Swedish Artists' National Organization (KRO) calls for tax incentives for private investments in art

STOCKHOLM. The Art Newspaper has reported that Sweden's KRO has called for tax incentives to encourage private investments in art. The organization is banking on the leader of the country's opposition party to back their proposal and push it forward to come into fruition but as Professor Emma Stenström is quoted as saying, above all the proposal opens the debate regarding funding of the arts. The UK recently engaged in a similar debate as the government announced a 30% cut in public funding last October but failed to accompany such cut with much-needed tax reforms to incentivize private donations. The highly anticipated tax incentives eventually did arrive and were announced last month. Perhaps a trend will develop throughout Europe away from the traditional European model of public funding towards the American model premised on private funding, the cornerstone of which are tax incentives.

UPDATE: End of winning streak for Louis Vuitton

Remember that lawsuit LVMH brought against the Dutch artist Nadia Plesner for using an image of a child holding a Louis Vuitton bag in the painting Darfurnica? A court in The Hague yesterday ruled in favor of the artist stating that her right to freedom of expression outweighed LV's right to protection of property. While it's true that this balancing act between such competing rights underlies copyright law in most (possibly even all) jurisdictions, I'm surprised that the outcome (I haven't had a chance to read the actual judgment handed down by the court) was expressed in such terms. In other words, I would have thought that Plesner had some sort of affirmative defense under EU copyright law akin to the "fair use" defense under US copyright law (which in essence is the embodiment at law of the balancing act discussed above) rather than have to structure her defense along the lines of a "freedom of expression" argument. (This is what I meant when I first posted about the lawsuit).

Notes from "A Conversation with Dan Brooks"

On April 20, the VLA hosted a talk with Dan Brooks ("DB"), attorney to Patrick Cariou in Cariou v. Prince, to discuss the case and the intersection between copyright laws and appropriation art generally. Here are some notes on what was said that evening:

• Failure to register an artwork such as a photograph does not mean the work is completely void of copyright protection. However, damages would be limited to actual damages - statutory and special damages would not be awarded, nor would disgorgement of profits or reimbursement of attorneys fees (injunctive relief may still be available though).
• Likewise, the court quickly dismissed Prince's initial argument that Cariou's works comprising the series "Yes, Rasta" were not copyright protected because, by merely documenting facts, they didn't constitute "original" works ("factual" statements and "ideas" are not protected). It was clear that Cariou worked relentlessly to capture the shot he wanted and a lot of thought went into the subject matter, the lighting and the composition of the (original) photos.
• Interestingly, the court considered the series "Canal Zone" as a whole when determining whether Prince could successfully avail himself of the affirmative defense of "fair use" (following a finding that the defendant has as a matter of law committed copyright infringement). DB did say though that it's likely the works will be considered individually at the sentencing proceeding (yet to take place).
• One way to think about the "fair use" defense is essentially as the recognition at law that most things are not "new" but rather build on what has come before, whether it be literature, visual arts, music etc.
• Most of the cases are decided as motions for summary judgment (so by a single district court judge) since there are hardly, if any, genuine disputes of material fact (i.e., those that are outcome-determinative) that need to go to a jury -- most of the evidence is with the plaintiff and the defendant themselves. Only they really know the facts pertinent to the four prongs of the test...
• ... Ironically this implies that the law puts a not insignificant premium on perjury. And hiring a top lawyer to draft the party's affidavit in light of the weight it carries in these cases.
• In summarising "fair use" case law to date, DB said the first prong (the purpose and character of the use, including whether the use is of a commercial nature) of the four-prong "fair use" test is still the most important and while the list is not intended to be exhaustive, in practice it is. Crucially too, the use must relate back to one or more of the 6 permitted uses in the lead-in to s.107: criticism, comment, news reporting, teaching, scholarship or research.
• The third prong regarding "the amount and substantially of the portion used" is measured against the original work, not the second work i.e., it is no defense to point to how much of the allegedly infringing work is original and not appropriated. Rather, the court looks at how substantial what was taken is as a proportion of the original work.
• The "Blanch" case is the only time an appropriation artist has successfully argued the "fair use" defense.
• The Cariou v. Prince decision is, as the VLA's Sergio Sarmiento put it, above all a decision in favor of art criticism for it forces appropriation artists to think about and articulate what and why they have created the work the subject of the litigation (probably to the dismay of some artists). US copyright law does not distinguish appropriation artists from among artists generally and it is not enough for a defendant artist to merely argue that he/she is an "appropriation" artist and therefore not guilty of copyright infringement. As Sergio said, that's just a "ploy" -- we're no longer in the 70s!

