‘Where there’s a hit, there’s a writ’ – so goes an old music business saying that may also apply in the art business. Significant financial gains by hit-makers in the art world sometimes trigger lawsuits by parties aggrieved that they have been denied recognition and a just share of rewards for having contributed to the hit-making. Rarely do artists issue such writs against fellow artists, but in May 2022 the chief intellectual property court in France heard such a lawsuit (AM 457). The no-jury court reserved its judgment for two months to consider a complex mix of facts and laws, at the heart of which lies the question of whether an artwork’s authorship is denoted only by the hand of the artist as its maker. The art and law issues likely to be involved and arising in such a lawsuit warrant consideration.
The Parties
The claimant is Paris-based French artist Daniel Druet, a sculptor well-known for creating hyper-realistic likenesses of famous people including, for example: a 3D portrayal of Leonardo da Vinci’s Mona Lisa, 1503/19; hundreds of life-sized wax celebrities for Paris’s Museo Grévin; and busts of scores of actors,
musicians, dancers, and politicians. Between 1999 and 2006 Druet was engaged to make wax figures as the basis for nine of a commissioner’s own artworks. Druet’s writ essentially claims he has never been publicly credited by the commissioner as author of said artworks, asks the court to order that he should be publicly credited as such, and to order the commissioner to pay him €4.5m in compensation.
The defendant-commissioner is US-based Italian artist Maurizio Cattelan, sometimes described as the ‘king of conceptual comedy’ and ‘tragic poet of our times’. He is perhaps best and most recently known for his artwork Comedian, 2019: a fresh banana duct-taped to a wall, first exhibited at the Art Basel Miami art fair, two editions of which sold for $120,000; buyers also received Cattelan’s authenticity certificate and detailed instructions for exposition (and future replacement of the duct-tape and banana).
The Claim
Druet’s lawsuit concerns his making nine wax figures used by Cattelan for his artworks. For example, La Nona Ora, 1999, is an installation comprising the life-sized wax figure of an anguished-looking Pope John Paul II, in papal vestments gripping the ferula, pinned down by the weight of a large meteorite on his
thigh onto a red-carpeted floor with shattered glass; auctioned by Christie’s in 2001 for over $800,000. Him, 2001, is a small-scale wax figure of a grey-suited Adolf Hitler kneeling, hands clasped in front suggesting praying, with a mournful expression looking upwards; auctioned in 2016 at Christie’s for over $17m. Stephanie, 2003, is the upper half of the life-sized naked body of US model and actor Stephanie Seymour, cupping her breasts, appearing to burst from within a wall; auctioned by Phillips in 2010 for over $2.4m.
It is not disputed that Cattelan commissioned Druet to make the nine wax figures, that Druet did so and was paid fees accordingly, and that the figures were used by Cattelan to execute his own artworks.
The Dispute
The conflict arises from Druet’s contention that Cattelan’s commissioning instructions were vague, leaving Druet room to make his own creative decisions to produce realistic likenesses, each of which he was the legal author. Whereas Cattelan contends that his instructions were detailed, leaving no room for creative decision-making by Druet, who was hired not as an author but as a manufacturer and deliverer of wax material, which Cattlelan used to create his own finished artwork – by, for example, cutting the
wax Pope figure in half and pinning it down with a rock on the thigh. There does not appear to have been a written commission agreement signed by the two artists specifying detailed requirements and instructions – and authorship; which leaves the court to resolve a ‘he said/he said’ conundrum.
The court will doubtless tackle four key tasks: to evaluate the credibility of evidence given by the opposing artists; to determine the facts of what occurred between them; to identify and consider relevant laws governing authorship; and to apply such laws to the determined facts. In other words, the court’s synthesis of facts and law should result in its ruling whether a professional sculptor, commissioned by another professional artist to make material as the basis of the commissioner’s own artwork, should be publicly recognised and credited as legal author – perhaps as joint legal author – of the finished artwork. Or whether the commissioned sculptor should not be treated as legal author, rather as manufacturer or artisan hired to make material for execution of the commissioning artist’s original idea or concept or design.
International Paternity Law
The most relevant law on authorship in most countries worldwide – including France and the UK – derives from the international Berne Convention for the Protection of Literary and
Artistic Works 1886, which first gave international protection of artist’s so-called moral rights in Berne’s 1928 Revision, the relevant text of which in relation to legal authorship reads as follows:
‘Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work’ and further that ‘The rights granted to the author … shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorised by the legislation of the country where protection is claimed’.
