[Guest Post] When you own an artwork, you don’t own the copyright: Danish artist wins injunction against watchmakers planning to cut up painting

With thanks to Hanne Kirk and her team at Gorrissen Federspiel (Denmark) for this fascinating post regarding the outer limits of copyright in an artwork:

On Monday, 2 December 2019, the Danish Maritime and Commercial High Court issued a ruling in a case which explores the fine line between destruction and alteration of existing artwork. The conclusion? Cutting up an existing artwork to repurpose the individual pieces as wristwatch faces constitutes reproduction of the work in an amended form – not destruction followed by the creation of a new, original work.

Background

In the case in question, the Danish artist Tal Rosenzweig (better known as “Tal R”) had requested a preliminary injunction against the Danish company, Kanske Denmark ApS (“Kanske”), to prevent it from cutting up the painting “Paris Chic”, created by Tal R, in order to insert the pieces into wristwatches. In addition, Tal R had also separately requested preliminary injunctions against the manufacture, sale and marketing by Kanske of such wristwatches.

In the injunction requests, Tal R claimed primarily that the intended use of his “Paris Chic” painting by the company would constitute an infringement of his copyright to the work, reasoning that it would violate his exclusive rights under section 2(1) of the Danish Copyright Act “to control the work by reproducing it and by making it available to the public, whether in the original or in an amended form […]” as well as his rights under section 3(2) of the Act, according to which “[t]he work must not be altered nor made available to the public in a manner or in a context which is prejudicial to the author’s literary or artistic reputation or individuality”.

Tal R further claimed that by marketing and offering for sale the wristwatches (even though none had actually been made, and the painting was therefore yet unharmed), Kanske had violated section 3(1) of the Danish Marketing Practices Act, according to which “[t]raders shall exercise good marketing practice with reference to consumers, other traders and public interests”, as well as section 22(1) of the Act, which states that “[t]raders must not use business identifiers and similar devices that do not belong to them […]”. Specifically, Tal R claimed that Kanske had made unauthorized use of the “Tal R” brand in its marketing, thereby implying that a commercial partnership existed between Tal R and the company.

The painting in question (pictured below) was (and is) the property of Kanske, whose founders bought it from a third party for DKK 600,000 (approximately EUR 80,000).

The painting measures 1.75 by 2.03 meters and took Tal R around three years to finish.

After acquiring the painting, Kanske had initially announced on its website that it would host an online auction, promising that the winner would be given first choice of which piece of the painting he or she desired for a wristwatch. According to one screen shot submitted by Tal R, the highest bid as of 11 November 2019 was DKK 41,000 (approximately EUR 5,467).

For customers not wishing to participate in the auction for first choice, the company offered ‘pre-made’ wristwatches for the price of DKK 10,000 (approximately EUR 1,334) apiece.
In a description on its website, the company wrote of the project (translated from Danish):

“CREATING NEW ART FROM EXISTING ART

What happens when you take an original artwork and turn it into something else? That is what we seek to answer through this project. But it is difficult to answer that question without going into the eternal question: What creates art?

It is far from the first time in the history of art that people create new art based on existing art […] Many people have a rather traditional perception of art as being something that can be limited to, for example, paint on a canvas in a frame. […] For our part, we have our own criteria to live up to in order to create a new form of art, another original art.”

According to screen shots submitted by Tal R, the company went on to claim, inter alia, that the purpose of the project was to “arouse emotions”, and that “there can also be strength in the grief that people will feel at losing something. There can be a catharsis in people getting angry at us for doing something that people think is forbidden.”

In the eyes of Tal R, however, both the project itself and the thoughts behind it were products of a “sad culture” in which “art is taken hostage”. In his testimony before the Court, he likened the idea to “someone wanting to burn your favourite book, reasoning that you could then long for it.” In an email to the Danish newspaper, Politiken, he further criticized the founders for “attempting to make money and get attention by making a product from my art”, saying that he was saddened by the project.

The founders of Kanske, on the other hand, explained before the Court that the purpose of the project was to spark a debate and to “poke the arts elite”. They further claimed that the reaction of the general public would not have been the same if the wristwatches had been made in collaboration with an artist. The very heart of the project was to “push the limits” and to experiment with what is allowed, and, more importantly, what is not.

According to the founders, they had planned to make around 300-500 wristwatches from the painting, expecting a profit of DKK 3,000-4,000 (approximately EUR 400-534) for each watch sold. Assuming that the company had, in fact, manufactured and sold 500 watches, the total profit would be around DKK 0.9-1.4m (approximately EUR 120,000-186,670), excluding the DKK 600,000 purchase price for the painting.

Once enough wristwatches had been sold, the founders intended to destroy what remained of the painting.

In relation to Tal R’s claims of copyright infringement, Kanske dismissed these, arguing that the wristwatches would not be a reproduction of the painting in an amended form, but rather a complete destruction of Tal R’s “Paris Chic” painting, followed by the creation of a new and original artwork from the pieces.

In support of this view, Kanske further stated that the individual wristwatch faces, each of which would have an area of only 12.6cm2, made up just 0.04% of the original painting. Likening the pieces to the individual fragments of a smashed sculpture, the company argued that the wristwatch faces would not be recognizable as pieces of “Paris Chic”.

As for Tal R’s claims under the Danish Marketing Practices Act, the founders stated that they were not “traders”, but rather artists exercising their artistic freedom. Secondarily, they claimed that they had made no attempt to give the impression that a commercial partnership existed between Kanske and Tal R, and indeed had no desire to do so.

Judgment

In its 2 December 2019 ruling, the Danish Maritime and Commercial High Court found in favour of Tal R on all claims, confirming expressly that the insertion of pieces of a painting into wristwatches was, in the view of the Court, not a destruction of the work, but rather a reproduction of the work in an amended form.

In support of this conclusion, the Court noted that Kanske had itself explained that the very idea of the project was to transform Tal R’s artwork, and had further asked on its website “what happens when you take an original artwork and turn it into something else?” It made no difference in this regard that the artwork, once incorporated into the wristwatches, would no longer be recognizable.

(This GuestKat finds the last-mentioned statement somehow surprising, given that similarity is a prerequisite for an infringement, and given that similarity calls for a certain recognizability of the original work.)

The Court further ruled that the project would indeed, as claimed by Tal R, constitute an alteration and making available to the public of Tal R’s artwork “in a manner or in a context which is prejudicial to the author’s literary or artistic reputation or individuality,” thereby violating section 3(2) of the Danish Copyright Act.

Finally, the Court also agreed that Kanske had violated sections 3(1) and 22(1) of the Danish Marketing Practices Act by marketing and offering for sale the wristwatches, including by making unauthorized use of the “Tal R” brand.

Overall, the Court dismissed Kanske’s defense that the project was art and should benefit from the protections granted to expressions of artistic freedom.

Comment

The take-away for art lovers and copyright aficionados alike? When you own an artwork, you don’t own the copyright, and cutting up your artwork followed by ‘reuse’ of the individual pieces may be an infringing reproduction.