaborations with the AAMD’s other members.

Those sanctions were finally lifted this month, almost two years later, but it seems that the effects were quite severe. This was confirmed by the Academy’s director, Carmine Branagan, who stated:

“Sanctions really hurt … “You’re completely incapable of designing exhibition programming going forward because you can’t loan and you can’t get loans, and sanctions also affect funding. Sanctions were very, very painful.”
However, though the Academy might have learnt its lesson, it is still not completely in the clear. Although voting to suspend the sanctions, the AAMD’s board also voted to establish a five-year probation period during which it will review the Academy’s progress. It is expected that the Academy will toe the AAMD line from now on.

Source: The New York Times, 18 October 2010

New law threatens Russian Art Collections

It has been reported that the Russian government proposes to introduce new legislation which, if enacted, will cause millions of works of art and religious artefacts to be reclaimed from Russian museums and given to private religious organisations, including, mainly, the Russian Orthodox Church. It is said that the new law has nothing to do with justice, but is designed to bind the Church to the state and attempt to manipulate the religious leaders.

Further criticisms of the draft law include that “The cultural objects will become inaccessible by people of religions other than Russian Orthodox Christians” and “If enacted, the law would be in conflict with a number of constitutional principles and international regulations”. It is also likely to lead to a massive loss of thousands of ancient works of art deprived of skilled hands of qualified restorers.

The new law comes at the same time as renewed reports that hundreds of thousands of artworks are missing from Russian museums. Indeed, it is believe that as many as 250,000 works cannot be accounted for. This figure represents only 0.33% of the entire Russian museum inventory; however, in the context of Russian art potentially being taken away from Russian museums, it also represents further detriment to Russia’s cultural and artistic heritage.

Red Square in Moscow - Alexeyev, Fyodor (Currently housed at the The Tretyakov Gallery in Moscow)

Source: Russia Beyond the Headlines, 19 October 2010

Q: When is "artwork" art? A: When no-one wants to pay for it

A dispute has arisen over the interior decoration of the new appellate court in Tallahassee, Florida. A total of 400 historic photographs have been purchased for the building, the cost of framing and mounting them being $357,000. Florida law limits the spend on art in public buildings to $100,000. The State's Chief Financial Officer believes the photos are art and has refused to pay bills for the photos for some $190,000, pointing out that the invoices state that they are for "artwork". However, the members of a committee formed specifically to supervise the amount and type of art for the new building disagree: the photos are not art per se, but are modelled on Florida's Historical Perspective collection at the state Capitol, a photo collection which is not subject to Florida's cap on spending for art.


Thursday, 21 October 2010

The Turner Prize and copyright

Loves of Shepherds 2000
The Turner Prize, awarded each year in the United Kingdom since 1984, is intended to celebrate new developments in contemporary art. It should be awarded to "a British artist under fifty for an outstanding exhibition or other presentation of their work in the twelve months preceding". One thing I'm not sure about is the interplay, if any, between conventional copyright rules and unconventional art -- and a short inspection of the Turner Prize's further particulars did not throw any immediate light on the competition's copyright policy.

Double Star: artwork for the book cover
This is not an academic issue. In 2000 there was some controversy after it appeared that Turner Prize nominee Glenn Brown was accused of plagiarism after science fiction enthusiasts drew attention to the similarity of 'Loves of Shepherds 2000 (above, right) with the cover of 1970s classic Double Star, by Robert A. Heinlein (left). The Double Star cover was created by Anthony Robert, but no mention was made either of the book or the cover art in the Turner Prize catalogue.

The chairman of the Turner Prize jury, Sir Nicholas Serota, explained that Glenn Brown frequently used the work of other artists in developing his own work: "He uses other artists' work, but that doesn't mean to say you could possibly mistake his work for theirs... he takes the image, he transforms it, he gives it a completely different scale." One might ask whether, even if no-one could mistake Robert's work for Brown's, might one when seeing Brown's work mistake it for Robert's.

Wednesday, 20 October 2010

The results are in

The UK Government’s Spending Review was announced today by Chancellor George Osborne.

In summary, over the Spending Review period, the outcome for the DCMS is as follows:

  • The DCMA budget is to be cut by 24% from £1.4 billion to £1.1 billion;

  • Administration costs are to be cut by 41% (which includes the abolition or reform of 19 of DCMS’s 55 existing quangos – as reported here and cuts in the grant to the Arts Council England);

  • It is to be ensured that national cultural assets are preserved for future generations, including by limiting cuts to 15% for core arts programmes, like Museums, Arts Council England funding to frontline arts, and sports programmes;

  • Free entry to galleries and museums is to be retained.

