The Bacon Estate (1)

The new year ushered in several important judicial decisions dealing with artlaw matters, including the Bacon Estate; the Sotheby’s and Christie’s so-called ‘price-fixing’ case; payments to artists of royalty fees by UK Universities; and Gilbert & George.

Francis Bacon
It will be recalled that Francis Bacon died in 1992 and left his estate to his friend John Edwards, naming Brian Clarke as one of his executors. The case is being brought by Clarke against Marlborough Fine Art (London) Ltd and Marlborough International Fine Art (Liechtenstein). Clarke is alleging that Bacon was dealt with inappropriately by his gallery, specifically (and amongst other things) in relation to payments for his work. Late last year, Clarke applied to the London High Court to include in his claim a specific allegation that when Bacon was considering changing his dealer (from Marlborough to the Pace Gallery) in the expectation that he might increase his income from sales, Marlborough’s then Director Frank Lloyd pressured Bacon to continue with them: in particular, by suggesting that if he left Marlborough he might then experience difficulty in accessing money in his Swiss bank accounts, and might encounter future difficulties in dealing with the UK’s Inland Revenue. Shortly after this alleged encounter, Bacon decided to remain with Marlborough. The High Court allowed those accusations to be included in Clarke’s claim.

This decision does not mean that the judge has accepted that the accusations are proven, or likely to succeed; simply that there appears to be on the face of the evidence presented a real issue to be dealt with at the full hearing. Marlborough argued strongly against the inclusion of this latest claim, which it will now contest at the full hearing, likely to be held in coming weeks.


Sotheby’s and Christie’s
Last month in New York the former Chairman of Sotheby’s, Alfred Taubman, was convicted of conspiracy with Christie’s to fix the level of sellers’ commissions at their auctions. The alleged co-conspirator was Sir Anthony Tennant (of Christie’s), but he was not prosecuted before the court, since he remains outside the USA and therefore beyond the court’s jurisdiction (there is no extradition treaty between the UK and USA in relation to such alleged offences). Sir Anthony strongly rejects the accusations. USA law has for many years had strong ‘anti-trust’ (ie anti-competition) laws, whereas the UK’s legislation is much weaker. At the time of the conspiracy (which began in 1993), the UK’s Competition Act (1988) was not on the statute books, and only came into effect in 2000 – by which time the conspiracy had ended. This legislation by the UK now enables courts to impose severe financial penalties upon companies for so-called ‘price-fixing’ in the UK (but not against company Directors personally). In the USA Taubman faces the real likelihood of a custodial sentence when he is sentenced in the coming months – possibly a term of years (three years is the maximum) and he could be fined heavily. In 1999 the Sotheby’s holding company pleaded guilty to the conspiracy and paid a fine of around US$40m; and Diana D Brooks, former Chief Executive of Sotheby’s, also pleaded guilty and will probably be sentenced at the same time as Taubman, against whom she gave evidence at this trial. Both the auction houses have undertaken to remedy their breaches of US law by paying around US$500m dollars in total to their customers who fell victim to the conspiracy.


Artist’s Royalties from UK Universities
Last month the UK’s Copyright Tribunal handed down its long-awaited decision in a case brought by Universities UK against the Copyright Licensing Agency, in which they disputed the terms and licence fee payments for photocopying books and journals. The Copyright Licensing Agency represents authors and publishers, and the Design and Artists Copyright Society made an intervention in the case on behalf of visual creators (whose images within books could be the subject of photocopying, and therefore of any blanket licence to photocopy given by the Agency to the Universities).

The Universities had sought to reduce substantially the annual fee they have for many years paid to the Agency for their photocopying licence: this had been resisted, and so the Tribunal tried the matter and made its decision. It decided that:

  • . the licence fee would be increased from £3.32 to £4.00 per full-time equivalent student per year, for a five year period
  • . the licence fee would be increased at Retail Price Index rates annually
  • . the photocopying licence would include the right to photocopy artistic works contained within books and journals
  • . the photocopying licence would include the right to produce course packs (which had hitherto been outside previous licences).

DACS is delighted with the outcome, and its Chief Executive Joanna Cave said ‘This Tribunal decision has established an important principle in judging that the right to copy artistic works should be included in the photocopying licence. The increase in the royalty is good news for rights holders and particularly for visual creators who will start to receive a share of this important income for the first time’. DACS is a not-for-profit membership organisation which exists to protect and promote the copyright of visual artists in the UK and worldwide. The annual licence fee is now worth around £5.6m, and DACS will receive 11% of this sum on behalf of visual creators.

The Copyright Licensing Agency considers that its approach to pricing and licensing has been vindicated by the Tribunal’s decision, which it warmly welcomes. Peter Shepherd, the Agency’s Chief Executive, said ‘This is mixed news for authors, artists and publishers. The increased royalty fee will certainly be welcome. We argued against the inclusion of course packs as part of the fee and are seriously concerned that the Tribunal did not accept our arguments. We fear that there will be an explosion of course pack copying of copyright materials; if so, there is a great concern that certain areas of academic publishing will be put at significant risk. This cannot possibly be deemed to benefit education’. The Agency is also a non-profit making organisation which licenses the copying of extracts from books, journals and periodicals in business, education and government on behalf of authors and publishers; it licenses all Higher Education in the UK.

Gilbert & George
A curious forensic saga is beginning to unfold, which involves a limited edition of adhesive tape designed by Gilbert & George; it is reported by police in the UK to have been used as a restraint in the murder of a woman in Yorkshire. The unique tape, printed with Gilbert & George’s original images, could only be purchased from one of the Tate Gallery’s shops in London, Liverpool or St lves. Police and forensic scientists are currently investigating the murder, and especially the use – and origins of the purchase – of the tape: any information about this matter can be communicated to the North Yorkshire Constabulary; 01904 618618.


© Henry Lydiate 2002



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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.