Moral Rights, Property Rights And Picasso: An Artistic And Legal Conundrum
from the so-now-what? dept
We've discussed moral rights here a few times in the past. These rights -- which focus on things like attribution and making sure artwork is not damaged, denigrated or destroyed -- are generally not recognized in the US. They're much more popular in Europe, and in fact, are often referred to as "droit moral," which is the French term. Of course, as overly pedantic IP lawyers never fail to remind us, while the US has generally not recognized moral rights, that is not entirely true. As part of trying to sorta kinda pretend that the US was compliant with the Berne Convention on copyright, which requires that moral rights be recognized, the US passed the Visual Artists Rights Act (VARA), which does recognize moral rights for certain types of physical artwork, including paintings, drawings, prints and sculptures.That has now created an interesting legal (and, possibly, moral and artistic) conundrum in New York City. The Four Seasons Hotel in midtown Manhattan happens to have a mural painted by Picasso, called "Le Tricorne." The mural was originally part of a set decoration for a performance of Diaghilev's Ballets Russes, but has been in the Four Seasons restaurant lobby since 1959. Given how easy it is for anyone to go see it, it has been called Pablo Picasso's most readily accessible painting.
And, voila, a legal and cultural conundrum. As Mira T. Sundara Rajan at the 1709 blog writes:
Where does this leave things with Picasso’s mural? Given its authorship, the ease of establishing that the Picasso is a work of “recognized stature” seems fairly straightforward. Accordingly, VARA could be invoked by the New York Landmarks Conservancy, which owned the Picasso after it was donated to the group in 2005, to prevent its possible destruction by removing it from its place in the Four Seasons Hotel. Such a ruling can be predicted with reasonable assurance in only a few jurisdictions in the world – including India, strongly pro-moral rights, and the United States, strongly ambivalent, which both agree on the principle that destruction of a work should be prevented, in so far as possible, by artists’ moral rights.There are obviously a number of different arguments to be made about what makes the most sense here, but the destruction of artwork always seems like a distressing result. At the same time, there are legitimate property rights issues -- and a more serious question of what if the structural integrity of the wall is actually in question. Do you "save" the artwork just to have the wall eventually cave in anyway? But where this gets even more interesting to me, is what it might mean for other types of artwork as well. Take, for example, Banksy. His works certainly fall into the realm of "works of recognized stature" -- but they might also be done in places where he had no permission to do them. That's true of a number of other increasingly well-known artists these days. And while Banksy may not be a fan of intellectual property, could someone invoke moral rights (which he may not even care about) to block the removal of one of his works?
Above all, the case fascinates because of Picasso’s absence from the debate. Moral rights are often said to serve the aggrandizement of individual artists or (gasp) their heirs. In this case, however, the dispute would seem to have little impact on Picasso’s reputation or the wealth of his heirs. On the other hand, the painting has aptly been called “Picasso’s most readily accessible painting” (Terry Teachout in the Wall St J, cited here), and it presents the alluring image of art interwoven with the fabric of life in ways that are not usually possible in Western cities. In this case, at least, moral rights are widely perceived as a public interest issue.
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Filed Under: four seasons, le tricorne, moral rights, picasso, property rights, vara
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(if i'm allowed to say so...)
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As the owner of a building that might be vandalized by one of Banksy's works, you are totally in your right to remove it, to chip down the section of wall and sell it, or to just plain paint over it. Banksy, by putting his work on property he doesn't own basically gives up ownership rights, control, and influence.
Like it or not, at some point the wall that this Picasso painting is on will have to be repaired or may even be destroyed. It's an unavoidable thing. If the mural was painted in place (which it appears to be) then there is little that can be done to save it forever. While I understand the public good in retaining the piece, I have real problems in forcing the legitimate owner of both the work and the building to have to do things that they either do not want to do or cannot do. Preservation of this work would be great, but really, at what price, and to whom?
Trying to compare Banksy's vandalism to this work is sort of far fetched, don't you think?
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no.
