Three interesting and important artlaw cases recently came to public notice: Tate is currently being pursued before a London Employment Tribunal on the grounds of religious discrimination against an artist;
the publishers of The Da Vinci Code have successfully defended a breach of copyright claim against them in London's High Court, and the Pollock-Krasner Foundation is currently in dispute with a Jackson Pollock expert over authentication of 32 Pollock works discovered in 2002.
TATE: ARTISTS' CONTRACTS
Religious artist Anthony Padgett has brought a claim to a London Employment Tribunal against Tate and its director Sir Nicholas Serota, alleging that artists have employment rights when they apply to exhibit and perform work, and that galleries cannot assess such applications by discriminating against artists on the grounds of their disability, sex, race, sexual orientation, religion or age.
The main legal basis of Padgett's claim is the UK's Employment Equality (Religion or Belief) Regulations 2003, which implement the terms of a 1978 EU law (Directive 2000/78). These regulations prevent employers or potential employers from discriminating against employees or potential employees. Padgett's essential contention is that his application to show at Tate was, in law, an application for employment; and that Tate's failure to engage him was unlawful discrimination because of his religion. Tate disputes the claim.
There has been a long established distinction in UK laws between a contract of service (more commonly known as a contract of employment) and a contract for services (more commonly known as a freelance contract). There is no precise legal definition of either type of contract, but the essential differences are that a contract of service/employment is the engagement of a person who is paid a regular wage or salary to carry out specific work in a specific way at specific times and places, with benefits such as paid holiday and sickness leave and pension rights; whereas a freelance contract for services is the engagement of a person who is paid a fee or fees to deliver an overall project in their own way and in their own time, with no such holiday, sickness or pension rights. In this particular case, Padgett seeks support from the Employment Equality (Religion of Belief) Regulations 2003, which provide that 'employment' means 'employment under a contract of service or of apprenticeship or a contract personally to do any work' - strongly relying on the latter phrase 'personally to do any work'. The Tribunal received and heard both sides' preliminary arguments at a pre-hearing hearing review on April 28, 2006, and (at the time of writing) is yet to decide whether it has legal jurisdiction to hear the case. In other words, the tribunal will decide whether this is a claim by a potential employee within the meaning of the law (if so, it will have power to proceed with the case), or whether this is a claim by a freelance contractor (in which case, it will not have power to deal with the case and it will fail).
DA VINCI CODE: COPYRIGHT IN IDEAS
Stealing ideas lay at the heart of this widely publicised breach of copyright claim and, as opined in this column and in the Editorial (AM295), London's High Court confirmed that the author of The Da Vinci Code, Dan Brown, did not breach copyright of the authors of the 'historical conjecture' publication The Holy Blood and the Holy Grail. The written judgment of Mr Justice Peter Smith runs to 70-odd pages plus appendices and is fascinating reading - a mini work of literature in its own right (including, for good measure, a coded message from His Honour hidden within the text: www.hmcourts-service.gov.uk/images/judgment-files/baigent_v_rhg_04o6.pdf).
Several key reasons were given for the dismissal of the claim, which reflect the factual and legal arguments that had been mounted to support the breach of copyright claim. They are: HBHG's so-called 'Central Theme' was in fact derived from DVC (and not the reverse) for the purposes of arguing breach of copyright; because there was no such central theme, there was therefore much more material contained in HBHG that DVC did not use; HBHG's so-called central themes are 'too general or of too low a level of abstraction to be capable of protection by copyright law'; such themes 'are merely a selective number of facts and ideas artificially taken out of HBHG for the purpose of the litigation'; Dan Brown did not infringe or substantially copy HBHG when he wrote DVC.
Of particular relevance to all creative artists was the trial's focus on the time, date and nature of Brown's development of DVC, especially whether he had written his synopsis and early drafts before or after he had read HBHG. Brown was able to satisfy the court with documentary and oral evidence that he had gone as far as writing the first 190 pages of DVC before he had read HBHG. This exemplifies and underlines best practice for all creative artists: make and maintain hard copy records of work in progress - manually timing and dating such material accordingly - so that at any later date, such a creative audit can prove when and how the original work was conceived and developed through to mature completion.
Authentication disputes concerning the works of dead artists are a perennial fact of life in the secondary art market, and usually concern works of artists who have been dead for 70 years or more. Increasingly, such disputes are arising in relation to works of artists who have died more recently (AM294 examined disputes over some of Warhol's works). The Pollock-Krasner Foundation is currently in dispute with Ellen G Landau, a Jackson Pollock expert, who authenticated 32 works discovered in 2002 including 22 small drip paintings on board. Landau's opinion that the works are Pollock originals is supported by strong circumstantial evidence: they were discovered by Alex Matter, the son of Pollock's friend the photographer and designer Herbert Matter (1907-1984) who had labelled them as Pollock experiments executed in the 4os, and had placed them in storage. Landau's credentials as a Pollock expert are also strong; she had been a member of the Pollock-Krasner Foundation's authentication board until it was wound up in 1995.
The dispute has arisen after the foundation had sent six transparencies of the Matter finds to a professor of physics at the University of Oregon, Richard Taylor, who is a painter, an art theorist, and - significantly - a pioneer in a new authentication technique know as 'fractal analysis' (images are magnified, and repeated patterns identified). Taylor compared his findings in relation to the new works with previous works (that had been accepted by the foundation as authentic Pollocks), which he had also subjected to fractal analysis. He found 'significant differences'. Taylor's full report is with the foundation, and it has triggered the co-authors of Pollock's catalogue raisonne publicly to doubt the authenticity of the new finds.
Whether this dispute will develop into litigation is currently unclear. US legislation dealing with attribution of authorship is significantly different to such legislation in the UK, EU and elsewhere in the world. In the US, an artist's statutory right to claim or deny authorship of work exists only until death; in most other countries, such legal authorship rights last significantly beyond artists' lives - usually for the same length as copyright (for 70 years after the artist's death). In France the droit de patemite lasts indefinitely. In the UK we split the rights in two: the right to 'prevent false attribution of authorship' lasts for 20 years after the artist's death; the right to claim true authorship lasts for 70 years after the artist's death. Where such rights do exist, the artist or their artistic estate has the exclusive legal right to assert or deny authorship. In this case, therefore, it seems that the Pollock-Krasner Foundation would not have the legal artists' rights they would enjoy in the EU and elsewhere.
© Henry Lydiate 2006
NOTE (added November 2009): Tate: Artists Contracts section above. In this case, the Employment Tribunal rejected Padgett’s claim; it was also rejected again when Padgett appealed to the Employment Appeal Tribunal.
[This article can be found from the Contracts, Copyright and Art After Death sections]