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. Except... the guy who happens to own the property hates it and has referred to it insultingly. And he thinks (or, at least, claims) that the wall the mural is attached to is damaged and in bad need of repair, so he'd like to get rid of the painting (and, supposedly, replace it with another piece of artwork from his own collection). But art experts say that moving the painting will almost certainly destroy it. And, under VARA, it is believed that "works of recognized stature" can be prohibited from being destroyed.

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.

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.

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?

Filed Under: four seasons, le tricorne, moral rights, picasso, property rights, vara

Cultural Insanity: You Can't Show A Painting In A Movie Without Paying The Copyright Holder

from the this-makes-no-sense dept

The NY Times has an article about yet another ridiculous bit of copyright law, the fact that moviemakers have to license artwork, even if they own the physical piece to show it in a movie. And it gets even worse, when you find out that the ridiculous position of the Artists Rights Society (think the RIAA/MPAA for artists) is that the newly released 3D version of Titanic needs a new license, because its use of artwork is somehow not covered by the original license:

It is there in the new 3-D version of “Titanic,” as it was in James Cameron’s original film: a modified version of Picasso’s painting “Les Demoiselles d’Avignon” aboard the ship as it sinks.

Of course that 1907 masterpiece was never lost to the North Atlantic. It has been at the Museum of Modern Art for decades — which is precisely the reason the Picasso estate, which owns the copyright to the image, refused Mr. Cameron’s original request to include it in his 1997 movie.

But Mr. Cameron used it anyway.

After Artists Rights Society, a company that guards intellectual property rights for more than 50,000 visual artists or their estates, including Picasso’s, complained, however, Mr. Cameron agreed to pay a fee for the right to use the image.

With the rerelease of “Titanic,” the society wants Mr. Cameron to pay again, asserting that the 3-D version is a new work, not covered under the previous agreement.

Of course, I recognize that ownership of the image is different than holding the copyright in the image -- though I'm a bit surprised that most art purchases don't include a copyright assignment or at least a permissive license as well. But it strikes me as ridiculous that the use of such images in a movie -- especially in passing -- isn't a clear case of fair use. This highlights the ridiculousness of the "permission-based society" we live in, where even if you own something, you don't really own it.

Why do we let this kind of craziness happen? Why don't we, as a society, stand up and point out that it makes no sense. If you have possession of the painting, why shouldn't you be allowed to use it in a movie? Even if you don't have the painting. How is having that painting in the movie, in any way, harming the economic value of the painting? The answer is that it is not. If anything, it's increasing the prestige and value of the painting... and it's doing all of that for free.

Think of it in a slightly different context. These days, when other products are seen in movies -- like a can of Coke, for example -- it's often there because of product placement. That is, the provider paid for it to be in the movie. Couldn't you make an argument that artwork that shows up in movies gets the same sort of benefit of the attention of the moviegoers? Why is it, then, that filmmakers are expected to pay a license to have the artwork, but get paid to have the Coke can?

Filed Under: 3d, artwork, fair use, licensing, moma, picasso, titanic