Cultural Appropriation, an Intellectual Property Perspective

October 19, 2018 · by ·
The Agence France Presse posted a video on Twitter in August, which shows that the French fashion house Christian Dior had used traditional embroidery motifs in its pre-Fall 2017 collection  (see here too). The embroideries are originally from the Bihor area in Romania and adorn a traditional garment, the “cojoc binşenesc” (more about it here and here).
Cojoc Embroidery

Romanian Embroidery on a Cojoc

In this particular instance, the community reacted by taking advantage of this publicity and launched a website, Bihor Couture, which sells traditional Bihor garments and accessories. 

 

 I will not comment much on the trademark issues which the choice of ‘Bihor Couture’ could raise, but here are my quick two cents. In the U.S., parody is a defense in a trademark infringement case. If you are interested in this topic, you can read about the recent My Other Bag Second Circuit case here and here.

French trademark law does not have a parody exception, but courts have recognized such a defense, albeit sparingly, when parody was used as a social/political comment (see for instance this case, where the French Supreme Court held in 2008 that article 10 of the European Convention of Human Rights protects the right of non-profit Greenpeace to parody the Areva brand).

Can embroideries be protected by copyright?

 

Well yes they can, on both sides of the Atlantic, if they are original enough. Embroidery motifs may, however, be in the public domain, or not original enough to be protected by copyright.

 

In the U.S., embroideries can be considered fabric designs which are copyrightable. The mere fact that embroideries may adorn a piece of garment does not prevent them to be protected by U.S. copyright, even though a garment is an uncopyrightable useful article.

 

Since Star Athletica [see our comment on the case here], an artistic work applied on or incorporated into a garment  may be eligible for copyright protection if it: “(1) can be perceived as a two or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work-either on its own or fixed in some other tangible medium of expression-if it were imagined separately from the useful article into which it is incorporated.”

 

In France, the concept of “Unité de l’Art” prevents French copyright law (droit d’auteur) to differentiate art from mere applied art (art appliqué) such as embroideries.

 

However, traditional embroideries may be in the public domain. The embroideries which inspired Dior may be in the public domain, or they could have been created recently enough to be protected by Romanian law. However, even traditional works in the public domain may soon be protected by intellectual property.

 

Protection of traditional works by moral rights

 

WIPO considers that traditional cultural expressions (TCEs), or “expressions of folklore,” may include handicrafts, and may be protected by copyright if recently created. It also noted that “[i]n many countries and for many indigenous and local communities, the handicraft sector plays a vital social and cultural function and contributes significantly to communal, local and national economies.”

 

WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore will hold its 37th session from August 27 to 31. The Committee published last month draft articles on the protection of traditional cultural expressions, which are part of the session’s agenda and which are aimed to become an international instrument directing member States to better protect TCEs.

 

One of the policy objectives of the instrument would be to “prevent the misappropriation and misuse/offensive and derogatory use/unauthorized use of their traditional cultural expressions.” This is of particular interest for communities which have created designs attracting the attention of fashion companies eager to satisfy the want of their customers for authenticity.  One may remember, for instance, that a U.K. fashion company used a traditional Inuit motif on a sweater.

 

One of the principles stated in the WIPO draft articles acknowledges that “traditional cultures and folklore constitute frameworks of innovation and creativity that benefit Indigenous [Peoples], [local communities] [and nations] / beneficiaries, as well as all humanity.”

 

It also notes “the value of a vibrant public domain and the body of knowledge that is available for all to use, and which is essential for creativity and innovation, and the need to protect, preserve and enhance the public domain.” It would “secure/recognize rights already acquired by third parties and secure/provide for legal certainty and a rich and accessible public domain.”

 

The instrument would direct “Member States [to] the economic and moral rights and interests of beneficiaries in secret and/or sacred traditional cultural expressions….as appropriate and in accordance with national law, and where applicable, customary laws.  In particular, beneficiaries shall enjoy the exclusive rights of authorizing the use of such traditional cultural expressions.” (my emphasis).

 

Therefore, even traditional cultural expressions which are in the public domain may be protected by moral rights, which are perpetual. This would be an interesting development for communities wishing to prevent the use of designs, which are in the public domain, but which they consider sacred.

 

This is certainly worthy of interest at a time when “cultural appropriation” is a hot topic, in many domains. Madonna has been recently criticized for wearing Berber clothes and a choreographer has been criticized for using in one of his works a traditional dance, with dancers in costumes looking like traditional costumes.

 

Could traditional works be one day perpetually protected by moral rights?
This post was first published on The 1709 Blog.