After all, Picasso was Mr. Nobody before he was "discovered" and promoted by sex obsessed girlfriend with friends in high places.
But... good news everybody - there is a loophole:
"to prevent the use of his or her name"
Our wise congressmen failed to recognize trangenders!
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Not in the least. Whether or not you think of his art as "vandalism," there is no question that the art world considers him a legitimate artist, and his artworks as bona fide works of art to the same (legal) degree as Picasso's.
This makes his "vandalism" works "of recognized stature," in the words of the copyright statutes.
And, the copyright statutes provide that an artist has the right "to prevent any destruction of a work of recognized stature, and any intentional [...] destruction of that work is a violation of that right."
The building owner's choice doesn't enter into the equation.
As the owner of a building that might be vandalized by one of Banksy's works, you are totally in your right to remove it, to chip down the section of wall and sell it, or to just plain paint over it.
According to the copyright statutes, no, you are not within your rights do do any of those things.
This just shows how copyright is not exactly a "property right." It consists of statutory rights that are created over other people's property. They are created by law, not by consent of the property owners.
Regarding the present case, however: I don't think the NYLC has a case, because they're not in a position to enforce any of those rights. The statutes say:
So, the only one who could possibly prevent the destruction of the painting is Picasso himself.
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Probably, but that is not a copyright issue.
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As opposed to arrowheads ;). Arrowheads not found within a context (like plowed up on a field) are generally quite useless for archaeology, you can get them by the dozens on ebay: http://www.ebay.com/sch/i.html?_nkw=arrowheads&_sacat=0&_from=R40
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Stature really doesn't matter, because he intentionally creates his works (a) where he does not have permission, and (b) where they are very likely to be destroyed. It's like being a chalk artist and then demanding that rain be banned so your work won't get washed away.
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Sony Records does not have my permission to have rights over my Ke$ha CD. But they do.
Permission of the property owner doesn't matter. That's the entire point.
and (b) where they are very likely to be destroyed. It's like being a chalk artist and then demanding that rain be banned so your work won't get washed away.
The copyright statutes explicitly exempt stuff like this. They only prevent intentional distortion, mutilation, or destruction by the property owner.
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My ownership of a CD is not a "limited license copy." I did not agree to any kind of license when I bought it. I own it outright, and - barring copyright restrictions - could do anything I wanted with it. Just like the owner of the wall that was spray-painted by Banksy.
It's true that the copyright-created rights in the two properties are different. For instance, I can destroy my CD, but the building owners cannot destroy the artwork on their wall.
But that is not the point. My point was that both the building and the CD are property of the owners, and copyright grants some form of ownership interest in both - not through any kind of voluntary agreement, but imposed by law. That the rights are distinct does not make this any less true.
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Not that it matters since, as mentioned earlier in the comments, the only one who can invoke these rights is the artist so legally, the argument falls appart in the end, but not due to property rights.
Now, do I AGREE with the law? No. But the thing about the law is it doesn't matter if I agree with it, all that matters is how its written. You can scream until you are blue in the face about how you own the building, but IF the conditions of the previously menitoned framework are brought up, you are still on the wrong side of the law, regardless of whether it is morally, ethically, or even logically correct.
TL;DR - The law doesn't care what you think, what you know, what makes sense or what doesn't. All it cares about is what it says is supposed to happen.
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I still don't get your point. In both cases do the owners own the physical object: in one case, the CD, and in another, the building. In both cases, copyright grants rights over the "data:" in one case, it is the music on the CD, and in the other, it is the artwork on the building.
And - I cannot stress this enough - in neither case is the data "licensed." I could listen to the music on my CD; sell the CD, music included; perform the music for my friends; and so forth. These are things that are still my right to do, even under copyright law, because the music on my copy of the CD is my property. The rights holders cannot retract my "license" to do any of these things.
Copyright, however, places restrictions on the music that is fixed to my property. Legally, I cannot perform the music publicly; I cannot make duplicates of the CD and distribute them (for profit or not); and so forth. These are things that, were it not for copyright law, I could very much do, since my copy of the CD (music and all) is my property.
