Artist's Resale Royalties and Moral Rights: UK-IPO Report [International]

The UK Intellectual Property Office (UK-IPO) has published the report it commissioned into the impact on Artist’s Resale Rights on the UK art market [Please refer to the link: http://www.ipo.gov.uk/press-release-20080402b; and the study in PDF here: http://www.ipo.gov.uk/study-droitdesuite.pdf]. This report examines in detail both the costs and benefits of the right for both the UK art market and its artists.

The right was introduced in 2006, as the result of a European Directive. At the time there were concerns the new right would increase costs for the art industry. The report indicates that the right has not had a significant impact on the art trade but there may be some difficulties with the way the system is running. Among the major findings:

About £2.5 million of Artist Resale Rights is being collected annually, of which around £1.5 million accrues to British artists.
Most of these payments are quite small, and the median payment to artists based on auction house data is £256. Auction house data indicate that during the period since its introduction, 80% of all ARR payments should have gone to the top 100 artists.
The cost of administering ARR entailed a set-up cost in the region of £1 million and recurrent administration costs of £50,000 per year.
There is no evidence that ARR has diverted business away from the UK, where the size of the art market has grown as fast, if not faster, than the art market in jurisdictions where ARR is not currently payable.
There is no evidence that ARR has reduced prices, as prices have appreciated substantially for art eligible for ARR, and faster than in markets where ARR is not currently payable.
The extension of ARR in 2012 would on current figures increase the size of ARR payments about fourfold. Art market professionals expressed the view in the strongest terms that the extension will significantly damage the UK market by diverting trade elsewhere.
While the administrative burden of ARR does not seem to have been excessive for most businesses, there have been a number of problems associated with difficulties in establishing the nationality of artists and the requirement to calculate ARR liabilities in euros. A significant minority of art market professionals, including the major auction houses, deem the administration of ARR to be intrusive and burdensome.

Moral rights for Artists, Authors and Sculptors [International]

Thomas F. Cotter, Pragmatism, Economics, and the Droit Moral, 76 N.C. L. Rev. 1 (1997) provides a decent introduction to this topic. Also useful might be the module on Respect and Integrity in Professor William Fisher's mini-course Intellectual Property in Cyberspace 2000. The case of Napier's Distorted Barbie is fun.

Kant and Hegel provided the theoretical justification for an author's "moral right", but James MacNeill Whistler's refusal to provide Sir William Eden with a portrait of his wife and Eden's subsequent suit in 1989 provided the political impetus for France to pass legislation on the subject. France now has the strongest laws supporting the rights of artists. For Whistler's own take on this case, see Eden versus Whistler: The Baronet and the Butterfly. A Valentine with a Verdict, Paris and New York, 1899 (reprinted by Notable Trials Library, 1997) Call Number: FRA 996 WHI78 1997.

France recognizes four moral rights:

droit de divulgation, or right of disclosure;
the droit de repentir ou de retrait, or right to correct or withdraw works previously disclosed to the public;
the droit de paternite, or right of attribution, which includes
right against misattribution,
right against nonattributio,
right to publish anonymously or pseudonymously,
right to void a promise to publish anonymously or pseudonymously;
and the droit au respect de l'oeuvre, literally "the right to respect of the work," usually translated as the right of integrity.

The United States attempted to harmonize its copyright laws with those of European and other countries by joining the Berne Convention and enacting the Visual Artists Rights Act of 1990 (VARA). See especially 17 U.S.C. §§106, 106A, and 113. Cynthia Esworthy in the general counsel's office of the NEA provides a short introduction to US moral rights law in From Monty Python to Leona Helmsley: A Guide to the Visual Artists Rights Act. Check the sidebars as well. However, some assert that the US will have to expand its moral rights protections to achieve its alleged goal of harmonizing its intellectual property laws with those of the European Union. See Jowita Wysocka, Imposing Moral Rights on an Immoral System: An Analysis of the Further Legislative Reform Required for U.S. Compliance with the Berne Convention, Suffolk Journal of High Technology Law (Spring 2000).

Henry Hansmann & Marina Santilli, Authors' and Artists' Moral Rights: A Comparative Legal and Economic Analysis, 26 J. Legal Stud. 95 (1997) Carter v. Helmsley-Spear, Inc., 71 F. 3d 77 (2d Cir. 1995).

