Protecting the rights of a dead artist

If you are worried about infringement or your work has been copied and you want to take action.
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Eastblock19
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Protecting the rights of a dead artist

Post by Eastblock19 » Mon Feb 05, 2018 6:10 pm

Recently a friend passed away suddenly last year. He was artist who specialist in painted hand moulded Alu-mesh on silks and had been selling the artworks for the past 20 years. After his death a so called friend who specialised in geo-metric shapes, started producing & selling identical Alu-mesh artworks on his website site, stating that they have been inspired by the dead artist and charging £900 per picture.
I have written a cease and desist letter on behalf of family, stating that his artistic works are copyright and he should have sort permission from the family as owners of the copyright. Its been so painful for the family to see their brother & uncle so disrespected !
He states that his creating new works with similar look using different mediums, but the artworks are exactly the same in appearance. I have a picture of the original artworks by my dead friend dating back to 2001 and I can't tell the difference.
I feel morally obligated to defend my dead friend legacy and his original artworks. 20 years hard work establishing himself as creditable artist, only to hijacked on his death by so called friend, its immortal ! It's not what he would have wanted !!!!!
Please I could use some help and advise from anybody with intellectual knowledge of copyright law !!!! I don't want to let this go, but I will have to if we are unable to proceed.......

Thanking for your time in advance

Justin

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AndyJ
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Re: Protecting the rights of a dead artist

Post by AndyJ » Mon Feb 05, 2018 11:56 pm

Hi Justin

Does the similarity of these other works come about because the technique in using the materials is the same or are the 'new' works so visually similar because he has copied them exactly from those produced by your late friend? Copyright protects the expression of an idea, but not the underlying idea itself, and so if this other person is producing something using the same technique but not replicating any of your friend's actual pieces in a facsimile way, it will be difficult to establish copyright infringement. Unfortunately it is impossible to say at this distance whether this is potentially infringement or just very poor taste on the part of this other person. The family may need to consult a lawyer who specialises in intellectual property law later on, but as this will be costly, I don't advise it at this stage.

Copyright in your late friend's work will continue for another 70 years during which time whoever inherited his intellectual property should be able to benefit from any royalties or other income from the works. Furthermore, there are certain moral rights such as the right to be recognised as the author of a work, and for the artist's reputation not to be treated in a derogatory manner which last as long as the copyright, and which his heir should seek to protect. That person should also make sure that they also make provision in their will for who should, in turn, inherit the copyright and moral rights. You don't mention how valuable the artist's work was during his lifetime, but if one of his works changes hands at some stage in the future, for an amount exceeding 1000 euros, his estate is entitled to a royalty based on the actual sale pirce. You can find out more about the Artist's Resale Right here. These Regulations have been amended twice since 2006, but the changes don't affect the main principle of how the system works. The Artist's Resale Right lasts for as long as the works are in copyright, so in this case until 1 January 2088.

If you are sure that the artist's copyright is being infringed, then whoever inherited the artist's estate is the only person who is able to bring a claim. If no special provision was made in the will concerning his artwork, then whoever inherited the residue of the estate (ie after all general legacies and bequests have been settled) will also own his intellectual proprerty rights. If the estate was split jointly then these individuals will now jointly own the copyright, and they may wish to consider setting up a simple trust or other formal arrangement for how to look after the artist's reputation and any income which may arise in the future. They should register their interest with the Design and Artists Copyright Society (DACS) as this organisation is responsible for monitoring the Artist's Resale Right. DACS can also advise on how to manage any other copyright royalty issues.

I hope this gives you some guidance on where to go from here.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

Eastblock19
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Re: Protecting the rights of a dead artist

Post by Eastblock19 » Tue Feb 06, 2018 6:42 pm

Hi AndyJ,

Thank you for taking the time and answering my post.

The pieces are hand sculptured alu-mesh on dupion silk using techniques he has acquired from my friend before he died. So the composition is exactly the same, material and painting the alb-mesh with highlights and low lights to give the 3D effect. Obviously working with alb-mesh the hand sculpting is slightly different, but you would believe it was the same artwork on different wall. Any member of public would be believe it was the work of my late friend the work is so unique to him and he built up quite a customer base over the past twenty years. He would have never attempted such artworks had my friend been alive !

Originally the person in question was a website builder and built my friends website before going into art as an easy option - simple geometric designs from his computer. After my friends death he has systemically removed all existence of my friend and his artwork from the web, removed his Facebook page, closed his website and instagram. Basically erasing his digital footprint and any artworks for comparison. Only access to my friend digitally is through his website endorsing his products !!!
I realise that proofing IP infringement would be very hard, but as his using my friends name and image on his website in a commercial setting, is that not my friends intellectual property and can only be used by permission? His given the impression thats his being endorsed by the family and thats not the case. Can we ask him to remove the images and his name from his website?

