Thursday, 28 June 2012

Göring's art collection goes online

This painting by Picasso "Woman's head" belonging 
to Göring's collection shows a rare deviation towards 
"degenerate art", very different from his usual taste. 

Hermann Wilhelm Göring is mostly remembered as a leading member of the Nazi party during Hitler's Third Reich: commander of the Storm Troopers, founder of the Gestapo, crusher of all opposition, creator of the Reich’s modern Luftwaffe, master of the Four-Year Plan and the man in charge of commissioning a “total solution of the Jewish problem.” Though, he should also be considered as one of the greatest art collector and art thief in history. 

Göring was simultaneously a classic esthete and a passionate art collector. Upon joining the Reichstag for the Nazi Party in 1928, which provided the unemployed pilot with a regular income, Göring began purchasing artworks on the open market. When war broke out, he set up a commission which the occupied territories for new trophies, increasingly confiscating valuable works from Jewish families and other supposed enemies of the regime, so collecting thousands of works, including some 1,800 paintings.

Last week, the German Historical Museum, the German Federal Archive, and the Federal Agency for Central Services and Open Property Issues (BADV) placed  Göring's vast collection of bought and stolen artworks online for the world to examine and, whenever possible to identify.

Many of these artworks, particularly from the medieval and renaissance periods, ended up on the walls on display of Göring’s Carinhall palace in the north district of Berlin. It was the largest collection in the Third Reich after Hitler’s immense plundered collection for the planned post-victory “Führermuseum” in Linz.

After Germany’s defeat and Göring’s capture and later suicide, his collection was evacuated to Bavaria and then fell into the hands of the US Army, which began working with German authorities to restore it to its legal owners. The German government assumed complete control over the collection in 1949. According to a proclamation issued in London in 1943, all deeds of sale generated in the occupied countries, where the works were often sold to Göring’s art team for a trivial amount of money, were declared null and void.

In 1998, the Washington Declaration on Nazi-Confiscated Art called for public institutions in forty-four countries, including Germany, to re-examine their art inventories

Even though most of the works in Göring’s collection have been restored to private persons and public art galleries, the legal situation is extremely complex. For example, many wealthy Jewish families had to sell their art collections in a hurry. Who really owned them then, and who owns them now?

Finally, many of the objects were plundered after Göring had the entire collection shipped down to Berchtesgaden in three special trains during the last days of the war. Assuming that some of these works are still hanging on private citizens’ walls or in local galleries, who actually owns them?

Saturday, 16 June 2012

Art v Law in Singapore

Widely reported in the last week is the arrest of Singaporean street artist Samantha Lo, known as SKL0 or the Sticker Lady.

Lo is said to be responsible for stickers which started appearing around Singapore, on traffic light buttons carrying slogans including "Press for good luck" "No need to press so hard"  "Press some more", as well as for spray painting slogans on roads.  
Singaporean police investigated the stickers and spray-painted slogans after the same were reported by the Land Transport Authority, identified SKL0 as the culprit, and arrested her for vandalism.

Under Singapore's Vandalism Act, a person who is convicted of vandalism shall be punished with a fine not exceeding $2,000 or to imprisonment for a term not exceeding to 3 years and shall be liable to caning subjected to the Criminal Procedure Code 2010 – although, Lo could not be receive the latter penalty as corporal punishment is prohibited for women.
An online petition has been set up (here) which calls for:
  • the Ministry of Home Affairs to downgrade the charges against Lo to a more minor offence (with a lesser penalty);
  • the Ministry of Communication and the Arts to recognise SKL0's work as art not vandalism; and
  • the Ministry of Education to address how they can claim to expand the arts education in Singapore while allowing arrests of public art, and what message they are sending in their arts education.
Obviously it seems harsh, particularly in light of all the street art we see in London, Europe and the US, for Lo to be liable for imprisonment.  It also does not appear to be disputed that Lo was seeking to be artistic, rather than to vandalise Singapore's public places. On the other hand, Singapore's harsh laws are well-known. Lo would clearly have been aware of the position in which she was putting herself and accepted the risks. Some might question the wisdom of pitting art against the law in a country like Singapore.  

