Art commission contracts : between liberty and constraints?

Commissioners of art works have entered rather lately the field of history of art, underlines Adrien Goetz, Associate professor of history of art at the Sorbonne University. Museums do exhibit many commissioned works. For example, the Louvre museum bought in 2002 “Pygmalion in love with his statue”, which had been commissioned by Sommariva. In Washington DC, the National Gallery acquired David’s painting “Napoleon in his working office”, that had been commissioned by the Marquis of Douglas. Nowadays, some collectors are only buyers while others commission works from artists.

The relationship between the commissioner and the artist has become a true topic for both Art historians and lawyers.

It is not rare that some of my clients who are art collectors ask me to follow up their oral commission agreement with an artist during an exhibition opening by a written private commission contract.

Sometimes, it is difficult to persuade the artist to sign such a contract because he may have the feeling to lose his freedom. The fact to materialize the commissioner’s wish by a written contract that the artist would have to sign may be regarded by him as an intrusion into his creative process. It is then the role of the lawyer to understand both parties and to conciliate all legal constraints, which are even more complex in case of public art commission’s agreements…

A private commission contract is going to provide an area of freedom and creativity for the lawyer who will conciliate the rules of the “contrat de louage d’ouvrage” (contract for services), of the assignment of rights, but also those of the contract of sale.

The clauses in Art commission contracts are various. They must in particular include:

  • the obligations of each party (e.g. delivery conditions and deadline);
  • the description of the piece of art;
  • the price (including taxes or not depending on where the commission is formulated);
  • the eviction guarantee (guarantee that the work is original);
  • an assignment of rights clause.

A private commission contract for an art work must respect not only the usual Civil law rules but also some specific rules regarding art works which require some written provisions regarding moral and economic rights of the authors.

The acquisition of the material support of a piece of art work, like a sculpture, a painting or a photography, does not involve automatically an assignment of the intellectual property rights attached to this art work. French law defines precisely the conditions of the assignment of copyright.

Article L. 131-3 of the Intellectual Property Code provides that “the transmission of copyright is subject to the condition that each of the rights assigned be explicitly mentioned within the assignment contract and that the exploitation domain of the rights assigned be precisely delineated with respect to its scope and its destination, in terms of space and time.”

If there is no contract which provides for the assignment of copyright, the price set by the commission agreement in principle covers only  the design and the achievement of the piece of art, but not the assignment of intellectual property rights attached to this work.

Thus, the assignment of the representation right which allows exhibiting the work of art must be formalised explicitly by a written provision. It is the same for the reproduction right which allows to publish reproductions of the work in various ways.

In case of the absence of precise contractual provisions regarding the assignment of the economic rights of representation and reproduction, the author still owns these rights on his work. For example, the reproduction of the commissioned work through post cards without a written authorization from the author might be considered as infringing this work, even in the case of commissioner’s good faith.

The Art commission agreement must take into account the artist’s moral rights. One must remember that the author of an intellectual work is legally entitled to have his work respected pursuant to the Article L. 121-1 of the French Intellectual Property Code. This right includes the right to the respect of the work’s integrity as well as the respect of the work’s spirit.

The respect of work’s integrity implies that nobody but the artist can carry out any suppression, adjunction or modification of the work. For example, in a famous case, the buyer who had removed decorating panels painted by Bernard Buffet from a refrigerator had been sentenced for not respecting the integrity of the art work (Civ. 1st, 6 July 1965, JCP 1965 II 14339).

Therefore, without the artist’s consent, the buyer of an art work is not allowed to destroy or modify it. However, a commission contract can provide clauses concerning a possible modification or restoration of the work.

As for the respect of the spirit of a work of art, it is a matter of utilizing the work in conformity with its original destination.

The right to the integrity and respect of the spirit of a piece of art may in some cases imply that its owner will not be allowed to remove it without an explicit agreement of the artist. The commission agreements often concern artistic works which are supposed to be installed in a specific location. When a work is commissioned in situ, for example a fresco directly done on the wall of an apartment or a house, the commissioner must foresee what will happen if the property is sold. Without specific contractual provisions for such a case in the commission contract, by selling his real estate the buyer may lose his rights on the work.

Furthermore, the usual clauses of commission agreements, such as those regarding the conditions and responsibility of transportation of a work, are particularly crucial for a work of art, given its unique character and the difficulty to determine its value.

Lastly, commission agreements on works of art can also provide for specific clauses related to their authenticity. For some contemporary works, it can even be useful to specify that the work will be accomplished by the artist himself/herself. As a matter of fact, some very well-known artists work with teams and do not always produce themselves their works.

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Don’t forget the ADAGP !

