Caveat Emptor

In relation to an artwork, what is the meaning of:

  • an original
  • a reproduction
  • an original reproduction
  • a multiple original
  • a print
  • an original print
  • an edition
  • a limited edition

and does it matter?

Some argue that it matters a great deal, both in practice and in principle: in practice, the consumer/purchaser/collector/keeper is entitled to know the true nature of any work with which they are involved; in principle, ethical standards are required to be established, maintained and promoted by all those professionally involved in the making, exhibiting, selling, marketing, education and information processes of the visual arts field. A good number don’t give a damn, or don’t appear to – in these’ islands.

Elsewhere on the continents of Europe, America and Australia, many including governments have given, give and are giving more than a little thought and action to what they regard as an umbilical link between maker and public, vital to be maintained as a strong and healthy vehicle for promoting and advancing the visual arts. A little idealistic, some say; an interference and a threat, say others – those with interests vested in achieving self-aggrandisement and profiteering through exploitation of ignorance. A case in point, unable to be published to date because it was until recently still before the courts and sub-judice, will serve to illustrate real concerns both nationally and internationally. The facts were reported as follows.

Facts and Particulars

1) Art Gallery of Windsor, Ontario

At the beginning of 1984, the Art Gallery of Windsor, Ontario (AGW), a public gallery, entered into a co-publishing venture with Museum Editions Limited (MEL), a privately-owned trading company; the aim was to market dye-transfer reproductions of seven works from the gallery’s public collection; AGW’s income from sales of the reproductions would go into its acquisitions fund; two brochures were published, ‘Just tell them it’s an Original Museum Edition’ and ‘From Our Collection To Yours’; a promotional display was installed at the gallery to support the venture.

2) Artists Express Concerns

Local artists in Windsor expressed concerns about three things: the general confusion in the eyes of the public over the distinction between original prints and reproductions; representations in the brochures that the MEL reproductions were original works; and the inappropriateness of a public gallery such as AGW being involved in a commercial venture of such a misleading nature, especially when the gallery’s principal object was to educate the public about visual art. Accordingly, the local branch of the artists’ association CAR (Canadian Artists Representation) made personal and written approaches first to the Executive Director, then to the President of the Board of Directors of AGW – with some success. AGW announced that their installation at the gallery would be moved to a less conspicuous position, apologised for unintentional misrepresentation and assured them that steps had been and were being taken to clarify the terminology used in the promotional materials associated with the display. At this stage, CARO, the association’s umbrella for the whole of Ontario, wrote to AGW in full support, pointing out the positive and important role for art reproductions of a high quality for educational purposes, but only so long as they were clearly labelled as such.

3) Artists Are Sued

Shortly afterwards, all the artists involved together with their associations were jointly sued by MEL. The writ taken out in the Supreme Court of Ontario claimed punitive and exemplary damages in excess of $11.5 million (roughly £5 million) in respect of:

  • libel and slander of MEL through the artists’ expressions of concern to AGW
  • inducement to AGW to breach its contract with MEL
  • wilfully and maliciously injuring MEL’s business venture
  • conspiracy to achieve all these things.

4) The Association of Art Museum

Directors offer artists support. The President of this Association wrote to the Board of Directors of AGW in the following terms:
The unanimous opinion of the members of the Ethics and Standards Committee and its Chairman is that the Museum Editions Collection clearly falls outside the ‘guidelines for reproduction of Works of Art’ recommended by the Association and published in its ‘Professional Practices in Art Museums’. Although the concept behind the production and marketing of these copies of original paintings in your collection claims to follow these guidelines, it is our opinion that the Museum Editions Collection unquestionably violates the spirit of these guidelines by offering reproductions as a surrogate for original works of art. Further, they confuse the distinction between a reproduction and an original work of art, and imply an identity of quality between reproductions and original paintings in the Art Gallery of Windsor.

