Cutting holes in a painting: a new piece of art or an infringement?

A Danish court has ruled that cutting up a painting and inserting the cut-outs as dials in wristwatches amounted to infringement of the artist’s copyright and moral rights. This article briefly discusses the decision and how the UK courts might approach the matter if faced with similar facts in the UK.

The Danish artist Tal Rosenzweig (“Tal R”) sought an interim injunction preventing two individuals, Arne Leivsgard and Dann Thorleifsson, behind the brand “Letho” (“Letho”) from, amongst other things, cutting up Tal R’s painting called “Paris Chic” (shown below) which they had purchased with a view to inserting the pieces as dials in wristwatches.

Letho spent almost six months selecting the painting for the project and explained that the aim of the project was to “arouse emotions” and “make as many people as possible be a part of this particular story” and “lift up the painting from being an inanimate artefact in some rich man’s villa or an exclusive gallery”. Letho claimed the public’s reaction would not have been the same if the wristwatches had been made in collaboration with an artist. Tal R criticised Letho, drawing parallels with “someone wanting to burn your favourite book, reasoning that you could then long for it”.

Tal R claimed infringement of his exclusive rights under the Danish 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”. Letho claimed there could be no infringement because the wristwatches would not be a reproduction in an amended form, but a total destruction of the work and the creation of a new piece of artwork from the cut up pieces with “its very own story to tell”. Letho further claimed that the size of the dial of each wristwatch amounted to just 0.04% of the painting and therefore the wristwatch faces would not be recognisable as pieces of the painting.

The Danish court ruled that the work had not been destroyed rather it had been reproduced in an amended form; it made no difference that the painting would not be recognisable once cut up and used in the wristwatches. Accordingly, the court made a finding of copyright infringement. It also ruled that the project used the painting “in a manner or in a context which is prejudicial to the author’s literary or artistic reputation or individuality,” and thereby amounted to infringement of Tal R’s moral rights.

If a UK court were to consider a similar case, it is likely there would also be a finding of infringement of the artist’s moral rights, in particular, the right to object to derogatory treatment of a work. Treatment of a work is considered derogatory if it amounts to a “distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author…”. This appears to be the case here.

However, whether there would be a finding of copyright infringement is less clear for at least two reasons.

Firstly, UK copyright grants the owner the exclusive right to do a number of acts in the UK. Broadly, the acts relate to copying the work or dealing with copies of the work. Cutting up the original painting and using the pieces is unlikely to be considered either copying the work or dealing with copies of it.

Secondly, a UK copyright work is infringed if a substantial part of it – assessed on a quantitative or qualitative basis – is copied (directly or indirectly). Would a substantial part be copied if only 0.04% of the work is used in each wristwatch? This would depend on whether the piece used is a key part of the painting and therefore a substantial part of the overall work if viewed on a qualitative basis.

Aside from moral rights and copyright, another possible IP infringement claim in this situation could be the common law tort of passing off. There are three key elements of passing off, namely:

1. goodwill attached to goods / services;
2. a misrepresentation by the defendant to the public leading to a belief that the goods/services are those of the claimant; and
3. damage to the claimant caused by the misrepresentation.

If Tal R could demonstrate he has UK goodwill in the painting and, indeed, his name generally, and that the wristwatches (containing pieces of the work) would misrepresent to the public that the same were endorsed by or otherwise associated with Tal R, he may have grounds for a UK passing off claim.

In summary, if similar facts occurred in the UK such actions would likely amount to infringement of moral rights and possibly passing off. However, whether there would be a risk of copyright infringement is less clear.

The key overall message from this case is that the owner of a piece of artwork needs to proceed with caution if he/she plans to make any alterations to it - particularly if they are likely to be controversial and/or for commercial purposes - because the artist may have grounds to object on the basis of IP infringement.