The ADAGP or “Société des auteurs dans les arts graphiques et plastiques” is the French collective rights management society in the field of the visual arts. The ADAGP enables a centralized management of the copyright of the authors of graphic and plastic works of art.

The authors of graphic and plastic works of art have on their works economic rights namely reproduction rights, distribution rights, collective rights and resale rights. In practice, the individual management of these rights by an author is very complicated because of the variety of potential media and exploitation of the works. Many artists chose to become members of a collective rights management society in order for it to manage their economic rights and pay them back money.

The ADAGP represents over 110 000 authors in different fields of visual arts including photography, painting, sculpture, but also comic books, design, digital creations and street art.

The system of centralized management of copyright has an undeniable interest for authors but also for everyone who wishes to exploit graphic or plastic works of art. You can access an online image library to first check whether the work of art or the artist you are looking for are registered in the database. It is online on the website of the ADAGP and is updated regularly: http://bi.adagp.fr/IB/index.php.

If you cannot find a work of art or an artist in the database, you can contact the ADAGP who can for example check with her “sister” collective rights management societies in other countries. The ADAGP will ask for the authorization to exploit the works of art and indicate to you the conditions under which you may exploit them (media, prices, territory, duration…). If the artist is registered but not the specific work that you are looking for, the ADAGP can ask the author or the right-holder directly for their prior authorization. Sometimes your contact will be a lawyer in charge of intellectual property rights of an artist, a foundation or an endowment fund. The authorization to reproduce the work will be granted if the exploitation you intended is accepted or an assignment of rights specifying the exploitation conditions is signed before any exploitation. In the event of prior exploitation of the work, it is possible in some cases, to prevent litigation, to provide for a retroactive assignment of rights to the date of first publication of the work. However, this situation is best to avoid since it means that you were infringing copyright.

Indeed, when you publish photographs representing works of art, or any photographs which are in themselves works of art, without prior consent of their author or their right-holders, even if they are published on a non-commercial personal website with which you make no profit, that publication is a non authorized reproduction which is an infringement of copyright. Pursuant to Article L.335-3 of the Intellectual Property Code, “any reproduction, representation or distribution, by any means whatsoever, of an intellectual work in violation of copyright, as defined and regulated by the law” is an infringement offense. You may be held liable even if you plead your good faith, as this argument is not accepted in matters of infringement. Therefore, it is very important to ensure yourself that you hold the rights on the images you publish whether on digital or paper format.

Street Art, between sanction and consecration

Street Art has become more and more successful with an increasingly large public audience since its birth in the early sixties. Exhibitions, specialized auctions and prizes have been devoted to this new art.  These artists utilize various techniques such as stencils, tagging, mosaic or calligraphy and often deliver political messages.

During the 2000s, the street art reinvented its codes by innovating by using screens and lights, smartphone applications and mapping in order to create an interaction with its audience. This has often been described as the birth of “Street Art 2.0”.

Street Art is thus meeting a true artistic consecration and is regarded as a real artistic stream having its own codes and its own self-recognized artistic “community”. Some of its members often co-operate on projects.

However, is street art legally recognized?  Or, should it be qualified as vandalism and thus punished to the extent that walls, vehicles and boards are used as supports (or media) in various places?

In France, the law provides for legal sanctions if a tag is using a support without its owner’s authorization. Indeed, “the fact of tracing inscriptions, signs or drawings without previous authorization, on walls, vehicles, streets or street furniture is punished by a fine of 3,700 euros and a sentence of community service in case of slight damage.” The sanction can be up to a 30,000 euros fine and two years imprisonment if the art work has caused “destruction, degradation or deterioration of a commodity belonging to somebody else”.

Thus, some artists do not hesitate to ask for authorization before beginning their artistic creation. This is so, for example in the case of Miss Tic who realizes her stencils on Paris’ walls after obtaining a prior authorization from the owners.

Now, can works of street art be considered as works of art in a legal sense?

Copyright does not include any value judgment about works. The French Intellectual Property Code (CPI) “protects the authors’ rights for any type of works of the mind whatever kind, shape, merit or destination” (article L. 112-1 of the CPI).  The required and sufficient condition of copyright is the originality of the work. So it appears that works of Street Art are protected by copyright provided that they are original and show the characteristic style of their author.

We note that there are few cases decided concerning the protection of these works of art and graffiti as many are illicit. Street art therefore poses a real problem of conflict between property rights and author’s rights. What right should be considered the strongest?  The legislator did not settle this question; there are no specific legal provisions regarding works of street art. Case law does not enlighten us much more with only some exceptions.

Recently, the French-Suisse artist, Monsieur CHAT, who had produced cat heads in August 2014 on the walls of the Châtelet metro station which was being renovated, was sued by the Paris subway company RATP, which was no doubt tired of spending a considerable amount of money each year to clean up these tags.  However, due to a procedural error, the legal action was abandoned in October 2014, so that the issue to know whether these tags would be considered an act of vandalism or not was never judged.

