Plagiarise at your peril - the Luc Tuymans case

Luc Tuymans was found guilty of plagiarism by a Belgian Court last week. This post examines:

• the facts and reporting of the case
• the copying of photographs by artists; and 
• the use of 'parody' as an exception from the law on copyright in the European Union
• the importance of country in relation to copyright
• a key issue relating to freedom of expression and appropriation art; and 
• an upcoming exhibition by Luc Tuymans in London.

The Tuymans Case 

the article in a Belgian newspaper
De Morgen about the case

Luc Tuymens has been found guilty of plagiarism. 

The Belgian painter is prominent in the contemporary art world (Tate, MOMA, David Zwirmer). He was taken to court by a female photographer Katrijn Van Giel.

• He had very clearly used her 2010 photograph of politician Jean-Marie Dedecker as a reference for a painting completed in 2011 - A Belgian Politician (2011) - without her consent and without a licence.
• He lost his case at the civil court in Antwerp. 
• The Belgian daily, De Morgen, reports that a fine of €500,000 (£384,000 / $580,000) was identified. What's not entirely clear (translation issues!) is whether this relates to any more ‘reproductions’ of Van Giel’s work or whether it relates to whether and where the painting can be exhibited and, consequently, the legal and geographical boundaries of this judgement.  
• I don't know what sort of award if any award was made to Ms van Giel for the infringement of her copyright. My understanding is that the current state of play is that there is to be a further ruling on whether Tuymans owes Van Giel damages for the plagiarism.  I understand she was asking for an award of $50,000 damages.
• The painting in question was bought by the American art collector Eric Lefkofsky and can now only be seen online within the context of the many news reports of this case.
• An appeal against the decision is planned by the artist according to newspaper reports.

Coverage in the press

There have been quite a few articles as a result - but I think some of them are missing the point.

• New York Times | Arts Beat - Belgian Artist’s Painting Infringes Upon Photographer’s Work, Court Rules - a fair summary in my view

Her lawyer, Dieter Delarue, said that after she discovered the portrait in a catalog she tried for more than a year to discuss it with the artist, who never responded to letters. “When you are a movie producer, if you want to make something based on a book, you contact the author,” Mr. Delarue said. “It’s not so difficult. All artists do that except that Mr. Tuymans feels that this five-minute phone call somehow limits his freedom of expression.” New York Times

• The Guardian - Why Belgium's plagiarism verdict on Luc Tuymans is beyond parody Adrian Searle thinks this is the result is wrong.
• Hyperallergic - Luc Tuymans Found Guilty of Plagiarism for Painting Photo of Politician
• The Art Newspaper - Tuymans found guilty in copyright case involving political portrait
• artnetnews - Luc Tuymans Convicted of Plagiarism
• a-n - Luc Tuymans found guilty of plagiarism for painting of politician
• Peta Pixel (a leading photography blog) - Renowned Belgian Painter Convicted of Plagiarism After Basing His Portrait on a Photo
• De Morgen (Belgian newspaper) - Luc Tuymans veroordeeld wegens plagiaat met Dedecker-foto

The court furthermore considered that Tuymans in bad faith had acted as he himself had stated earlier that the photo of Van Giel was a strong image, which he did not have to change much on. De Morgen

This is the article in the specialist plagiarism blog PlagiarismToday - Artist Luc Tuymans Loses Plagiarism Case, Raises Questions

The overall conclusion is that

• Tuymans clearly used the photograph but did not have permission to do so - and would not enter into any dialogue with the photographer
• the court was very clear that his legal argument of 'parody' had no merit, 
• not all commentators agree with the court - but might well be arguing from an artistic perspective rather than a legal one
• this case might not be over - there is to be an appeal
• It might come to represent important case law for other photographers in the EU taking similar action in similar circumstances.

An invitation for other photographers to inspect his back catalogue?

To my mind, the decision in this case in effect calls into question a considerable body of work created from an unlicensed use of a photograph - by Tuymans AND OTHERS.

Tuymans’ work is a vast repository of data, drawn from photography, television and film, combining a range of different styles and subject matter. Tate Modern

I wouldn't be in the least bit surprised if other photographers also start thinking about commencing commence copyright infringement cases as a result.

How they go about doing that will depend on which country they made the work in and where they were based (in legal terms) when it a photograph was taken ( see below)

The legal concept of Parody

Tuymens argued that the painting was a "parody".

“Of course they will now say it’s a parody, since that is the only way to escape judgement. To my knowledge, Luc Tuymans is not really best known for his humorous works. This defense is more of a parody than the work itself.” Dieter Delarue, the lawyer representing Van Giel - quoted by ArtForum before the trial

However the Judge didn't agree with the case put by Mr Tuyman's defence team and favoured the argument put forward by Ms van Giel's lawyer

Ms Van Giel's lawyer, Dieter Delarue, says that for a work to be a parody two conditions have to be met: first of all there should be important differences to the work that is the subject of the parody and secondly, the parody should include an element of humour. Clearly, the judge felt that these conditions were not met. Flanders News | Be Luc Tuymans convicted of plagiarism for painting a photo

'Parody' is one of the legitimate and normal exemptions from copyright with respect to copying the creations of other people (but not in every country - see below).

The Belgian court referred a number of questions about the meaning of “Parody” in the context of the EU Copyright Directive to the CJEU.

