Art battles with a ©

Utrecht, April 18, 2013
Gino van Roeyen
Art Battles with a ©
Art & War Conference
Conference Dutch
Association of Aesthetics
Utrecht, April 18- 19, 2013
Gino van Roeyen
Attorney-at-law
Gino van Roeyen
some background…
self-portrait 1988
‘We always thought of history as a linear line, a development from
A to B and then to Z, and now somebody said we start the
alphabet with C, we start the alphabet with copyright, we just
take an image and nothing new’
(Rob Scholte, Pirate Conference,Tilburg, September 17, 2010)

Gino van Roeyen
intellectual property: what’s on the horizon?
Gino van Roeyen
art & intellectual property: war & peace
War: artistic freedom versus absolute protection by IP of
‘brainchilds’ against unlawful copying and the like
art protected by IP against unlawful copying and
the like
Peace: art which embraces IP
Rob Scholte, Peace of Munster, 1998

Gino van Roeyen
Rob Scholte & “IP”-discussion (I)
Titiaan, Venus of Urbino,1538 Edouard Manet, Olympia, 1863 Paul Spooner, Manets Olympia
Rob Scholte Utiopia, 1986
Gino van Roeyen
Rob Scholte & “IP”-discussion (II)
Bas Roodnat, ´Het schilderij Utopia van Rob Scholte, nieuw
gebruik of nabootsing?´ (The painting Utopia by Rob Scholte, new
use or imitation), NRC-Handelsblad, December 3, 1987
Response by Rob Scholte

Gino van Roeyen
Patent Law ... in Art? (I)
Yves Klein (1928-1962)
Klein obtained a patent in France in March 1960 for a method which enables an artist to create
works without any physical activity of the artist himself, but instead by having the physical work done
from a distance by naked human bodies soaked in paint (‘the human body as the artist’s soaked-in-
paint brush’)
In May 1960 Klein registered a formula for a paint developed by him (‘International Klein Blue’ - IKB)
with a so-called ‘Soleau’-envelope
IKB 79 1959
Gino van Roeyen
Patent Law ... in Art? (II)
S.M.A.K. (Gent), 2008, exhibition ‘Faux jumeaux’ (false twins), artist Michel François
‘He asked fifteen persons to choose two
works of art which resemble each other with
respect to form or material, but have
nevertheless come into existence
independently. Which substantive similarities
or differences between the two works can be
detected by presenting the works mirror
image in two identical rooms?’
‘
IKB van Klein Fixopastel van Gerald Murillo
‘(...) these “Faux Jumeaux” do also refer to the parallel
between the patent system and the system of originality in the
art world. Patents are monopolies which protect inventions
that can be applied in industry during a certain period of time
(for example twentyfive years) against the use by third parties.
A patent must be registered to be protected and can not be
identical or quasi-identical to an existing patent. As soon as
the patent has been registered and disclosed to the world, it
can not be used by third parties, even if the same patent has
been achieved simultaneously, i.e. without copying. As soon
as an artist has created a work of art and this work of art has
obtained a position in art history, this can be regarded as
something which is similar to a patent. It is different for other
artists to use an identical or similar idea, or an identical
technique for a work, because the art world is aware (as
patents are) of existing, precedings works of art.’

Gino van Roeyen
sketchbook forgeries...
“SATURDAY, 5 MARCH 2011
2 art forgeries
I thought about copying some artists work when my daughter
blogged about her disappointment at being told to copy the
work of famous artists for her uni work. Do you think I might
be able to start a new career in forging art work. I did get lots
of ideas on how to carry the work forward to make it my own.
I chose Klimt and Picasso as I really like their work but I also
thought it would be more simple for me, it wasn't. Copying
their work made me realise how complicated their strokes
were. I dont know why I decided to do something I
considered to be easy. I think I may choose a complicated
picture next time”
(www.drawingdiva.blogspot.nl/2011/03/2-art-forgeries.html)
Gino van Roeyen
Design right ... in Art?
Nadia Plesner vs. Louis Vuitton (‘Darfurnica’) – 2008-2011
EU Design Right 000084223-0003
‘Aura Bag’
EU Design Right 000084223-0001
Presiding Judge District Court The Hague I (2008/2011): ‘Design right
infringement, since Plesner has not obtained permission to use the design
and to offer for sale products in which the design is used’
Presiding Judge District Court The Hague II (2011): ‘Plesner has and
continues to have an interest to freely express her (artistic) view through her
work “Simple Living” which interest outweighs the interest of LV to enjoy its
property rights undisturbed..’
Picasso, Guernica, 1937

Gino van Roeyen
And Belgian artist Wim Delvoye…
Gino van Roeyen
Rob Scholte & design/copyright
Rob Scholte, Casa Rosa, 2005 Ton Giesbergen, Small singing teakettle

