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Art battles with a ©


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Gino van Roeyen (partner IP at Banning) was a speaker at the Art and War Conference of the Dutch Association of Aesthetics (Nederlands Genootschap voor Esthetica)
Utrecht, Thursday 18 and Friday 19 april 2013.

This year Utrecht commemorates the Peace Treaty of Utrecht, 300 years ago. Gino spoke together with amongst others keynote speaker Rob Scholte and delivered a lecture ('Art Battles with a ©') in which he reflects on IP wars with regard to art. The title of his lecture reflects to sides of the debate. On the one hand IP, especially copyright, can be used as a weapon to fight unlawful copying of works of art. On the other hand art thrives on absolute freedom to create works which 'battles' sometimes with IP rights.

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Art battles with a ©

  1. 1. Utrecht, April 18, 2013Gino van RoeyenArt Battles with a ©Art & War ConferenceConference DutchAssociation of AestheticsUtrecht, April 18- 19, 2013Gino van RoeyenAttorney-at-lawUtrecht, April 18, 2013Gino van Roeyensome background…self-portrait 1988‘We always thought of history as a linear line, a development fromA to B and then to Z, and now somebody said we start thealphabet with C, we start the alphabet with copyright, we justtake an image and nothing new’(Rob Scholte, Pirate Conference,Tilburg, September 17, 2010)
  2. 2. Utrecht, April 18, 2013Gino van Roeyenintellectual property: what’s on the horizon?Utrecht, April 18, 2013Gino van Roeyenart & intellectual property: war & peaceWar: artistic freedom versus absolute protection by IP of‘brainchilds’ against unlawful copying and the likeart protected by IP against unlawful copying andthe likePeace: art which embraces IPRob Scholte, Peace of Munster, 1998
  3. 3. Utrecht, April 18, 2013Gino van RoeyenRob Scholte & “IP”-discussion (I)Titiaan, Venus of Urbino,1538 Edouard Manet, Olympia, 1863 Paul Spooner, Manets OlympiaRob Scholte Utiopia, 1986Utrecht, April 18, 2013Gino van RoeyenRob Scholte & “IP”-discussion (II)Bas Roodnat, ´Het schilderij Utopia van Rob Scholte, nieuwgebruik of nabootsing?´ (The painting Utopia by Rob Scholte, newuse or imitation), NRC-Handelsblad, December 3, 1987Response by Rob Scholte
  4. 4. Utrecht, April 18, 2013Gino van RoeyenPatent 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 createworks without any physical activity of the artist himself, but instead by having the physical work donefrom 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’-envelopeIKB 79 1959Utrecht, April 18, 2013Gino van RoeyenPatent Law ... in Art? (II)S.M.A.K. (Gent), 2008, exhibition ‘Faux jumeaux’ (false twins), artist Michel François‘He asked fifteen persons to choose twoworks of art which resemble each other withrespect to form or material, but havenevertheless come into existenceindependently. Which substantive similaritiesor differences between the two works can bedetected by presenting the works mirrorimage in two identical rooms?’‘IKB van Klein Fixopastel van Gerald Murillo‘(...) these “Faux Jumeaux” do also refer to the parallelbetween the patent system and the system of originality in theart world. Patents are monopolies which protect inventionsthat 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 beidentical or quasi-identical to an existing patent. As soon asthe patent has been registered and disclosed to the world, itcan not be used by third parties, even if the same patent hasbeen achieved simultaneously, i.e. without copying. As soonas an artist has created a work of art and this work of art hasobtained a position in art history, this can be regarded assomething which is similar to a patent. It is different for otherartists to use an identical or similar idea, or an identicaltechnique for a work, because the art world is aware (aspatents are) of existing, precedings works of art.’
  5. 5. Utrecht, April 18, 2013Gino van Roeyensketchbook forgeries...“SATURDAY, 5 MARCH 20112 art forgeriesI thought about copying some artists work when my daughterblogged about her disappointment at being told to copy thework of famous artists for her uni work. Do you think I mightbe able to start a new career in forging art work. I did get lotsof 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 alsothought it would be more simple for me, it wasnt. Copyingtheir work made me realise how complicated their strokeswere. I dont know why I decided to do something Iconsidered to be easy. I think I may choose a complicatedpicture next time”(, April 18, 2013Gino van RoeyenDesign right ... in Art?Nadia Plesner vs. Louis Vuitton (‘Darfurnica’) – 2008-2011EU Design Right 000084223-0003‘Aura Bag’EU Design Right 000084223-0001Presiding Judge District Court The Hague I (2008/2011): ‘Design rightinfringement, since Plesner has not obtained permission to use the designand to offer for sale products in which the design is used’Presiding Judge District Court The Hague II (2011): ‘Plesner has andcontinues to have an interest to freely express her (artistic) view through herwork “Simple Living” which interest outweighs the interest of LV to enjoy itsproperty rights undisturbed..’Picasso, Guernica, 1937
