The Museum and the Artist: RIGHTS AND COPYRIGHT

From May 25 to May 27 2005 the Trelyakov Gallery held a conference on expertise evaluation and copyright in the visual arts, connected to the Marc Chagall exhibition in the Engineering wing. The first day of the conference was dedicated to copyright: the Russian Authors' Society (RAO), ADAGP (the French agency for the rights of authors in the visual arts), and the Marc Chagall Committee from Paris that represents the artist's successors took part in the discussion regarding questions of copyright observation for artists and their legal heirs.

The topics that the conference touched on turned out to be of real relevance, and the discussions evoked much interest among museum professionals; the presence of French colleagues, the president of ADAGP Jean- Marc Gutton, the president of the Marc Chagall Committee Jean-Louis Prat and the artist's granddaughter Meret Meyer, added an unexpected acuteness. The conference saw Moscow experts working alongside those from the leading museums of St. Petersburg, as well as colleagues from other regions both of Russia and Belarus.

The idea for the conference itself developed simultaneously with the organization of the Marc Chagall exhibition in Russia. In the process of catalogue preparation and the development of the promotional campaign the somewhat "dense" nature of Russian museum attitudes towards copyright became obvious. Naturally those involved wanted to get to the bottom of this question; the desire to understand the essence of the problems and address specific issues was what determined the progress of the project, based strictly on business without any unnecessary pathos or empty show.

The three days of the conference were notable for lively, sometimes quite sharp exchanges of opinions, and breathless attention from the audience. Indeed, for many Russian colleagues it seems ludicrous that in order to publish, say, a reproduction of Chagall, Kandinsky, Goncharova, Larionov or many others who had left Russia at some point to become French citizens a museum needs to receive a permit from the ADAGP - even if, legally and physically, these works belong to Russia and are part of the museums' collection, thus constituting Russian property.

For decades French students, future art historians, attended classes on basic museum education held by a most experienced professor, Jean Chatelain, who had worked in the Ecole du Louvre for many years. If asked about the rights of the creator of this or that work of art he would say something along these lines: that he who relinquishes his ownership of an object usually loses all rights to it, with the exception of particular specified cases. The copyright case is one such, as the creator of a work of art, when parting with that same work, retains the property rights, which do not conflict with the act of transfer.

France defined this principle as early as the time of the French Revolutions and in the 20th century the principle was substantiated by a law of March 1 1 1 957 on literary and artistic property. Museum employees need only know that "any drawn, graphic works (...), sculptures, engravings, lithographs, photographs of artistic or documentary nature (. ), arts and crafts. are considered works of art (...)". In the absence of proof to the contrary the person specified as the author of the original or any copy of a work of art is considered to be its author. The artist and creator of a work of art maintains a moral right (i.e., a personal non-property right) and a right of exploitation (i.e. a property right), namely the rights for reproduction of the works concerned.

The moral right provides the creator of a work of art with the right to decide matters of its public exposure, allows the artist to stop all attempts by future owners or users of his work to damage his reputation, image or the said work itself by, say, modifying or distorting it. The moral right also includes a right to the name: the absence of the artist's name on labels, in catalogues and other such material is also considered a violation. The property right is the right to display an artistic work in public, copy and reproduce it and is valid during the author's lifetime and for 70 years after his death. Museums should note that after the expiration of that term they do not need to acquire the heirs' permission to exhibit or copy, or use it in other forms.[1]

The right of reproduction means that an artist has the right to produce or agree with a third party to produce a "material fixation of an art work by any means which allows to present it to the public in an indirect way. This can be achieved by way of printing, drawing, engraving, photography, moulage and other sculpture or graphic techniques, mechanical, film or magnetic tape recording ..."

Leaping ahead, and adding to Chatelain's observations, those concerned need to be reminded that now that Russia has signed the Berne Convention the right of reproduction in Russia also belongs to the creator, or, after his death, to the heirs concerned, for a period of 70 years starting from the first day of January of the year following his death. As opposed to the moral right this right may be granted with or without compensation. The granting of such rights should be formalized in a special agreement, distinctive from the one which ratified the grant of ownership to a work as a material object. In the Russian Federation the issues of visual arts copyright are regulated by the Civil Code of the Russian Federation, and the Law on Copyright and Neighbouring Rights. According to Russian legislation copyright covers both published and unpublished works.

