The Barnes Foundation stays in Merion... but the Renoirs, Cezannes and Picassos go to Philly

Barnes Foundation executive director and president Derek Gillman announced today that the Foundation will be investing "more than $300,000 to "revitalize" the 12-acre arboretum on the grounds of the former Barnes Collection home." He also said that the home will continue to house the Foundation's archives, which will be more available to scholars. But the announcement was more noteworthy for what the director did not say: that the art would be staying in Merion. The Renoirs, Cezannes and Picassos will move to Philly and the move is scheduled for July 3.

Can you copyright a tattoo? Legally-speaking, it's a legitimate question

ST. LOUIS. Given the litigious environment in which we live in, I suspect some of you are thinking that the copyright suit over the replica Mike Tyson tattoo in the film "The Hangover: Part II" is the latest in a long-list of frivolous suits that plague the legal system. However, as tattoos consecrate their place as "works of art," it was only a matter of time before tattoo artists attempted to claim and enforce an exclusive copyright over the original tattoo and now derivative works also (copyright protection extends to "derivative works" also).

To copyright a work, it must constitute an "original" but whether it's painted on a canvas, a wall or human skin is irrelevant. At the time S. Victor Whitmill created the original Tyson tattoo, he registered the copyright over the work and sought a release from Tyson relinquishing any rights he may have had over the tattoo and agreeing that Whitmill was the owner of the copyright. As such, Whitmill therefore had exclusive rights over any "derivative works," the tattoo in the film likely constituting as much. Not only does the design look strikingly similar, it's a direct reference to Tyson himself who appeared in the first film.

Mike Tyson and Whitmill's
Maori-inspired tattoo

The obvious defense for Warner Bros. (which they raised in their response) is to say that the tattoo in the film is "transformative" and its use to make a "parody" constitutes "fair use" ("parody" is widely held as coming within the six permissible uses in the Copyright Act -- a requirement that is often overlooked as attention is focused on the four-factor test in Section 107). The "fair use" defense embodies the balance at law between the copyright owner's rights and the need to not "stifle creativity," parting from the reality that nowadays almost all works of art are inspired by to a greater or lesser extent by existing works. The main obstacle for the defense will be to overcome the hurdle of the first factor: whether the use of the reproduction is "commercial" or "educational." Technically, federal courts are to weigh the four factors equally in determining whether a particular use is "fair" or not but in practice, the first factor is invariably given significantly greater consideration compared to the other three (some commentators have even argued that the first factor is "definitive"). The fact that Warner stood to reap huge profits from the film will likely not bode well with Judge Catherine D. Perry and if the use is held to be copyright infringement and not "fair," Whitmill will be entitled to the profits derived from the infringing use (among other damages). How the court would decide what part of the profits were derived from the infringing use and should therefore be disgorged though is unclear. I guess the simplest way would be to calculate the total time the replica tattoo is on the screen for as a proportion of the total running time of the film and use that percentage when awarding damages. But odds are we'll never know as the case will probably settle before we get to the sentencing stage.

Fighting forgery: Gala-Salvador Dalí Foundation organizes authentication conference (19-21 June)

The Art Newspaper reports that the Dalí Foundation is hosting a conference on the authentication of works and "fighting forgery through the courts" at Dalí’s summer home and museum a few hours away from Barcelona. Scheduled speakers include Judith Goldman, a member of the Andy Warhol Art Authentication Board, and Veronique Wiesinger, Director of the Fondation Giacometti (the Swiss artist having recently been the object of one of the largest scale forgeries in history). For more information, see here (unfortunately registration is now closed). 

Met museum and Jan Cowles -- the true owners of the Mark Tansey cow painting -- file their own complaint against Wylde

Mark Tansey's "The Innocent Eye Test" (1981), the painting
that continues to spew litigation

The true owners of the Mark Tansey cow painting sold by Charles Cowles to Robert Wylde through Gagosian Gallery have filed a complaint seeking a declaratory judgment to force Wylde to hand over the painting. The Metropolitan Museum and Jan Cowles (mother of Charles Cowles) each own 31 and 69%, respectively, of the painting. Crucially, the fact that the plaintiffs co-owned the painting was a matter of public record (see the Met's website here).

Meanwhile, litigation instituted by Wylde against Gagosian Gallery is already pending (see here) and has attracted a lot of attention as people anticipate getting a  closer glimpse at the inner workings of the Gagosian powerhouse.

UPDATED: Latest on New York's deaccessioning criteria

NEW YORK. When the "emergency" regulations on deaccessioning finally expired without renewal last October, an ad-hoc committee to the New York State Board of Regents was formed to, as the Maine Antique Digest puts it, "review and make recommendations on the deaccessioning process to the cultural education committee and the full board." By "deaccessioning process" what is meant is both the enactment and enforcement of deaccessioning criteria to be applied on a permanent basis to museums and historical societies under the Board of Regents' chartering (notably excluding the Metropolitan, "which has a legislative charter").

