Andy Warhol's Mona Lisa & Other works sell at Auction for over $150 million, but is there anything to smile about? Artists estate gets Nil; On Resale Rights, Copyright & The Law

This past week in New York, Christie’s latest contemporary art auction, generated a staggering $853 million. Among the art works sold was the late pop artist Andy Warhol’s work which fetched more than $150 million - with his iconic “Triple Elvis” selling for $81.9 million, “Four Marlons,” the artist’s interpretation of Marlon Brando’s from the movie “The Wild One,” selling for $69.6 million, and Warhol’s version of Leonardo Da Vinci’s “Mona Lisa” selling for $5.9 million.

But, is there anything to smile about?

Despite the late artists work doing so well at auction, the artist estate won’t actually get a cut of any of funds generated from the sale of his work.  Unlike composers, filmmakers, or novelists, visual artists typically do not share in the long-term financial success of their works because they are not entitled to earn future royalties. For the most part, this means that visual artists must live off initial sales of their original works. The artist resale right royalty provision (Droit de Suite), developed in the early 20th century by France, is said to address this.

Resale royalties or Droit de Suite are the rights of visual artists to receive a percentage of the revenue from the resale of their works in the art market. The right was originally provided for in Article 14bis ter of the Berne Convention for the Protection of Literary and Artistic Works 1948; the U.S. joined the Convention in 1989, however Article 14ter is an optional right and subject to the rule of reciprocity. Meaning that artists are only able to take advantage of the Droit de Suite if their work is sold in countries having such a right. In the U.S., only California has a Droit de Suite, the California Resale Royalties Act in 1976, which provides visual artists a royalty of 5% of the sale proceeds if the seller resides in California or if the sale takes place in California. But there is now a bill in Congress, called ART — American Royalties Too, which means this may be about to change. The new bill is proposing that 5 percent of every auction sale go to the artists or their descendants, with a cap of $700,000.

Works of visual art have been said to be produced on singularly, the value of which is said to be derived from its scarcity. Marie-Andree Weiss over at the IPKAT makes that point that when “France first adopted such a right in 1920, legislators were shown during the debate a drawing of a child in rags pointing at a painting that sold for a hefty sum at an auction and wailing ‘It’s one of Papa’s paintings!’” Without Droit de Suite visual artists, unlike other authors, are said to be excluded from the most significant profits that their works may generate over time, especially when a sale at auction increases in price.

In continental Europe, the EU has sought to harmonise the right by requiring all member states to implement a new common scheme from 2006 (via Directive 2001/84/EC).  Therefore, in the UK, along with copyright laws, visual artists in the United Kingdom (UK) also enjoy rights on the resale price of their work. (Under the Artist’s Resale Right (Amendment) Regulations 2011).  The Droit de Suite, or resale royalty right, entitles artists in the visual arts (or their heirs up to 70 years after their deaths) to a certain percentage of the resale price of their works after the original sale, whenever they are resold by commercial dealers or auctioneers. The resale royalty right is typically inalienable and lasts for the life span of the artist and 70 years beyond.

The royalty is subject to ‘compulsory collective management', which means that artists do not have to claim their royalty themselves; art market professionals are responsible for paying the ARR into a not-for-profit-share artists' collecting society, which then pays its artist members. Two such collecting societies operate in the UK: the Design and Artists Copyright Society (DACS) and the Artists' Collecting Society (ACS).

The Goss-IPgirl has always been a strong contender of turning ideas into livelihoods, but with ardent interest wonders, if an artist work is sold, and re-sold, is there a case to be made (Bourdieu & cultural capital) that their work increases in reputational value, which therefore means that any new works the artists produce will subsequently increase in economic value? And even if we accept that the Copyright Act in the U.S. fails to accommodate the particular nature of visual art, (as critics have pointed out) is it really the role of copyright law to ensure both statutory and market uniformity among authors?

Keen to know your thoughts here?

