Readers will have not missed that last week London hosted the AIPPI Congress in the politically charged climes of Westminster.  The AmeriKat was frantically pouncing from one event to another, all while moving house.  Thus the IPKat was unusually quiet during this Congress.  But now that the dust (literal and mental) has somewhat settled, she brings reports from a team of guest AIPPI reporters.  The first of which comes from Sarah Blair (formerly of Bristows, but now off to Bermuda where she will continue practising IP - good luck Sarah!).

Over to Sarah for the first session from Day 1:

"Four distinguished panellists were welcomed by a packed room of attendees for the first panel session of AIPPI London 2019 to discuss the role of copyright in the protection and exploitation of art and architecture.

Works of visual art in the public domain

The session kicked off with a discussion of article 14 of the new (and controversial) copyright DSM Directive (2019/790) in relation to works of visual art in the public domain. Article 14 provides that:

“Member states shall provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation”.

For example, when the copyright in a painting has expired, copyright will not subsist in a photograph of that work unless that photograph itself satisfies the originality criteria.

Eleonora Rosati (academic and an Of Counsel at Bird & Bird, UK) commented that this article was a surprise to the copyright and museum industry, having not been included in the initial proposal for the directive back in 2016. Museums who provide a ‘©’ symbol with digital reproductions of works in their exhibitions will need to reconsider this practice. However, Eleonora rightly pointed out that this is not a new right per se – but arguably only clarifies existing law: to have copyright (or related right) protection in a work, it must be original. Eleonora recalled the CJEU decision in Painer (C-145/10) which discusses originality in photographs being the creative choices of the photographer as to e.g. framing, lighting, angle, atmosphere and post production changes. Dale Nelson (Donaldson + Callif LLP, US), who was moderating the panel, noted that the US generally accepts that photographs are subject to copyright protection.

Christian Zimmerman (chief operating officer, DACS, UK) noted that Article 14 may impact on UK law given that Article 14 specifically refers to the “author’s own intellectual creation” in contrast to the UK’s “skill, labour and judgment” test for originality. However, this might be of limited impact given that the UK courts have already begun incorporating the EU’s test in recent decisions, for example in the Red Bus case.

Christian reflected on the museum industry, which to date often rely on its terms and conditions of entry to prevent visitors from taking photographs of its exhibited works. However, following legal changes in 2014, an override clause meant that such a term could no longer be imposed. Museums are ever developing new media opportunities, some museums even curating ‘Instagram exhibitions’ and working with influencers for increased publicity. They may well still try to prevent recirculation of their photographs by way of watermarking their images or restricting the ‘right-click’ to copy the image.

Freedom of panorama

Next up for discussion was the exception for the ‘right of panorama’ found in Article 5(3)(h) of the InfoSoc Directive. This is a non-mandatory exception for the “use of works, such as architecture or sculpture, made to be located permanently in public places”.

Thomas Koch (Judge, German Federal Supreme Court) referred to the German Bundesgerichtshof’s (‘BGH’) decision in “AIDA Kissmouth” [decision in German only] (IPKat reported here). In that case, the upload of a photograph of a cruise liner which was externally decorated with copyright-protected artworks was exempt from infringement for falling within the panorama exception which had been implemented into German law. The trickier aspects of this decision concerned whether the cruise liner could properly be considered to be located permanently in public places given that it traversed the world and would occasionally be in private and public locations. The BGH decided that the work needn’t be stationary and that it is sufficient for the work to be accessible (in this case, seen and photographed) from a public place even if the protected work was situated in a private location.