 

Image is courtesy of Flickr user meaduva under a CC BY-ND 2.0 license.
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Corporations Have No Moral Rights over Works in France, Even if They Commissioned It

January 3, 2017 · by ·

The French Cour de cassation, France’s highest judiciary court, held on November 16 that a corporation cannot have moral rights over a work, even if it had commissioned the work or if the work was created by one of its employees.

Article L. 111-1 of the French intellectual property Code (CPI) gives authors both patrimonial and moral rights. Moral rights, which are perpetual, inalienable and imprescriptible, are the right of respect for the author’s name and status, and the right of the respect of the integrity of the work.

In this case, an advertising agency, which rights now belongs to the Maetva corporation, had commissioned a corporation, G. studio, to take photographs of watches to illustrate a catalog published by the Pierre L. corporation, a watchmaker.5802530663_45c7b853d7_z

The Pierre L.corporation used these photographs a year later for a new advertising campaign, which was featured on bus stops, magazines and online. G. studio found this new use to be infringing, as it claimed that it had only sold the rights in the photographs for their use in the catalog. G. studio sued the Pierre L. corporation for copyright infringement and Pierre L. called Maetva into the proceedings.

As you can see, no physical person is part of the procedure, only corporations. The issue of which corporation owned the patrimonial rights of the photographs was debated in the lower courts, and the Court of appeals found that they belonged to G. studio, as did thus, necessarily, the moral rights.

The Cour de cassation refused to rule on the issue of patrimonial rights, arguing that reviewing them would impinge on the exclusive rights of the lower courts to estimate the amount of prejudice. However, it ruled on the issue of moral rights ownership. For the Court, the author, if the author is a physical person, enjoys an inalienable right to respect for his name, his quality and his work. Therefore, even if the author created the work as part of an employment contract, “neither the existence of a contract of employment nor ownership of the material support of the work are likely to confer on the corporation employing the author the enjoyment of that right.” The Cour de cassation did not send the case back to the Court of appeals for remand, as there is no need to estimate the amount in damages for violation of the moral rights, as these rights simply do not belong to G. studio.

Corporations cannot own the moral rights of a work under French law, even if they commissioned it, even if the work was created by an employee, and even if they own the patrimonial rights. The moral rights to the photographs at stake belong to the physical person who took them: whoever she is, she was not a party to this lawsuit. For the sake of this discussion, let’s add that if is true that the photographs were used without mentioning her name, she would have the right to sue Pierre L. for failing to disclose her name, as this is a violation of her moral right to paternity of a work.

Even if the photographer had signed a contract transferring all her rights to the pictures, the contract could not have transferred her moral rights, even if the contract would have explicitly, but illegally, mentioned them as being ceded, because moral rights cannot be transferred under French law.
This case should serve as a warning for corporations acquiring the patrimonial rights of a work in a country which recognizes perpetual and inalienable moral tights, such as France, that the physical person who took the picture retains his moral rights forever. This is the case even if the law of the contract is the law of a country which does not recognize such rights, as in the U.S.; see for instance Paris Court of appeals, February 1, 1989, (D. 1990. 52).

Image is courtesy of Flickr user JBBrazito under a CC BY 2.0 license.

This blog post was first published on The 1709 Blog.

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Gentrification, Moral Rights and Graffiti Art: a New York Story

December 10, 2013 · by ·

@ 5pointzOn November 12, 2013, Senior District Judge Block from the Eastern District Court of New York (EDNY) declined to issue an injunction which would have prevented the 5Pointz buildings in Long Island, New York, to be demolished. The EDNY published its opinion on November 20. The case is Cohen v. G&M Realty LP.

The seventeen plaintiffs in this case are graffiti artists who had painted their works on the walls of 5Pointz, which would be destroyed by demolishing the buildings. This is why they filed suit against defendants, real estate development companies and owners of the buildings, asking the EDNY to issue a temporary restraining order to prevent 5Pointz from being torn down.

Plaintiffs argued that any intentional distortion, mutilation, modification or destruction of 24 of their works would be prejudicial to their honor and reputation pursuant to the Visual Artists Rights Act of 1990 (VARA), the federal law which provides some moral rights to some visual artworks.

5Pointz

5Pointz is not just one building, but several buildings in Queens covering 200,000 square feet which have been covered by graffiti since the mid 90’s or so. In 2002, one of the plaintiffs, Jonathan Cohen, a professional artist under the name “Meres One, approached Gerald Wolkoff, who owns the building, to become the curator of the space. Wolkoff agreed and Cohen started selecting which artists could display their works. Each artist retained all copyrights to their work, and none were paid.