What’s in fashion? The Fashion Art Dichotomy, Copying and the Design Practice of Referencing

“Today, under the postmodern rubric of ''referencing,'' copying flourishes so openly that nobody bothers to question it.” -  Fashion Critic Cathy Horyn

"Fashion is not something that exists in dresses only; fashion is something in the air… you feel it, you smell it. Fashion is in the sky, in the street, fashion has to do with ideas, the way we live, [and] what is happening [now]. " - Coco Chanel

To the left Céline SS|2014 and to the right Primark SS2014

I thought it quite fitting to preface today’s blog with two quotes on fashion that help ground my discussion on the distinction between trends and design copying. Last week, I came came across the above top and skirt from Primark [right] with oversized artistic brush strokes and Brassai Graffti references that bears a shockingly similar resemblance to the one seen [left] on the Celine SS14 catwalk during Paris Fashion Week.

As a researcher that looks into the business and culture of fashion and intellectual property I came across a very similar top whilst in Zara London last week.

Celine SS14 [left] v Zara SS14 [right]

This got me thinking about the relationship between intellectual property and fashion again, but particularly raises the question of the distinction between close copying on one hand and participation in common trends on the other hand. Goods that are part of the same trend are not necessarily close copies. Rather, they may be efforts to meet the need of consumers for differentiation.

The trend for this SS14 Spring/Summer 2014 runway collection certainly seems to be seems to be ‘playing to the gallery.’ This season the hottest prints are inspired by art, from Chanel, to Prada to Jensen. The catwalk designers this season seem to have brought about a revival of the expressive art movements of the 1900's; cubism, surrealism and fauvism. Picasso (Cubism), Andre Derain (Fauvism) and Salvador Dali (Surrealism). The abstract portraits stretch the boundaries of printed fashion. The fashion referencing of these movements has trickled down and taken hold both on the streets and with the fashion elites.

Prada’s 2014 collection saw and ode to Pop Art, we saw elements of early twentieth-century art styling’s of Picasso and Mondrian in the prints for Alexander McQueen spring 2014

Prada's street-art designs for SS14. Photograph: Giuseppe Cacace

As researcher of fashion art history, culture & intellectual property the emergence of this trend is extremely fascinating for me, and I find it particularly interesting to see the artist references into the trajectory of culture for the fashion prints we see springing up on the runway. It also raises that oft debated question of ‘fashion as art.’ Although many fashion designers will deny that fashion is art. (Prada, Karl Lagerfeld, Marc Jacobs, Coco Chanel). As Lagerfeld told the New York Times in 2008, “Art is art. Fashion is fashion. However, Andy Warhol proved that they can exist together.” The current trends highlight where fashion and art meet. Fashion does not merely translate the functional, it goes beyond this. It is a creative practice that involves thought, imagination, and often pushes the traditional boundaries of design, both in terms of materials and also aesthetics. Clearly here, just like art, these prints would be protected by copyright, if commercially reproduced.

In terms of the way fashion influences art, and art influences fashion Jean-Charles de Castelbajac's illustrations below take clear inspiration from Matisse's bold, fluid outlines and the cubist nature of Picasso's portraits with disjointed and disproportionate facial features.

Jean-Charles de Castelbajac's Spring/Summer 2014 collection.

Pablo Picasso (1881-1973).

Henry Matisse (1869-1954).

Zara SS2014 seems to have also caught onto the Zeitgeist. This is another one of the dressed I saw in Zara whilst browsing last week. 

Interestingly too, many of the editorials capture the Zeitgeist of this trend, aside from the runway collections; surrealism also seems to have been making an appearance in fashion photography. With magazine editorials depicting drawn on facial features, Graffiti, and art in action, seems to be a classic example of art imitating life, and life imitating art.

'Lister's Lady' Janice Alida by Emma Summerton for Vogue Australia March 2014 [Editorial]

by Richard Burbridge for Harper’s Bazaar US March 2014 Issue

‘Wild at Heart’ by Richard Burbridge for Harper’s Bazaar US March 2014 Issue

Trademarks, Copyright and Pop Culture Appropriation During London, Paris and Milan Fashion Week

The Zeitgeist this year, across London, Milan and Paris Fashion week has certainly been pop culture, and if fashion enthusiast were hungry for something different, they got just that this season, with a super-size portion of mass-produced visual commodities of popular culture in a similar way to Andy Warhol’s Campbell's Soup Cans.

