About legal canvas copies and the limits of copyright A conversation with Dr. Anke Schierholz, legal advisor to VG Bild-Kunst, about copyright and the difference between a forgery and a legal copy of a work of art. VG Bild-Kunst represents the copyrights of over 54,000 artists who create works of art. In addition to concluding license agreements, VG […]
About legal canvas copies and the limits of copyright law
A conversation with Dr. Anke Schierholz, legal advisor to VG Bild-Kunst, about copyright and the difference between a forgery and a legal copy of a work of art. VG Bild-Kunst represents the copyrights of over 54,000 artists who create works of art. In addition to concluding license agreements, VG Bild-Kunst monitors the receipt and distribution of the agreed remuneration and is also committed to strengthening copyrights at national and international level.
The Beltracchi case caused quite a stir a few years ago. To what extent were copyright issues involved here?
Dr. Schierholz: Unfortunately, the Beltracchi case has little to do with copyright law. Copyright law is only affected in the area of forgeries that appear in the art trade if it involves the reproduction of an existing and protected work. From a copyright point of view, action can only be taken against forgeries if there is a reference to an existing work and it is more than a free adaptation. A forgery goes beyond a mere suggestion if, for example, details are taken from the original.
The forgeries brought onto the market by Beltracchi are based on historical black and white images of lost paintings. So no protected work is involved here?
Dr. Schierholz: Basically, yes, but VG Bild-Kunst was not involved in the Beltracchi case. As a rule, we are involved by auction houses when there are doubts about a picture up for auction. Normally, the auctioneers know their field of art and the range of works by the artists they represent very well. If, for example, a “lost Beckmann” is to be foisted, they usually recognize this. In cases of doubt, the police are then called in to confiscate the paintings in question. We are contacted by the criminal investigation department and file a criminal complaint not only for fraud, but also for copyright infringement.
So VG Bild-Kunst is responsible for prosecuting these offenses, but not for investigating them on a restoration or scientific level?
Dr. Schierholz: Exactly. We can sometimes recognize that a detail on a supposed Beckmann painting is by another artist, but that is the exception. We look after the rights, the material investigations are carried out by the galleries and auction houses.
Copyright must be distinguished from the possibility of creating legal copies of a work. For example, when can I legally “copy” and exhibit a painting?
Dr. Schierholz: This is possible if the author, i.e. the artist, has been dead for more than 70 years. “Simply dead” is not enough, at least 70 years must have passed since the death. This circumstance often leads to misunderstandings in the sense of “I’m allowed to paint Picasso, he’s dead”. Although this is true, it is wrong in the context of copyright law. On the other hand, anyone may copy works of art within the scope of private copying, whether by hand, photographically or otherwise. This is possible at any time, but these copies may not be published. Neither in a doctor’s surgery nor in the stairwell of an apartment building. There is also the right to adapt, which allows existing and protected works to be adapted. This applies primarily to translations, which require the consent of the original author before publication. However, the right of adaptation also applies to works of art.
There are painting studios that specialize in copying pictures. Are paintings by artists who have been dead for over 70 years allowed to be copied 1:1 or is there a need for a different format, for example?
Dr. Schierholz: These works are free, i.e. no longer protected by copyright. They may be reproduced in any format of your choice. A problem arises when such a legal counterfeit is later placed on the market with the claim that it is the original. This constitutes fraud. This claim can be remedied by choosing a different format, affixing a signature on the reverse or making other obvious changes. Forgery trials such as the Beltracchi case are primarily fraud trials if someone claims to be in possession of the original – which is not true. Fraud is committed when a picture is given an aura that does not exist in the public eye, as it is simply a painted picture.
Inother words, applying a signature to a legal copy is not a copyright problem?
Dr. Schierholz: Exactly, because as long as I don’t claim it’s the original, it’s not a problem. The doubts about putting a signature on a copy stem from the old Kujau trials. Konrad Kujau had claimed to own paintings by Kandinsky and Picasso. In the fraud trial, he was convicted of forgery, as the artist’s signature authenticates the work, so to speak, and supposedly makes it an original, which is not the case. This reasoning sounds somewhat absurd by today’s standards, but it was the only point of attack.
Apparently, restorers have often become art forgers in the past. Sometimes there was a trial over forged Nussbaum works, sometimes over Cranach paintings. Does our profession pose an above-average danger?
Dr. Schierholz: Restorers are naturally very good at the painter’s technique. If someone knows exactly how to do it, they are of course a good restorer. And there are certainly the odd black sheep, just as there is the occasional policeman who deals drugs. But the job description does not indicate any particular tendency towards danger.
Where do you think the desire to decorate oneself or one’s home with a copy as a substitute for the original comes from?
Dr. Schierholz: The motivation is not clear to me either. I have to assume that the bourgeois impetus is a major motivation for the purchase of canvas copies. A canvas copy is seen as an attribute for a sense of art – just like the Brockhaus encyclopaedia with gold edging – as a key signal for the educated middle classes and an expression of solidity. It seems to me a rather petty-bourgeois idea that a painting on canvas is valuable per se. Yet a copy has no more value than a poster of the same work from a museum store.
In your experience, where is the preferred market for painted copies of famous paintings?
Dr. Schierholz: A few years ago, the European market was massively flooded with Chinese copies, which were certainly of good quality. Initially, many of them were protected works and we regularly had to clear the stands at trade fairs. During one such event, I learned that the market for these copies was limited to Germany, Belgium and northern Italy. There are a few buyers in England, but there is zero interest in France and the Netherlands.
The interview was conducted by Heike Schlasse.
You can read more articles on the subject of art forgery in RESTAURO 7/2015.