In other words, now even for Russian citizens "it follows that a museum having in its possession, for example works of contemporary art, has no right to reproduce such works in a catalogue, on a poster or in other forms, without a special license obtained from the author or his heirs. This licence may be issued separately for each particular instance or on a permanent basis, but in any case it has to be in writing and accurate."

It has to be stressed once again that the "physical transfer of a gift which can be exercised by the author or his heirs does not imply the automatic grant of rights of the author of such work. It is necessary to clearly distinguish between the rights of an author and the rights of commentators of his works. The author of a book, film or tape describing the creative work of an artist has to respect the rights of this artist or his heirs but at the same time such author acquires rights to his own research. Very often such issues as displaying this or that object in a museum collection, its possible participation in exhibitions held outside the museum and other issues are included in an agreement. It is not only the moral obligation of museum employees to honour such provisions but also a legal commitment the violation of which is punished by law." Such could have been a possible finale of the lecture delivered by Monsieur Chatelain.[2]

Having outlined in this introduction a few major issues related to the problems of interest in the field of copyright, the floor passed to Jean-Marc Gutton who presented a fundamental report on the history of copyright which is quoted here in an abridged form.

"Copyright," Gutton began, "is simply a right of every human being: the right of the creator to the creation. Since approximately the end of the 1 5th century an author had to agree to the terms of certain corporations, and such terms were called 'privileged'. The privileges were to be acquired in many instances, in relevance to printing, music or painting but they were never the 'forefathers' of copyright. Sometimes a privilege was only a form of compensating losses or merely served as an incentive in trading, or was an instrument of control and sometimes even censorship, but it was obvious that privileges promoted and encouraged creativity and what is more important contributed to the recognition of talent. Thus the road towards recognition of author's rights had been cleared - but it would prove a very long journey. In 1709 Queen Anne of England was granting not just a privilege but the right 'of creators to their new works'. At the end of the 18th century the United States entered the British decrees into their own Constitution of 1787. In France the decrees of the 179193 Revolution dealt sequentially with the right of public performance and the right of reproduction, which 'grosso modo' form the foundation of authors' rights."

In the 1 9th century certain documents fixed the author's priority in exploiting his works within the framework of national and, even more importantly, international relations. Of course, it seems only natural for an author to manage his own rights. However, the position of an individual is more vulnerable than that of an Authors' Society. There are many reasons for this, namely because of the globalization of the market place, the increased number of users and the lack of material resources and professional skills. It is easier to cope with the above problems collectively rather than alone. At the end of the 19th century it became obvious to a few advanced individuals that, as an organization, an authors' society could be an efficient buffer between the creator and the user.

In 1877 a literary association (ALAI) was established under the chairmanship of Victor Hugo and including also Disraeli, Tolstoy and Turgenev ... The core of the association consisted of course of men of letters but its ecumenical activity and the goals set forth by these people related to all creative individuals without exception. It was exactly this association that gave birth to the Berne Convention in 1886. This Convention became a basis for international recognition of authors' rights; it is possibly the oldest international document providing protection of authors' rights on an international level. The Berne Convention has been amended and added to more than once, always proceeding from the interests of an author and his rights, and it has been ratified by 150 countries.

10 years ago the Russian Federation joined those countries. Signatories to the Convention form a 'union', or in other words are members of the 'Berne Union'. The Union has as its goal the 'protection of authors' rights to their works of literature and fine art'. In 1990 GESAC (European Group of Authors' and Composers' Societies) was formed. The Russian Federation became one of the first countries to take advantage of a programme created by GESAC. Top European experts together with their colleagues from the Russian Ministry of Justice and the Ministry of Culture worked on drafting the corresponding Russian law, and the third part of the Civil Code related specifically to intellectual property and the activity of the State Anti-monopoly Committee in its struggle with piracy and counterfeit products.

It has to be noted that Russia signed a more comprehensive version of the Berne Convention than the USA. Therefore, Russia today has a contemporary copyright law which corresponds to the generally accepted international norms, and Russia need only acquire the habit of observing it. RAO (Russian Authors' Society), which replaced VAAP (the former Copyright Agency of the USSR and then the All-Russian Copyright Agency), and joined GESAC may help Russians to achieve this ambitious goal. RAO deals with the following aspects: music, literature, graphic and sculpture arts.

