Back in 2016, the makers of the notorious card game Cards Against Humanity launched an online vote to determine the fate of Pablo Picasso’s linocut print, Tête de Faune. The two options given to voters were:
- first, to donate the work to the Art Institute of Chicago; or
- otherwise shred the painting into 150,000 pieces and then distribute the pieces to the participants of the game-maker’s Eight Sensible Gifts for Hanukkah event.
Destroying art for commercial gain seems to be a contemporary theme. Earlier this month, a Danish artist named Tal Rosenzweig (better known by his pseudonym, “Tal R”) sought an interim injunction under Danish law against watchmaker Kanske Denmark ApS (“Kanske”). The injunction application sought to prevent Kanske from cutting up a painting called Paris Chic, created by Tal R. The purpose of its destruction by Kanske was to use the pieces of the painting as dials (watch faces) for wristwatches. Paris Chic is owned by Dann Thorleifsson and Arne Leivsgard, who are also the owners of Kanske. Thorleifsson and Leivsgard purchased Paris Chic in August for £70,000 at the Victoria Miro gallery in London. Kanske had launched an online auction whereby the winner would have the first choice of any piece of the painting as a watch dial. The highest bid as at 11 November 2019 was DKK 41,000 (approximately EUR 5,467).
Tal R claimed that Kanske’s proposed mutilation of the painting would constitute an infringement of Tal R’s copyright in Paris Chic, contrary to the Danish Copyright Act. Tal R’s argument was that the destruction of Paris Chic would violate his exclusive rights under section 2(1) of the Copyright Act “to control the work by reproducing it and by making it available to the public, whether in the original or in an amended form […]”. Another basis for infringement was claimed by Tal R under section 3(2) of the Copyright Act: “[t]he work must not be altered nor made available to the public in a manner or in a context which is prejudicial to the author’s literary or artistic reputation or individuality”.
Before the court, Kanske argued that the purpose of the exercise was to “poke the arts elite” and to “push the limits”. Kanske argued that the public reaction to the auction and the overall exercise would not have been the same if the wristwatches had been planned in collaboration with an artist. That notoriety was to have transformed to sales: Kanske planned to make around 300-500 wristwatches from the painting a profit of DKK 3,000-4,000 (approximately EUR 400-534) for each watch sold. Kanske intended to destroy what remained of the painting. The essence of the argument was that the shredding of the painting was a transformative work: the wristwatches would not be a reproduction of the painting, but rather destruction leading to the creation of a new and original works of art.
On 2 December 2019 the Danish Maritime and Commercial High Court found that the insertion of pieces of Paris Chic into wristwatches was not a destruction of the work, but instead a reproduction of the work in an amended form. The Court expressly noted that Kanske had posed the question on its website, “…what happens when you take an original artwork and turn it into something else?”
How would this have been dealt with if the dispute had occurred in Australia? Australia has a moral rights regime incorporated into its Copyright Act 1968. This includes an author’s right not have the protected subject-matter subjected to “derogatory treatment” (the “right of integrity of authorship” – section 195AI). Slicing up an art work to sell as watch dials would very likely have been considered derogatory treatment of the work.
(So what happened to Cards Against Humanity’s Tête de Faune? 50000 people participated in the online vote, with 71.3 percent of voters wanting the Picasso donated, and 28.7 percent voting for it to be shredded – a close shave.)