Art battles with a ©

Utrecht, April 18, 2013

Gino van Roeyen

Art Battles with a ©

Art & War Conference

Conference Dutch

Association of Aesthetics

Utrecht, April 18- 19, 2013

Gino van Roeyen

Attorney-at-law


Gino van Roeyen

some background…

self-portrait 1988

‘We always thought of history as a linear line, a development from

A to B and then to Z, and now somebody said we start the

alphabet with C, we start the alphabet with copyright, we just

take an image and nothing new’

(Rob Scholte, Pirate Conference,Tilburg, September 17, 2010)


Gino van Roeyen

intellectual property: what’s on the horizon?


Gino van Roeyen

art & intellectual property: war & peace

� War: artistic freedom versus absolute protection by IP of

‘brainchilds’ against unlawful copying and the like

art protected by IP against unlawful copying and

the like

� Peace: art which embraces IP

Rob Scholte, Peace of Munster, 1998


Gino van Roeyen

Rob Scholte & “IP”-discussion (I)

Titiaan, Venus of Urbino,1538 Edouard Manet, Olympia, 1863 Paul Spooner, Manets Olympia

Rob Scholte Utiopia, 1986


Gino van Roeyen

Rob Scholte & “IP”-discussion (II)

Bas Roodnat, ´Het schilderij Utopia van Rob Scholte, nieuw gebruik of nabootsing?´ (The painting Utopia by Rob Scholte, new

use or imitation), NRC-Handelsblad, December 3, 1987

Response by Rob Scholte


Gino van Roeyen

Patent Law ... in Art? (I)

Yves Klein (1928-1962)

� Klein obtained a patent in France in March 1960 for a method which enables an artist to create

works without any physical activity of the artist himself, but instead by having the physical work done

from a distance by naked human bodies soaked in paint (‘the human body as the artist’s soaked-in-

paint brush’)

� In May 1960 Klein registered a formula for a paint developed by him (‘International Klein Blue’ - IKB)

with a so-called ‘Soleau’-envelope

IKB 79 1959


Gino van Roeyen

Patent Law ... in Art? (II)S.M.A.K. (Gent), 2008, exhibition ‘Faux jumeaux’ (false twins), artist Michel François

‘He asked fifteen persons to choose two

works of art which resemble each other with

respect to form or material, but have

nevertheless come into existence

independently. Which substantive similarities

or differences between the two works can be

detected by presenting the works mirror

image in two identical rooms?’

‘

IKB van Klein Fixopastel van Gerald Murillo

‘(...) these “Faux Jumeaux” do also refer to the parallel

between the patent system and the system of originality in the

art world. Patents are monopolies which protect inventions

that can be applied in industry during a certain period of time

(for example twentyfive years) against the use by third parties.

A patent must be registered to be protected and can not be

identical or quasi-identical to an existing patent. As soon as

the patent has been registered and disclosed to the world, it

can not be used by third parties, even if the same patent has

been achieved simultaneously, i.e. without copying. As soon

as an artist has created a work of art and this work of art has

obtained a position in art history, this can be regarded as

something which is similar to a patent. It is different for other

artists to use an identical or similar idea, or an identical

technique for a work, because the art world is aware (as

patents are) of existing, precedings works of art.’


Gino van Roeyen

sketchbook forgeries...“SATURDAY, 5 MARCH 2011

2 art forgeries

I thought about copying some artists work when my daughter

blogged about her disappointment at being told to copy the

work of famous artists for her uni work. Do you think I might

be able to start a new career in forging art work. I did get lots

of ideas on how to carry the work forward to make it my own.

I chose Klimt and Picasso as I really like their work but I also

thought it would be more simple for me, it wasn't. Copying

their work made me realise how complicated their strokes

were. I dont know why I decided to do something I

considered to be easy. I think I may choose a complicated

picture next time”

(www.drawingdiva.blogspot.nl/2011/03/2-art-forgeries.html)


Gino van Roeyen

Design right ... in Art?Nadia Plesner vs. Louis Vuitton (‘Darfurnica’) – 2008-2011

EU Design Right 000084223-0003

‘Aura Bag’

EU Design Right 000084223-0001

� Presiding Judge District Court The Hague I (2008/2011): ‘Design right

infringement, since Plesner has not obtained permission to use the design

and to offer for sale products in which the design is used’

� Presiding Judge District Court The Hague II (2011): ‘Plesner has and

continues to have an interest to freely express her (artistic) view through her

work “Simple Living” which interest outweighs the interest of LV to enjoy its

property rights undisturbed..’

Picasso, Guernica, 1937


Gino van Roeyen

And Belgian artist Wim Delvoye…


Gino van Roeyen

Rob Scholte & design/copyright

Rob Scholte, Casa Rosa, 2005 Ton Giesbergen, Small singing teakettle


Gino van Roeyen

Intermezzo (I): article 10 European

Convention on Human Rights

‘Everyone has the right to freedom of expression. This right shall

include freedom to hold opinions and to receive and impart information

and ideas without interference by public authority and regardless of

frontiers. This article shall not prevent States from requiring the

licensing of broadcasting, television or cinema enterprises.’