Speaking after Gutton Igor Nikiforov, who has a Masters Degree in German and International Law on intellectual property, underlined the accuracy of his French colleague's final remark: "It is not enough to have the legislation, one also has to learn how to use it. Observance of copyright in Russia is a major issue for us today. Unfortunately, we are encountering numerous violations of authors' rights both in the fine arts and other spheres." The speaker stressed once again that in accordance with Russian legislation any illegal use of works or other infringements constitute civil, administrative and criminal offences. Authors or other holders of exclusive rights may take legal action to protect their interests.

Compensation of losses, including lost income, is one of the basic measures in protecting authors' rights. Holders of exclusive rights at their own discretion can demand that violators compensate losses or pay a reimbursement to amounts from 10,000 to 5 million rubles, if the violation has been proven. Current practice shows that arbitration courts usually accept claims of up to around 2 million rubles.

As for the Criminal Law, violations of authors' rights are regulated by Article 146 of the Criminal Code of the Russian Federation which, as in many other countries, stipulates punishment for misappropriation of authorship (so-called plagiarism), if this action has caused significant damages to the author or other right owner.

Illegal use of subjects of copyright as well as the acquisition, storage and transportation of counterfeit copies of a work with the intent to sell in large quantities is punished not only by fines but also by various mandatory community service sentences and, in some instances, imprisonment.

RAO's representative Natalya Leneva, who took part in the debate following Nikiforov's speech, drew participants' attention to the fact that many publishers conclude agreements with museums to receive permission to reproduce objects which are in those museums' possession. And the museums confirm in such agreements that all authors' rights are transferred to the publishers. The publishers draw the conclusion that they don't have to receive any additional permission from the authors, and that they are now owners of all the necessary rights, and the monies paid to museums for the use of a work represent in fact an author's fee. However, authors never receive any compensation and this is an undisputed violation of their rights.

The next speaker Innokentiy Alexeyev, Master of International Law from Stanford University, focused on how museums can protect their interests: according to him the Museum Law of the Russian Federation promotes such protection. The full body of legislation adopted in recent years in this field can be labeled as Russian Museum Law. The issue of ownership is on the front burner: we cannot speak of ownership by Russian museums in the same way as we can describe the situation in the United States where museums are often owners enjoying the rights to own, use and dispose of works of art.

In Russia the situation is quite different and the rights of museums are limited and formulated on the basis of each museum's status. In other words, museums, with a few exceptions, cannot conduct commercial activities. Russia has a specific form of ownership of museum objects if compared to that common in international practice and in the US. Russian museums hold their objects in trust management. What is 'trust management'? The rights of ownership, use and disposal are present but in a limited form. In the US the situation is quite different: very often museums have the right of ownership to the objects given to them. In Russia the state as well as a municipal body, a private citizen or a private corporation can be owners of such objects. A museum in this situation acts as an agent assigned with the management of such objects which are owned by a third party. It is important to understand that a museum can perform certain functions which have been transferred to it by the owner of such objects on the basis of this trust management pattern.

The existence of museums is regulated by the law on the Museum Fund and museum activity. The key element is the state-owned Museum Fund of the Russian Federation. This law distinguishes between state and non-state parts of the Museum Fund.[3] Accordingly the legal mode is different for each part. The most important thing is probably that Russian museums don't have the right to exchange objects from their collections at their own discretion; they have to receive approval from higher authorities. But every time a museum acquires an object it is desirable that the right of reproduction is part of the acquisition contract. Setting up museum reserves with exclusive products can secure the financial future of our museums and, in order to make it happen, the issue of the right to reproduce museum objects has to be settled, Alexeyev concluded.

It has to be noted that it was just this position of Russian museums which, when purchasing a work of art try to include in their contracts with the artist a clause on transfer of rights to reproduce the work, that provoked a stormy reaction from the foreign colleagues present who considered it unprecedented pressure on the artist, and an impairment of the interests of the heirs concerned. Furthermore, they stated that it would be prudent on the part of any artist not to accept the museum's proposal and refer the matter to the Authors' Society.

The State Tretyakov Gallery's lawyer Nikolai Samarin spoke rigorously about the impairment of the rights of heirs and noted that heirs very often violate the artist's last will. He said he had difficulty understanding how the term of 70 years and the rights of heirs who can dispose of the works created by the artist can be correlated not so much with the law but with common sense and fairness. There are cases - a court trial recently took place in Russia - when an artist asks in his will not to divide his works among his heirs. The family violates the will and splits the collection and the numerous heirs prefer to receive their respective shares and dispose of them at their own discretion...

