Denmark’s Maritime and Commercial Court has issued a temporary injunction stopping a painting from being destroyed and its resultant ‘parts’ used for a line of watches. Kanske Denmark ApS had bought the artwork by Tal R (Tal Rosenzweig), titled ‘Paris Chic’, for £70,000 at the Victoria Miro gallery in London in August. It was purchased with the intent to destroy and then use its pieces on dials. In October they revealed their plans for the work – to make between 200 to 300 watches for their new watch brand Letho, to be sold for 10,000 Danish kroner (£1,150) each.
The Court ruled that they cannot do so because the artist still retains the copyright to the original work and can legally block that use. The plans for the painting would breach the Danish Copyright Act because it would make the work available to the general public in a changed form.
Rosenzweig’s lawyers argued that he “acknowledges that whoever purchases one of his works would be at liberty to sell it on or even destroy the work,” “But what he is not obliged to accept is for someone to alter the work and then reintroduce it to the public domain, and particularly not for commercial reasons.”
Heidi Højmark Helveg, representing Thorleifsson and Leivsgard, argued that as the project involved destroying rather than altering the work, it was legal. “The pieces will be so small that it will not possible to know in any way which work it is from”,“each watch will take just 0.04% of the original work.” The painting measures 175.5cm x 203.4 cm.
In response, it was said that this argument failed because the watches would be marketed “specifically as having Tal R’s painting as background”.
Kanske Denmark ApS under the name ‘Letho’ had offered watches for sale on their website. The Court was shown printouts of the site’s online auction for which the winner could choose which piece of the painting should first be cut out to dial, and get a watch with this dial. The highest bid at the time of the screenshot was DKK 41,000. You could choose another cut of the painting as dial for DKK 10,000.
Evidence was provided that the website and social media accounts for Letho and Kanske dated 11 November 2019 stated that the watches were not a collaboration with Tal R, but :
“CREATING NEW ART OF EXISTING ART What happens when you take an original work of art and transform it into something else? We will seek to answer that with this project. But it is difficult to answer the question without going into the eternal question: What makes art?” (text from the Court decision)
Both parties agreed that Paris Chic was a copyrighted work. The rights that Tal R holds as the author of Paris Chic include the exclusive right to make the work available to the public in a modified form, cf. section 2 (2) of the Copyright Act.
What they disagreed on was as to whether Letho’s watch involved a change of Paris Chic, or whether it would be a destruction of Paris Chic and the use of the result of this to produce another work under free use.
The judge and two members of the Maritime and Commercial Court found that the watch project was that Paris Chic would be made available to the public in a changed form. As Letho wrote on their website: “What happens when you take an original work of art and transform it into something else?” That is, that there was to be both an actual and legal change in the work, and it did not matter in this case whether Paris Chic could be recognised in the dial. Since the work must not be made available to the public in a modified form without Tal R.’s consent, the Court found that Letho’s project violates Tal R.’s rights under section 2 (2) of the Copyright Act.
The Court found that the intended change to Tal R’s work constitutes a violation of Tal R’s rights, as the painting would be altered and made available to the public in a way and in a context that is against Section 3 (3) of the Copyright Act. In addition, in reproducing the painting on Letho’s website etc was a violation of section 2 (2) of the Copyright Act. Finally, the Maritime and Commercial Court found that Letho also contravened section 3 (3) of the Marketing Act. 1 and § 22.
Danmark ApS was ordered to pay legal costs to Tal Rosenzweig to the amount of DKK 31,550.
The case was about obtaining a temporary injunction, which means that Tal R will have to follow it up a civil trial unless the parties agree otherwise.
To read the full judgment (in Danish) of Case BS-51005/2019-SHR, go to this link.