Does cutting up a work of art and re-using fragments of the canvas to make watches infringe copyright law?

6th December 2019

This isn’t a law school examination question but a real life Danish copyright case which hit the headlines in the UK recently.

Intellectual property expert Simon Stokes looks at a case involving copyright infringement and artwork.

A very colourful painting “Paris Chic” by the Israeli artist based in Denmark, Tal R,  was bought from a leading UK art dealer in London in August for £70,000.  The buyers had previously founded the up-market Kanske watch brand.  They intended to use the painting’s canvas  as “raw material” to make between 200 and 300 watches under their new Letho brand selling at around £1150 each.  The canvas would be used to make decorative watch faces.  The artist objected, legal action in Denmark followed and a Danish court recently upheld the artist’s objection on the basis what was proposed was copyright infringement.  The buyers had argued that as they owned the work they were entitled to destroy it, which copyright law did not prohibit.  If not settled the case may be appealed.

So what would happen if such a case were brought in the UK on the basis his UK rights were infringed?  At first glance you might think that a buyer of a work of art is entitled to do what they like with it – after all it’s their property.  But that’s not necessarily the case if the work of art is protected by copyright – which it will be if the artist is alive or died less than 70 years ago.  Copyright law gives artists whose work is in copyright three sets of rights in their works – artist’s resale right (which is not likely to be relevant here), moral rights (including that of integrity – which is relevant here) and the classic copyright right to control copying of a work and the issuing/distribution of copies to the public (also relevant here, as well as other rights of less relevance).

Artist’s resale right does not appear relevant as this would only apply to the resale of the original work on canvas after its first sale by the artist through the dealer – as this has been cut up that work no longer exists.

Looking at moral rights next.  A visual artist such as Tal R has the right not to have his art works subjected to “derogatory treatment” – this is the moral right of integrity.  This requires two things – first there has to be a “treatment” of the work – which UK law says is any addition to, deletion from or alteration or adaptation of the work.  Second that treatment must derogatory – which it will be if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the artist.  In the UK there is a paucity of cases on moral rights – it is unclear if the destruction of a work (as opposed to its mutilation) will be a treatment of the work, although one case does suggest it can be.  The other issue is who decides what is derogatory and against what standard – is it enough if the artist feels aggrieved or does it require the judge to decide the matter, if necessary taking expert evidence – is it a subjective or objective test?  Here it must be strongly arguable there is derogatory treatment – the work is not actually destroyed rather mutilated – it will continue to exist in fragments – and the blatant commercial re-use of the mutilated work must surely by any standard be prejudicial to the honour or reputation of the artist.

The other argument the artist has is that the watches to be made from the canvas would infringe his copyright in the original work of art as they are infringing copies.  He did not authorise their creation and distribution.  This is an untested argument in the context of artistic works in the UK but there is case law from the European court of justice (Allposters (2015)) that would arguably back up such an argument.  The law says that once a work of art is sold copyright can’t be used to prevent its resale as long as it remains unaltered or modified.  But if a work is altered or modified that’s another matter.  In Allposters the destruction of a work of art by converting a poster to a work on canvas (by a canvas transfer process in which the poster was destroyed) was held to infringe copyright.  In this case the court was also swayed by the fact the defendants were making money – significantly more than the price of the poster destroyed.

So if Tal R were ever to take such a case to the UK he ought to get a sympathetic hearing.  And the case reminds us that moral rights and copyright can have real teeth.

If you need advice on copyright infringement, contact our experts.

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