Artwork cannot be cut up to realize watch faces, Danish court rules

Paris Chic, Tal R, 2017

Copenhagen's maritime and commercial court was recently asked to decide whether Dann Thorleifsson and Arne Leivsgard - a duo of Faroese art provocateurs and founders of Kankse and Letho watch brands - could cut up Tal R's artwork "Paris chic", which the duo had purchased last August for 70,000 £ at the Victoria Miro Gallery in London. The duo wanted the painting fragments to decorate the faces of their latest watches, each of which they planned to sell for at least DK 10,000. 

The Danish court issued a ruling yesterday in favor of the Danish artist. Consequently, the two watch designers cannot use Tal R's painting as a raw material and have to pay DK 31,550 in legal costs.

The Danish court awarded an injunction under the Danish Act on Copyright, protecting copyrights and moral rights. Indeed, the Court accepted Tal R's argument that the duo's project would have been an illicit alteration of the artist's work rather than a destruction of same, as contrarily argued by the duo's lawyers. Tal R's lawyer alleged that the watch brand planned to market the watches as fragments of a Tal R's work. The artist's lawyer also argued that whilst the purchasers of Tal R's art could sell it or even destroy it, they could not alter it, as to do so would infringe Danish copyright law. 

While the duo is still considering whether to appeal the ruling or to reach a settlement, this case questions again the boundaries of  copyright and ownership of artworks, and namely whether a work of art can be freely destroyed by its owner. In this last regard, the answer seems to differ from country to country: in Denmark, for instance, is considered permissible. 

Leonardo's Vitruvian Man will be lent to France, Italian court rules

Venetian administrative court recently rejected the appeal filed by Italia Nostra, an Italian cultural heritage conservation group, opposing the loan of Leonardo da Vinci's 'Vitruvian Man' to Louvre museum. The loan was part of a bilateral agreement signed in September by Italy and France according to which Italy should lend seven Leonardo's works to France and, in return, the latter will send some Raphael's paintings next year to be exhibited at Scuderie del Quirinale in Rome to commemorate 500 years since Raphael's death. 

Leonardo da Vinci's 'Vitruvian Man', 1492

Italia Nostra argued in its appeal that Leonardo's 'Vitruvian Man' was too fragile to travel as it would risk being damaged by lighting if displayed during the Louvre exhibition; indeed, the work shall be constantly protected from direct light. The plaintiff alleged also that the loan would then infringe art. 66 of Italian Code of the Cultural and Landscape Heritage prohibiting temporary exit from national territory of cultural property on the occasion of art events if the artwork is susceptible to damage during transportation or because of unfavorable environmental conditions.  

As a precautionary measure, the Court suspended the loan and even the bilateral agreement signed between Italy and France.

On October 16, the Court overturned its previous decision rejecting the appeal, observing that other works among the Venice Galleries' masterpieces were already lent in the past. Moreover, the two Italian most important restoration institutes confirmed that the drawing could be exhibited for a limited period of time if under the correct lighting.

The 'Vitruvian Man' will then be displayed during the exhibition starting at Louvre on October 24, celebrating the 500th anniversary of Leonardo's death. Italian media reported also that this masterpiece will be insured for little less than 1 billion euro.  The drawing, which shall be shown for a few weeks every six years, will not be exhibited for a long time after being displayed twice this year: one time in Venice and now at Louvre. 

While this dispute seems solved (unless Italia Nostra decides to appeal), one member of the Uffizi Galleries' scientific committee, Tomaso Montanari, have recently claimed that two Leonardo's paintings - "Study of the Landscape" and "The Adoration of the Magi" - were exported for the same exhibition despite being on Uffizi's list of unmovable works. 

Italia Nostra's appeal highlighted the problems concerning the loan of masterpieces, besides two different visions of cultural heritage: as a national treasure or as a part of a world cultural heritage to share.

Basquiat, Sakura, Verda

French television channel France 24 is reporting that Sakura art gallery in Paris has cancelled a Guillaume Verda exhibit after he was accused on social media of copying Jean-Michel Basquiat. The gallery did not cancel because of the alleged copying, but cited public safety concerns, stating that the artist had received threats on social media and by email.

Guillaume Verda has since made his Instagram account private, and the Sakura gallery has taken off any references to the exhibition from its site and closed the exhibition.

Is it copyright infringement?

Article L.122-4 of the French Intellectual Property Code states that “Any complete or partial performance or reproduction made without the consent of the author or of his successors in title or assigns shall be unlawful. The same shall apply to translation, adaptation or transformation, arrangement or reproduction by any technique or process whatsoever.” Several tweets presented Verda’s works next to Basquiat’s. Copying or inspiration?

When assessing whether a particular work is infringing, courts first check if the work which was allegedly copied is composed of new and original elements and then determine if these original elements have been reproduced by the second work.

Verda’s works seems to have been painted in a way which certainly brings the Basquiat in mind. So there are similarities.

Ideas are not protected by French law: les idées sont de libre parcours, ideas are free to be used. A work must be original to be protected. It could also be argued that both Basquiat and Verda were inspired by ancient African art which is now in the public domain, and that the similarities are based on elements which are not original.

But if the similarities are on original elements of the first work, there is infringement.

