Salvador Dali, a master of Surrealism died in 1989. A dozen or so years later his legacy has caused substantial legal problems of an equally surrealist nature. The litigants are the Gala-Salvador Dali Foundation established by the artist to curate his works and Museum at Figueres in Catalonia; and Demart, the company which was established to administer Dali's intellectual properly rights.
The conflict between these two commercial vehicles, established during Dali's life with his approval, centres on the concerns of the Foundation about the way Demart is dealing with Dali's intellectual property rights. Readers may recall that artists' legal rights include ownership of copyright, which is one form of what the law describes as 'intellectual property'. Copyright lasts for the artists' lifetime plus 70 years after death, and so passes on death to the artist's estate or to whomever is named in any will or other lawful documentation passing on the copyright. Demart has these rights, and is run by Robert Descharnes, Dali's old friend and a specialist in his work. Accordingly, when artists die, their works may go in one direction (in Dali's case to his Foundation) and their intellectual property in another (in Dali's case to Demart).
Similarly, artists' moral rights are further forms of intellectual property, which last for the same length as copyright and on death also pass on to be administered for 70 years. Moral rights enable works to be protected against 'derogatory treatment' (any unauthorised additions, deletions, alterations or amendments) and entitle artists to be credited with authorship whenever their works are exposed to the public.
In this dispute, the Foundation seeks to administer Dali's intellectual property rights on the grounds that Demart has failed to do so properly.
Dali established the Foundation in 1982 in order to manage his museum at Figueres, but also to protect and promote his work. The Demart company was created in 1985 and Dali then signed over to it all of his intellectual property rights until 2004. The beneficiaries of Demart's business profits would be Dali (until his death) and the Foundation. Dali's concept was simple:
Demart would generate income to support the Foundation. However, after Dali's death in 1989, difficulties arose when Demart's operating costs prevented sufficient profit from copyright royalties being paid to the Foundation. In 1994 the Foundation tried to become the administrator of Demart's intellectual property rights, against the latter's wishes. In 1995 the Spanish Government was persuaded by the Foundation to enact legislation transferring the administration of Demart's rights to the Foundation, and in 1997 the Spanish High Court (and in 1999 the Spanish Supreme Court) confirmed the lawfulness of this action. The Spanish King, Juan Carlos, is Honorary President of the Foundation and is publicly vocal in his support of this move. Later in 1999 Demart issued court proceedings in Spain, claiming that the Spanish Government's transfer of the rights was unlawful. At the time of writing, the case has yet to be decided.
The current situation therefore appears to be that both Demart and the Foundation are claiming the exclusive right to administer Dali's intellectual property rights throughout the world. This makes it extremely difficult, if not impossible, for legitimate would-be users of Dali's images to negotiate licensing deals to merchandise them.
What makes this bizarre situation surreal is that Dali's works have been the subject of arguably the most forging and counterfeiting in modern times. It is generally acknowledged that Dali during his lifetime readily signed blank sheets of paper, for a fee, which would-be publishers might use later; estimates range from 100,000 to 500,000 such sheets. This has resulted in vast numbers of works which are of very questionable authenticity - which it should be the earnest task of both Demart and the Foundation to be pursuing rather than fighting each other; especially when Robert Descharnes is widely acknowledged as one of the world's leading Dali authentication experts (a matter which is also wrapped into the Demart/Foundation dispute because the latter body now argues against his credibility as such an authority).
One twist in the tale, which has yet to emerge, is whether Dali had the legal right to assign his moral rights (against derogatory treatment) to Demart in 1986. Under UK law, which follows the approach taken by other EU states, moral rights cannot be 'assigned' (transferred to someone else) by the artist. This is because, unlike copyright, moral rights are personal and not economic rights. Moral rights legislation usually makes special provisions for transfer of moral rights at the artist's death: in the UK such rights automatically pass to any body named in the artist's will but, if there is no such provision in a will, the moral rights pass to the artist's estate - in Dali's case, this could turn out to be the Foundation.
Fascinating and instructive though these wranglings may be, there is (as ever) a key lesson to be learned: the need for clear documentary evidence of what artists want to happen to their works and their intellectual property based upon specialist advice from lawyers versed in artlaw. As has often been discussed in this column, artists signally fail to do so, and especially those whose celebrity and commercial successes during their lifetimes equip them with the financial resources to buy the best advice, and whose experiences of the commercial dimension of practice should teach them to know and do better. In the last issue of AM the Bacon Estate wrangle was explored, and previous columns over the past three decades have looked at wrangles over the Warhol Foundation and the Rothko Estate. Artists beware.
This dispute was resolved in 2004, as explained in the following published statement from the Foundation
"Figueres, 19 July, 2004:
The Gala-Salvador Dalí Foundation becomes the owner of Demart Pro Arte B.V.
Demart has accepted the claim brought by the Foundation whereby it sought the dissolution of the Salvador Dalí Pro Arte Trust. As a result, the Foundation will become the full owner of the entire stock capital of Demart, which it had already been managing as the sole director. The Foundation withdraws the legal action brought against Demart worldwide since the situation is now such that it is unnecessary to continue with the action. Demart withdraws all of the legal action it had brought against the Spanish State and the Dalí Foundation or third parties regarding matters affecting the dispute concerning the industrial or intellectual property rights, which the Foundation currently directly or indirectly controls.
This is great news that the Foundation is pleased to announce to the art market, since it finally brings a peaceful end to legal disputes that have now been entirely overcome. This is the best possible way to honour Salvador Dalí on the occasion of the centenary of his birth."
© Henry Lydiate 2001