Joint Authorship: Whose work is it anyway?
Martin Kippenberger and Götz Valien, "Paris Bar", Variante 3, 1991-2010
Authorship disputes between artists and those engaged to realise the work highlight the importance of reaching agreement on copyright ownership at the start of any potentially creative collaboration
With due credit to Marcel Duchamp, the art market is largely willing to accept that a work is “by” the artist who conceived it, regardless of whose hand executed the work itself. Recent authorship disputes involving the work of Maurizio Cattelan and Martin Kippenberger highlight the risk of copyright ownership being shared with collaborators who exercise free and creative choices in bringing the concept to life. Under English law, a work will be a “work of joint authorship” where it is produced by the collaboration of two or more authors and the contribution of each is not distinct. In the leading English case involving the authorship of a screenplay, the High Court noted that trying to separate the contributions of joint authors “would be like trying to unmix purple paint into red and blue.” [1]
Many artists run sophisticated studios employing teams of skilled assistants to develop and realise their work. That will not usually create copyright issues under English law provided the assistants are employed by the artist (or their company) and make works in the course of their employment. Difficulty can however arise where artists collaborate with others on a freelance basis with no employment relationship. This briefing considers two recent disputes in France and Germany which highlight the risk of a collaborator claiming joint authorship of a work after it becomes valuable and art-historically significant.
Götz Valien v Martin Kippenberger Estate
Challenging the notion of the artist as singular genius and sole author, Martin Kippenberger (1953-1997) commissioned a billboard artist in 1981 to realise his "Lieber Maler, male mir" (“Dear painter, paint for me”) concept of large-scale realist paintings based on his own photographs. Today, works from the series can be found at MoMA, the Pinault Collection and the Hasso Plattner Collection. Pinault acquired its work from the first owner at auction in 2006 for £500,000 and Plattner paid USD 6.4M at auction in 2013.
Building on his earlier series, Kippenberger hired a Berlin poster-painting company called Werner Werbung to produce a painting from a photograph he had also commissioned of his exhibition at Berlin’s famous Paris Bar which was and remains a popular meeting place for artists. Werner engaged the artist Götz Valien on a freelance basis to produce “Paris Bar, Version 1” in 1991 and a second version (“Paris Bar, Version 2”) in 1993 based on another photo reference showing “Version 1” hanging in the Paris Bar.
Valien apparently had no contact with or directions from Kippenberger and understood both canvasses were for the owners for Paris Bar. Version 1 hung in the Paris Bar until 2004 before being sold at Christie’s as an artwork attributed to Kippenberger in 2009 for GBP 2.3M. The 1993 version was sold via Phillips auction house in 2007 for £636,000 and is now in the Pinault Collection. After discovering the 2009 Christie’s sale, Valien made a third version of Paris Bar (Version 3) in 2010 which he attributed to himself alone and filed legal proceedings in Munich in 2022 against the administrator of the Kippenberger Estate which manages the artist’s copyright and publishes his catalogue raisonné. Having declined Valien’s request to be named in the catalogue raisonné, Valien’s claim sought to prevent the Estate from exploiting the “Paris Bar” paintings without naming him as a joint author (Case No. 42 O 7449/22).
Contradicting the Duchampian view of authorship, the Munich Court ruled in August 2023 that Götz Valien is indeed a joint author of the various versions of the painting "Paris Bar" alongside Martin Kippenberger pursuant to Section 8(1) of the German Copyright Act and must be named accordingly. Whilst agreeing that Kippenberger had undoubtedly initiated Versions 1 and 2 and made creative choices including the layout of his exhibition in the Paris Bar and the style of the painting (by selecting Werner specifically), the Court held that Valien had had, and had exercised, sufficient creative freedom in bringing the reference photograph to life on the canvas. The Court noted by way of example that the “warm, inviting, lively and radiant” atmosphere in Version 1 was neither present in the reference photograph (shown below) nor directed by Kippenberger with whom he had no contact.
Reference image by Gunter Lepkowski
Valien had also signed the canvas of Version 1 in his own name, invoking the rebuttable presumption of authorship contained at section 10 of the German Copyright Act (a similar presumption exists under English law at section 104(2) of the UK’s Copyright, Design and Patents Act 1988). Responding to a counterclaim by the Kippenberger Estate, the decision prohibits Valien from exhibiting the 2010 version of "Paris Bar” (Version 3) without acknowledging Kippenberger as joint author.