Eleonora pointed out that, of those that have chosen to implement this exception, there are significant variances between the different Member States’ national transposition of it. For example, in France the exception doesn’t extend to commercial use (so the AIDA Kissmouth decision would have been decided differently there, having been photographed and used by an operator of excursions and cruises in Egypt). In the UK, it is significantly restricted by having been literally transposed and being restricted to only buildings, sculptures, models for buildings and works of artistic craftsmanship. Christian expanded on the UK position, pointing out that, for example, taking a photograph of Banksy street art would not be covered by the exception as it does not extend to graphic works. Without a personal fair use exception, individuals in the UK would be infringing Banksy’s copyright. The public also fall prey to infringement when they photograph works publicly displaced on a temporary basis – for example, sculptures displayed on the plinths in Trafalgar Square on a 5 year basis. Interpreted strictly, these aren’t “permanent” displays. The panellists agreed that clarification and harmonisation from the CJEU would be helpful in this area.

Destruction of works

Last up was a discussion was another, recent, decision of the BGH in relation to authors’ moral rights and the destruction of their work. Thomas explained that the case concerned an artist’s installation of an artwork (called “HHole (for Mannheim) 2006”) across multiple levels of an art gallery. Many years later, the art gallery sought to (and did) remove the installation. The artist claimed that such destruction infringed her moral rights in the work and constituted derogatory treatment under section 14 of the German Copyright Act (here). It was held that, in weighing up the respective interests of the parties, the interests of the building’s owner – in regaining space for its exhibitions - prevailed. When conducting this exercise, important factors include whether there is only one copy of the work, the level of design in the work and whether it serves a special use.

Eleonora commented that moral rights in the UK are weak. Christian considered two other means to preserve artists’ works: 1) public pressure; and, 2) the use of contractual obligations for refurbishment and preservation. For example, when substantial renovations of the Tottenham Court Road underground station in London threatened the removal of Eduardo Paolozzi’s iconic mosaic designs installed there in 1986, there was a public outcry. As a result, TfL (Transport for London) underwent a significant restoration and conservation project and consequently retained 95% of the mosaics. "

This SherlocKat isnt fooled by this ownership business

An heir claims ownership over his ancestor's painting seventy-years and six months after the death of his ancestor... and the Paris Tribunal seems likely to grant his request. How is it possible? Elementary, my dear Watson. 

The legal ownership of artworks spans across a number of legal fields, going beyond intellectual property rights in some cases. As a result, more than one kind of ownership is vested in works of art. Ownership may be conferred by copyright in the graphic representation embodied by the painting, and by (traditional) property law over the painting itself. Unlike copyright-ownership, property-ownership knows no time-limit. As confirmed by a recent decision of the Paris Tribunal, property-ownership may be passed down from one generation to the next without losing its legal force. Old titles may thus come back to haunt collectors, galleries and museums who exhibit works that are otherwise cleared by copyright.

"La Cueillette des Pois" by Pissarro (1886)

On 30 May 2017, the Paris Tribunal (Tribunal de Grande Instance) granted an interim injunction sought by the heir of a private collector whose artwork collection had been plundered during the German occupation in 1943.  The dispute illustrates that owning or exhibiting works of art can be fraught with both legal and historical complexities. 

The interim order concerns the work of the famous French artiste Camille Pissarro known as "La Cueillette" (also going by the name of  "La cueillette des pois", "Pea Harvest"). "Pea Harvest" was one of the ninety-three paintings Simon Bauer, the private collector, owned and ultimately lost during the war. The plundering of Bauer's collection was executed on 1 October 1945 in accordance with the legal status of Jewish French citizens at the time. Bauer began legal actions to recover his collection, shortly after his escape from the Drancy camp in 1944. On 8 November 1945, the Paris Tribunal declared null and void the sales of the paintings Bauer had managed to locate since his return, and secured their restitution. This decision was confirmed in appeal on 4 May 1951. Yet not all paintings were recovered. When Bauer passing away on 1 January 1947, the search for the remaining items of his collection was carried on by his grandchildren, who have continued to do so to this day. 

Camille Pissarro

The present dispute began with the reappearance of "Pea Harvest" in the Pissarro exhibition put on by the Marmottan museum in Paris. The painting's current owners, Mr and Mrs Toll, US citizens, had lent the piece to the Museum for the duration of their exhibition. Anxious not to see the painting leave France at the end of the show, Bauer's heirs filed for an interim injunction granted by expedited proceedings in order to have Pissarro's piece kept in sequestration with the Academy of Fine Arts until 2 July 2017, and with the Orsay and Orangerie museums thereafter. Ultimately, the claimants hope that the interim injunction will facilitate the recovery of the painting once full court proceedings settle the issue. 