Source: The Guardian, Huffington Post

Friday, 15 June 2012

Chinese art market: call for regulation

There were calls this week from the deputy director of the culture market department of the Ministry of Culture, Tuo Zuhai, for more comprehensive regulations for the Chinese art market.

In 2011, the Chinese art market overtook the US as the world's largest art market. China now leads the world in art auction sales, with the biggest sales revenue and highest auction results, and with trade volumes reportedly totalling 195.9 billion yuan (£19.8 billion). However, legal regulation has not kept up with the boom in the art trade. As reported by
"...if a consumer buys fake or substandard art works at a gallery, his rights and interests are protected in accordance with the Law on Consumer Legitimate Rights and Interests Protection. But if he gets cheated at an auction, there are no relevant protection regulations in the Auction Law. The lack of fair and open regulations in the art trade has caused continued disquiet among art investors.
The Ministry of Culture is now consulting professionals in both law and the art trade over legislation related to art market management. The draft will regulate the conditions of operating businesses in the art market, define tradable art works and protect the rights of the owner, consumer and traders of art works.

The ministry has also been devising sectoral rules to solve specific real-world problems, which will serve as the foundation of the future Art Law."
With no sign of an end to the growth of the Chinese art market, no doubt the worldwide art trade will be monitoring the Ministry of Culture's consultation and eagerly awaiting the results.

18th century Qianlong porcelain vase which sold for a world record-breaking £53.1 million at auction in 2010


Playoffs: The First Amendment v. The Lanham Act

This week the 11th Circuit Court of Appeals issued an important decision upholding an artist’s First Amendment rights over the University of Alabama’s asserted trademark rights under the Lanham Act.  Since 1979, artist, (and University of Alabama alumnus), Daniel A. Moore, has been creating photorealist paintings of University of Alabama football games (American football, that is.)  From 1979 through 1990 Mr. Moore created and sold these works without any official affiliations or agreements with the University.  In 1991 Mr. Moore entered into licensing agreements with the University to produce and market specific items that included additional University trademarks, but Mr. Moore still created other University-related paintings and prints that were not subject to any of these agreements.  In 2002 the University told Mr. Moore he would need to license all of his University-related products because they featured the University’s trademarks, including the University’s football uniforms, helmets, and colors.  The parties were unable to reach a resolution and in 2005 the University brought a lawsuit against Mr. Moore.  In 2009, the district court decided cross-motions for summary judgment, finding that Mr. Moore’s prints and paintings did not infringe upon the University’s trademarks, but that his sale of mugs and other such “mundane goods” bearing these images was trademark infringement.  The Court of Appeals affirmed much of the district court’s decisions, but remanded on certain remaining factual issues.
The crux of the University’s argument was that the inclusion of the University’s trademarks, such as the red and white colors on the players' uniforms, created a likelihood of confusion that buyers would think that the works were somehow associated with or sponsored by the University.  The Court declined to reach any conclusions regarding the strength of the University’s asserted trademarks, instead relying upon a balancing of the artist’s First Amendment rights against the University’s trademark rights.  The Court concluded that Mr. Moore’s works were expressive speech and thus possessed significant First Amendment protection.   Despite the University’s arguments that the works had commercial appeal, the Court found that the paintings were not necessarily commercial in nature (which would have entitled them to lesser First Amendment protection).  Accordingly, the Court held that the Lanham Act must be construed narrowly to apply to artistic works “only where the public interest in avoiding consumer confusion outweighs the public interest in free expression.”  The Court went on to hold that an artistically expressive use of a trademark will not violate the Lanham Act “unless the use of the mark has no artistic relevant to the underlying work whatsoever, or, if it has some artistic relevance, unless it explicitly misleads as to the source or the content of the work.”  In evaluating Mr. Moore’s works, the Court determined that use of the University’s marks was required for the artist to realistically portray famous scenes in Alabama football history.  Ultimately, the artist’s right to freedom of expression to create historically accurate works of art won the day.
Images of Mr. Moore's works may be viewed here.