The DCMS settlement also includes provision for the 2012 Olympic and Paralympic Games by maintaining a public sector funding package of a staggering £9.3 billion.

Art vs Sport? – apparently, the choice has been made for us.

Image source: © Simon Brader

The good, the bad and the four-man control unit: graffiti in Cape Town

"Cape Town city and graffiti artists face spray-off", an article by Justine Gerardy (AFP), raises questions concerning the work of South African graffiti hero Falko Starr (right), whose large-scale oeuvre has come under threat from a new four-man control unit and by-law that classifies all graffiti as a public nuisance. First-time offenders are liable to pay a fine of up to 15,000 rand or receive three months in jail.

The stated aim of this law is to eliminate tagging (individual graffiti signatures), particular that which is classified as "gangster tagging" and offensive graffiti. Cape Town city official Anton Visser adds "The intention is obviously not to target the graffiti artists" such as Starr. An obvious problem, though, is how to set a legal dividing line between 'good' graffiti and 'bad'.

Remarkably, the law sets out a permit system for city-vetted works. The extent of legal invasion of private property rights is considerable, since even private property owners may not host graffiti on their properties without city permission.

Starr, a professional graffiti artist and the creator of the "Splitpiece" installations, is perhaps the most prominent of an estimated 100 to 200 graffiti writers in Cape Town. He explains that Cape Town's graffiti culture grew from the era of apartheid, when it had a more political function and content. Now the argument turns on whether the need for self-expression is of a higher value than the appreciation of Cape Town's natural aesthetic beauty.

Some of Starr's work can be viewed on YouTube here

Tuesday, 19 October 2010

Seeds for thought

Since the opening of this year’s Unilever Series display in the Tate Modern’s Turbine Hall on 12 October, already several different legal issues have been raised.

Ai Weiwei's Sunflower Seeds installation basically consists of carpeting the entire Turbine Hall with 100 million individually hand crafted, but each apparently identical, porcelain sunflower seeds.

The original idea was that visitors would be able to walk over and handle the sunflower seeds. This obviously prompted the question as to whether it was ok to take a sunflower? – Just as a souvenir, of course … After all there are 100 million of them…

On first impressions, you’d think this clearly amounts to stealing. Or even vandalism. Yet it is reported that the artist himself does not think this is so clear, having said:

"If I was in the audience I would definitely want to take a seed. But for the museum, it is a total work, and taking a seed would affect the work. Institutions have their own policies. But I know I would want to take a seed."
Then, there are the health and safety laws which have to be considered. Indeed, within a few days of the exhibition opening, the Turbine Hall was closed, preventing visitors from walking over the sunflower seeds. Eventually, it was admitted that it was feared that the ceramic dust resulting from visitors walking over the sunflower seeds gave rise to certain health and safety concerns. In a statement, the gallery said:

"Although porcelain is very robust, we have been advised that the interaction of visitors with the sculpture can cause dust which could be damaging to health following repeated inhalation over a long period of time. In consequence, Tate, in consultation with the artist, has decided not to allow members of the public to walk across the sculpture."
But finally, from an Intellectual Property perspective, the work gives rise to a number of fundamental questions, including: What IP rights subsist in the work? and Who owns those rights?

The named artist, Ai Weiwei, has confessed that he made “perhaps three or four” of the sunflower seeds and, in fact, he had the seeds made in the Chinese city of Jingdezhen, also known as the “porcelain city” of China. Is it really enough to have merely had the idea to be considered as the creator or author of a work? Or perhaps Ai Weiwei commissioned the work and had the rights assigned to him.

So while it is great to ponder the nature and meaning of art, Sunflower Seeds demonstrates that it is also important to consider the legal aspects.

Thirty(ish) Forgeries found

This weekend
the Observer reported on the art world shaking news that more than 30 paintings which were thought to be by artists including Max Ernst, Raoul Dufy and Fernand LĂ©ger are, in fact, artifice. The forgeries have collectively fetched up to £30 million across various auctions in the last few years.

The likely forger is a German man in his late fifties, who was assisted by his wife and sisters in both creating and selling the works. They employed two successful tactics, firstly creating compositions based on documented but lost works of art whose current location was unknown. Secondly, they created convincing back stories for each of the works including fake gallery labels and even a fake first attempt at a painting on the back.

