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Thursday, 5 May 2011

Artists in court: a snapshot of current developments in Europe

In "Iconic IP and freedom of expression: the battle lies ahead", the IPKat reported on the tussle between the famous fashion accessory house Louis Vuitton and Dutch artist Nadia Plesner over the incorporation by the latter of a Community design-protected pattern owned by the former into Darfurnica -- her dramatic and symbol-encrusted nod to Picasso's Guernica. LV sued for infringement of its design right; Plesner counterclaimed for a declaration that she was entitled to assert her right of freedom of expression under Article 10 of the European Convention on Human Rights.

Having succeeded in obtaining injunctive relief and token damages in France, LV initially obtained injunctive relief in the Netherlands too (for the litigation background see Rosie Burbidge's post on Art & Artifice here). The IPKat has now learned that, earlier this week, The Hague District Court reversed its own earlier order and has now decided that Plesner's right of free speech is fundamental and trumps LV's entitlement to assert its design right. Those of you who are fluent in Dutch can read the decision here. The Kats are awaiting an English translation, which they believe will come through their Kat-flap before the end of the week.


An emotive fixture in Europe's modern art heritage is the Berlin Wall, which like Guernica communicates a profound statement of man's cruelty to his fellow man.  Now a tourist attraction for many folk who were born too recently to remember those who were slain in a vain attempt to cross it, the Wall is still capable of engendering controversy.  In "Berlin Wall artists sue city in copyright controversy", Guardian Online, 3 May (spotted by too many readers to thank by name), reports that
"The East Side Gallery is one of Berlin's most popular tourist attractions, a 1.3km-long brightly painted stretch of the wall which divided east and west for almost 30 years. But now the outdoor exhibition space is embroiled in an expensive copyright controversy after Berlin council destroyed some artworks painted on the wall and reproduced others without the permission of the original artists.

The city of Berlin, which owns the wall and the land around it, is being sued by 21 artists over the way the council handled recent renovation of the gallery.  ... the artists say they – and about 80 other painters who decorated the wall shortly after the borders between east and west were opened in November 1989 – were offered €3,000 (£2,700) each by Berlin council to recreate their original murals after the site was overhauled for the 20th anniversary of the fall of the wall two years ago.

The artists were told if they refused to comply, an urban renewal firm contracted by the council would whitewash their work and get someone else to re-create – or "forge", according to the aggrieved artists – the originals. ... Many of the Berlin artists deemed €3,000 an insultingly low amount, especially as it was public knowledge that Berlin council had put aside a total of €2.2m for the renovations.

Hannes Hartung, a Munich-based lawyer representing artists in the legal action, said Thierry Noir, one of the artists who contributed to the East Side Gallery, had successfully won €250,000 from Germany's highest court after a section of the wall he painted was sold to a private collector.

Bodo Sperling, one of the founders of the East Side Gallery, whose work was whitewashed two years ago, is demanding at least €25,000. Sperling and 18 others who refused the €3,000 and then watched their work being destroyed are suing the council. They said they would be happy to repaint their designs – for a fair price. Ever since they threatened legal action during the renovation process two years ago, their sections of the wall have remained blank.

Two other artists have launched a claim for intellectual property theft after their original paintings were re-created by the council when they turned down the city's offer. Carmen Leidner Heidrich's Niemandsland (No Man's Land) and Die Geburt der Kachinas (The Birth of Kachina) by Hans Jürgen Grosse were both "forged" against their creators' will. ...   Millions of tourists who visited the reunited city took snaps of the free gallery, especially the famous painting of Leonid Brezhnev and Erich Honecker kissing and another of a Trabant car appearing to burst out from the wall. The artists responsible for both of these paintings accepted the €3,000 to repaint their designs and are not part of the pending legal action. ...

The claim is due to be filed in a Berlin court on Wednesday, although the case is unlikely to be heard for at least three months".
The IPKat is frankly surprised that the authorities in Berlin -- the capital of a country which has a long and proud tradition of upholding artists' rights -- have been allowed to place themselves in a situation such as this; indeed, his instinct is to ask whether there is another side of the story which might explain their action.  Merpel says, every art college should be offering courses on Intellectual Property for Artists, since they seem to be more in need of legal services and representation than many other categories of creators.

Earlier IPKat post on copyright in the Berlin Wall here.

2 comments:

IP Dragon said...

Interesting case.

Beside design rights the artist also could be sued for trademark infringement in the course of trade, since she tries to sell her art and merchandise which includes Louis Vuitton's trademarked monograms.
Using the brand on art, T-shirts and posters results in dilution: killing the brand with a thousand cuts. One can claim also copyright infringement based on the moral right, because Louis Vuitton's work is put in a damaging context.

Freedom of expression is a great good, but it should not damage the reputation and goodwill of a brand that has nothing to do with the genocide in Darfur.

The artist, Nadia Plesner, is not Dutch, but Danish, although she lives in the Netherlands.

Me, An Artist ? said...

A really interesting article.

What is more destructive to a brands success? Is it the original artwork or is it (as in the case of this article) the reproduction of the images in news articles, blogs and other world wide media?

I don't believe that these images would ever have reached my field of vision without your article. Who is responsible for spreading the message?

I feel that the artist[s] should be allowed to work with any thought and image that crosses their mind, but the reporting of this work should be restricted in their ability to reproduce the image.

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