Thursday, 7 June 2012

Goodbye Section 52? Proposed copyright extension for industrially produced designs

The iconic Eames chair
will it soon be protected by copyright?
What is art? What is design? Are the two different? Where is the overlap?

These are important and difficult questions which have plagued lawyers, judges and legislators in many jurisdictions not least the United Kingdom. There is currently a Bill passing through the UK parliament which will shake up the current UK approach to copyright for some designs and brings the UK system more in line with the approach taken in the rest of Europe.

Currently section 52 of the Copyright Designs and Patents Act 1988 (CDPA) limits the effective term* of copyright protection to ‘the end of the period of 25 years from the end of the calendar year in which such articles are first marketed’. This limited 25 year copyright term applies where an artistic work has been exploited (by the copyright owner) by making the artistic work by an ‘industrial process’ and marketing the artistic work in the UK or elsewhere.

A number of the gaping holes in section 52 were filled by the snappily titled Copyright (Industrial Process and Excluded Articles)(No. 2) Order 1989. This clarified that an ‘industrial process’ means either (1) the artistic work is manufactured more than 50 times or (2) it consists of ‘goods manufactured in lengths or pieces, not being hand-made goods’. So most furniture, lamps, storm trooper helmets etc are out unless...

...even if made by an industrial process, some items can slip through the section 52 net and get the full copyright term of protection. These special items are: works of sculpture, wall plaques, medals and medallions or printed matter primarily of a literary or artistic character. Unsurprisingly most of the legal battles have been over whether a particular design is a ‘sculpture’. But such battles may no longer be necessary.

[* Technically, the copyright term is not limited but the ability to take action against infringers is removed which is effectively the same thing subject to limited circumstances which are discussed in more detail here.]

The plan is simple: revoke section 52 (see clause 55 of the proposed bill).

How will this work in practice?

In particular what will happen to works which were out of copyright protection is not clear from the bill. There are likely to be some transitional provisions and these works will ultimately be protected by the copyright regime.

Who benefits?

To qualify for the extended term of protection, a work must be artistic in the first place. There is a lot of talk about how British designers will benefit but this will not apply across the board. Some designs may not qualify as not all designs are necessarily artistic. The definition of art in the CDPA is fairly broad but nevertheless restricted to more traditional notions of art. The area most of these items are likely to fall within is a "work of artistic craftsmanship" which unlike paintings etc is not explicitly a work “irrespective of artistic quality”.

Some designs have become iconic over time but were not necessarily always recognised as artistic. The definition of what is artistic has always involved a great deal of subjectivity and unfortunately judicial rulings on what is art may be unavoidable. There are problems and not everyone will benefit. Nevertheless, if the bill is passed it will be another item in the designer’s IP arsenal. Whilst it may not be the huge boost to British business that it is hyped up to be, it will put the UK on a more equal footing with the rest of Europe.

The people who lose out are those that manufacture ‘replicas’. They can choose to move sufficiently far away from the original to not be copying a ‘substantial part’ (a risky strategy) or take advantage of the transitional provisions to sell off existing stock and move business operations to Estonia or Romania (the only other two EU countries to restrict the term of protection for designs).

Is it necessary?

Do we really need more copyright protection? This is a complicated question but there has been a significant disparity in the protection afforded to designers and musicians, writers etc and no real justification for such a major difference in approach. The change may be good for British industry and it will definitely keep some British lawyers busy. Quite apart from subsistence and infringement issues, there are going to be questions over ownership; if the bill is passed those designers who were commissioned (rather than employed) will suddenly own the resurrected copyright in design – not the company which is exploiting the rights and may have to negotiate an expensive licence.

You can track the passage of the bill here.