Gino van Roeyen – Art Battles with a ©

Art & War Conference

Conference Dutch Association of Aesthetics
Utrecht, April 18 − 19, 2013


1 Art Battles with a Art & War Conference Conference Dutch Association of Aesthetics Utrecht, April 18-19, 2013 Attorney-at-law some background self-portrait 1988 We always thought of history as a linear line, a development from A to B and then to Z, and now somebody said we start the alphabet with C, we start the alphabet with copyright, we just take an image and nothing new (Rob Scholte, Pirate Conference,Tilburg, September 17, 2010)

2 intellectual property: what s on the horizon? art & intellectual property: war & peace War: artistic freedom versus absolute protection by IP of brainchilds against unlawful copying and the like art protected by IP against unlawful copying and the like Peace: art which embraces IP Rob Scholte, Peace of Munster, 1998

3 Rob Scholte & IP -discussion (I) Titiaan, Venus of Urbino,1538 Edouard Manet, Olympia, 1863 Paul Spooner, Manets Olympia Rob Scholte Utiopia, 1986 Rob Scholte & IP -discussion (II) Bas Roodnat, Het schilderij Utopia van Rob Scholte, nieuw gebruik of nabootsing? (The painting Utopia by Rob Scholte, new use or imitation), NRC-Handelsblad, December 3, 1987 Response by Rob Scholte

4 Patent Law… in Art? (I) Yves Klein (1928-1962) IKB 79 1959 Klein obtained a patent in France in March 1960 for a method which enables an artist to create works without any physical activity of the artist himself, but instead by having the physical work done from a distance by naked human bodies soaked in paint ( the human body as the artist s soaked-inpaint brush ) In May 1960 Klein registered a formula for a paint developed by him ( International Klein Blue – IKB) with a so-called Soleau -envelope Patent Law… in Art? (II) S.M.A.K. (Gent), 2008, exhibition Faux jumeaux (false twins), artist Michel François He asked fifteen persons to choose two works of art which resemble each other with respect to form or material, but have nevertheless come into existence independently. Which substantive similarities or differences between the two works can be detected by presenting the works mirror image in two identical rooms? IKB van Klein Fixopastel van Gerald Murillo (…) these Faux Jumeaux do also refer to the parallel between the patent system and the system of originality in the art world. Patents are monopolies which protect inventions that can be applied in industry during a certain period of time (for example twentyfive years) against the use by third parties. A patent must be registered to be protected and can not be identical or quasi-identical to an existing patent. As soon as the patent has been registered and disclosed to the world, it can not be used by third parties, even if the same patent has been achieved simultaneously, i.e. without copying. As soon as an artist has created a work of art and this work of art has obtained a position in art history, this can be regarded as something which is similar to a patent. It is different for other artists to use an identical or similar idea, or an identical technique for a work, because the art world is aware (as patents are) of existing, precedings works of art.

5 sketchbook forgeries… SATURDAY, 5 MARCH 2011 2 art forgeries I thought about copying some artists work when my daughter blogged about her disappointment at being told to copy the work of famous artists for her uni work. Do you think I might be able to start a new career in forging art work. I did get lots of ideas on how to carry the work forward to make it my own. I chose Klimt and Picasso as I really like their work but I also thought it would be more simple for me, it wasn’t. Copying their work made me realise how complicated their strokes were. I dont know why I decided to do something I considered to be easy. I think I may choose a complicated picture next time ( Design right… in Art? Nadia Plesner vs. Louis Vuitton ( Darfurnica ) 2008-2011 EU Design Right 000084223-0001 Presiding Judge District Court The Hague I (2008/2011): Design right infringement, since Plesner has not obtained permission to use the design and to offer for sale products in which the design is used EU Design Right 000084223-0003 Aura Bag Presiding Judge District Court The Hague II (2011): Plesner has and continues to have an interest to freely express her (artistic) view through her work Simple Living which interest outweighs the interest of LV to enjoy its property rights undisturbed.. Picasso, Guernica, 1937

6 And Belgian artist Wim Delvoye Rob Scholte & design/copyright Rob Scholte, Casa Rosa, 2005 Ton Giesbergen, Small singing teakettle

