Owning a painting does not make you the copyright owner

By Reneé Olmstead and Arno Visser on 10 April 2020

Most people would assume that once they have purchased a piece of art, like any property, they can do with it as they please.  However, that is not necessarily the case, as was clear from the recent decision before the Danish Maritime and Commercial High Court.  In some instances, your physical property comprises of intellectual property owned by a third party, which limits your rights to do certain things with it. 

In this matter, the Danish artist Tal Rosenzweig (better known as “Tal R”) sought to prevent a Danish company, Kanske Denmark ApS (“Kanske”) from cutting up an artwork he had created and inserting the cut up pieces into wristwatches for the purpose of selling them. 

The painting in question was and is the property of Kanske, whose founder had purchased it for approximately EUR 80 000.  The painting, titled “Paris Chic”, measures 2.03m x 1.75m in size – which would be quite a few wristwatches to sell.  As you can imagine, the artist was furious when he learned that the painting , which took him three years to complete, was about to be chopped up, piece by piece, to be placed in wristwatches and sold for a profit by Kanske. 

By way of background, paintings like Paris Chic are protected as artistic copyright works and the protection afforded to the owner of the work is that the author is exclusively entitled to perform various acts in relation to that work, including the reproduction or adaption thereof. 

Tal R claimed that he remained the owner of the copyright of the art piece and that the sale of the art piece itself did not divest Tal R of his copyright ownership in this painting.  Further, that in terms of Danish Copyright Law, amending and modifying his artwork and then marketing and making it available for sale to the public, would constitute a reproduction or adaptation of the work, and therefore an infringement of the copyright that vested in his work.

In response to Tal R’s infringement claim, Kanske argued that cutting the work up and inserting the pieces into wristwatches would not be seen to be a ‘reproduction or adaptation’ of the work, but rather that their actions would constitute a complete destruction of Tal R’s painting - which act  did not amount to copyright infringement.  The argument follows that what would be created would be a new and original artwork made up of unrecognisable artwork pieces.  Kanske attempted to justify its actions by stating that the destruction would be part of an art movement, and in order to incite a reaction and “arouse emotions” as they intended, they had to use a work by an artist who was esteemed by experts.  

Tal R was understandably perturbed by these actions, and based on his moral rights, which prevent an author’s work from being mutilated or defamed to the detriment of the author’s reputation, he claimed that their actions were “disrespectful” and an attempt “to make money and get attention”.  

Kanske clearly succeeded in arousing emotions, just not the emotions they were hoping for.

The court unambiguously dismissed Kanske’s argument and ruled 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.  They stated further that Kanske, in advertising Tal R’s name to market its project, was in fact unlawfully using his name as well. 

This case raises a few interesting points.  In terms of South African Copyright Law, in order for a work to infringe on copyright, it needs to be a copy of a ‘substantial part’ of the copyright work.  One could of course argue that once a work has become unrecognisable, it could no longer constitute a substantial copy in this way. 

This story does leave one with a bitter taste in one’s mouth, and thankfully South Africa law does in fact provide protection to such acts of vandalism performed in relation to copyright works.  Section 20 of our Copyright Act protects the author’s moral rights, and allows the author to object against any distortion, mutilation or other modification of that work where such action would be prejudicial to his honour or reputation.  Moral rights are separate from copyright vesting in the work and attach to the author of a work.  Even if the copyright is assigned, moral rights will not be transferred. 

Finally, turning then to the issue of copyright ownership, the Copyright Act contains very specific provisions on copyright ownership which directly relates to the type of work, of course with some exceptions.  In the case of paintings, which fall in the category of artistic works, the artist/author generally becomes the first owner of the copyright upon its creation.  Where the artwork is sold in the market, copyright does not transfer with the physical object but remains with the copyright owner of the artwork, unless the copyright is expressly transferred in writing. 

The result of this is that, if you buy a painting, you will acquire only the physical object and not the copyright vesting in the painting, unless you enter into a separate agreement with the author/ artist by which they assign the copyright to you.  Then, even if they do assign the copyright, the author will nevertheless retain their moral rights in the work, including the right to object to any mutilation of the work, unless the assignment agreement contains an express waiver of such rights.  

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