Mr and Mrs Toll challenged the interim sequestration of the piece on three grounds: (1) the Paris Tribunal's lack of jurisdiction in the matter; (2) the presence of procedural irregularities in the claimant's injunction request; and (3) the inappropriate use by the claimant of expedited proceedings in this case (a procedure known as "jugement en référé" in France).

(1) On the Paris Tribunal's jurisdiction. The defendants argued that the involvement of the Academy of the Fine Arts (based in Paris) is a ruse on the claimants' parts for their case to be heard in Paris, and not in the United States, where the Tolls live permanently. As such, the Tribunal should declare themselves lacking jurisdiction to rule on this matter. The Bench dismissed the argument by pointing to the fact that the involvement of the Academy of Fine Arts was legitimate given that the institution manages the Marmottan Foundation (including its museum), who currently hold the painting. The Tribunal President thus concluded that since the interim injunction seeks to have the painting retained by the Marmottan museum (i.e. the Academy of Fine Arts) which is itself located in France, French courts enjoyed jurisdiction in this matter (p. 5-6).

(2) On the procedural irregularities of the claim. The defendants first challenged the injunction claim by stressing that the Marmottan Foundation lacked legal personhood and, as such, could not be party to the dispute or receive the painting in sequestration. The Tribunal responded by reminding the parties that such grounds could have only been raised by the Marmottan Foundation, who did not, and that the Academy of Fine Arts (who enjoy legal personhood) had joined the proceedings in support of the Foundation precisely for this reason (p. 6)

Jean-Jacques Bauer (Simon Bauer's heir) at the Marmottan museum. (Photograph by France 3 TV)

The defendants also asked for the dismissal of injunction request on the basis that the required notification for expedited interim injunction made against parties residing abroad had not been fulfilled by the plaintiffs. The Court rejected the argument by stating that the defendants were granted further time to prepare, seek advice from counsel and present their arguments, which they did in full at the hearing on 5 May 2017. Earlier irregularities had thus been rectified (p. 6).

A Pea-cat (Flickr: jaci XIII)

(3) On the suitability of expedited proceedings. Finally, the defendants put forward that expedited proceedings in this case would be prohibited by the French civil procedural rules because they have a serious and legitimate claim to retain the painting (see Art 808 of the Code of Civil Procedure - available here in English). For this reason, any injunction or decision should be heard in the context of full, and not expedited, proceedings. The Tolls argue that they are the bona fide owners of Pissarro's painting, having acquired the piece at a public auction held by Christies in 1995. According to them, their position as owners in good faith should bar the restitution requested by Bauer's estate. Yet, the Court dismissed this argument by referring to the 1945 ordinance issued by the Paris Court of Appeal in which the judges had declared that "any subsequent owners [of Bauer's paintings] will be regarded as possessors in bad faith [...]. They may not, under any circumstances, invoke a right to retain a lien". The Paris Tribunal thus concluded that the defendants' bona fide defense could not hold, and did not form a legitimate or serious claim susceptible to prevent expedited proceedings (p. 7). 

The conclusion of the Tribunal President on this last point seems to indicate that Bauer's estate stand strong in their battle to secure the ownership of Pissarro's work. Jean-Jacques Bauer, Simon Bauer's heir, reported by the French newspaper FranceInfo, was pleased to see judges taking actions helping him restore his ancestor's collection as similar proceedings had failed in the past (see here). The full trial on the painting's ownership is yet to be heard. More than seventy-year after the confiscation of Bauer's paintings, the search and the legal battles to complete the collection continue. The decision also reminds us, and the practitioners of the GLAM sector (Galleries, Libraries, Archives and Museums) that the ever-so-worrisome intellectual property rights represent only one of two legal ownership rights. 


By Mathilde Pavis 

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