  6. 6. Utrecht, April 18, 2013Gino van RoeyenAnd Belgian artist Wim Delvoye…Utrecht, April 18, 2013Gino van RoeyenRob Scholte & design/copyrightRob Scholte, Casa Rosa, 2005 Ton Giesbergen, Small singing teakettle
  7. 7. Utrecht, April 18, 2013Gino van RoeyenIntermezzo (I): article 10 EuropeanConvention on Human Rights‘Everyone has the right to freedom of expression. This right shallinclude freedom to hold opinions and to receive and impart informationand ideas without interference by public authority and regardless offrontiers. This article shall not prevent States from requiring thelicensing of broadcasting, television or cinema enterprises.’‘it is applicable not only to "information" or "ideas" that are favourablyreceived or regarded as inoffensive or as a matter of indifference, butalso to those that offend, shock or disturb the State or any sector ofthe population. Such are the demands of that pluralism, tolerance andbroadmindedness without which there is no "democratic society".Utrecht, April 18, 2013Gino van RoeyenTrade mark rights .... in Art (I)‘Nike GroundIn September 2003, we set up a fake Nikeadvertisement campaign, including a publicinstallation, a website and a performance. Thenews went out nationwide: "Karlsplatz, one ofViennas main squares, is soon to be renamedNikeplatz, and a huge monument in the shape ofNikes famous Swoosh logo will be built inNikeplatz". The one-month campaign provoked thereactions of Viennas citizens, city officials and theNike group, which started legal action to put an endto this bizarre performance.’ (Eva & FrancoMattes)Vienna Court refused injunction onformal grounds (Nike apparently basedits claim on ‘copyright’Trade Mark Infringement: use of atrade mark (Swoosh), not for goods,which takes unfair advantage of orbrings detriment to reputation of saidtrade mark, without due cause
  8. 8. Utrecht, April 18, 2013Gino van RoeyenTrade mark rights... in Art (II)vsBrad Troemel, dean & deluca low calorie snack insideMarlboro box w/ Cerebral Palsy Tissue/Organ Kidney CancerGreen Ribbon Glittery Sticker (Ethical) 1/2Bas Kist, NRC Handelsblad, 8 & 9 december 2012Utrecht, April 18, 2013Gino van RoeyenRob Scholte & Trade mark rights (I)Cease and desist letter (1987) from Philips to Art Unlimited whoproduced postcards of Scholte’s ‘Nachtlicht’ (Nightlight) basedon Philips trade mark rights to its logo: profit from the reputationof that logoFrom the letter: ‘A group as Philips should always prevent thatits own brands are harmed in their primary function ofdistinguishing’Nachtlicht, 1984
  9. 9. Utrecht, April 18, 2013Gino van RoeyenRob Scholte & Trade mark rights (II)Rob Scholte, Chiquita, 1989Utrecht, April 18, 2013Gino van RoeyenRob Scholte & Trade mark rights (III)2011
  10. 10. Utrecht, April 18, 2013Gino van RoeyenRob Scholte & Trade mark rights (IV)Rob Scholte, Lucifer (detail), 2012 Dolf Pauw, blogspot, 2007...Utrecht, April 18, 2013Gino van RoeyenRob Scholte & Trade mark rights (IV)2012, Parool: ‘Rob Scholte is acopycat with a twist’
  11. 11. Utrecht, April 18, 2013Gino van RoeyenHelmut Newton vs George Pusenkoff (I) Oberlandesgericht Hamburg 12 oktober 1995Helmut Newton, ‘Miss Livingston, Beverly Hills1981’George Pusenkoff, ‘Power of Blue’Copyrights... in Art (I)Utrecht, April 18, 2013Gino van RoeyenHelmut Newton vs George Pusenkoff (II)Oberlandesgericht Hamburg, October 12, 1995Newton: plagiarism! – copyright infringement!OLG: in ‘Power of Blue’ the Newton picture is not used in an unlawful wayWhat 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 bodyPusenkoff has kept a maximum distance from Newton’s picture, in such a way thispicture remains recognisable, whilst the use of it becomes not impossible
  12. 12. Utrecht, April 18, 2013Gino van RoeyenA few extra copyright basicsExclusive right of author of a work to publish and reproduce said workTo be protectable by copyright the work needs to be original (not derivedfrom earlier work) and result of personal creative choices by authorhe reproduction right does not only cover identical reproduction, but alsoreproductions in a different form, which can not be regarded as a new,original work.Citations allowed but only with certain restrictions (due mentioning ofsource) – images?Robert Rauschenberg’s Factum I & Factum I, 1957Utrecht, April 18, 2013Gino van RoeyenDuijsens / Broeren (Hoge Raad,March 29, 2013Duijsens: Broeren infringes my copyright to certain works and/or actsunlawful by slavish imitation of certain style elementsCourt 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 orher particular style. Such protection would hinder creative freedom ofauthors and restrain cultural development. This consideration would beworthless if protection of style could be obtained via a claim based onslavish imitation.
  13. 13. Utrecht, April 18, 2013Gino van RoeyenKunst aufräumen – Ursus Wehrliwww.kunstaufraeumen.chLet’s get rid of the original, long live the tidy ‘copy’?Utrecht, April 18, 2013Gino van RoeyenRob Scholte & CopyrightPiet Mondriaan, Tableau I, 1921 Rob Scholte, Mondriaan Revised, 1997
  14. 14. Utrecht, April 18, 2013Gino van RoeyenThe art of imitation: dead end row?Bianca Stigter in NRC December 6, 2012:‘Has authenticy had its best time?’Rob Scholte, Cul De Sac 1992Utrecht, April 18, 2013Gino van RoeyenQuestions?Gino van RoeyenBANNING