To avoid legal proceedings and sanctions the urban artists should therefore ask the necessary authorizations of the owners of the walls.  However, I see a certain paradox as it concerns spontaneous and fleeting art.  Certain urban artists who no longer wish to see their works destroyed more or less rapidly have decided to leave the streets…  The first to have done so, Keith Haring, had many works in the New York streets and subways and finally became successful at his first one-man show in l982 at the Gallery Tony Shafrazi in New York.

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The artist Gregos showed at the Paris Bar Center in October 2013 his bronze, plaster and crystal faces that you might have already noticed on walls in Paris or elsewhere. A work of the artist MissTic, who is represented by the gallery Lélia Mordoch, was also showed during this exhibition that I had organized on the theme of stencils.

CNA’RT 2013, 2nd edition.

Jeff KOONS: Tribute to contemporary works of Art or plagiarism? Inspiration or imitation?

Two works from Jeff KOONS which had been selected for a retrospective exhibition dedicated to this artist at the Centre Pompidou museum in Paris from 26 November 2014 to 27 April 2015 have been largely commented by the press.

The first piece of work, called “Fait d’hiver” and the second one called “Naked” are part of a series of works entitled “Banality”.

The first one – Fait d’hiver – is a porcelain sculpture made in 1988. It represents a pig coming to assist a woman lying in the snow. Just after being exhibited, it was removed because Francis Davidovici complained that this sculpture was imitating one of his advertising campaigns designed in 1985 for the brand “Naf Naf”.

The second one – Naked – is a porcelain sculpture representing two naked young children which will probably never be showed during this retrospective. While it was in transit between the US and France, the wife of the photographer Jean-François Bauret (who died in January 2014) would have summoned Jeff Koons for plagiarism. The sculpture allegedly imitated one of the photographer’s pictures.

Jeff Koons’s creative process, alike that of other contemporary artists, relies mainly on a reference to other art works. This American artist has already been sued for infringement in the US because of exhibitions of some pieces of the series “Banality”. These works are inspired from existing works designed from trade objects. They are also inspired from photos published in the media. Such works which are directly inspired from existing works while adapting them to new supports illustrate some of the difficulties for copyright law in making a clear distinction between an authorized inspiration and a forbidden imitation.

Several questions arise:

  • Is an artist allowed to design a piece of art directly inspired by another one without asking an explicit authorization of its author?
  • How to define clearly the limit between inspiration and reproduction? Between inspiration and infringement?
  • When can we find there is plagiarism?

First, let’s remember that plagiarism, which is generally defined as the reproduction of the content of somebody else’s work, is not in itself a legal concept and is punishable only when the elements of infringement are found.

In France, the Article L. 122-4 of the Intellectual Property Code provides that “Any total or partial representation or reproduction done without the consent of the author or his/her eligible parties or legal successors is unlawful. It is the same for translation, adaptation or transformation, arrangement or reproduction through any kind of art work or process.”

However, in order to be able to punish an infringement act, it is necessary to determine whether the elements that have been reproduced or adapted are effectively protected by copyright. In particular, one must establish whether it is only using an idea or of the form which is expressing the idea. In accordance with judicial precedents of the interpretation of the Article L. 111-1 of the Intellectual Property Code, it is only the material expression of ideas that are concretized by the design of a work which is protected by copyright. The only notion of using another artist’s idea does not constitute copyright infringement.

So, concerning the sculptures of Jeff Koons which reproduce and adapt photos and pictures, do they just take up other artists’ ideas or do they really reproduce their concrete form?

In order to be able to decide whether there is infringement; one must take into account the relative importance of the content which has been reproduced. In other words, to what extent has the author brought about some originality and personal mark. It would seem that the sculptures of Jeff Koons do not only take after other artists’ ideas but also some salient characteristics of the form of their works. To this extent, French courts could conclude to an infringement offense.

Nevertheless, even if we consider that the litigious works are reproductions or adaptations of other works, one must still ask ourselves if this kind of imitation is not authorized on the grounds of a copyright exception, such as the right of parody. The Article L. 122-5 of the Intellectual Property Code provides that: “When a work has been divulgated, the author cannot prohibit (…) 4° parody, pastiche or caricature…”

The equivalent exception in US law, called “Fair Use”, has been argued by Jeff Koons before the American Courts. However, these courts have not always accepted such an exception, since it would appear that he lost two of his three trials.

If the judicial procedures concerning the sculptures “Fait d’hiver” and “Naked” eventually come to a final judgment, without any mediation or transaction to stop them, it will be interesting to know what will be the decision made by the French Courts with respect to the application of the law related to copyright infringement.

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