Each fashion week was inspired by the supermarket and based, at least in part on the concept of consumerism. In particular, designer Anya Hindmarch’s ‘Counter Culture,’ collection during London Fashion week made use of some familiar household names. Jeremy Scott’s collection for Moschino during Milan fashion week mixed fast food with ‘Fast Fashion,’ and Karl Lagerfeld's collection for Chanel, during Paris Fashion Week, took us to the 'Chanel Supermarket,’ through the Mise-en-scène and set of his fashion show.

Pop art culture, famous for doing away with the traditions of fine art by including imagery from mass culture such as advertising, film and comics; is an art movement that emerged in the mid-1950s in Britain and later in the United States, so the Goss-IPgirl finds it fitting that British bag designer Anya Hindmarch kicked off London Fashion week, with her interpretation of the supermarket, through her collection ‘counter culture.’ Couture.

She explains 'I wanted to treat the everyday ordinary in an extraordinary way.' But she did a little more than just that...

A variety familiar trademarks and images protected by copyright strutted their stuff down the runway, during the bag designers 1970s supermarket sweep. Daz, Frosties, Kellogs, and custard creams, vintage cereal boxes, icon symbols such as Ship matches, to bourbon biscuits were all used. In many cases the fashion designers products were identical to that of products from the original brand owner. For example, the package designs of Kellogg’s Tony the Tiger appeared on a blue background on a tote; Bourbon cookies were transformed into small metallic bags, while Ariel/Daz laundry detergent boxes were turned into clutches. In some cases the starting point for the bags was the shape of the packaging and a tube of McVitie's digestive biscuits was turned into a pencil case-like bag to imitate the shape and packaging of the biscuits; in others cases the logos, colours and symbols on the packaging were employed.

Pop artists are renowned for absorbing and borrowing from popular culture, but is any of this legal? Anya’s designs makes use of the brand names, trademarks and logos of well-known brands in all of her designs, leaving the Goss-IPgirl wondering about trademark and copyright infringement. The Goss-IPgirl is surprised that no one has picked up on this. It may be the case that Anya has a license to do this. But the Goss-IPgirl, does think that this is unlikely, or rather would be extremely pricey.

Trademark, licensing and product placement is big business for companies, one that many guard fiercely. So we wonder what the legal ramifications are of these designs? To mention briefly, there is the issue of trademark infringement and dilution by tarnishment or blurring. There are several criteria which must be reached before one can bring a successful claim for dilution. For example if a trademark's owner can demonstrate that use of the protected Trademark on the designs is going to cause the trademark owners’ mark to lose its distinctiveness as a source indicator, then a dilution claim may kick in.  As with the issue of copyright infringement for the images used and incorporated into the presentation of her designs.

In Milan, the theme of consumption continued also as Jeremy Scott at Moschino opened his first collection as Creative Director of Moschino with references to McDonald's signature logo, the legal implications of which have been addressed here. 

Kyle’s Pop culture for "consumer couture" was celebrated through haute couture gowns made with a fabric inspired by food packaging - from Budweiser to crisps, cereals, jelly bears, baked beans, cheesy bits and other assorted criminal delicacies in Tutti Frutti flavours.  And wedding gowns with prints of nutritional facts labels complete with additives and artificial flavourings, a sort of variation of Schiaparelli's signature newspaper prints. 

Whilst, Chanel over at Paris Fashion Week, built a Fake Supermarket Just to Host his Fashion Show with a ‘set’ that comprised of aisles and tables of every conceivable supermarket good, stamped with interlocking C’s.

Pop Art and fashion are starting to go hand in hand, designers today are generally criticised for stealing from native culture, but rarely criticised for borrowing from popular culture.  This leaves the Goss-IPgirl marinating on a few questions, for which there is no easy answers. Is this type of use free advertising for a company? Is economic or reputational harm caused to a brand through this type of activity? And is borrowing from popular culture legal? From a cultural standpoint, the Goss-IPgirl feels these popular culture references are to be celebrated. Even though there is the need for companies to police and protect their intellectual property perhaps more fitting than suing designers for IP infringement, is the notion that these pop culture references make for good advertising? Which from a brand management perspective may be more important to the profile of these companies than litigating for the unauthorised use of their IP.

Thoughts anyone?