This has left the art owners and auctioneers in a somewhat sticky situation as they attempt to unravel what is and isn’t genuine and who should be liable for the multi-million pound bill. One can only hope that suitable indemnities as to authenticity were included on the sale and that, given some of the works were sold up to 15 years ago, they are not out of time for bringing a claim.

Art on the cheap?

Strapped for cash but still keen to adorn your walls with wonderful works of art? One “ethically problematic” solution posited by the
New York Times is to photograph appealing works of art. In theory there is no problem with this so long as the work is out of copyright (in other words, the artist must have been dead for at least 70 years). In practice, many galleries restrict or ban photography or the shadows on the glass are such that taking a quality image is next to impossible.
Putting ethics aside, problems particularly arise in two scenarios: 1) where the work is still in copyright (i.e. the artist is either still alive or hasn’t been dead for 70 years); and 2) where the work you are taking is a photograph of an old art artwork – for instance an image from the internet or the gallery’s postcard shop.
The former can be avoided by a bit of art historical research (steer clear of the Tate Modern!) and the latter is a bit more complex. In the UK, a photograph of an art work is a protectable work in itself (this is not necessarily the case for all other countries). This means that if you don’t take the photograph yourself, there is a danger that the photographer (or the organisation which owns the rights in the photograph can sue for copyright infringement). This issue arose last year in relation to the
National Portrait Gallery and is likely to arise again in the future…

How to toast your mother in law

The world’s largest toast mosaic was created last Sunday by Laura Hadland in honour of her mother in law’s 50th birthday. The mosaic measures 32 feet and 8 inches by 42 feet image (about the size of a giant squid).

As the record breaking mosaic was a surprise, it is unlikely that Laura Hadland obtained her mother in law (Sandra Whitfield)’s permission before embarking on such a feat of edible artistry. What about Mrs Whitfield’s image rights? How did she feel at being reduced to toast? Whilst unlikely to sue her daughter in law there is a salient lesson for all artists: before embarking on a new work of art (record breaking or otherwise) it is always worth considering do I have the sitter’s permission?

Judges desire to be surrounded in the manner to which they are accustomed

News today that the senior judges of the new Commercial Court will be appealing to City organisations to donate works of art to decorate the new court building.

The original plan had been to spend £300,000 commissioning works of art. However, the judiciary is keen to be seen as responsive to the economic downturn and the need to make budget cuts. It is also mindful that in the current climate it would not been appropriate to make such a large outlay on the aesthetics of the court buildings. Indeed, the cost cutting initiative will allegedly also see judges bringing in some of their own furniture when they move into their new lodgings next year.

Mrs Justice Gloster as judge in charge of the commercial court has said that the court plans to ask for art from neutral organisation, rather than law firms whose partners may be appearing in cases before the court. She notes that the court’s priority is to display interesting works, but that “It’s not going to be Rembrandts or Picassos, I can tell you that.”

So....the court will not look like this.

Source: Financial Times, 19 October 2010

Monday, 18 October 2010

Holocaust art claims

Over the last few days there has been some good and bad news for Holocaust survivors and their relatives.

Database of Art Objects at the Jeu de Paume

Firstly, some good news in the recent announcement that more than 20,000 unrestituted art objects which were looted by the Nazis during the Second World War have been listed in a new online database. Entitled the “
Database of Art Objects at the Jeu de Paume”, the database lists the thousands of cultural valuables which were seized from French Jewish and Belgian Jewish collections by the Einsatzstab Reichsleiter Rosenberg (ERR) and taken to the Jeu de Paume building in the Tuileries Gardens in Paris.

The ERR was a special unit formed during the War with the purpose of plundering cultural artefacts from Nazi-occupied countries. Between 1940 to 1944, the ERR seized not only books, archives, and other research materials, but paintings, antique furniture, carpets, tapestries, objets d’art, and antiquities. The ERR then produced a detailed inventory of its growing collection, with many of the items being photographed and documented.

The database allows the remaining registration cards and photographs produced by the ERR covering more than 20,000 to be searched in illustrated form. The hope is that the database will enable the objects to be claimed and returned to their rightful owners.

