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One Artist’s Rubbish Is Another Person’s Treasure

17 September 2015
Oliver Fetiveau

Our attention has been caught by the recent story of a legal row between an artist and her former studio & workshop. In a nutshell Gypsy Hill Workshop (the ‘Workshop’’) have allegedly sold items which they claim are the ‘work’ of artist Angelique Hartigan. The Workshop denies all allegations but the artist begs to disagree:  she says that they are not so much her ‘work’, but rather her accident: pieces of paint-splattered carpet on which she used to stand whilst painting, which the workshop should not be selling. Clearly Hartigan is outraged – the question is, what would her claim be?  

 

Hartigan faces a significant problem with any claim in copyright, that being whether the items are likely to constitute the requisite degree of artistic endeavour in order to qualify as artistic works.  There is a more fundamental concern:  is there really ‘infringement’ if what is being sold is the actual work?  This is not a question of infringement so much as it is of theft – the problem being of course that the items were either discarded (and so cannot be said to be stolen) or perhaps even were never hers in the first place, the carpet presumably belonging to the Workshop... 

 

The amusing irony is that the copyright argument is more likely to favour the Workshop: an argument could be run along the lines that the Workshop, in cutting up and presenting the carpet as paintings, has actually created an artistic work capable of protection. In taking waste materials and placing them in a frame, they are creating a work of art. This is potentially a persuasive argument:  there is a history of ‘art’ being created (and therefore copyright vesting therein) by virtue of mundane items being placed in an artistic context, the lineage extending from Duchamps’ urinal, to Tracy Emin’s unmade bed. The fatal stumbling block to this argument, however, would be if as a matter of fact they are selling the paintings as works by Hartigan. If they were presenting it as their own artistic creations, they might be onto something. 

 

A claim for breach of moral rights – the right to prevent false attribution – is likely to fail on the basis that moral rights are derivative of copyright: to the extent that no copyright in the work exists (and she has made it clear that she does not view these carpet offcuts as her copyright), then moral rights will fall away. 

 

A less obvious but perhaps more likely claim available to Hartigan lies in the law of passing off, essentially a claim for false endorsement. Attaching an artist’s name to a work in many ways is an endorsement: it attaches provenance to the object. Where that provenance is false – as Hartigan claims here – it could be considered to be false. By way of example, a gallery selling off lots of prints as original limited edition Banksy’s could find itself in trouble: the ‘endorsement’ lies in the limited nature of it. In this instance,  Hartigan would argue that the Workshop is misrepresenting the paint-splattered carpet as a work of art created by her – that they are representing it as her artistic output, as her artistic vision, whereas she would say that in reality it is little more than the sum total of various instances of spillage.

 

A claim arises then, under the principles established in the landmark case of Irvine v Talksport (where the racing driver successfully sued a radio station for an advertisement which implied that he endorsed the station).  To succeed with the claim Hartigan would need to evidence (1) goodwill (2) a misrepresentation to the public to the extent that the public are likely to be confused about whether the carpet is a work of art by Hartigan (as opposed to a spattered piece of carpet) and (3) damage. Hartigan’s goodwill has been accumulated throughout her career as an artist; and there is damage along economic depletion arguments and the damage to reputation, if true, would be obvious. It would then be for Hartigan to show that the Workshop are misrepresenting that she created the carpet as a work of art, representative of her artistic vision (with all the value which that implies) and are profiting from that tale. Evidence of confusion – usually so persuasive in such cases – would probably not even be required, if the Workshop is presenting the ‘work’ as hers – but to the extent that it were required, statements such as ‘what’s this and why has Angelique made this?’ would undoubtedly be helpful.

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