Court Cases

It is unusual for there to be a sufficient number of artlaw cases to report between Issues, but this month there is a wealth of them.

Duchamp’s urinals
In 1998 a French artist, Pierre Pinoncelli, committed criminal damage to an example of Duchamp’s Fountain, while the work was being shown on exhibition in Nimes, by urinating in it and hitting it with a hammer. Pinoncelli was successfully prosecuted, fined and ordered by the court to pay compensation for the work’s restoration. In mitigation of his offence the defendant submitted that his acts were a performance work intended to demonstrate the urinal’s original purpose. The UK’s laws of criminal damage would equally apply to deal ‘With such criminal actions here, but such an offender would be at risk of being sent to prison.

Giacometti sculptures
A French foundry owner who made unauthorised castings of bronze sculptures by Giacometti was sentenced to ten year’s imprisonment by a French court, and the manager of the foundry was sentenced to eight months imprisonment suspended pending future good behaviour. The court ordered that the equipment used to create the forgeries, including plaster casts, should be destroyed. The UK’s laws would equally deal with such criminal activity, and prison would be the probable sentence, although it would be unlikely to be for as much as ten years.

Photographs of paintings and copyright
The UK courts have not yet had a case before them to decide whether a photograph of a painting entitles the photographer to acquire copyright in the photograph. Under the UK’s Copyright, Designs and Patents Act 1988, authors of ‘original’ artistic works automatically acquire copyright irrespective of the quality of the subject matter or of the skill in its execution; thus, for example, a child’s drawing of something from its imagination would acquire copyright by virtue of drawing being used as the medium of artistic expression. This law equally applies to original photographic works. But it has been long-disputed as to whether a photograph of a painting, albeit executed in a medium legally recognised as being an ‘artistic work’, can be sufficiently original because the image it carries is the product of the aesthetic skill and labour of the original painter.

A case dealing with this issue was heard recently in the USA, where a Federal Court had to decide whether a UK-based company was entitled to succeed in bringing a copyright action against a Canadian company.

Bridgeman Art Library Limited is a company registered in the UK and, amongst other things, provides services to owners of paintings wishing to generate income by licensing reproductions of them. The Corel Corporation, based in North America, makes computer software and had merchandised a CD-Rom in the US containing photographs of paintings which Bridgeman alleged could only have been copied from the transparencies of its clients’ paintings; without authorisation and payment of a licence fee. Around 100 old masters were alleged to have been the subject of copyright infringement.

Because the photographic works had been made by a UK company, the New York court used UK law to decide whether they were sufficiently ‘original’ to be entitled to their own copyright (note: copyright in the paintings themselves had long since expired), and decided that the photographs lacked sufficient originality. Bridgeman’s copyright infringement claim therefore failed: the company did not own copyright in their photographs. Significantly, the court was not persuaded by Bridgeman’s argument that the aesthetic skill and labour required to make a quality transparency of a painting justified its being an ‘original’ within the meaning of the UK’s Copyright, Designs and Patents Act 1988.

If courts in the UK were in future called upon to decide the same issue, this USA case would undoubtedly be used as a strong argument before the court. This case therefore raises serious questions for UK museums, galleries and collectors who seek to generate income by selling or licensing photographic reproductions of paintings, which they should seek to address sooner rather than later.

Picasso’s name in vain
In Italy, Viareggio’s local authority has been sued by the Picasso Foundation to prevent a carnival float being used to display a pastiche version of the artist’s Self-Portrait: 1907, using the law of moral rights. Throughout the EU, the laws of each member state give artists and their heirs (for 70 years after death) the right to protect their honour, integrity and reputation by preventing their works being treated in a derogatory way: the droit d’integrite was developed in France in the 1930s and was enacted into UK law by the Copyright, Designs and Patents Act 1988.

In France, Picasso’s granddaughter Marina has brought proceedings against the artist’s son Claude to prevent him from authorising the Citroen car company naming a new model after his father. In this case, the moral right of ‘false attribution of authorship’, laws dealing with trademarks, and what in the UK is called the law of ‘passing off’, are being brought into play.

US copyright length extension
The ‘Sonny Bono Copyright Term Extension Act’ came into force this year, and increased the length of US copyright from 75 to 96 years for all works still protected by US copyright law up to the end of 1998, as well as for works made in the future. The late Sonny Bono, formerly one half of the Sonny and Cher music duo, promoted the legislation before his recent death. In 1996, UK copyright was also extended by 20 years, from 50 to 70 years after the artist’s death, to bring UK law into line with the rest of the European Union.

Bacon’s estate
A strange saga has begun to unfold in London, where the High Court recently removed two of the three executors of Francis Bacon’s estate, leaving the artist Brian Clarke as sole executor with the onerous responsibility of ensuring that all of Bacon’s assets go to his sole named beneficiary, John Edwards. The two former executors were Paul Brass, Bacon’s doctor, and Valerie Boston, a director of Bacon’s gallery. According to Clarke, the doctor had done his very best to fulfil his duties as executor, but was not sufficiently versed in the art world to be able to deal effectively with the complexities involved in such a vast and valuable estate. The Marlborough Galleiy director had been put in a compromising position as an executor, since there was a potential conflict of interest between Bacon’s estate and his gallery. Clarke has placed the legal work with US lawyer John Eastman, father of his friend the late Linda McCartney, and the commercial side of the work with the Tony Shafrazi Galleiy, New York, which has handled Clarke’s work for some years.

Although Bacon took the sensible precaution of making a will, it would have been beneficial if he had engaged in some serious estate planning, to deal with essential matters such as selection of appropriate executors; cataloguing all his works and papers; storing and insuring all his assets; appraisal and valuation, and inheritance taxes. (An excellent guide was published in the US last year: A visual artist’s guide to estate planning, The Marie Walsh Sharpe Act Foundation and the Association of the Bar of the City of New York, 1998,0966518802.)

© Henry Lydiate 1999

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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.