In a press release of 30 December 2011, the Higher Regional Court Düsseldorf reported on a case concerning the copyright subsisting in photographs taken by a third party (a well-known photographer) of a live art performance of an artist. Sadly, the press release did not include the case reference. Update: case reference is I-20 U 171/10. Thanks go to the IPKat's knowledgeable friends Andreas Thielmann, Thorsten Lauterbach and Monika Bruss.German copyright collection society Verwertungsgesellschaft Bild-Kunst wanted to prevent the re-display by the museum Stiftung Museum Schloss Moyland of photographs taken of the famous late German artist Joseph Beuys during a live art performance which itself was broadcast on German TV in 1964. By way of background: German copyright law protects live art performances as “artistic works”.
The exhibition in question - which had lasted until September 2009 - had displayed a recently unpublished series of black and white photographs taken by Manfred Tischer which showed Mr Beuys during his live art performance of Das Schweigen von Marcel Duchamp wird überbewertet, 1964 (in English: Marcel Duchamp's Silence is overrated, 1964) in the live television show "Die Drehscheibe" shown on German television in 1964.
The court of first instance, the Regional Court of Düsseldorf (Landgericht Düsseldorf) had ruled on 29 September 2010 (case reference: 12 O 255/09) that the museum may not exhibit the photographs as they were infringing Mr Beuys' (his estate's) copyright.
Presiding Judge Prof. Wilhelm Berneke of the Higher Regional Court of Düsseldorf now agreed with the lower court's decision and confirmed that the photographs of the performance were not a free adaption of Mr Beuys' copyright-protected live art performance an reworking (or more harshly translated a "deformation") of the original performance. Thus by exhibiting the photographs the museum without seeking his estates prior approval had infringed Mr Beuys’(his estate's) copyright in his art performance. While the photographs had adapted Mr Beuys' live art performance, this adaption had not been far enough removed from the original live art performance to amount to a free adaption which would not have required authorisation from the copyright holder.
The exhibition in question - which had lasted until September 2009 - had displayed a recently unpublished series of black and white photographs taken by Manfred Tischer which showed Mr Beuys during his live art performance of Das Schweigen von Marcel Duchamp wird überbewertet, 1964 (in English: Marcel Duchamp's Silence is overrated, 1964) in the live television show "Die Drehscheibe" shown on German television in 1964.
The court of first instance, the Regional Court of Düsseldorf (Landgericht Düsseldorf) had ruled on 29 September 2010 (case reference: 12 O 255/09) that the museum may not exhibit the photographs as they were infringing Mr Beuys' (his estate's) copyright.
Presiding Judge Prof. Wilhelm Berneke of the Higher Regional Court of Düsseldorf now agreed with the lower court's decision and confirmed that the photographs of the performance were not a free adaption of Mr Beuys' copyright-protected live art performance an reworking (or more harshly translated a "deformation") of the original performance. Thus by exhibiting the photographs the museum without seeking his estates prior approval had infringed Mr Beuys’(his estate's) copyright in his art performance. While the photographs had adapted Mr Beuys' live art performance, this adaption had not been far enough removed from the original live art performance to amount to a free adaption which would not have required authorisation from the copyright holder.
The court explained that the photographs not only showed the specific arrangement of items but also the actual sequence of events. Furthermore, there was not enough evidence, the judge found, that Mr. Beuys had consented to the photographs when they were first taken in 1964. However, the court allowed a further appeal to the German Federal Supreme Court (Bundesgerichtshof) due to the importance of the legal questions raised.
This is an unusual case and it would be interesting to see it go all the way to the Bundesgerichtshof. How do you correctly balance an artist’s right (or that of his estate) of creatorship with the right to freedom of art/expression of the museum and indeed, if he was still alive, the creator of the performance photographs, Mr. Manfred Tischer (Articles 5 (1), (3) German Constitution/potentially Article 10 ECHR)? This Kat, who incidentally is a bit of fan of Mr Beuys' art, can't help but wondering whether Beuys' estate just wanted to be asked -- or maybe they did not like the photographs?
A great example of Mr Beuys' art is the installation 'The Pack' which used to be on display at the Tate Modern in London, please have a look here.
This is an unusual case and it would be interesting to see it go all the way to the Bundesgerichtshof. How do you correctly balance an artist’s right (or that of his estate) of creatorship with the right to freedom of art/expression of the museum and indeed, if he was still alive, the creator of the performance photographs, Mr. Manfred Tischer (Articles 5 (1), (3) German Constitution/potentially Article 10 ECHR)? This Kat, who incidentally is a bit of fan of Mr Beuys' art, can't help but wondering whether Beuys' estate just wanted to be asked -- or maybe they did not like the photographs?
A great example of Mr Beuys' art is the installation 'The Pack' which used to be on display at the Tate Modern in London, please have a look here.
The "deformation" of Joseph Beuys' live art performance
Reviewed by Birgit Clark
on
Tuesday, January 24, 2012
Rating:
Reviewed by Birgit Clark
on
Tuesday, January 24, 2012
Rating:
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Great post, Birgit! You beat me to it :) By the way, the case reference is I 20 U 101/09. Cheers, Monika
ReplyDeleteHi there, the case reference seems to be I-20 U 171/10. The full text of the decision (in German) is available at http://www.rechtambild.de
ReplyDeleteB
est wishes,
Thorsten.
If one subscribes to the view that the fundamental purpose of copyright is to reward creators of original work for the use of their work, then there is nothing unusual or surprising in this result. The only factor that might create pause for thought is sympathy with the idea that the estate is frustrating the museum's work. But hang on a moment. If the law prevents artists from making money from museums - one of their primary customers - then artists as a community are being uniquely singled out for bad treatment.
ReplyDeleteThe analogous case to this in other fields would be Amazon posting an abridgement of electronic Harry Potter without asking JK Rowling, or staging a (some might say thankfully) shortened Lloyd Webber musical without asking him first. I doubt anyone would be surprised by the injunctions that would fall in those cases.
Just because the infringer is a museum doesn't make the case a surprising one.