The art market cannot function unless potential buyers know what is available and when. The catalogue tells them. However, the reproduction in a catalogue of works which are still in copyright could give rise to claims from the copyright holders. Quentin Byrne-Sutton’s description of the exemption granted to catalogues under Swiss law (see next page) highlights some of the tensions in the law of copyright between the rights of the artist (or his or her family) to protect his or her rights in the work, and the rights of the public and the trade in promoting sales, exhibitions or other events. We asked a number of lawyers to comment on the situation with regard to catalogues in their own jurisdictions, and found that the scope of protection varies widely.
Exemption in the UK
In the UK, the problem has been addressed from a commercial viewpoint by expressly exempting from the relevant legislation any copies of an artistic work made for the purpose of advertising the sale of the work. Sales catalogues are therefore protected. However, such protection lasts only as long as the purpose of the reproduction of the work is to advertise its sale: once the sale has taken place, the normal law applies. Catalogues of works held in museums or galleries are not exempt.
Confusion in Italy
In other countries, however, the situation is less clear-cut. Italian lawyer, Marco Ciapponi of Studio Legale Salinari, comments that there have been unsuccessful attempts in Italian law to get round the copyright provisions by arguing that show catalogues fall within the recognised exception for the purposes of criticism, discussion and teaching: this argument has been rejected on the ground that the catalogues provide economic benefits to the sales organisers. Mr Ciapponi asserts that auction catalogues may, however, be protected under Italian law, provided that the reproduction remains intended only for the sale of the work.
Restrictive practices in France
French law raises similar difficulties. In the early Nineties, the Utrillo estate successfully contested the use of reproductions of the artist’s work in auction catalogues. Legislation has now been passed to try to minimise the effects of this litigation on the modern sales market, but, as Jean-Marie Schmitt of the Institut d’Etudes Supérieures des Arts points out, this legislation is extremely limited in scope and will apply only to catalogues relating to auctions organised by the official French auction houses (excluding Sotheby’s and Christie’s), thereby prompting concern as to whether France may be in breach of the Treaty of Rome.
Germany
The situation in Germany is somewhat wider than that in the UK, since the catalogue exemption applies not only to sales, but also to public exhibitions, including permanent ones. German lawyer, Anna-Dorothea Polzer, has commented that the rationale underlying the exemption is that such catalogues are not only published in the interest of the organisers and the public, but also increase the artist’s reputation and sales of his works. Difficulties have arisen in Germany over the determination of what the primary purpose of a catalogue is: if its purpose is to educate visitors to an exhibition, it falls within the exemption, but if it is a merely an illustrated art book where reproductions ensure enjoyment of the artist’s work, it will not enjoy the benefit of exemption.
Monaco
Monagasque law makes no express provision for catalogues, whether for sales or exhibitions, and, as William Easun, partner in the Monaco office of solicitors Frere Cholmeley Bischoff, points out, there has to date been no decided case law on the subject.
Originally appeared in The Art Newspaper as 'Fair warning'