The video excerpt showing the misuse of Frederick Hart's sculpture Ex Nihilo by Warner Bros. in the film The Devil's Advocate can be found here. This case used a copyright claim to settle a moral rights problem.

The destruction of Diego Rivera's mural Man at the Crossroads, commissioned for Rockefeller Center but offensive to the patrons because of its inclusion of the image of Lenin, predated any effective moral rights statute. The PBS site Culture Shock has other interesting examples.
Moral rights apply to a somewhat expanded list of the traditional fine arts. Alfred Stieglitz is now an artist but Giorgio Armani is not. See Christine Magdo (JD '00), Protecting Works of Fashion from Design Piracy (2000). See also Matthew Rimmer, Crystal Palaces: Copyright Law And Public Architecture. 14(1) Bond Law Review (2002).

Lawsuit on misuse of artists' name

An Indiana company is misleading the public about who has the rights to use the name of 19th century artist Frederic Remington, a federal lawsuit claims.
The lawsuit was filed by The Frederic Remington Art Museum.
It seeks to stop Gregory Shideler of Fort Wayne, Ind. from using the name Frederic Remington Art Museum Foundation on his Web site and literature. It also seeks cancellation of federal trademarks previously issued to the man and the Frederic Remington Trust 1861 LCC.
The Ogdensburg museum also wants a declaration that it can continue using Remington's name despite whatever trademark rights Shideler does hold, the museum's attorney, Edward Conan, said Tuesday.
The lawsuit accused Shideler of engaging in 'a wide-ranging scheme of trademark abuse and misuse' that has caused 'confusion and harm' to the museum's reputation and standing.
Shideler did not immediately return an e-mail seeking his comment. There was no telephone listing for him in the Fort Wayne area.
Born in 1861 in Canton, N.Y., and raised in Ogdensburg, Remington was an illustrator, sculptor and journalist whose depictions of cowboys and Indians helped burnish the legend of the wild West. His artwork remains widely exhibited today, with pieces on display from the White House to the Metropolitan Museum of Art.
The museum, originally founded as the Remington Art Memorial in 1923, is located in the home where Remington's wife lived after his death in 1909. It possess a comprehensive collection of original Remington art pieces, personal effects and correspondence.
Shideler's trust acquired a federal trademark in 1995 for the use of the name Frederic Remington on a variety of products, including eyeglasses, carbonated apple cider, umbrellas, cologne, clothing and cigarette cases, according to documents filed in U.S. District Court in Syracuse on Jan. 29.
In 2005, the trust trademarked the artist's name for the custom manufacture of two- and four-passenger horse-drawn sleighs with patent leather harnesses, brass sleigh bells, buffalo hide interiors and bison cape comforters.
In 2006, the company obtained a trademark for the Remington name for bronze sculptures.
Conan said Shideler has previously threatened legal action against the museum in an attempt to get it to stop offering what he claimed were unauthorized reproductions of Remington's work. Instead, the museum initiated legal action.
'He's made extravagant and insupportable claims about whatever rights he may or may not have. We felt some step had to be taken to get clarification and resolution,' Conan said.
According to court documents, the trust has variously represented itself as a 'Foreign Private Trust' with a mailing address in Mexico, or as a limited liability company with addresses in Fort Wayne.
Conan said Shideler's use of the Frederic Remington name has been problematic for the museum.
The lawsuit said the museum has been contacted by a tax review board in Indiana because of confusion over the foundation's name. It has also been contacted by law enforcement officials investigating a tax refund scheme in which refunds were being directed to the Frederic Remington Art Museum Foundation at an address for an inmate in an Arizona prison.
The trademarking of bronze statues by the trust is especially troubling for the museum, Conan said. Last year, the museum negotiated a partnership with J.W. Hulme Co. for an offering of a 'Frederic Remington Art Museum Collection' of merchandise in the Hulme catalog.
The trust allegedly sent Hulme a 'cease and desist demand' accusing the company of infringing on its trademark.
'Resolving this will allow us to give some assurance to potential partners with us that they can use Frederic Remington or the bronze statues and they don't have to worry that they are going to get sued or harassed for violating a trademark,' Conan said.