If the similarities are obvious, bad faith is assumed, and then it is the Defendant who must prove he was in good faith. In this particular case, Verda did not seem to have hidden that Basquiat was a source of inspiration, as he referenced him in hashtags. So, he cannot claim that he did not know his works, and that the similarities are fortuitous, that this is a “rencontre fortuite,” which happens when two artists are creating a similar work without knowing each other. It may happen, but it is quite rare.

It is only after having assessed the similarities between the two works that the courts assess their differences. Here would lie Verda’s defense, proving the differences between the works.

It should be noted that copyright infringement and plagiarism do not have the same meaning under French law. While the first is a crime, the second, le plagiat, is a tort. The author of a work can decide not to sue for copyright infringement, but for plagiat, in a civil court, which will then assess whether the alleged plagiarism constitutes unfair competition and parasitism.  

Can a Work of Art Created by AI be Protected by Copyright?

Eleonora explored last year on this blog the complicated relationship between AI and copyright, see here.

We now learn that auction house Christies will sell in October a work of art titled 𝒎𝒊𝒏 𝑮 𝒎𝒂𝒙 𝑫 𝔼𝒙 [𝒍𝒐𝒈 𝑫 (𝒙))] + 𝔼𝒛 [𝒍𝒐𝒈(𝟏 − 𝑫(𝑮(𝒛)))], Portrait of Edmond de Belamy, from La Famille de Belamy, which was created using AI.

It is the work of a Paris-based collective, obvious art, founded by Pierre Fautrel, Gauthier Vernier and Hugo Caselles-Dupré. The work was created using Artificial Intelligence (AI) technology, more precisely the Generative Adversarial Networks technology invented in 2014 by Ian Goodfellow, which can create images. The name of the work, Edmond de Belamy, is an homage to Ian Goodfellow, whose last name can be translated in French as “Bel ami.”

Edmond de Belamy (source: Artnet)

Obvious art created a program, fed it with information about some 10,000 portraits from the 15^th to the 19^th Century, and Edmond de Belamy was printed. The whole process is explained on obvious art’s website and also here.

The portrait shows a man painted over a black and gray background from which he appears to emerge, dressed in black, with a white collar, in a fashion reminiscent of 17^th century Dutch paintings. His features are not precisely lineated and one does not even see his nose. He is looking at us from an angle, and appears to have been painted by large brushstrokes.

The collective’s goal was to prove that machines can also be creative, just like humans (see this interview in French). It is an algorithm which created the work. Does that mean that Edmond de Belamy cannot be protected by copyright?

Is Edmond de Belamy the new Naruto?

Indeed, as mentioned by Eleonora, the Naruto case [see here] may give us some clues on how a US court would rule over the copyrightbility of a work created by AI.

Obvious art used the formula of the loss function of the original GAN model as the signature for the painting they created. If a program is the author of the work, then the work cannot be protected by copyright.

The U.S. Copyright Office clearly stated in its Compendium of U.S. Copyright Office Practices that a work must be created by a human being to be protected by copyright, and that“[t]he Office will not register works produced by nature, animals, or plants,” giving as an example a work which cannot be protected by copyright a “photograph taken by a monkey.” It could now add “a painting created by AI.”

This is not the first time that AI was used to create a painting. In 2016, a team fed a computer data about 346 Rembrandt paintings and the result was a 3-D printed portrait looking just like one Rembrandt could have painted, the “Next Rembrandt.” The fake (or next) Rembrandt was made out of some 148 million pixels and 150GB of rendered data.

Ron Augustus, director of SMB Markets for Microsoft, who was part of the “Next Rembrandt” project, said in a video interview (@1:00) that they “used technology and data like Rembrandt used his spades and his brushes to create something new.” This argument suggests that whomever used AI technology as a tool to create a work could be its author, just like Rembrandt. ‘Something new’ is original, and originality is required to be protected by copyright.

But even if we consider AI to be a mere tool, it is not a tool like a spade or a brush, as this tool had to be created and could be protected by copyright.

Computer programs can be protected by copyright and software, as it is a computer program, can be protected. A software is defined by the copyright Act as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result” and U.S. courts use an “abstraction-filtration-comparison test” [see here for example] to find out which elements of a computer program can be protected by copyright.

If the tool used to create a work is protected by copyright, does that mean that the work thus created is also protected? Not necessarily, as Section 721.6 of the Compendium specifies that “ownership of the copyright in a work is distinct from ownership of any material object that may be used to create that work. The fact that the author used a computer to write an article, short story, or other nondramatic literary work does not mean that the work is a computer program.”

Therefore Edmond de Belamy cannot be protected by copyright. But, wait, there could be another way.

AI and Conceptual Art

Edmond de Bellamy is not a lone figure, but has relatives, also created using GAN, in fact, he has a whole genealogical tree (see here, here and and here).

While Edmond de Belamy may not alone be protected by copyright, it could be argued that obvious art’s project, as an ensemble, could be protected as a work of art. Failing to do so would further jeopardize the complicated relationship between conceptual art and copyright.

The portraits created by AI formed a genealogical tree, a fake family complete with made-up names, and could be considered original enough to be protected under Feist as an original compilation. However, a sole portrait is not protected by copyright. Should wannabe buyers of the Bellamy portrait consider buying his whole family?