Artists in court: a snapshot of current developments in Europe

In "Iconic IP and freedom of expression: the battle lies ahead", the IPKat reported on the tussle between the famous fashion accessory house Louis Vuitton and Dutch artist Nadia Plesner over the incorporation by the latter of a Community design-protected pattern owned by the former into Darfurnica -- her dramatic and symbol-encrusted nod to Picasso's Guernica. LV sued for infringement of its design right; Plesner counterclaimed for a declaration that she was entitled to assert her right of freedom of expression under Article 10 of the European Convention on Human Rights.

Having succeeded in obtaining injunctive relief and token damages in France, LV initially obtained injunctive relief in the Netherlands too (for the litigation background see Rosie Burbidge's post on Art & Artifice here). The IPKat has now learned that, earlier this week, The Hague District Court reversed its own earlier order and has now decided that Plesner's right of free speech is fundamental and trumps LV's entitlement to assert its design right. Those of you who are fluent in Dutch can read the decision here. The Kats are awaiting an English translation, which they believe will come through their Kat-flap before the end of the week.


An emotive fixture in Europe's modern art heritage is the Berlin Wall, which like Guernica communicates a profound statement of man's cruelty to his fellow man.  Now a tourist attraction for many folk who were born too recently to remember those who were slain in a vain attempt to cross it, the Wall is still capable of engendering controversy.  In "Berlin Wall artists sue city in copyright controversy", Guardian Online, 3 May (spotted by too many readers to thank by name), reports that

"The East Side Gallery is one of Berlin's most popular tourist attractions, a 1.3km-long brightly painted stretch of the wall which divided east and west for almost 30 years. But now the outdoor exhibition space is embroiled in an expensive copyright controversy after Berlin council destroyed some artworks painted on the wall and reproduced others without the permission of the original artists.

The city of Berlin, which owns the wall and the land around it, is being sued by 21 artists over the way the council handled recent renovation of the gallery.  ... the artists say they – and about 80 other painters who decorated the wall shortly after the borders between east and west were opened in November 1989 – were offered €3,000 (£2,700) each by Berlin council to recreate their original murals after the site was overhauled for the 20th anniversary of the fall of the wall two years ago.

The artists were told if they refused to comply, an urban renewal firm contracted by the council would whitewash their work and get someone else to re-create – or "forge", according to the aggrieved artists – the originals. ... Many of the Berlin artists deemed €3,000 an insultingly low amount, especially as it was public knowledge that Berlin council had put aside a total of €2.2m for the renovations.

Hannes Hartung, a Munich-based lawyer representing artists in the legal action, said Thierry Noir, one of the artists who contributed to the East Side Gallery, had successfully won €250,000 from Germany's highest court after a section of the wall he painted was sold to a private collector.

Bodo Sperling, one of the founders of the East Side Gallery, whose work was whitewashed two years ago, is demanding at least €25,000. Sperling and 18 others who refused the €3,000 and then watched their work being destroyed are suing the council. They said they would be happy to repaint their designs – for a fair price. Ever since they threatened legal action during the renovation process two years ago, their sections of the wall have remained blank.

Two other artists have launched a claim for intellectual property theft after their original paintings were re-created by the council when they turned down the city's offer. Carmen Leidner Heidrich's Niemandsland (No Man's Land) and Die Geburt der Kachinas (The Birth of Kachina) by Hans Jürgen Grosse were both "forged" against their creators' will. ...   Millions of tourists who visited the reunited city took snaps of the free gallery, especially the famous painting of Leonid Brezhnev and Erich Honecker kissing and another of a Trabant car appearing to burst out from the wall. The artists responsible for both of these paintings accepted the €3,000 to repaint their designs and are not part of the pending legal action. ...

The claim is due to be filed in a Berlin court on Wednesday, although the case is unlikely to be heard for at least three months".

The IPKat is frankly surprised that the authorities in Berlin -- the capital of a country which has a long and proud tradition of upholding artists' rights -- have been allowed to place themselves in a situation such as this; indeed, his instinct is to ask whether there is another side of the story which might explain their action.  Merpel says, every art college should be offering courses on Intellectual Property for Artists, since they seem to be more in need of legal services and representation than many other categories of creators.

Earlier IPKat post on copyright in the Berlin Wall here.

Iconic IP and freedom of expression: the battle lies ahead

When the IPKat first saw Nadia Plesner's Darfurnica (above), his first thought was that it was designed to reflect the tragedy that recently unfolded in Darfur by recalling the imagery of what is arguably Pablo Picasso's most powerful work, Guernica (below), a graphic and shocking depiction of the horror of the bombing of the small Basque town of that name by German and Italian planes at the behest of the nationalist forces during the Spanish Civil War. The Kat's first thought was whether the estate of the late artist would approve of her work on account of its sentiment or object to it on account of its conceptual and visual similarities to Picasso's own work.

In all of these musings the Kat didn't even notice one of the details of Darfurnica which has brought her work to the attention of the law courts in first France and now the Netherlands: the handbag sporting a Community registered design registered in the name of luxury fashion accessory house Louis Vuitton (for details of the Community registered design and a handy discussion of some of the legal issues which divide artist and icon-maker, readers are recommended to sample Rosie Burbidge's neat post on Art & Artifice here).

The incorporation of intellectual property-protected works into later works is not new -- two famous example of trade marks incorporated into art works are Manet's Bar at the Folies-Bergere and Andy Warhol's Campbell Soup tin reproductions (both here) -- and it has surprised the IPKat that artists have not made more frequent use of the potent imagery of trade marks as cultural symbols.

Both Rosie's report and this recent post on Eyeteeth state that Nadia Plesner is bringing a counter-suit before a Dutch Court in The Hague on Wednesday 30 March, seeking to assert her freedom of expression under Article 10 of the European Convention on Human Rights, but the Kat has learned that there is to be an earlier hearing today at which Plesner's lawyers are challenging the appointment of the judge presiding over the hearing, the outcome of which will be keenly awaited.

While the IPKat deprecates all forms of intellectual property infringement in commerce and believes that the value of strong and enforceable IP rights is critical for the success of any commercial enterprise that competes with others in the market, he is unable to accept that any economic IP right, be it copyright, trade marks or designs, should be allowed to impinge on the genuine expression of an opinion: the use of a Vuitton image (and it could equally have been any of a number of other companies' images) works so powerfully in works such as Darfurnica because of the significance which the public itself places, and the meaning it gives, to icons and images which make IP rights valuable. Having one's iconic emblems used as icons is part of the price any company pays for creating and being able to exploit them commercially.

Merpel adds that she very much doubts that Nadia Plesner has done as much damage to Louis Vuitton's IP by incorporating it into her image as Vuitton has inflicted on itself by making such a fuss about it (and she's still chuckling over all that fuss the same company made over Chewy Vuiton, here).

What do you think?  There's an IPKat poll at the top of the weblog's sidebar, here.