The Kippenberger Estate has filed an appeal which remains pending.
Daniel Druet v Maurizio Cattelan
We first reported on French proceedings targeting Maurizio Cattelan in 2022. Between 1999 and 2006, Cattelan and his gallerist Emmanuel Perrotin engaged the sculptor Daniel Druet to produce eight hyper-realistic wax sculptures which Cattelan incorporated into some of his most famous and highly valued works including La Nona Ora (1999) and Him (2001). Portraying a penitent, child-like Adolf Hitler and currently on display at the Bourse de Commerce in Paris until 2 September 2024 (shown in situ below), the artist’s proof of Him sold for USD17.2M at Christie’s in May 2016 which remains Cattelan’s auction record. Perrotin conceded that they were “naïve” to engage Druet without a written contract which could have addressed the authorship questions now in dispute.
Installation shot of Maurizio Cattelan’s Him (2001) at the Bourse de Commerce in Paris. Photo: Adam Jomeen.
After a fruitless request to be credited as the author of the wax sculptures, Druet filed proceedings in 2018 in the Paris courts against (a) Perrotin; (b) Perrotin’s publishing company, Turenne Editions; and (c) the Monnaie de Paris museum which had exhibited four of the disputed works in 2016/17 without crediting Druet. Druet claimed significant damages plus a declaration that he was the sole author of the eight works into which Cattelan incorporated the wax sculptures. Cattelan was joined to the proceedings by the museum under a contractual indemnity but was not sued as a primary defendant by Druet.
The Paris IP Court rendered its decision on 8 July 2022. It noted that by framing his claim around the names of the artworks, Druet was claiming sole ownership of the final artworks as they were titled, staged and disclosed to the public by Cattelan. It further noted that pursuant to article L. 113-1 of the French IP Code, the person in whose name an artwork is disclosed to the public is the presumptive author. Since all eight contested works were disclosed to the public in Cattelan’s name alone, the Court considered it essential that Cattelan be called as a primary defendant by Druet to assert his alleged authorship. In Cattelan’s absence, the Court ruled Druet’s claims for copyright infringement against the three defendants were “inadmissible”.
Rather than refiling his claim against Cattelan directly for joint (rather than sole) authorship of the eight works, Druet curiously appealed the decision of July 2022. The Paris Appeal Court rejected the appeal almost two years later, on 5 June 2024, agreeing with the trial court that Druet’s claims for copyright infringement cannot be addressed without Cattelan’s inclusion in the proceedings as a primary defendant. The Court affirmed, as a matter of French procedural law, that Cattelan’s presence as a guarantor of the museum’s potential liability was insufficient to create the requisite legal nexus between Druet and Cattelan. The claim therefore failed on procedural grounds before an analysis of Druet’s potential joint authorship was undertaken by the court.
Druet’s legal strategy is hard to understand and was, it seems, Bound to Fail. With the right strategy, our Paris correspondents consider Druet would have had a fair chance of establishing his joint authorship of the eight works. Six years after starting fruitless proceedings, it remains to be seen whether Druet has the energy and resources to pursue his claim against Cattelan directly. Like the Munich court in the Kippenberger case, the Paris court would carefully review Cattelan’s instructions to Druet and the extent of Druet’s creative freedom in realising the wax works. For now, the legal presumption of Cattelan’s sole authorship prevails.
Lessons
Collaborators can agree in advance that copyright in what is to be produced should be owned by a single person or body. Where artists collaborate with third parties to develop or realise their concept, they or their galleries should ensure clear written contracts are in place at the outset of the relationship addressing future copyright ownership and credits. It is noteworthy that the Kippenberger and Cattelan claims emerged after the works sold for significant sums many years after the collaboration. This suggests that the risk of a claim for joint authorship may increase as the profile of the initiating artist increases. Druet’s curious legal strategy certainly reinforces the importance of selecting lawyers carefully.
[1] Martin & Anor v Kogan [2021] EWHC 24 (Ch) (11 January 2021), para 323.
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