UK heir to £100m Steiner art collection

In more good news, it has been
reported that an English descendent of Jewish art collector, Jenny Steiner, is to receive a share of a £100m fortune following a Holocaust restitution claim. The collection of more than 18 masterpieces which was confiscated by the Nazis had remained unclaimed for more than six decades. However, the works are now gradually being recovered and sold, and following extensive research by the Jewish Federation, it appears that the English beneficiary is a second generation descendent of the original collector, and thus entitled to a substantial share of the proceeds of the paintings.

Boston Museum of Fine Arts retains ownership of Oskar Kokoschka's Two Nudes (Lovers)

The bad news is that the sole surviving heir of Austrian Jewish art collector Oskar Reichel has not had the same success. Claudia Seger-Thomschitz had sought to recover possession of Oskar Kokoschka's Two Nudes (Lovers), a valuable oil painting formerly owned by Reichel, but presently held by the Boston Museum of Fine Arts (MFA). However, on 14 October 2010, the United States Court of Appeals, First Circuit
affirmed the District Court’s ruling that Seger-Thomschitz's claims were time-barred on statute of limitations grounds.

Two Nudes (Lovers)
1913 Oskar Kokoschka, Austrian, 1886–1980

By way of background, Seger-Thomschitz had claimed that she was the rightful owner of the painting as Reichel had only sold the under duress for insufficient consideration after Austria was annexed by the Third Reich in 1938. Accordingly, Seger-Thomschitz’s attorney had sent a letter to the MFA on 12 March 2007, demanding the return of the painting. The MFA was then said to have undertaken an exhaustive effort to research and document the provenance of the Painting in order to ascertain whether the claim appeared valid or not. The MFA concluded that the original transfer of the painting had been valid. Consequently, on 22 January 2008, the MFA filed an action in the District Court of Massachusetts seeking a declaratory judgment to confirm its rightful ownership of the painting. This was followed by a motion for summary judgment arguing that Seger-Thomschitz's counterclaims were time-barred as a matter of law.

The District Court entered judgment in favour of MFA. Applying the three-year Massachusetts statute of limitations applicable to tort and replevin actions, the District Court held that the causes of action against the MFA accrued when the Reichel family and/or Seger-Thomschitz had discovered or should reasonably have discovered the basis for their claims to the painting. It then addressed both the Reichel family's knowledge and Seger-Thomschitz's knowledge, concluding that all parties should have known about the basis for their claims more than three years before Seger-Thomschitz made her demand on the MFA through her attorney's letter.

Seger-Thomschitz appealed. However, the First Circuit Court was not asked to judge the merits of Seger-Thomschitz’s claims, but rather only whether her claims were time-barred as a matter of law. Thus, the Court concentrated on the applicable law of limitations that “actions of tort, actions of contract to recover for personal injuries, and actions of replevin, shall be commenced only within three years next after the cause of action accrues” (Mass. Gen. Laws ch. 260, § 2A). It noted that the District Court had analysed the accrual question by applying the so-called discovery rule, which provides that a cause of action accrues when “an event or events have occurred that were reasonably likely to put the plaintiff on notice that someone may have caused her injury” and agreed with the approach that the party seeking the benefit of the discovery rule has the burden of showing (1) that she lacked actual knowledge of the basis for her claim and (2) that her lack of knowledge was objectively reasonable.

With regards to Seger-Thomschitz’s knowledge, the Court said that the location of the painting had never been a secret – it had long been on public display at the MFA. Moreover, it was listed in a provenance database on a publicly accessible website, and several published books and at least one catalogue raisonnĂ© of Kokoschka's works had identified the MFA as the current holder of the painting. Finally, the Getty Provenance Index, a database of provenance information that has been searchable on the internet since 1999, also noted that the Painting was part of the MFA's collection. Thus, the Court said, there was no question that the MFA's possession of the painting had long been discoverable with minimal diligence.

Furthermore, by her own admission, Seger-Thomschitz had "learned that the Nazis had confiscated artworks from Oskar Reichel in the Fall of 2003 when the Museums of Vienna contacted her concerning their intent to return to her as the sole heir of Oskar Reichel four artworks in their collection by the artist Anton Romako." That information had put her on notice that she might have a claim to other artworks that were previously owned by Dr. Reichel and she retained a Viennese attorney that same year "for purposes of handling the restitution of any artworks that Oskar Reichel may have lost due to Nazi persecution." Yet she did not demand the return of the painting in issue from the MFA until 2007, well over three years after she was contacted about the Romako works.

