[Guest post] Is it a sculpture or a monument? Copyright litigation reaches Russian Supreme Court

The IPKat is pleased to host this guest post by Konstantin Voropaev on a recent decision of the Russian Supreme Court concerning copyright infringement due to the reproduction of a group of sculptures in a photograph.

Is it a sculpture or a monument? Copyright litigation reaches Russian Supreme Court

by Konstantin Voropaev

The plot of the case

Following a competition for the best design of a city monument, a contract was signed between the administration of one of the major Russian cities and a local sculptor to create a sculptural and artistic object - a monument to the founders of the city (pictured below).

Source: lookmytrips.com

Nineteen years later, the Association of Copyright Holders for the Protection and Management of Copyright in the Field of Art concluded an agreement with the sculptor for the transfer of authority to manage the exclusive rights to the monument.

Subsequently, the Association filed a lawsuit against a company that had sold a commercial printed guidebook, which contained a photo of the monument. The plaintiff felt that, in the interests of the author of the monument, it was necessary to collect compensation from the publishing house for the unauthorized reproduction of the represented author's work.

Consideration in three judicial instances

The Court of First Instance confirmed that a photo of the monument had been placed in the guidebook without the consent of its author and sided with the plaintiff. The Court of First Instance also noted that the agreement concerning the creation of the monument was a commissioning agreement, by which the sculptor would be regarded as the creator and owner of the exclusive rights to the monument. The exclusive rights to the monument had thus not thus been transferred to the administration of the city.

Subsequently, the Court of Appeal overturned the decision at first instance, also accepting the counterclaim for invalidation of the contract regarding the transfer of powers to the plaintiff to manage the exclusive rights to the monument. The Court of Appeal found that the objective form of expression of the disputed monument, in accordance with the terms of the contract, was a group of sculptures in soft material (clay, loam, plasticine). In this regard, the sculptor had the exclusive rights to that part of the monument. It was declared that the sculptures included in the guide were the result of the work of the author's team: the monument as a whole includes both the group of sculptures related to an object of fine art and an object of architecture (a plinth) created by a team of authors. Simultaneously, the Court of Appeal stated that the objective form of expression of the group of sculptures, in accordance with the terms of the contract, was the sculptures in soft material. In this regard, the sculptor had the exclusive rights to the group of sculptures in soft form.

The Court of Cassation upheld the findings of the Court of Appeal, noting that the monument included both an object of fine art (the group of sculptures) and an object of architecture (a plinth), and the image used by the publishing house included both objects.

The position of the Supreme Court

The Supreme Court of Russia overturned the decisions of the lower courts due to judicial errors.

Judicial errors made by the Court of First Instance

The two key and significant errors made by the Court of First Instance were as follows. First, the Court of First Instance had not found out who the author of the photo was, whether the photo was an original work, or whether the photo was placed in the guidebook for commercial purposes.

The second error was that the Court of First Instance had confused the concept of fine arts with that of a work architecture and considered the group of sculptures as an element of architecture, rather than as an object of the fine art.

Kat sculpture AND monument

Judicial errors made by the Courts of Appeal and Cassation

It was noted that the courts had not taken into account the terms of the contract provided for the preparation of a sketch as well as the production in soft material in the size of the group of sculptures by the sculptor. Moreover, the sculptor was responsible for the supervision of the installation, as well as execution of the group of sculptures in hard material.

The highest court, referring to the Berne Convention, noted that it is not the concept of the work that is protected, but rather the form in which that concept is expressed. Copyright applies to works of art that are the result of creative activity – both published works and unpublished works that exist in any objective form: three-dimensional or in other forms. All of this indicates that the created work must be accessible to the perception of other persons, that is, embodied in a material medium, and the presence of an objective form implies the possibility of reproducing the work.

The Supreme Court added that, in this case, neither the material (soft or hard) of the created group of sculptures nor the creation of a model of the group of sculptures in a certain size did matter for the purpose of establishing the creation of a copyright work. Consequently, the conclusion of the Courts of Appeal and Cassation that the sculptor would have exclusive rights to the group of sculptures only in soft material contradicted the substantive law, and also breached the author’s right of authorship in the object which he had created.

In sum, the lower instance courts had not correctly framed the relevant issues. The object of the dispute was the independent piece of art created by the sculptor and the photo published in the guide. The architectural object (i.e. plinth) was not subject to any dispute.

The legal outcomes from this position

Now, the case the case has been sent back to the first instance court for a re-assessment.

There are at least two essential conclusions which were established by the Supreme Court.

First, the use of a three-dimensional object (as is a group of sculptures) in a two-dimensional format (as is a photo) is also a reproduction [note from Eleonora: for the reverse situation, ie reproducing a photograph in a sculpture, yet with the same outcome, see this decision of the Paris Court of Appeal]. In this case, it amounted to an infringement of the author's rights since the photo was the main object of the guide and was used for commercial purposes.

Secondly, the Supreme Court, has now formulated a new legal position regarding the legal protection of sculptures as self-standing copyright works within a monument.