Sunday, June 20, 2021

Of Art and Dirty Laundry

In times of inflation, art appreciates. When cash (or bonds, or equities) lose value, people spend. They buy art, precious metals, property, stamps, and alcohol.

By the way, the cost of an American "Forever" stamp is likely to go up from 55c to 58c on August 29th, 2021.
For those who still use postage stamps to pay bills and send thank-you notes, buying a stash of forever stamps before the increase represents at least a 6% saving.
The savvy shopper might also invest in Tide Pods as a store of value. Proctor and Gamble has announced that it will be raising prices in September on adult incontinence products, baby care, feminine care and more.

Art is more interesting from a copyright perspective, and also a literary point of view. Thrillers have been written about high value rare coins, high value rare stamps, lost and stolen masterpieces: Charade, The Saint in Palm Springs, The Rembrandt Affair, The Monuments Men, The Last Vermeer etc.

Works of art can be forged, stolen, traded, used as a medium for smuggling something even more valuable, or created or sold as a beard for money laundering. In some jurisdictions, such as the UK, the authorities are taking notice. The law office of DLA Piper have a great article on anti-money laundering and requirements for art market participants to register (in the UK.). 
Legal bloggers Gabrielle C. WilsonHoward N. Spiegler, Lawrence M. Kaye and Yael M. Weitz of the law offices of Herrick Feinstein LLP have published a thorough and comprehensive "snapshot" of the state of art ownership and trading in the USA including a discussion of what happens if an unsuspecting person buys a work of art that later is revealed to have been stolen.

One of the most interesting commentaries on the international art market comes from Art Law: Introduction, authored by Pierre Valentin of Constantine Cannon LLP

Quoting a small portion:

"Owing to changes in taste, high-end and, to a lesser extent, mid-market 20th-century and contemporary art and collectibles are doing well. Old masters and older furniture are not doing as well, unless they are exceptional examples."

And, on prices for exceptional works:

"...some commentators predict that within just a few years, an [iconic example of] artwork will sell for over US$1 billion. There is a relatively small pool of international billionaires and museums competing to acquire trophy pieces. Exceptional prices have been achieved at auction when only two such collectors or museums bid against one another."

Astonishingly, works of art costing $500,000 or less are considered "lower end".

If and when one buys a physical piece of art, one owns the canvas (or wood, or paper) and the paint (or whatever medium is applied to the surface), but one does not necessarily own the intellectual property. One cannot create prints or derivative works... except in the circumstance that the creator assigned the IP by written contract.

That principle also applies when one does not own an original copyrighted work at all, as is the case with Andy Warhol and his copying of a photograph of Prince. An Appeals court has ruled that it is not transformative, and not fair use to take someone else's portrait and merely change the color of the subject's skin.

Lee S. Brenner and Nicholas W. Jordan for Venable LLP, discuss the case, and the four important factors that determine whether or not a use is "fair".

It would seem that the Warhol Estate's contention that giving a person a purple face transforms them from awkward to "iconic" is ... not convincing.

On the same topic, Clyde Shuman, blogging for Pearl Cohen Zedek Latzer Baratz explain that this case may have a lasting impact on the concept of "fair use" in American copyright law.

I think that is good news for professional photographers, and also for artists in general.

Happy Fathers' Day.

All the best,

Rowena Cherry  

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