Graffiti artists from all around the world came to the site, which became known as 5 Pointz. The ever-changing facades and interiors became world-famous and were quite a sight from the 7 line, as the train snaked around the buildings.

What are Moral Rights?

Moral rights are non-economic rights that authors may enjoy, and are even considered human rights under article 27-2° of the Universal Declaration of Human Rights, which states that “[e]veryone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

Moral rights are:

a) The right of first disclosure, that is, the right to reconsider the work or to withdraw its publication; b) the right of attribution, that is, the right to be recognized as the author of the work, or to publish the work anonymously; and c) the right of integrity, that is, the right to have the work respected and to prevent is mutilation or distortion.

The Visual Artists Rights of 1990

VARA recognizes only two moral rights, the right of attribution and the right of integrity. However, the scope of VARA is limited to works of visual arts, defined by 17 U.S.C. § 101 as single copies of drawing, print or sculpture, or limited editions of 200 copies or fewer signed and numbered by the author.

Artists have the right to claim authorship of a work and the right to prevent its distortion or mutilation or other modification which would be prejudicial to the artist’s honor or reputation , 17 U.S.C. § 106A(a)(3)(A). They also have the right to prevent its destruction if the work is “of recognized stature” under 17 U.S.C. § 106A(a)(3)(B).

What is a Work of Art of “Recognized Stature”?

VARA, however, does not define what “recognized stature” means. The Southern District Court of New York (SDNY) proposed in 1994 in Carter v. Helmsley-Spear to use a two-tiered test to prove such stature.

First, plaintiff must show that the work has stature, meaning that it is ‘meritorious’. This is necessary as copyright protects works of authorship as long as they are original, but the level of originality required is very low. No need to be Picasso to have one’s drawings protected by copyright. But a ‘meritorious’ work would induce some awe that a competent amateur drawing may not bring.

But whose opinion about the work should the judge take into consideration? The second tier of the SDNY Carter test requires the plaintiff to prove that the stature is ‘recognized’ by art experts, the artistic community, or by some cross-section of society, but not necessarily everybody.

The EDNY acknowledged the two-tiered Carter test, and heard testimony from three of the seventeen plaintiffs during a preliminary injunction hearing. The court also heard expert testimony. Defendant’s art expert testified that in her view, people came to see 5Pointz not to see a particular work, but to see the ensemble.

The court seems to have been convinced by this testimony, as it found that 5Pointz could not be protected by VARA, as the law only protects a work of visual art, while 5Pointz is a “tourist site.”

The Transient Nature of Graffiti Art

Artists took turn at 5Pointz to cover some parts of the buildings, which were used to rotate quickly from one art work to another. Cohen is quoted in a 2007 interview with the Christian Monitor, cited by the EDNY, that some works only last 12 hours, some remain for two years.

Some walls, however, bore artworks which Cohen wanted to preserve, not allowing subsequent artists to paint over, among them the 24 works of the plaintiffs in this case.

The transient nature of graffiti, even its ephemeral nature, also weighed in the EDNY decision, as Judge Block noted that, because the artists knew that the buildings were intended to be demolished, they had “created their own hardships.”

During the trial, Wolkoff, the owner of the building, testified that he had told Cohen that the buildings would eventually be torn down. Some of the 5Pointz artists also testified that they knew the buildings would be eventually be torn down.

The EDNY also quoted a 2002 NDNY case, Pollara v.Seymour, where the court denied VARA protection to a mural commissioned to the artist as a “single use” piece for a particular event, reasoning that “[i]t defies the underlying purposes of VARA to assume that the statute was intended to protect works of artistic merit without regard to whether…[they] were otherwise intended to be preserved for posterity as works of artistic merit.”

The owners of 5Pointz have now white washed the buildings. However, the case is not over and a trial court will review whether plaintiffs are entitled to damages. While doing so, it will decide whether the 24 works are of recognized stature under VARA. If the trial court recognizes the plaintiff’s works are of “recognized stature” under VARA, defendants may have to pay monetary damages to the artists.

The EDNY noted that New York City could have exercised its power of eminent domain to acquire the site, but it chose not to do so. That leaves us with the regret that 5Pointz will not become officially what it had been, unofficially, for years: the world’s greatest museum of graffiti, in the very city where this art was first born.

Image is @5pointz courtesy of Flickr user Pelle Sten pursuant to a CC BY 2.0 license.

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