20 August, 2019
Ai Wewei is a Berlin-based Chinese artist. He created an installation at the Kunsthal Charlottenborg in Copenhagen – gallery of the Royal Danish Academy of Art. . He used the bright orange life jackets worn by refugees on their perilous journey. The installation was created by stuffing the lifejackets into the façade of the museum. He called it Soleil Levant – Sunrise.
A dealer of a famous brand of cars created an advertisement for the cars by having one of them photographed in front of the installation. The artist was offended by this as the artwork he had created to highlight the plight of the refugees was used as a backdrop for a car, for commercial purposes.
The artist's effort to settle the matter with the dealer turned futile and he took the dealer to court. The court decided in favour of the artist.
The case had multiple elements. First is the infringement of copyright. Secondly the artist's moral right. Thirdly, a damage to his reputation. The court appears to have taken all the elements into consideration and has awarded the artist to the tune of 1.75 million Danish krone ($260,000).
A part of the judgement reads, "This market exploitation of Ai Weiwei's artwork was in clear contradiction with the considerations and thoughts that were behind the work and the detailed content of the work. The exploitation caused a certain risk of diluting Ai Weiwei's artwork and had the character of a parasite on Ai Weiwei's good name and reputation."
The court also held that the use of the artwork also violated good marketing practice as per Danish law (section 3 (1) Marketing Act 1) which reads "3.-(1) Traders shall exercise good marketing practice with reference to consumers, other traders and public interests. . ."
Section 52 (s), (t), and (u) of the Indian copyright act, on the other hand excludes certain acts connected with artistic works "situate in public" especially if it is incidental to the work including it, under certain circumstances. However it does not allow unrestricted use of such artistic and architectural works.
The fact that Ai Weiwei's work was used in a photograph for commercial promotional purposes along with the Danish Marketing act has weighed the balance in favour of the artist.
The issues involved in this case shows that one needs to be aware of how copyright law and other related laws can affect one's own creative works. We often see innocent infringements of others' copyright. Artists and art students routinely use images from the internet for practice. Though this may fall under fair use, things change if the artwork created by the student is sold. Corporates often use images, videos and other resources for in-house training or in entertainment during events. This has pitfalls and one should be careful about not unknowingly infringing others' rights.
So, the general principle to follow should be "if in doubt, ask". It is safer and most often less expensive to consult professionals who have a detailed knowledge and experience in the field than risking infringement.
For further information, please contact:
Anil Kumar, LexOrbis
mail@lexorbis.com