The Court also looked at the Reichel family’s knowledge of the conditions under which the painting had been transferred and whether the family sold have known that the painting was sold under duress. In this respect, it noted that the District Court had held that the family "had ample notice of any possible claim to the painting decades before the filing of this lawsuit." Indeed, the District Court had noted that Oskar Reichel's son Raimund had written several letters to art historians during the 1980s in which he was indicated that he remembered the painting and knew the details of its transfer. Thus, the Court said that it was this knowledge, plus the fact that the Reichel family sought compensation for some other artworks, but not the painting, which led the District Court to conclude that the family's failure to lay claim to the painting was not due to ignorance about the availability of restitution.

Thus, the First Circuit Court concluded that:

“Any reasonable jury confronted with the summary judgment record would conclude that Seger-Thomschitz's causes of action accrued no later than the fall of 2003, when she learned that the Nazis had confiscated artworks from Dr. Reichel, and could then, with reasonable diligence, have discovered her claim to the painting. Because she did not make a demand on the MFA until March 12, 2007, more than three years after her causes of action accrued, summary judgment was properly granted on the MFA's limitations defense.”
Seger-Thomschitz also argued that the Massachusetts statute of limitations should be set aside because it conflicted with the federal government's foreign policy on Nazi-confiscated art. In this respect, Seger-Thomschitz listed a number of statutes which were claimed to constitute evidence of a federal policy disfavoring the application of rigid limitations periods to claims for Nazi-looted artwork. Seger-Thomschitz relied on Supreme Court jurisprudence in American Insurance Association v Garamendi that "state law must give way" when it is in "clear conflict" with an "express federal policy" in the foreign affairs context.

However, the First Circuit Court also dismissed this argument. It found that none of the language of the Acts cited by Seger-Thomschitz was sufficiently clear and definite to constitute evidence of an express federal policy against the applicability of state statutes of limitations to claims for the recovery of lost, stolen, or confiscated art. Furthermore, the Court held that even if there were an express federal policy disfavoring overly rigid timeliness requirements, the Massachusetts statute of limitations would not be in “clear conflict” with that policy. Rather, the Massachusetts statute of limitations struck a reasonable balance between restitution and repose, such that where a claimant in a missing or confiscated art case could demonstrate that she diligently pursued her property, she could defeat summary judgment.

Thus, unfortunately for Seger-Thomschitz, the District Court’s statute of limitations ruling. was affirmed.

However, that the Circuit Court did make an important point at the end of its decision:

“Precisely because they do not address the merits of a claim, statutes of limitations do not vindicate the conduct of parties who successfully invoke them. Although we make no judgment about the legality of the MFA's acquisition of the Painting in 1973, we note the MFA's own disclosure that, when confronted with Seger-Thomschitz's claim, it initiated a provenance investigation for the Painting that it had not done before. The timing of that investigation may have been legally inconsequential in this case. However, for works of art with unmistakable roots in the Holocaust era, museums would now be well-advised to follow the guidelines of the American Association of Museums: "[M]useums should take all reasonable steps to resolve the Nazi-era provenance status of objects before acquiring them for their collections — whether by purchase, gift, bequest, or exchange." American Association of Museums Guidelines Concerning the Unlawful Appropriation of Objects During the Nazi Era (Nov. 1999)"
It is hoped that this encourages art galleries and museums to heed the Guidelines before acquiring objects for their collections.

Friday, 15 October 2010

It begins...

As reported, the Department for Culture, Media and Sport (DCMS) had offered to make a number of cuts to reduce its budget.

In keeping with his promises, on 14 October Jeremy Hunt
announced that 19 of the 55 DCMS public bodies are being abolished or reformed.

Bodies that will be abolished include the Museums, Libraries and Archives Council which was responsible for improvement and innovation in the area of museums, libraries and archives, as well as the Advisory Council on Libraries, the Advisory Committee on the Government Art Collection and the UK Film Council.

Thankfully, a number of the Arts bodies are to be retained and will continue to function, including the Arts Council England and the major national and London art galleries and museums.

Thursday, 14 October 2010

Blitzkrieg on the arts

With the Chancellor due to announce the Government's spending plans for the next four years in the Spending Review on Wednesday 20 October 2010, Sir Nicolas Serota has attacked the culture secretary Jeremy Hunt’s offer to cut the budget of the Department for Culture, Media and Sport by 25-30%.