Reference to ‘economic rights’ means ‘copyright’ in the Anglo-American legal lexicon, which Berne requires to be separate from the artist’s right to claim legal authorship of a work – even where the artist is not the copyright owner (say, where the author made the work as an employee). Berne does not define who is a visual art ‘author’, which remains the so-called ‘unasked question’ answerable in two principal ways. Either by provisions of national laws of countries implementing Berne’s authorship protection requirements; and/or by national courts judging each lawsuit on its unique facts. Which takes us back to the Druet-Cattelan case.
French Paternity Law
Under French moral rights laws implementing Berne’s authorship obligations, the droit de paternité (paternity right) cannot be waived or signed away by a legal author, whose name must be mentioned on the work and in all public material relating to it. In the case of applied artwork, French courts have ruled that such mention of name can be replaced by affixing a distinctive mark or signature on the work identifying its legal author – a possible judicial ruling that may be relevant in Druet’s case, since he engraved his signature on the surface of each wax figure produced for Cattelan.
French paternity right equally applies to ‘works of collaboration’ and to ‘collective works’. In these cases, customs of the relevant profession may be considered by a court in deciding a legal paternity right claim. For example, France’s photography profession has agreed a code requiring the photographer’s name being shown near the image in question when publicly exposed, or credited in a list of illustrations at the start or end of a publication. However, there appear to have been no previous French court cases dealing with customs operating specifically in professional fine art practice – and this is doubtless why the Druet lawsuit and its outcome fired wide media interest and public debate initially in
France, and now beyond. How might the French court decide the Druet-Cattelan wrangle?
French intellectual property courts have earned a well-known reputation for demonstrating their understanding of visual artists’ practices: artworks are invariably judged to be expressions of an artist’s personality, which often influence rulings in favour of artists in legal disputes concerning creativity. However, in the Druet-Cattelan case artists are on both sides of the dispute. The French court may perhaps take into account longstanding customs of professional visual art practitioners. For example, Western European Renaissance masters typically operated professional guild-regulated ateliers/workshops, employing the hands and skills of often publicly named assistants to execute their artworks and to increase productivity – surviving contractual documents from that era often record patron/commissioners requiring faces and hands and feet to be executed personally by the studio master, but allowing non-flesh elements to be executed by studio assistants and, for example, drapery specialists.
Moreover, throughout subsequent eras to date, artists have continued the custom of engaging the services of others in their making processes, not only for the traditional reason of increasing production, but also to employ the use of non-traditional materials
and techniques with which assistants – often publicly unnamed in recent times – are better skilled than the principal artist-author. Consider the use of hands-on assistants by, say, Peter Paul Rubens, Anthony van Dyck, Rembrandt van Rijn, Joshua Reynolds, Antonin Mercié, Auguste Rodin, Henry Moore, Louise Bourgeois, Paula Rego, Anthony Caro, Robert Motherwell, Andy Warhol, Christo & Jeanne-Claude, Takashi Murakami, Marlene Dumas, Anish Kapoor, Antony Gormley, Tracey Emin, Rachel Whiteread, Damien Hirst, Jeff Koons, Marilyn Minter, Angela de la Cruz, and Kiki Smith, to name just a few.
UK Paternity Law
Although UK moral rights laws adopt a different approach to France, they nevertheless implement Berne’s authorship obligations. Unlike France, the UK’s paternity right does not arise automatically when artwork is made, but only when the right is asserted by the author: legally acceptable methods of assertion are not specified by law, but courts are likely to take judicial notice of common artists’ customs and practices such as signing the work itself in some way and/or signing a directly related certificate of its authenticity. Also unlike France, the UK’s paternity right may be waived by the legal author, but only if such abandoning of the right is recorded in a document signed by said author. Further unlike
France, a UK paternity right holder may give consent to another allowing specific denial of paternity of an artwork (say, where the artist-author wants to remain publicly anonymous), which consent need not be given in a signed document.
All in all, therefore, if Druet’s case were tried under UK paternity right law, his signature being engraved on the wax figures he produced for Cattelan might amount to his assertion of paternity, which Druet evidently did not abandon by signing a waiver document. Cattelan might respond that Druet had – by his delivery of the wax figures for Cattelan’s own creative use – consented to being denied public credit as an author.
Written agreements between artists and artist-commissioners, at least specifying and clarifying who would be publicly credited as legal author of completed artworks, could arguably avoid unnecessarily costly legal wrangles under UK moral rights laws.
© Henry Lydiate 2022
HL’s note August 2022: France’s intellectual property court handed down its decision on 8 July 2022 dismissing Druet’s claim on the basis he was hired by Cattelan to be an artisan/producer not the original artist.