The proposed criteria, published on March 2 in the State register (p.14 onwards), include deaccessioning to remove an item established to be inauthentic; repatriate or return an item to its rightful owner (may seem obvious but several European museums have had problems in the past precisely because the law did not state this as a criterion for deaccessioning); return an item to a donor due to the institution's inability to satisfy donor restrictions (often a highly subjective inquiry) and deaccessioning to "accomplish refinement of collections."

What, if anything, does that last criterion accomplish? Arguably nothing since as drafted it is completely open to abuse and will neither ensure possession in the future (donors' big fear) nor guarantee public access to artworks held in "public trust" (i.e., remedying the incomprehensible reality that collections are largely in storage while museums are increasing on the verge of financial collapse and closure). The criterion is quintessentially representative of that deaccessioning "exercise in smoke and mirrors." Just as before, in practise museums would be free to deaccession pretty much as they like and the only real restriction is in the use of the proceeds that can be used "only for the acquisition of collections or the preservation, conservation, or direct care of collections" (not without its own shortcomings and contradictions). Donn Zaretsky is of the view that "museums have succeeded in guiding the process to a place where the rules make them do what they were already doing" except now (and this is important), "that exercise in smoke and mirrors -- will have the force of law."

UPDATE: a few more (varying) views on the new rules (from The Art Law Blog):

• Sergio Sarmiento (VLA Associate Director, artist and blogger): "Among the more perplexing of criteria is the requirement that the art 'item has failed to retain its identity.' What the hell does this mean? It was once a painting but it is now a frisbee?"
• Judith Dobrzynski (arts journalist and blogger): "Not bad."
• Amy Goldrich (attorney): "[A]lthough the new rules appear to require a more carefully justified decision to deaccession, at least one criterion -- accomplishing refinement of collections - could end up being a virtual 'get out of jail free' card."

Alleged copyright infringement of origami crease patterns by artist Sarah Morris

Two of the comparisons attached as Exhibit A to the complaint

Robert J. Lang, arguably the world's most famous origami artist, and several other co-plaintiffs have filed a complaint in federal court against painter and film maker Sarah Morris alleging her "Origami series" (2007) infringes their copyrighted artworks of crease patterns ["the lines of a crease pattern represent the folds needed to create a three-dimensional origami model from a sheet of paper"]. The complaint states that Morris "transferred crease patterns to canvas and applied household gloss paint to the spaces between the lines. Morris has represented in interviews and promotional materials that the paintings in the Origami series are based on "found origami designs" or "traditional" patterns." Twenty-four of the approximately thirty-seven works comprising the series are said to be "strikingly similar" to the copyrighted crease patterns, which are in no way referenced nor attributed to their original authors. Each of the original artworks was either the subject of a valid Certificate of Copyright Registration or of a pending application for registration, though failure to register an original artwork ("original" in a legal sense) does not preclude copyright protection completely -- it goes to the question of the relief a plaintiff can seek. Except in relation to those rights under §106A(a), to be able to claim statutory damages in the alternative to compensatory damages and attorney's fees, the work the subject of the litigation must have been registered no later than the earlier of 3 months from the date of first publication or 1 month after the copyright owner learnt of the infringement, which explains why the relief sought differs depending on the crease pattern.

The complaint lays out the facts in detail but doesn't state why it is that Sarah Morris' actions allegedly constitute copyright infringement for which the plaintiff is entitled to relief at law. In other words, the complaint doesn't point to the relevant law under which Morris' actions could amount to copyright infringement (most likely because the applicable pleading standard merely requires the plaintiff to put the defendant "on notice" rather than pleading the complaint "with particularity"). However, if you go to Lang's website you will find a brief summary of the main legal argument, this being that the owner of a copyright has exclusive rights under § 106(2) of the Copyright Act (17 U.S.C.) not only over an original work but also in respect of any and all "derivative works" (see § 101 for the statutory definition of "derivative work," though note that case law has added significant substance to such definition). If the court (often a single district court judge on a motion for summary judgment) finds that the "Origami series" paintings are derivative of the copyright-protected crease patterns then defendant's counsel may raise the affirmative defense of "fair use," recently posted about in the context of the Patrick Cariou v. Richard Prince litigation. There's quite a bit of overlap in the facts between Morris and Prince and I would expect the defense to fail in this case, just like it did for Richard Prince... One final thought on the complaint: curiously, it emphasizes throughout how Morris' actions were "wilful." This is interesting since there is no mental requirement to be found liable for copyright infringement (i.e., liability can attach irrespective of whether the infringement was intentional or not). Therefore, I assume the reason for making the allegation is because the court may, and likely would, award a greater amount of damages where the infringement is found to have been wilful.