But copyright law takes those property rights away from me (and everyone else). If I were to do any of those things, it is then - and only then - that I would even need a license.
Similarly, without the "moral rights" created by statute, the building owner could remove the artwork, to chip down the section of wall and sell it, or to just plain paint over it. That is because the wall is his property, including the "data" (Banksy artwork) fixed to it.
In both cases, copyright is taking away rights held by the property owners, and granting them to someone else. Of course those rights limit different things, and cover different types of "data." But that does not mean that it is not what they are doing.
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Au Contraire
No. This is just propaganda often repeated by corporate shills.
There is no implied license associated with a copy of a creative work. The idea that there is is just an attempt by corporations to grant themselves rights they don't really have.
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This is correct but misleading. The copy is licensed, that is, the action of creating the copy of the original. After that discrete licensed action, the new physical copy is under no license, notwithstanding attempts to add a license "by opening this container you agree to ..."
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Denying reality doesn't change it. And the reality is that you're simply mistaken.
What is licensed is the act of making that copy. But when you purchase that copy, you are not "licensing" the music. You wholly own the music that is affixed to that particular copy.
And in absence of copyright, you would have the right to do whatever you want with that music. Including the exclusive rights enumerated in 17 USC 106. Those copyright statutes remove some (but not all) of those rights from the property owners, and grant them exclusively to copyright holders.
But the rights that are removed from the property owner are limited. And, unless you infringe on one of those particular rights, you do not need a license of any kind to do what you want with your property.
This is black-letter law. See 17 USC 109. Those statutes enumerate the limitations on the rights granted to copyright holders. They are not "licensed;" they do not require a license. They were never held by the copyright holders in the first place. They are the property rights of the CD owner that are "left over" from the ones that copyright takes away.
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Sort of fun to watch you turn in circles, trying not to use the word "license" when that is really what you have.
You own a license to the music, and you can sell, transfer, or give away that license as part of selling, transferring, or giving away the physical product. But you don't have any ownership of the music itself, that ownership remains with the rights holder. They don't sell you the music, they sell you rights to it.
As for 17 USC 109, read again. Section A is very clear that you can "sell or otherwise dispose of the possession of that copy or phonorecord", but that your rights are limited by copyright (and thus a licensed limited use).
Nobody is saying you need a license to sell a copy, only that your copy is in fact by definition a limited license copy with limited ownership rights of that "copy or phonorecord". You don't suddenly own the song, you cannot bang out copies and sell them, because you are not the owner.
Read again carefully: "A CD of music is a licensed copy, and not an ownership of the original."
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Sort of fun watching you use the term "license" to describe things that do not require a license.
your rights are limited by copyright (and thus a licensed limited use).
You do know what a "license" is, don't you? It would be a private contract entered into between myself and the copyright holders.
The rights enumerated in 109 are not licensed. Copyright law does not "license" anything. They are limitations on the statutory right of copyright holders to exclude everyone else from exercising what would otherwise be private property rights.
Those statues are describing the property rights retained by the owner of a particular copy of a CD. The CD owner retains those property rights, because they were never taken away in the first place.
When Universal sells a shipment of CD's to Tower Records, they are not "licensing" the right to sell those CD's. Tower does not need such a license, and Universal could not demand one. They are selling the CD's, and those CD's become Tower's property - along with the individual copies of the music affixed to those CD's.
When Tower resells a CD to me, they are not transferring their "license" to me. And when I then resell that CD to a used record store, I am not selling my "license" to the music. I never had one, and never needed one. I had property rights in the CD; when I sell the CD, I transfer those property rights to the used record store.
You don't suddenly own the song, you cannot bang out copies and sell them, because you are not the owner.
Were it not for copyright law, I could do exactly that - because I would be the full owner of that particular copy of the song. There would be absolutely no distinction whatsoever between ownership of the CD, and ownership of the music on that CD.