Really appreciate any advice ! Justin

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Re: Protecting the rights of a dead artist

Post by AndyJ » Tue Feb 06, 2018 8:35 pm

Hi Justin,

It would certainly be possible to take action if this former website designer is actually using your artist friend's name in connection with these new works. That would contravene the artist's moral right (section 84) not to have a work falsely attributed to him. It is also fairly likely that a claim for passing off could also be made out.
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Re: Protecting the rights of a dead artist

Post by Eastblock19 » Tue Feb 06, 2018 8:48 pm

Hi Andy,

Thank you very much for your time !

Justin

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Re: Protecting the rights of a dead artist

Post by Eastblock19 » Wed Feb 07, 2018 9:57 am

Hi Andy,

Sorry to contact again ! How do we ask him to remove his image from his website?

Data Protection Act 1998 - only for living individuals
Moral Rights - are not transferrable to the family

Could we ask him to remove them under Economic rights and the rights of his digital afterlife ?

What rights do the family/heirs have to his name and image? His an established artist that's being exploited.

Thanks a million !

Justin

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Re: Protecting the rights of a dead artist

Post by AndyJ » Wed Feb 07, 2018 8:47 pm

Hi again Justin,

While your efforts to protect the reputation of this artist are laudable, you (or more accurately, the heirs) need to decide what they are trying to achieve and pick their battles carefully. If the heirs go down any formal route of taking action to stop this person, it will soon become expensive in terms of legal advice, and possibly out of proportion to any benefit which may be gained by such action.

There is one point I am not clear about. Is the picture on the former web designer's website a portrait of the artist or is it picture of one of the artist's pieces, or something else entirely? If it is definitely a photograph of one of the late artist's works there may be grounds for getting the image removed under copyright law, namely section 23 possessing or dealing in an infringing copy (the digital image) of a copyright work in the course of trade without permission of the copyright owner. For this I am assuming that it is a picture of one of the artist's works which was originally supplied for the artist's own website. In other words the existence of the copy is not the problem as that was authorised; it is that the current use, on the web designer's website, was not the authorised purpose. This would apply, even if he (web designer) tries to claim it is being used in tribute to the artist. On the other hand if the picture in question is a portrait of the artist, you would need to establish who took the photograph as they are most likely to be the owner of the copyright in it. If it was anyone other than the web designer, then a similar claim under section 23 would apply in that case also, assuming that the web designer couldn't provide proof that he had permission from the copyright owner to use it for the current purpose. Clearly if the web designer took the portrait of the artist himself, then there can be no objection to him using it on his website.

As for your other points, you are correct in discounting the Data Protection Act, which in any case is unlikely to apply just to a portrait of the artist even if he was still alive, since there are legitimate reasons for using a likeness of a person which take precedence any private data concerns (the face we present to the world is rarely 'private data' on its own). But you wrong that the moral rights are not transferable to the heirs. They are (see section 95) and as I said before, the heirs should feel some obligation to protect those moral rights for as long as they last. In an earlier reply i mentioned that one of the moral rights was that the artist had the right not to have works falsely attributed to him (section 84) which might possibly be relevant here. This right only lasts for a period of 20 years after the author's death, unlike the other moral rights which last for the same length of time as copyright. That having been said, I can't see any infringement of moral rights in what you have described regarding the image on the website.

You also mention image rights in the sense, I assume, of so-called publicity rights. Unfortunately there is no such right in UK law. The nearest we have to that sort of protection is Article 8 (the right to respect for private and family life) but again as things stand at present this only applies to the living, and in any case it would be unlikely to apply to the use of a picture of the artist which was originally made public by the person himself, without something more intrusive about his private life.

Unfortunately you seem to have skated around the actual harm you feel is being done to the artist's reputation and/or economic rights. If the website designer is passing off his own work as that of the artist then there are several courses open to the heirs, either through copyright law, or possibly the law on deception and the sale of goods. As these subjects go much wider than just copyright, the heirs might wish to consider discussing their concerns with Citizens Advice or their family lawyer.
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Eastblock19
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Re: Protecting the rights of a dead artist

Post by Eastblock19 » Thu Feb 08, 2018 5:46 pm

Hi Andy,

The web designer/artist has placed a photograph with biography of the dead artist and linked the dead artist website to his website (as some kind of endorsement). So when you google the dead artist name you go to the web designers/artist website. Since he owns both companies, the web design and art studio he's transferred my dead friends data and deleted all other digital images, social accounts like Facebook & instagram and closed his original website. Surely this must breach the code of ethics and a conflict of interests.

Honestly you can't make this shit up ! I would never have believe it, if I hadn't seen it !!!

Any further advice would be appreciated ! You've been so helpful and your advice is sound and gives me confidence...

Thanks

Justin

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Re: Protecting the rights of a dead artist

Post by AndyJ » Fri Feb 09, 2018 8:41 am

Hi Justin,

I think you are right that, morally speaking, the any decision about the late artist's website should have been left to the heirs to decide. However without going into the details of any contract which may have existed between the artist and the web designer concerning the creation and maintenance of the website, I don't think there is much more I can suggest, beyond what I have mentioned in earlier responses.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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