Sunday, May 25, 2014

The Picasso Four Seasons Tricorne Litigation – Where’s the Moral Rights Beef?

(images from Picasso, Four Seasons, and classic Wendy's 1984 commercial respectively)             
There was a confusing and factually/legally problematic posting by Mira Rajan recently on the 1709 blog about moral rights issues concerning Picasso’s Tricorne tapestry in the fabled Four Seasons Restaurant  in the Seagram Building in New York. The tapestry, BTW,  is in the Four Seasons Restaurant, and not in the Four Seasons Hotel, as  reported by Mira. The restaurant “isn't affiliated with the Four Seasons hotel a few blocks away… This blog was picked up by the  Techdirt site, which generated a lot of comments.

But more material than the confusion between the restaurant and hotel, it turns out that there is already litigation well underway and at least one available detailed decision about Picasso’s Tricorne that explains a lot and which wasn’t referenced in the 1709 Blog.  I quickly found this unpublished slip opinion dated April 4, 2014 of the Supreme Court of New York concerning the ongoing litigation, which Mira does not  mention. 

This decision concerned a request by the New York Landmarks Conservancy, Inc. for a preliminary injunction. The decision reveals that there were seven causes of action, namely for 1) preliminary injunction, 2) permanent injunction, 3) Breach of lease, 4) Trespass to Chattel, 5) Conversion, 6) Prima Facie Tort, & 7) Declaratory Judgment . It’s very detailed, 32 pages long and quite well written. The case is far from over. 

Notably, there is not a single mention in the decision of the “moral rights” aspect of the Visual Artists Right Act (“VARA”) or 17 U.S. Code § 106A (the copyright legislation that implements VARA) or of “moral rights” as such.  

Unless there’s other litigation going on to which Mira does not refer, it would appear that VARA and moral rights are simply red herrings here and do not figure in the dispute. Nor could there likely be any such other litigation, for the reasons mentioned by “Uncle Wiggily” in his comment on the 1709 blog, namely that:
Given that this work was installed in the Four Seasons in 1959, according to Mira, and title in the mural had presumably passed from Picasso by that time, it would seem that any moral rights under VARA would not apply. See the “effective date” provisions in s. 610 of the Visual Artists Rights Act of 1990. and 17 U.S. Code § 106A(3)(d)(2)

As the above linked decision reveals, the facts are rather complicated and the evidence contradictory and inconclusive.  Of particular interest is that fact that the art work is in the form of a “curtain” or “tapestry” and is “mounted on a wall” where it has "hung" since 1959.  According to one of the experts, "the Picasso Curtain is hanging from two "Velcro" anchors attached to the top left and right comers of the Curtain, and that the Velcro anchors are failing in many "spots" such that the Curtain is no longer being securely held to the Wall..."   On the other hand, there was evidence that the wall on which the tapestry is mounted has some structural issues. There was evidence that "further movement could cause the panels to collapse, thus causing a potential safety hazard. The potential to cause damage to the Picasso tapestry exists should the panels shift further or collapse." There was conflicting evidence as to whether the work was more likely to be harmed by leaving it on site or by removing it. There was evidence that it could be safely removed and evidence to the contrary.

But, whatever will be the result, it appears that “moral rights” are not currently or foreseeably relevant in this litigation.

So, speaking of restaurants, where's the moral rights beef here?


(updated May 26, 2014)

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