The state of the art world is currently in flux and faces interesting challenges relating to the management and conception of what constitutes art. Globalization has resulted in greater access for artists and exhibition spaces to engage with audiences and obtain source material, as well as to challenge long-held assumptions of art as a singular process rather than a collaborative endeavor.

What is appropriation art?

In modern times, the concept of “appropriation art” has further blurred the lines. The term “appropriation art” belongs to the field of conceptual art and is defined (by the MoMA) the intentional borrowing, copying, and alteration of preexisting images and objects, appropriation art has been a legitimate instrument of expression However, the question of wether this constitutes illegal plagiarism or a legal acting on inspiration, kept courts all over the world busy time and again. No wonder, appropriation art and the notion of “authorship” are closely connected. It raises the question of what makes the art of an artist really hers/his and thus touches the core of copyright.

Let’s have a look at Italy

One case we would like to shine a light on is an Italian Court of Cassation ruling from January 2018. The controversy involved the Foundation dedicated to the famous Italian artist Emilio Edova, who sued the Italian artist Pierluigi de Lutti whose paintings were promoted and sold by a professional art dealer. Per Vedova, de Lutti had illegally copied Emilio Vedova’s paintings, while the intermediating gallery used it for advertisement. The Foundation was originally created by the artist and his wife, with the primary goal of enhancing and studying Mr. Vedova’s artwork through various cultural initiatives, including study, research, and exhibitions. Mr. Vedova specified that the custody and preservation of his works could not be separated from his artistic philosophy, relating to the concepts of “painting-space-time-history.”

How to ascertain plagiarism

The Court has outlined the various criteria for the assessment of plagiarism: the alleged plagiator must appropriate the creative elements of the work of others “… tracing in a slavish way what others have conceived and expressed in a determined and identifiable form …”, while the originality of mere details of the subsequent work is of no importance.

The Court of Cassation confirmed the rulings of the previous instances, that De Lutti’s works were almost identical to Vedova’s. It found that they appeared simplified from the latter’s work and that the technique was essentially the same, with repetition of stylistic elements without any different artistic meaning. If De Lutti had stated instead that his works were “inspired by” Vedova, the result would likely have been quite different.

How are galleries liable?

In this case, the court characterized the gallery’s liability as a failure of due diligence according to Art. 1176 of the Italian Civil Code, which states that diligence in a professional context shall be evaluated in consideration of the nature of the activity carried out. It interpreted this rule as imposing an affirmative duty of “qualified diligence” on experts in the art market to verify a work’s authenticity prior to engaging in commercial acts. Good faith was not considered an adequate defense in these circumstances, as the mistake could have been avoided by using ordinary diligence for the sale of works of art.

Interestingly, the Court also drew on the Italian Code of Cultural Heritage. It places the responsibility to deliver to the buyer the documentation certifying its authenticity and provenance on art dealers. If failing that, a declaration bearing all available information on authenticity or on the probable attribution and provenance must be provided to the customer.

In a market, where reputation is the ultimate form of currency, this decision should make art dealers wary of cutting corners where due diligence is concerned and wary of the artwork they include in their catalogs and promotional material over media networks, as this could be used as evidence of collaboration in a plagiarism case.

Sources:

https://www.moma.org/learn/moma_learning/themes/pop-art/appropriation/

https://www.artribune.com/professioni-e-professionisti/diritto/2018/04/plagio-emilio-vedova-pierluigi-de-lutti/

https://www.artmarketstudies.org/wp-content/uploads/2018/11/Blog-Post-Liability-of-Art-Dealers-for-Forgery-and-Plagiarism-EDITS1.pdf

Image:Julian irigoyen on Unsplash