‘it is applicable not only to "information" or "ideas" that are favourably

received or regarded as inoffensive or as a matter of indifference, but

also to those that offend, shock or disturb the State or any sector of

the population. Such are the demands of that pluralism, tolerance and

broadmindedness without which there is no "democratic society".


Gino van Roeyen

Trade mark rights .... in Art (I)‘Nike Ground

In September 2003, we set up a fake Nike

advertisement campaign, including a public

installation, a website and a performance. The

news went out nationwide: "Karlsplatz, one of

Vienna's main squares, is soon to be renamed

Nikeplatz, and a huge monument in the shape of

Nike's famous Swoosh logo will be built in

Nikeplatz". The one-month campaign provoked the

reactions of Vienna's citizens, city officials and the

Nike group, which started legal action to put an end

to this bizarre performance.’

� 0100101110101101.org (Eva & Franco

Mattes)

� Vienna Court refused injunction on

formal grounds (Nike apparently based

its claim on ‘copyright’

� Trade Mark Infringement: use of a

trade mark (Swoosh), not for goods,

which takes unfair advantage of or

brings detriment to reputation of said

trade mark, without due cause


Gino van Roeyen

Trade mark rights... in Art (II)

vs

Brad Troemel, dean & deluca low calorie snack inside

Marlboro box w/ Cerebral Palsy Tissue/Organ Kidney Cancer

Green Ribbon Glittery Sticker (Ethical) 1/2Bas Kist, NRC Handelsblad, 8 & 9 december 2012


Gino van Roeyen

Rob Scholte & Trade mark rights (I)

� Cease and desist letter (1987) from Philips to Art Unlimited who

produced postcards of Scholte’s ‘Nachtlicht’ (Nightlight) based

on Philips trade mark rights to its logo: profit from the reputation

of that logo

� From the letter: ‘A group as Philips should always prevent that

its own brands are harmed in their primary function of

distinguishing’

Nachtlicht, 1984


Gino van Roeyen

Rob Scholte & Trade mark rights (II)

Rob Scholte, Chiquita, 1989


Gino van Roeyen

Rob Scholte & Trade mark rights (III)

2011


Gino van Roeyen

Rob Scholte & Trade mark rights (IV)

Rob Scholte, Lucifer (detail), 2012 Dolf Pauw, blogspot, 2007...


Gino van Roeyen

Rob Scholte & Trade mark rights (IV)

2012, Parool: ‘Rob Scholte is a

copycat with a twist’


Gino van Roeyen

Helmut Newton vs George Pusenkoff (I) Oberlandesgericht Hamburg 12 oktober 1995

Helmut Newton, ‘Miss Livingston, Beverly Hills 1981’

George Pusenkoff, ‘Power of Blue’

Copyrights... in Art (I)


Gino van Roeyen

Helmut Newton vs George Pusenkoff (II) Oberlandesgericht Hamburg, October 12, 1995

� Newton: plagiarism! – copyright infringement!

� OLG: in ‘Power of Blue’ the Newton picture is not used in an unlawful way

� What is the ‘creative power’ of Newton’s picture and Pusenkoff’s ‘Power of Blue’?

� Newton’s picture: a pose, namely the reproduction of nudity and eroticism

� ‘Power of Blue’: it’s about colour, not the reproduction of the nude female body

� Pusenkoff has kept a maximum distance from Newton’s picture, in such a way this

picture remains recognisable, whilst the use of it becomes not impossible


Gino van Roeyen

A few extra copyright basics

� Exclusive right of author of a work to publish and reproduce said work

� To be protectable by copyright the work needs to be original (not derived

from earlier work) and result of personal creative choices by author

� he reproduction right does not only cover identical reproduction, but also

reproductions in a different form, which can not be regarded as a new,

original work.

� Citations allowed but only with certain restrictions (due mentioning of

source) – images?

Robert Rauschenberg’s Factum I & Factum I, 1957


Gino van Roeyen

Duijsens / Broeren (Hoge Raad,

March 29, 2013

� Duijsens: Broeren infringes my copyright to certain works and/or acts

unlawful by slavish imitation of certain style elements

� Court of Appeal: yes – slavish imitation with regard to certain works –

provokes confusion (what is a Duijsens and what is a Broeren?)

� HR: Copyright does not grant an exclusive right to an author for his or

her particular style. Such protection would hinder creative freedom of

authors and restrain cultural development. This consideration would be

worthless if protection of style could be obtained via a claim based on

slavish imitation.


Gino van Roeyen

Kunst aufräumen – Ursus Wehrliwww.kunstaufraeumen.ch

Let’s get rid of the original, long live the tidy ‘copy’?


Gino van Roeyen

Rob Scholte & Copyright

Piet Mondriaan, Tableau I, 1921 Rob Scholte, Mondriaan Revised, 1997


Gino van Roeyen

The art of imitation: dead end row?

Bianca Stigter in NRC December 6, 2012:

‘Has authenticy had its best time?’

Rob Scholte, Cul De Sac 1992


Gino van Roeyen

Questions?

Gino van Roeyen

BANNING Advocaten

www.banning.nl

+31-73-6927784

+31-73-6927784

[email protected]

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