In a statement in the Guardian, Serota, Director of the Tate, calls the proposal “absurd”, stating that:

“With the ruthlessness of a blitzkrieg the coalition is threatening the stability of an entire system for cultural provision that has been built up by successive onservative and Labour governments: a mixed economy of public and private support that has made Britain a civilised place to live, where all have an opportunity to enjoy the arts or celebrate our heritage, and have been doing so in increasing numbers.”
Serota warns that the effects of such cuts will include:

“…smaller number of galleries and theatres, fewer chances for young people to broaden their experience of life, and a savage reduction in support for individual writers, artists and composers…closing galleries, reducing outreach activities and shutting for one or two days a week…fewer performances, less invention and much less work in the community”
And that:

“In some cases a vicious circle of declining audiences and reduced corporate and private benefaction will result in a slow, painful death because the core public subsidy is insufficient to sustain the halo of earned income and donations that we have all become adept at gaining. It will be the smaller, most innovative organisations across the country that suffer the most.”
In spite of these calamitous predictions, Serota does offer an alternative. He notes that a 10-15% cut over the next four years could be surmounted. Indeed, he says that this is a challenge of the kind that arts organisations regularly face and can overcome. Any more than this, however, and the stability of the entire art and culture system will be severely threatened.

It remains to be seen whether his words are heeded on 20 October.

Source: The Guardian, 4 October 2010

BLITZKRIEG installation by Viennese artists Busk/Anker/Emilone

More time to sue gives laid-lack Californians more muscle

Gov. Schwartzenegger: from
steroids to statutes
A new California law that Gov. Arnold Schwarzenegger signed into effect two weeks ago makes it easier for owners whose art has been stolen to have their day in court if the works subsequently turn up in the hands of a museum, gallery or art dealer. It's not a radical piece of innovative draftsmanship, though: it's an adjustment to the local statute of limitations, giving art owners a more generous six years within which to sue for recovery, starting from when the owner discovers where his work is, in place of the previous three years.

Source: LA Times, 2 October 2010,

Wednesday, 13 October 2010

Graffiti hits the streets ... of Moscow

Graffiti as an urban art form has now reached Moscow, which is good news for artists. It was once good news for enforcement agencies too. According to a NY Times feature,
“It is especially tough to be a graffiti artist in Russia,” said Oxana Bondarenko, a curator who specializes in street art and lives in Paris and Moscow. “The state invests millions of rubles in hunting down graffiti artists and painting over the works.”
According to Sergey Glandin, a lawyer in Moscow, there is no law specifically regulating street art, but those caught making graffiti can be penalized under the criminal code. In most cases, this means an arrest and a warning ...

Wall of Tsoi, Arbat St, Moscow (fom
Make, an old-school graffiti artist who in 2000 created the first Russian graffiti crew, RUS, says that street art is important because it can show the local population’s own, uncensored voice, and it can push artists to express their own vision. RUS made a name for itself by being especially daring, he said, painting regional trains with illustrative, pictorial tales and American-inspired graffiti. “We were caught by the police several times,” he said with a hint of pride. (They were arrested but released soon after).
Today, Make has evolved into a respected artist, has had solo exhibitions in Moscow and abroad, and last year was a finalist for the national Kandinsky art prize. Some of his recent work is reminiscent of Russian constructivist art and, provocatively, Communist propaganda ....”
Source: "Graffiti Art Earns New Respect in Moscow", Alice Pfeiffer, NY Times, 13 October 2010, here

Tuesday, 12 October 2010

Welcome to Art and Artifice

Art and Artifice is a weblog dedicated to those areas of law that interface with the world of art. These areas include, but are not limited to, the following zones of interest:
    Life Before Blogs 1:
    the cave painting
  • art as intellectual property
  • art valuation for legal purposes
  • artists' resale rights
  • recovery of stolen artworks
  • planning permission for architectural and installation art
  • import/export and customs regulations
  • artists' moral rights
  • art and traditional knowledge
  • commercial exploitation of art
  • art in galleries, museums and archives
  • self-expression issues including obscenity and public decency
The blogging team consists of lawyers who love art and who can view law itself as an art form, with its own symmetry, culture and aesthetics. We invite you to share our enjoyment, our interest and our thoughts by visiting this site when the mood takes you. A more regular drip-feed of art law information can be derived by signing up to receive our posts by email (just follow the instructions in the side bar) or by RSS feed (ditto). and do feel free to share your ideas with us. Few lawyers, if any, make money from art law -- but we are all the richer for your thoughts.