Of course, I would not be able to prevent any other CD owner from exercising those same rights. That would be infringing upon their property rights. In other words, my rights would only be "exclusive" to my own copy of the music on the CD, and not anyone else's.
As it is, I retain all the property rights in that copy of the song that are not removed by 17 USC 106. That includes all the property rights enumerated in 17 USC 109, plus all the other limitations on the copyright holder's rights.
No license required.
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You are confusing ownership of the plastic disc with ownership of the material, two very different things.
"Were it not for copyright law, I could do exactly that "
If it were not for physics, we could flap our arms and fly. The point is copyright is there, and what you pay for when you buy a plastic disc (or a digital download) is a limited rights package (aka, a license).
"When Tower resells a CD to me, they are not transferring their "license" to me. "
Yes they are. They don't have to provide you a long piece of paper, because the details of the limited use license are defined in copyright law. There is no expectation legally that you have purchased ownership of the song, only ownership of a single copy, which is licensed to you as a result of your purchase.
"Of course, I would not be able to prevent any other CD owner from exercising those same rights. That would be infringing upon their property rights. In other words, my rights would only be "exclusive" to my own copy of the music on the CD, and not anyone else's."
Of course, but you are again confusing what you are selling. See, you aren't selling the song, you are selling the license implied by your ownership of that plastic disc. You don't have ownership rights on the song, you have property rights on the plastic disc and a limited use license.
Your property rights on the plastic disc do not usurp the ownership rights of the copyright holder.
But hey, if you want to keep being delusional about it, go for it. Yes, you own the plastic, and you can sell it. Congrats.
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No, they absolutely are not.
A license is something that rights holders give me permission to do, which I would otherwise not have the legal right to do. Nowhere in the copyright statutes is it claimed that this is the case. In fact, it's exactly the opposite.
As I explained, but you ignored, the rights in 17 USC 109 are not any kind of license. It's right in the name of the statutes: they are "Limitations on exclusive rights." Those statutes do not grant rights, they limit them, and the rights that they limit are the rights of the copyright holders to infringe on private property rights.
This is black-letter law: "Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."
If no permission is required, no license is required. It's a bona fide right, and the copyright holders do not have the legal right to require permission (i.e. a license) to exercise that right.
"When Tower resells a CD to me, they are not transferring their "license" to me. "
Yes they are.
No, they are not. No such license was granted to Tower. Copyright holders never had the right to control sales of the original recording.
This is black-letter law. Copyright holders do not have the right to place limits on first sale rights. They do not have the legal right to grant such a license. You are factually wrong on this point. Give it up.
They don't have to provide you a long piece of paper, because the details of the limited use license are defined in copyright law.
As I made explicitly clear, the copyright statutes do not "grant" anything. 17 USC 109 is a "limitation" on rights, not a "grant" of any kind of rights to anyone.
In any case, copyright law does not "license" anything whatsoever, as I've made abundantly clear.
Of course, but you are again confusing what you are selling. See, you aren't selling the song, you are selling the license implied by your ownership of that plastic disc.
There is no "license," implied or otherwise, because no permission is required. Again, this is black-letter law. Copyright holders do not have the legal right to grant me a license for first sale rights, because they never had the exclusive right to them.
Your property rights on the plastic disc do not usurp the ownership rights of the copyright holder.
The entire discussion was about which property rights are usurped by copyright law.
And copyright law usurps the property rights that the owner has in the copy. This is not even remotely controversial. Of course, under copyright law, rights holders have an entirely artificial (and limited) right in the music that is fixed to the copy. Nobody is arguing otherwise.
We are discussing the property rights that one would have if copyright law did not exist. And, absent copyright law, I would have all the rights enumerated in 17 USC 106 (except they would only be "exclusive" to my copy).
Similarly, the owner of a building with Banksy's artwork on it, would have all of the property rights that are normally associated with a building. He or she would have the property right to tear the wall down, wash off the artwork, or even break it up into bricks and sell them.