What the EU actually said (in a recent decision relating to another legal case) was as follows - and I'm quoting here from an article in Lexology the online blog of the Association of Corporate Counsel. (My bold)

The Court of Justice of the European Union (“CJEU”) recently gave guidance in Deckmyn v Vandersteen (Case C-201/13) as to the meaning of Article 5(3)(k) of the Copyright Directive 2001/29/EC (the “Directive”), which allows member states to provide for a parody exception to copyright.
.....the CJEU held that parody is an autonomous concept of EU law, even though the exception is optional under the Directive.
.....the Court laid out the following criteria for a work to be considered a parody: it must evoke an existing work, while being noticeably different from it (the CJEU expressly stated that it does not need to have an original character of its own); and it must constitute an expression of humour or mockery.
The CJEU qualified this test by stating that the exception for parody must also strike a fair balance between the rights of the copyright owner on the one hand and of freedom of expression on the other. Unsurprisingly, it was left for national courts to apply these principles to the particular facts. Lexology - The CJEU gives its views of the parody exception to copyright

Artists must be clear on relevant copyright exemptions and plagiarism

I've been arguing for years that there are too many artists who take photographs by people who earn their living as photographers and then convert them into artwork for sale without caring a single jot about the interests of the photographer.

The need to licence

I've never been very sure why those artists who plagiarise do not just approach the photographer and get a licence if they want to use a photograph - but they don't seem to follow this path.  My assumption has always been that such artists are:

• either too lazy to make the effort and/or
• don't believe they need to make the effort and/or
• don't have a good understanding or copyright law
• aren't aware that photographers frequently licence their photographs for use by other commercial activities e.g. advertisements
• absolutely convinced that somehow art gets a special exemption from the copyright law which applies to every other act of creation!

The thing is that laziness very often extends to not being clear on copyright law and the latest provisions.

Appropriation art

One would have thought that by now the Shepherd Fairey/Associated Press case and the multiple accusations made and convictions of Jeff Koons for plagiarism would have had a marked ripple effect  amongst artists by now.

However, Tuyman's lawyers take another view and highlight the importance of freedom of expression - as artnetnews reports

His lawyers write in a press release that appropriation of existing images is a central part of the artist's practice, like numerous other contemporary artists. "How can an artist question the world with his art if he cannot use images from that world?" they ask. They go on to suggest that the ruling is unjust on the grounds of freedom of expression: "This verdict prohibits a form of contemporary art and deprives contemporary artists the right to express themselves."

I wonder if his lawyers would take the same view if somebody copied all of Tuymans paintings from unlicensed photographs - purely as a parody of course?

Following the dreadful terrorist atrocity in Paris (see The cartoons of 'Je Suis Charlie') there was much debate about freedom of speech and freedom of expression.

I was particularly struck by one argument which pointed out that freedom of speech is actually an illusion - and that all our freedoms exist within a statutory framework which protects them!

Hence my view now is that freedom of expression is very much skin to freedom of speech. Both are absolutely NOT "absolute" - both are hedged in by a number of conventions expressed in law.

One of these relates to copyright and the exceptions allowed - which is why we will continue to see court cases brought by photographers relating to artwork created from their photographs by artists

Which means that so long as the artist stays the right side of the copyright law there isn't a problem.

Copyright in the European Union (EU) and exceptions/limitations

Just for the record - the law on copyright in the EU is underpinned by the EU Copyright Directive (EUCD). Directives set out general rules to be transferred into national law by each country as they deem appropriate.

The country is relevant

It is however worth noting that not all countries have enacted in it in full. For example, Ireland has no exception relating to parody.

Plagiarism Today also points out that in Belgium, the courts are not open to 'waffle'

Belgium Doesn’t WaffleBelgian law, for better or worse, is completely different from the U.S. when it comes to matters of fair use, or fair dealing as it’s called in most other countries. While the definition of fair dealing varies from country to country, fair dealing is typically far more limited and scope and far less flexible than fair use. Uses of a work that would be seen a “fair” in the U.S. are routinely on the wrong side of the law in other countries. Artist Luc Tuymans Loses Plagiarism Case, Raises Questions
Posted on January 21, 2015 by Jonathan Bailey

The EU Copyright Directive - the exceptions

The Directive stipulates that

3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:

(a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved;

(b) uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability;

(c) reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject-matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author's name, is indicated, or use of works or other subject-matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author's name, is indicated, unless this turns out to be impossible;

(d) quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;

(e) use for the purposes of public security or to ensure the proper performance or reporting of administrative, parliamentary or judicial proceedings

(f) use of political speeches as well as extracts of public lectures or similar works or subject-matter to the extent justified by the informatory purpose and provided that the source, including the author's name, is indicated, except where this turns out to be impossible;

(g) use during religious celebrations or official celebrations organised by a public authority

(h) use of works, such as works of architecture or sculpture, made to be located permanently in public places;

(i) incidental inclusion of a work or other subject-matter in other material;

(j) use for the purpose of advertising the public exhibition or sale of artistic works, to the extent necessary to promote the event, excluding any other commercial use

(k) use for the purpose of caricature, parody or pastiche;

(l) use in connection with the demonstration or repair of equipment;

(m) use of an artistic work in the form of a building or a drawing or plan of a building for the purposes of reconstructing the building;

(n) use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections;

(o) use in certain other cases of minor importance where exceptions or limitations already exist under national law, provided that they only concern analogue uses and do not affect the free circulation of goods and services within the Community, without prejudice to the other exceptions and limitations contained in this Article.

An exhibition of paintings by Luc Tuymans

In the meantime, for those in London during February and March, there is an opportunity to catch an exhibition of his paintings  Luc Tuymans The Shore (January 30 - April 2, 2015) at the London branch of his gallery David Zwirmer, 24 Grafton Street, London W1S 4EZ.

I'm sure a lot of photographers will be going....