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03 Oct 2018

Copyright in a globalised art market

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Whenever art is commissioned, and often when it is sold, it is essential to consider copyright law. The sale and commissioning of art is a truly global market, however copyright laws are national rights and can vary considerably between countries. Even within the European Union there can be important differences, as the law of copyright is not as harmonised as the law of other IP rights such as designs and trade marks.

It is therefore not surprising that we frequently advise clients on international dealings in artistic copyright works. It is also important to remember that not only may copyright law be different in different jurisdcitions, sometimes significantly, but national attitudes to the protection of artists' rights also vary. For these reasons, when it comes to commercial dealings in artistic copyright, it is difficult to advise on what may be "industry standards" in the global marketplace and it is important to seek individual advice relating to any major international acquisition.

In this article, we discuss some recent cases from the USA, UK and France which demonstrate some of the different approaches of these countries to artist's rights.

USA, California – the end of droit de suite in America?

Originating in France in the 19th Century, the Artist's Resale Right, or droit de suite, entitles artists to a royalty on the resale value of their works. Artist Resale Right was adopted in the UK following an EU directive in 2001, though its introduction in the UK has been controversial; it has been suggested by several commentators in the art market that Brexit would provide a welcome opportunity to reverse the regulation. Nevertheless, despite its controversy in some countries, the Artist's Resale Right is now well established across a substantial part of the world. A notable exception is the United States.

Artist's Resale Right has had its advocates in the United States – a federal introduction has been proposed and considered many times by Congress and the US Copyright Office. In the early 1990s, the United States Copyright Office issued a report which found there to be insufficient policy justification to adopt a resale right, and noted potential problems with enforcement of the right. However, in a later 2013 report the Copyright Office changed their recommendation, and endorsed the introduction of a resale right, in part to bring the United States in line with the large number of countries who had introduced the right.

Congress did not act on the Copyright Office's 2013 recommendation, and the only Resale Right that has existed in the United States was by virtue of a state law in California. The law applied only to works sold in California or sold by a Californian resident, and entitled the artist to 5% of the sale price. However, following a long-awaited judgment from the Ninth Circuit Court of Appeals this year, the Californian Resale Right was held to conflict with the federal law Copyright Act 1978. As a result, the Act was limited to works resold in 1977 only.

In light of this judgment, the introduction of any further Resale Right in the United States would require a significant change in the federal law. It looks as if, at least for the foreseeable future, the United States will continue to resist the global expansion of Artist's Resale Right.

France - Artistic free-riding

French droit d'auteur is traditionally well-known for giving generous rights to artists and, as the name would suggest, being more focussed on the rights of authors than British-developed economic copyright. Whilst many of the moral rights which originated in France have been adopted worldwide, France still stands apart from other countries in its approach to promoting the integrity of artistic works. An interesting example of this is the "parasitisme" cause of action, which formed a central part of the recent appeal finally determined in the ongoing dispute between the French artist Orlan and Lady Gaga.

Orlan sued Lady Gaga in 2013 claiming that Gaga's video "Born This Way" infringed various rights in her previous video works. Orlan claimed $31.7 million for multiple infringements of various intellectual property rights. The claims centred around Gaga's reproduction of features which Orlan argued were her works, her characters or traits of her personality. In particular, Orlan complained of Gaga's use of Orlan's well-known body transformation including her face implants.

In 2016, Paris’s High Court ruled against Orlan, not being persuaded of her claimed rights or infringement by Gaga. The Appeal, which was determined by the French Court of Appeal earlier this summer, focused on the "parasitisme" or "free-riding" action. "Free-riding" arguments are common in the sphere of trade mark and brand disputes, but appear to be unique to the French Courts when applied to artistic works. Under French law, the action of parasitisme is derivative of unfair competition law and can be applied in the context of artistic works to provide damages in situations where an artist "free-rides" on the efforts, investments and know-how of another artist with a view to commercial profit.

On the facts, the Paris Court of Appeal found that there was insufficient similarity between Orlan and Gaga's works to amount to parasitic behaviour, but confirmed the approach to be taken in cases of artistic parasitisme. The UK, and other common law countries, do not have unfair competition law per se. The common law cause of action closest to parastisme would be the tort of passing off. However, passing off requires an active misrepresentation to consumers rather than "free-riding" where consumers may not be confused. It is hard to see how the requirements of passing off could be fulfilled in a case of artistic free-riding such as Orlan's. Therefore, unless there is a major development in the law, we are unlikely to see an adoption of the doctrine of artistic parasitisme in the UK.

UK – copyright ownership and moral rights as a philosophical belief

The Employment Appeal Tribunal is an unlikely forum for a debate on the philosophy of copyright ownership. However this was the topic of a recent case involving the luxury design brand Mulberry.

An employee of Mulberry was dismissed because she refused to sign a standard copyright assignment agreement. She brought a claim asserting that Mulberry's acts amounted to discrimination, and alleged that her belief in the "human or moral right to own the copyright and moral rights of her own creative works and output" was a protectable philosophical belief under the Equality Act 2010.

The Appeal Tribunal acknowledged that such a belief could in theory be protectable under the Equality Act. However the appeal failed because the claimant did not raise her beliefs as the reason for not signing the agreement, and she failed to establish the group disadvantage required for indirect discrimination.

This decision could seem alarming to employers who commonly ask employees to sign standard assignments of copyright. However, this is an unusual case on the facts, as the claimant was only concerned about transferring copyright in her private works, which would not have been caught by the assignment agreement in any event. Therefore a carefully drafted assignment agreement, combined with legal advice to concerned employees, should avoid this issue. Nevertheless, this decision does put down a marker that beliefs in respect of intellectual property ownership can be considered protectable philosophical beliefs under the Equality Act in the UK, and it will be interesting to see if the issue returns to the UK Employment Tribunal or will be raised in other jurisdictions.

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