But the rights enumerated in 106(a) usurp these property rights. If the work that is fixed to the building is a recognized work of art, copyright law decrees that the original artist has a property interest in that piece of property.
Exactly like the copyright holder has a property interest in my CD.
That is my point, and it is absolutely true. You might try to frame the removal of property rights as a "grant of limited license," but it's simply wrong under copyright law. Just as it would be wrong to claim that Banksy granted a "limited license" to the wall that he spray-painted.
The property rights are exactly the same. The property rights that are removed by the copyright statutes are different, of course, but that doesn't mean that the copyright statutes aren't still removing property rights.
That was the entire point I was trying to make.
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The painting here is a unique work of art. It's destruction would be permanent, no going back. Your CD? You can always buy another one. The implications of you destroying your CD are negligible, the implications of this work of art getting destroyed are significant, there is no going back.
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Furthermore if the content on the CD is discontinued or the company goes out of business the data is still protected. Yes, this is another aspect of the law that should be changed but when laws are written by corporations for corporations and not by the public for the public we end up with what we have now.
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Au Contraire again.
The idea that there is, is just pro-corporate propaganda.
You just hope that if you repeat this lie often enough that people will start to believe it as the truth.
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The painting here is a unique work of art. It's destruction would be permanent, no going back.
That applies to other physical objects as well. If you owned the last existing copy of a CD, for example, you have the absolute right to destroy it - permanent, no going back.
In fact, this happens all the time. Not with CD's, of course, but with analog master tapes. Especially smaller recording studios that recorded indie bands.
If the indie band (or smaller label) didn't separately buy the master tapes, they were wiped and re-used. Tape is expensive; a new reel of 2" magnetic tape could run you hundreds of dollars. It was much cheaper to simply de-magnetize the entire tape so it could be used again in future recording sessions. Many studios even sold off their used reels, though generally this was when they went out of business.
The recording studios had every right do do this - despite the fact that they never at any point held the copyright on the music on those tapes. The music wasn't "licensed" to them. They owned the tapes, they could wipe the music - even though it was permanently destroying the original music.
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No it's not. Your analogy is bad and you should feel bad.
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If I own the building and I'm happy with the design and how it's painted before the vandal comes along, then MY choice of art takes precedence. If they make some bogus copyright claim, then I can make a similar claim over MY style choices. Failing that, I'll call painting over it a "derivative work."
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This is a circumstance where a wall needs to be repaired because of the threat to the safety of the Four Seasons' patrons ...
Not only that but there's another problem. The New York Landmark Conservancy cannot own something that is part of the structure of a building owned by the current owner of the building. Either the NYLC removes the painting or allow it to be destroyed.
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You may have 2 conflicting laws, law A on safety etc, and law B on copyright.
It would be up to the courts (not you, or a lawyer) to decide which law would take precedence, the copyright law or health/safety/construction laws.
It could be quite possible for the courts to decide that the copyright law takes precedence and that the wall could not be fixed if it would damage the artwork. The result of this would be the wall no longer meets the various health/safety/construction laws/regulations, which would mean the owner of the four seasons would have to close the restaurant. And, if the wall was structural to more than just the restaurant (if it was part of an office building for example) then the building's certificate of occupancy could be revoked.
Just because a decision would seem to be nonsensical (copyright takes precedence, therefore wall can't be fixed, therefore all businesses in building have to be closed and abandoned) doesn't mean the courts would find otherwise if that's the way the law is written.
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You don't buy a painting...
If the "public interest" likes the painting so much, let it come in, preserve, and remove it. Then clean up after itself. The "public" has 30 days. get moving!
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I think not; I simply reject the subtlety. If the painting can't be preserved too bad; if many people who don't own the thing want it preserved, that SHOULD NOT override the rights of the property owner. Is there another subtle point you were making, or do you simply disagree?
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Here in Flint, Michigan, we had this building that hosted this massive wall mural on the outside of the building. The building caught fire but there was a lot of crap started over the building because the building fire created an issue where the building had to be torn down.