Donn Zaretsky of The Art Law blog (whom I had the huge pleasure of meeting at the event) has posted some links to commentary on the case: see here for artist Brian Dupont's views and here for law firm Sullivan and Worcester's analysis.

EVENT: A conversation with Patrick Cariou's attorney

Volunteer Lawyers for the Arts has invited Patrick Cariou's attorney, Dan Brooks, to speak with Sergio Sarmiento to discuss the case Cariou vs. Prince. If you're interested in copyright infringement and appropriation art and where the law draws the line between the two, the conference is likely to appeal to you. Details here and background here. It's unclear whether Dan Brooks will also discuss the claim against Larry Gagosian and Gagosian Gallery but I hope he does as the liability of intermediaries is another important and fascinating aspect of copyright infringement.

Zadkine case in Paris raises question of transferability of droit moral after an artist's death

Artist Ossip Zadkine's illegitimate son, Nicolas Hasle, continues to be embroiled in litigation to claim moral and economic rights to his late father's estate. The court of appeal of Paris recently ruled that the City of Paris (named the beneficiary of the estate by Valentine Prax, the wife of Zadkine who inherited the estate after the artist's death) had to outline its claim to Zadkine's estate. However, more interesting than the legal confrontation between Hasle and the City Council over the economic rights to the estate (which is basically a question of applicable inheritance law) is the concept and transferability of Zadkine's moral rights.

Moral rights refer to an author's right to control the work he/she has created. Such rights (a translation from the French term "droit moral"), protect the personal and reputational, rather than the purely monetary, value of a work to its creator. The scope of moral rights is unclear and differs from jurisdiction to jurisdiction, largely as a result of divergent cultural conceptions of authorship and ownership. In the US, moral rights are protected under various statutory instruments including the Visual Artists Rights Act of 1990 ("VARA"). VARA was the first federal copyright legislation to grant protection to moral rights but certain requirements have to met for a work to fall within the ambit of the statute's protection (e.g., it covers the visual arts only and works must have been produced for exhibition and exist in single copies or in limited editions of 200 or fewer, signed and numbered by the artist). In Europe and elsewhere, moral rights are more broadly protected by ordinary copyright law.

Under VARA, moral rights automatically vest in the author of a protected work but such rights are not transferable and terminate with the death of the artist. In stark contrast, under French law, moral rights are perpetual and they pass to the author's heirs or executor on the author's death although they may not otherwise be transferred or sold by either the author himself during his lifetime or by his heirs. Since moral rights include the right of attribution, this means that in practise the heirs of an artist can to some extent control the market for the late artist even though they may lack the technical qualifications to determine the provenance of works attributed to such artist. In Hasle's case, it's unclear whether he's even been exposed to the works of Ossip Zadkine. Posthumous moral rights raise many issues and it'll be interesting to see how the court in Paris deals with such rights in the context of the particular facts of this case (not just because Hasle is Zadkine's illegitimate child (I think it's highly unlikely that French law distinguishes between illegitimate and legitimate children) but because it's unclear whether Valentine Prax could lawfully have transferred the moral rights passed to her (I understand that under French law, while liberal, moral rights do terminate with the author's heirs)).

"Armenian restitution claims on the rise"

Most restitution claims relating to wartime looting are in connection with the World Wars or the Holocaust but The Art Newspaper has reported that, according to Loyola Law School, legal claims of looting during the Armenian "massacres" (which many would characterize as "genocide") are on the rise. Not surprisingly, the claims are said to be following the approach adopted in Holocaust restitution claims. The case of the Armenian Apostolic Church against the Getty Museum in Los Angeles is thus far the most notable but it may only be the "tip of the iceberg." The Church has sued the museum for the return of seven pages from a medieval Armenian Bible "almost a century ago" but the museum argues that it bought them legally. Even if the case does settle out of court, it's predicted to open the door to more cases of this kind. Two big obstacles to all restitution claims are whether the end buyer is a bona fide purchaser for value without notice (usually protected at law) and the statute of limitations (the key question being from which date should the statutory period start to run in these cases).