7 Intermezzo (I): article 10 European Convention on Human Rights Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. Trade mark rights… in Art (I) Nike Ground In September 2003, we set up a fake Nike advertisement campaign, including a public installation, a website and a performance. The news went out nationwide: “Karlsplatz, one of Vienna’s main squares, is soon to be renamed Nikeplatz, and a huge monument in the shape of Nike’s famous Swoosh logo will be built in Nikeplatz”. The one-month campaign provoked the reactions of Vienna’s citizens, city officials and the Nike group, which started legal action to put an end to this bizarre performance. (Eva & Franco Mattes) Vienna Court refused injunction on formal grounds (Nike apparently based its claim on copyright Trade Mark Infringement: use of a trade mark (Swoosh), not for goods, which takes unfair advantage of or brings detriment to reputation of said trade mark, without due cause

8 Trade mark rights… in Art (II) vs Bas Kist, NRC Handelsblad, 8 & 9 december 2012 Brad Troemel, dean & deluca low calorie snack inside Marlboro box w/ Cerebral Palsy Tissue/Organ Kidney Cancer Green Ribbon Glittery Sticker (Ethical) 1/2 Rob Scholte & Trade mark rights (I) Nachtlicht, 1984 Cease and desist letter (1987) from Philips to Art Unlimited who produced postcards of Scholte s Nachtlicht (Nightlight) based on Philips trade mark rights to its logo: profit from the reputation of that logo From the letter: A group as Philips should always prevent that its own brands are harmed in their primary function of distinguishing

9 Rob Scholte & Trade mark rights (II) Rob Scholte, Chiquita, 1989 Rob Scholte & Trade mark rights (III) 2011

10 Rob Scholte & Trade mark rights (IV) Rob Scholte, Lucifer (detail), 2012 Dolf Pauw, blogspot, 2007… Rob Scholte & Trade mark rights (IV) 2012, Parool: Rob Scholte is a copycat with a twist

11 Copyrights… in Art (I) Helmut Newton vs George Pusenkoff (I) Oberlandesgericht Hamburg 12 oktober 1995 Helmut Newton, Miss Livingston, Beverly Hills 1981 George Pusenkoff, Power of Blue Helmut Newton vs George Pusenkoff (II) Oberlandesgericht Hamburg, October 12, 1995 Newton: plagiarism! copyright infringement! OLG: in Power of Blue the Newton picture is not used in an unlawful way What is the creative power of Newton s picture and Pusenkoff s Power of Blue? Newton s picture: a pose, namely the reproduction of nudity and eroticism Power of Blue : it s about colour, not the reproduction of the nude female body Pusenkoff has kept a maximum distance from Newton s picture, in such a way this picture remains recognisable, whilst the use of it becomes not impossible

12 A few extra copyright basics Exclusive right of author of a work to publish and reproduce said work To be protectable by copyright the work needs to be original (not derived from earlier work) and result of personal creative choices by author he reproduction right does not only cover identical reproduction, but also reproductions in a different form, which can not be regarded as a new, original work. Citations allowed but only with certain restrictions (due mentioning of source) images? Robert Rauschenberg s Factum I & Factum I, 1957 Duijsens / Broeren (Hoge Raad, March 29, 2013 Duijsens: Broeren infringes my copyright to certain works and/or acts unlawful by slavish imitation of certain style elements Court of Appeal: yes slavish imitation with regard to certain works provokes confusion (what is a Duijsens and what is a Broeren?) HR: Copyright does not grant an exclusive right to an author for his or her particular style. Such protection would hinder creative freedom of authors and restrain cultural development. This consideration would be worthless if protection of style could be obtained via a claim based on slavish imitation.

13 Kunst aufräumen Ursus Wehrli Let s get rid of the original, long live the tidy copy? Rob Scholte & Copyright Piet Mondriaan, Tableau I, 1921 Rob Scholte, Mondriaan Revised, 1997

14 The art of imitation: dead end row? Bianca Stigter in NRC December 6, 2012: Has authenticy had its best time? Rob Scholte, Cul De Sac 1992


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