5) Artists’ Legal Defences

After several months of frantic fundraising to pay the legal costs of preparing their defences, the artists and their associations responded to the writ. Essentially, they denied MEL’s claims, stressing that the co-publishing venture between AGW and MEL had not been for the creation of ‘hand-made prints’ (as was in fact being claimed) but for limited edition custom framed dye-transfer process reproductions’ – fundamentally different. And in denying the libel and slander and malicious injury claims, they asserted that their statements were factually true, and their opinions were fair comments made in good faith without malice upon matters of public interest which it was the responsibility of AGW to receive, and of the artists and their associations to make.

6) Abortive Settlement

Lawyers from both sides met to try to achieve a settlement, and eventually the artists wrote to MEL offering a compromise solution in terms that MEL redraft their brochures in accordance with the artists’ requirements, and that a joint statement be published whereby:

  • the artists would acknowledge MEL’s right to trade, and that the dye-transfer photographic process was an excellent method for reproduction of artwork;
  • MEL would acknowledge the artists’ concern that AGW should uphold established principles of ethical and professional practice, and their right and responsibility to express their opinions on such matters to the public;
  • MEL would recognise and accept the definition of prints issued by the Professional Association of Canadian Art Dealers.

7) MEL’s Suit Dismissed

In the summer this year, nearly eighteen months from the start of this venture, MEL’s case was dismissed by the Supreme Court of Ontario for want of prosecution. MEL was ordered to pay the artists’ legal costs.

8) MEL Disappears

Unfortunately, MEL left town; their offices had been vacated and their telephone disconnected. There are, however, recent reports that the two principals of MEL have formed a new company called Saltmarche Master Reproductions, but these reports have yet to be confirmed.

9) Artists’ Legal Defence Fund

In these circumstances, and unless or until they can find and extract the cash from MEL, the artists have hefty legal fees to pay. Their original legal defence fund, which raised some cash initially, has to continue, to find the balance. Should anyone wish to contribute and/or seek further information, the artists can be contacted through:
The Artists’ Voice Legal Defence Fund
CARO (Canadian Artists
Representation Ontario)
345-67 Mowat Avenue,
TORONTO M6K3E3.
(416)534-8218

Features for Professionals

One of the important features of this case is that the artists not only had a recognised and organised voice, their local and state associations, but also had an agreed point of view, a professional consensus on the question at issue: originals vs. reproductions. Furthermore, they also received valuable support from the Association of Art Museum Directors whose Ethical and Standards Committee had likewise already achieved professional agreement on such matters, and had published guidelines for that purpose.

Another feature of this unique case was the involvement in the ill-fated commercial venture by a public gallery, AGW, whose presence undoubtedly contributed largely to the offence taken by the artists for their own part and on behalf of the public. Unlike a private gallery, AGW’s brief specifically included a responsibility for the education of the public which was clearly in question at the outset. It was for this reason, and also because works from their collection were being reproduced, that the artists chose to tackle AGW directly and from the public accountability angle, rather than through any other method. It is this involvement of public bodies, administering public monies, and the accountability which attaches thereto, which gives the public some leverage where abuses are apparent. And such pressures need not, of course, involve recourse to law. Thus, in the UK where funds and support are provided by the Arts Councils, Regional Arts Associations, Local Authorities, the Crafts Council and others, such public organs are responsible for ensuring that any ventures they support are not against the public interest, nor abusive of the public. It is, therefore, legitimate for those bodies to be called upon by the public to exercise their influence and control at any time, for these protective purposes. But how is the public to be protected against abuses from the private sector where no public funds (and therefore control) are involved; or where such public bodies who ought to act fail or refuse to do so?

Consumer Protection

Whether or not public funds are involved in supporting a venture or organisation, and irrespective of the willingness of public bodies to act, the public can take action themselves. In this country. Parliament has provided two vehicles for the protection of the public as consumers: The Trade Descriptions Acts 1968 and 1976; and the Fair Trading Act 1973. Both these statutes create serious criminal offences for anyone deliberately, or even innocently but negligently, misleading the public in the way goods are offered for sale. Goods include artworks. Misleading could include the facts of the Canadian case mentioned above, had it occurred in this country.

© Henry Lydiate 1985

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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.