Ms. Leneva of RAO replied that "a collection of paintings may be divided by heirs among themselves but as for inheritance of copyright we have to know what is written in the inheritance certificate.

Usually such rights are shared equally, and in case of reproduction or use of a specific work it is necessary to obtain a permission for such use or reproduction from all the heirs irrespective of the fact who owns this particular painting and irrespective of the way the collection was divided. The author's fee received for the use of this painting shall be divided in accordance with the shares mentioned in the inheritance certificate, and the fact that the painting itself is in the possession of a specific heir does not change the copyright in this work. It is important to understand that copyright is inherited in the same fashion as any other property. When, for example, an artist dies the heirs upon the expiration of a six-month period receive not only an inheritance certificate but also a certificate on the right to inherit copyright in the creative work of the deceased in its entirety. If there are many heirs such a certificate makes a mention of their shares."

The president of the Chagall Committee disagreed with Nikolai Samarin, saying that if an artist wishes to bequeath even all his works to museums he can do so while still alive. The heirs, unless otherwise clearly and unquestionably stipulated in the will, are free to dispose of the inherited works in the same fashion they do any other inherited property - and controversial issues are usually settled in court.

Then the floor passed to Chagall's granddaughter Meret Meyer, one of the four immediate heirs of the artist: "The reasons that made us come here I believe are tied to our common cause which unites us today, namely respect for a work of art", said Ms. Meyer. "Museum employees are protecting the rights of those artists who have no one left to speak for them. It seems that I learned the concept of copyright at my mother's knees. Throughout our childhood we watched our grandfather work, and also the efforts of our mother who had to deal with the publications as well. Not just our love for our grandfather but primarily our sense of responsibility and respect for his work that we inherited from our parents compel us to continue the activities of the Chagall Committee ... I am quite sure that my grandfather wouldn't want his works to appear on the covers of novels, or religious, sociological and psychological publications and the like, as he believed that his works belonged to the covers of his own books, catalogues or monographs. The quality of reproductions was always a major concern for him. Chagall always respected other people's work and he himself worked very much, and of course it upset him when his works were poorly reproduced. It is common knowledge that he worshipped colours, something that he called the 'chemistry of colour'.

"We believe that our task," continued Ms. Meyer, "is to prevent distortions in the image of a work, the untruthful transfer of colour or the senseless choice of a fragment for reproduction. Fragments of a work have to be respected as well. Also, changing times bring new forms of reproduction and new ideas. Who could have anticipated some time ago that a work of art would become an icon on a computer or a cell phone screen saver. We are trying to ensure a level of quality of reproduction which would have satisfied Chagall."

The format of a magazine article does not allow us to quote all the speeches related to the issues of reproducing works from museum collections. There were mentions of commercials and candy boxes, experiments with "La Gioconda" and Van Gogh's self-portrait winking from the canvas. All those present were unanimous that museums can and should protect the works in their collections.

Representatives of the Federal Agency on Culture and Cinematography, RAO, as well as lawyers, journalists and museum workers took part in the discussions. All participants in the conference at the Engineering wing also realized that they could receive any consultation on copyright issues from the Russian Authors' Society, even when it relates to a foreign painter. It is sufficient to address a request to RAO and it will contact an authors' agency in the country of which the artist is a citizen. There are also the magic words, "All rights reserved", which always have to be printed on book covers both when everything is in order, and when for some reason attempts to receive the necessary permissions have failed, or the author's whereabouts is unknown. In writing this magic sentence, the message to all interested parties is clear - that the publisher respects the law and is ready to pay for the rights.

1. Although not all international lawyers agree with this we need to know that in Russia a museum has a right (ref. Article 36, Law of Museums) to allow or prohibit any use of its works which have become public property with non-commercial or commercial purpose in graphic arts production, souvenir production, consumer goods, advertising.
2. Jean Chatelain. Droits et administration des musées. La Documentation française/École du Louvre, Paris, 1993, c. 412-414.
3. Third small segment – museum objects not included in the Museum Fund of the RF will not be separated for the purpose of this report since in the field of copyright the rights of ownership for any type of museums are identical.