Gino van Roeyen
Intermezzo (I): article 10 European
Convention on Human Rights
‘Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information
and ideas without interference by public authority and regardless of
frontiers. This article shall not prevent States from requiring the
licensing of broadcasting, television or cinema enterprises.’
‘it is applicable not only to "information" or "ideas" that are favourably
received or regarded as inoffensive or as a matter of indifference, but
also to those that offend, shock or disturb the State or any sector of
the population. Such are the demands of that pluralism, tolerance and
broadmindedness without which there is no "democratic society".
Gino van Roeyen
Trade mark rights .... in Art (I)
‘Nike Ground
In September 2003, we set up a fake Nike
advertisement campaign, including a public
installation, a website and a performance. The
news went out nationwide: "Karlsplatz, one of
Vienna's main squares, is soon to be renamed
Nikeplatz, and a huge monument in the shape of
Nike's famous Swoosh logo will be built in
Nikeplatz". The one-month campaign provoked the
reactions of Vienna's citizens, city officials and the
Nike group, which started legal action to put an end
to this bizarre performance.’
0100101110101101.org (Eva & Franco
Mattes)
Vienna Court refused injunction on
formal grounds (Nike apparently based
its claim on ‘copyright’
Trade Mark Infringement: use of a
trade mark (Swoosh), not for goods,
which takes unfair advantage of or
brings detriment to reputation of said
trade mark, without due cause

Gino van Roeyen
Trade mark rights... in Art (II)
vs
Brad Troemel, dean & deluca low calorie snack inside
Marlboro box w/ Cerebral Palsy Tissue/Organ Kidney Cancer
Green Ribbon Glittery Sticker (Ethical) 1/2
Bas Kist, NRC Handelsblad, 8 & 9 december 2012
Gino van Roeyen
Rob Scholte & Trade mark rights (I)
Cease and desist letter (1987) from Philips to Art Unlimited who
produced postcards of Scholte’s ‘Nachtlicht’ (Nightlight) based
on Philips trade mark rights to its logo: profit from the reputation
of that logo
From the letter: ‘A group as Philips should always prevent that
its own brands are harmed in their primary function of
distinguishing’
Nachtlicht, 1984

Gino van Roeyen
Rob Scholte & Trade mark rights (II)
Rob Scholte, Chiquita, 1989
Gino van Roeyen
Rob Scholte & Trade mark rights (III)
2011

Gino van Roeyen
Rob Scholte & Trade mark rights (IV)
Rob Scholte, Lucifer (detail), 2012 Dolf Pauw, blogspot, 2007...
Gino van Roeyen
Rob Scholte & Trade mark rights (IV)
2012, Parool: ‘Rob Scholte is a
copycat with a twist’

Gino van Roeyen
Helmut Newton vs George Pusenkoff (I) Oberlandesgericht Hamburg 12 oktober 1995
Helmut Newton, ‘Miss Livingston, Beverly Hills
1981’
George Pusenkoff, ‘Power of Blue’
Copyrights... in Art (I)
Gino van Roeyen
Helmut Newton vs George Pusenkoff (II)
Oberlandesgericht Hamburg, October 12, 1995
Newton: plagiarism! – copyright infringement!
OLG: in ‘Power of Blue’ the Newton picture is not used in an unlawful way
What is the ‘creative power’ of Newton’s picture and Pusenkoff’s ‘Power of Blue’?
Newton’s picture: a pose, namely the reproduction of nudity and eroticism
‘Power of Blue’: it’s about colour, not the reproduction of the nude female body
Pusenkoff has kept a maximum distance from Newton’s picture, in such a way this
picture remains recognisable, whilst the use of it becomes not impossible

Gino van Roeyen
A few extra copyright basics
Exclusive right of author of a work to publish and reproduce said work
To be protectable by copyright the work needs to be original (not derived
from earlier work) and result of personal creative choices by author
he reproduction right does not only cover identical reproduction, but also
reproductions in a different form, which can not be regarded as a new,
original work.
Citations allowed but only with certain restrictions (due mentioning of
source) – images?
Robert Rauschenberg’s Factum I & Factum I, 1957
Gino van Roeyen
Duijsens / Broeren (Hoge Raad,
March 29, 2013
Duijsens: Broeren infringes my copyright to certain works and/or acts
unlawful by slavish imitation of certain style elements
Court of Appeal: yes – slavish imitation with regard to certain works –
provokes confusion (what is a Duijsens and what is a Broeren?)
HR: Copyright does not grant an exclusive right to an author for his or
her particular style. Such protection would hinder creative freedom of
authors and restrain cultural development. This consideration would be
worthless if protection of style could be obtained via a claim based on
slavish imitation.

Gino van Roeyen
Kunst aufräumen – Ursus Wehrli
www.kunstaufraeumen.ch
Let’s get rid of the original, long live the tidy ‘copy’?
Gino van Roeyen
Rob Scholte & Copyright
Piet Mondriaan, Tableau I, 1921 Rob Scholte, Mondriaan Revised, 1997

Gino van Roeyen
The art of imitation: dead end row?
Bianca Stigter in NRC December 6, 2012:
‘Has authenticy had its best time?’
Rob Scholte, Cul De Sac 1992
Gino van Roeyen
Questions?
Gino van Roeyen
BANNING Advocaten
www.banning.nl
+31-73-6927784
+31-73-6927784
g.vanroeyen@banning.nl

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