In the end, half of the building was torn down and our city's art's council ended up buying the building to save this large wall mural, while tearing the other half of the building down.
The NYLC simply has no standing. They are only trying to declare the Picasso painting a landmark. First, since the painting is a physical part of the building, the building itself would have to be declared what's known as an "architectural landmark", meaning the entire building. They can't declare the wall a historical landmark because the wall needs to be repaired.
I just don't see the NYLC succeeding in declaring the painting a landmark and I believe the court would simply rule to have the painting cut out of the wall or to let it simply be demolished. Since the building is owned by a private owner, they are going to have a hard time convincing the courts to declare the painting a landmark.
The morons are the idiots who decided to make the painting a permanent fixture of the building. If the building owner decides he wants it removed, then there's nothing the NYLC can do about it since the NYLC doesn't own the building and neither does the government.
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2. The painting isn't part of the building. It is just hanging there but is so large and fragile that it is feared that any attempt to move it is likely to destroy it.
3. Where exactly does it state that artwork cannot be declared a historical landmark?
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VARA
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Just sounds like the NYLC is throwing a temper tantrum. How will they feel if a building inspector orders the wall to be repaired? The wall has to be repaired; there's no getting around that. If the wall over and someone is injured because of it, is the NYLC going to take full responsibility for it?
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Yes, one can only declare something a cultural ofr historical landmark when it is not owned at all - by anyone.
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RFR's lawyer, Andrew Kratenstein said in court papers, it is about whether an art owner can insist that a private landlord hang a work indefinitely, the building's needs be damned. "The answer to that question is plainly no."
The fact is, the Landmark Conservancy, which owns the artwork, is trying to force the owner of the building to to hang this work of art indefinitely, and the LC can't force a building owner to do that.
The fact is, if the NYLC wants to preserve the artwork, it needs to find a way to move it so that the wall can be repaired. I think the court is going to find for the NYLC but force them to remove the artwork.
The painting is going to be removed. While I do see the court ruling for the NYLC, it's going to be a decision that the NYLC isn't going to like.
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The NYLC is trying to usurp the property rights of RFR and they aren't doing a very good job at it. The fact remains, the NYLC doesn't own the Four Seasons, now, do they? No THEY DO NOT.
I'm not arguing whether the Picasso painting is a work of art, it undoubtedly is. But the NYLC can't just arbitrarily declare it a historical landmark because they are usurping someone else's property rights.
If I own a building on my property that has a large painting on it, then I have the right to either remove it or demolish it. Some penny fogging liberal agency doesn't have the right to tell me what I can or can't do with it.
RFR wants to remove the painting and restore it and move it elsewhere but the NYLC doesn't want it removed from the property owned by RFR. If the NYLC wants to preserve the painting, then it's their responsibility to either purchase the building outright or remove it from the property. They cannot force an owner of the building to continue to host that painting of the owner needs to repair the wall behind it.
The NYLC keeps arguing that the wall doesn't need to be repaired. Exactly when did they become experts in structural engineering? What is the NYLC going to do, wait until that wall falls over and seriously injures someone before they realize that the wall actually needs to be repaired? If the courts rule for the NYLC, then the NYLC becomes 100% liable if someone is injured when that wall falls over. Why? Because the NYLC forced a court to prevent any attempt to remove the painting so the wall can be removed. Also, what happens when the wall does fall over? It destroys the painting and it's destroyed forever.
The NYLC needs to remove that painting from the Four Seasons because whatever happens, the NYLC is going to be liable for it. I'm also curious why nobody has called for a building inspector to examine the wall behind the painting. The NYLC is simply setting itself up. If the court rules against the removal of the painting, the owners of the Four Seasons cannot be held liable if the wall falls over and injures someone.
This is nothing but a lose/lose situation for the NYLC because they have tunnel vision and won't let anyone move the painting for any reason.
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Whether or not the NYLC has the right to assert this isn't really the point of the article, even though it could render the story moot - it's more about inviting discussion where the laws collide.
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