An Inspector May Call Again

Readers may recall our report and commentary (AM 245) on the Metropolitan Police Service’s threat to prosecute the photographer Tierney Gearon for showing allegedly indecent photographs of her children in the ‘I am a camera’ exhibition at The Saatchi Gallery earlier this year. The Crown Prosecution Service eventually decided not to prosecute, following receipt of written representations from lawyers acting for the Gallery, its curator and the photographer.

Last month, the lawyers involved, Nicola Solomon and Mark Brown from the solicitors’ firm Finers Stephens Innocent, gave a talk at the London College of Printing which gave further important insights into the case and warned of possible legal action in future.

The dispute turned on the proper interpretation and application of The Protection of Children Act 1978, which states that it is a criminal offence to show or distribute ‘any indecent photograph of a child’, and that ‘photographs shall, if they show children and are indecent, be treated for the purposes of this Act as indecent photographs of children’.

The successful arguments advanced to the Crown Prosecution Service in this case included the following:

  • The naked body, even of a child, cannot of itself be said to be indecent; there must be some additional element of lewdness, prurience, or sexual provocation portrayed.
  • The context in which the alleged indecent image is portrayed should also be taken into account; for example, the artistic value or literary context, the nature and circumstances of the exhibition, and any catalogue or other related material.
  • Contemporary standards within society should also be considered; for example, pictures of naked children have been approved by the Advertising Standards Authority, the British Board of Film Classification, and by television regulators – and the photographs in this case were widely published in national and international newspapers and journals.

In this case, the police said they took their action in the belief that the photographs might appeal to child molesters, since they were similar to ones downloaded by paedophiles from the internet, however, the images were in fact very different from those the subject of such prosecutions. Moreover even if such images were of interest to paedophiles, should that in itself render them indecent in law? An important distinction is made by the law between obscenity (where the impact on the viewer is the legal test – might they be depraved or corrupted?) and indecency (where such a question is not relevant in law).

The Protection of Children Act 1978 provides a defence of ‘legitimate reason’ to such a prosecution, which has been held by the Court of Appeal to include ‘academic research’. Accordingly, the exposition of such artwork in a respectable art gallery, to which entry can be gained only by payment and where it is only likely to be seen by people genuinely interested in art, must have been a ‘legitimate reason’.

The Human Rights Act 1978 protects freedom of expression, including ‘artistic communication’ which is shocking or disturbing. In their talk, the art lawyers acknowledged that the police were acting in good faith, seeking to enforce a law aimed at protecting children, but questioned whether the police were best equipped to decide what is indecent and what is art.

Finally, it was reported that the police and CPS have recently stated that they intend to explore this question further, in a similar case in the future, in order to test before a court the legislation in question. Artists, administrators, and publishers who find themselves caught up in such a case in the future may wish to contact Finers Stephens Innocent: 020 7323 4000; www.fsilaw.com

Bacon’s Estate
It was widely reported last month that the court action brought by the Francis Bacon Estate against the Marlborough gallery will be listed for trial in the UK’s High Court at the beginning of 2002, and is likely to last several months.

Brian Clarke is the sole executor of the Estate and he launched proceedings against Marlborough Fine Art (London) Ltd and Marlborough International Fine Art (Liechtenstein), seeking judgment that would clarify the nature of the contractual relationship between the artist and gallery over 40 years, and to decide how much money is owed to the Estate.

In the UK’s High Court last May, Marlborough applied for Clarke’s action to be struck out, on the grounds that the Estate’s claim was spurious. The judge rejected the application and determined that there would be a trial. The heart of the matter appears to be the nature of Bacon’s relationship with his gallery, which is not supported by any clear documentary evidence of a contract between them. As the judge in this preliminary action stated, ‘the artist was a bohemian, lacking in business and financial experience and without the benefit of any independent advice’.

Bacon’s ‘arrangements’ with Marlborough reflected the artist’s insouciant nature over five decades; from around 1956, when the gallery paid him for paintings depending on their size, through an episode in the early 60s when he sought to move to a new gallery (but did not do so), to his death when Marlborough remained his only dealers, always taking works from his studio/apartment as soon as they were completed.

The Estate claims that Bacon was not dealt with properly, especially in terms of payment, and that the gallery owed the artist a high duty or care, attention and transparency in their commercial dealings with him and for him; for example, by paying Bacon £6,000 for a work and re-selling it almost immediately for seven times as much, the gallery was not necessarily acting in the artist’s best interests. Issues involved include whether works were ‘bought-in’ by the gallery, which were then re-sold for a profit they determined; or whether such works were sold by the gallery on behalf of the artist as his agent (in which case a percentage of the sale price should have been paid as a commission by the artist). There are other claims that many paintings do not appear in the accounts provided by the gallery, and that the income owed by the gallery to the artist/his Estate could amount to millions of pounds.

Marlborough is strenuously resisting the court action, and may be encouraged by its successful resistance of a legal action brought against them earlier this year by the Kurt Schwitters Estate. Norway’s High Court finally determined the Estate’s allegation that the gallery had bought works from the Estate below their true market value, had under-insured them and had failed to make proper payments. Judgment was given in favour of the gallery, which was awarded substantial damages and costs. In this case, once again, the heart of it was the nature of the relationship between the artist and gallery, and the lack of clear documentary evidence to clarify the matter.

In 1976 Marlborough (New York) lost a case, similar to the Schwitters case and possibly even closer to the issues in the Bacon case, when the Mark Rothko Estate was given substantial awards against the gallery for breach of trust and fiduciary duties. Again, the absence of clear documentation evidencing the nature of the commercial relationship and the gallery’s obligations was a key issue. (In the next issue, legal wrangles surrounding Salvador Dali’s Estate will be explored.)

© Henry Lydiate 2001

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.