Artists have long worked with assistants, often uncredited, to complete their works. Since the 1960s, with the advent of minimal and conceptual art, contemporary artists have taken this even further, hiring manufacturers to create works to their technical specifications.
The art world has long recognized that the sole author of the work is the mastermind behind its conceptual and intellectual foundations. A recent French lawsuit involving the work of Maurizio Cattelan effectively supported this line of thinking and set legal precedent in France.
Earlier this month in Paris, a three-judge panel ruled against sculptor Daniel Druet who filed a lawsuit seeking recognition as the sole maker of nine hyper-realistic wax effigies of Cattelan, including La Nona Ora (1999), depicting Pope John Paul II hit by a meteor, and Him (2000), showing Adolf Hitler kneeling as a child.
Cattelan was not initially named as a defendant in the lawsuit of Druet, who filed against Cattelan’s gallery, Perrotin; Turenne Éditions, imprint of Perrotin’s publications; and the Monnaie de Paris, which showed some of the works in 2016. In his lawsuit, Druet demanded “fair credit” as the sole author of these nine sculptures, as well as financial “compensations” in addition to the 272,814 $ he had already received for the nine works he made.
“It is with immense satisfaction that I learn of this decision, which consecrates the work of Maurizio Cattelan as a conceptual artist and rejects in all respects the inadmissible and unfounded arguments of Daniel Druet”, declared Emmanuel Perrotin, the founder of the gallery, in a recent statement. “I am delighted that this decision puts an end to this controversy which threatened a large number of contemporary artists.”
Druet’s legal representation did not respond to ART newsrequest for comment on the case.
An unexpected tactic Druet took in his lawsuit was to testify against everyone but Cattelan, the real target of his copyright infringement claim. To spare itself potential damages in the event of a loss, the Monnaie de Paris tried to make Cattelan a party to the lawsuit, which the arts institution managed to do through a legal tactic called mis en cause.
Cattelan was thus a “link[ed]to the Monnaie de Paris if the court ruled against it. He ended up getting involved without ever really being involved in the first place, which is kind of ironic considering the artist has made a career out of playing hard.
“It is extremely surprising that Mr. Druet not only sued Mr. Cattelan directly but also adjusted his tactics along the way,” said Julie de Lassus Saint-Geniès, an expert intellectual property lawyer who has followed the case up close. but was not directly involved in legal representation for either party, said in an interview.
Along with a legal team consisting of law professor Pierre-Yves Gautier and criminal lawyer Pierre-Olivier Sur, Perrotin attempted to raise a procedural issue to dismiss the case at this stage on the grounds that the wrong people were being prosecuted. The court, however, decided that instead of just ruling on the procedural issue, it would dig deeper and pursue the lawsuit in order to settle the copyright infringement claims one way or another.
“The court’s refusal was a blessing in disguise: we had to win on substance rather than procedural technicality,” said Sur, who is a former president of the Paris Bar Association. ART news, adding that he was amazed at the crowd that turned out to hear the panel of judges deliver their decision. (The final hearing took place in the largest courtroom of the Tribunal Judiciaire de Paris.)
Druet’s second tactic, which the court also ruled against, was to claim exclusive authorship of the nine sculptures he made for Cattelan, despite the fact that La Nona Ora, Him, and the other seven works were all exhibited, promoted under and written (in catalogs and in the press) under Cattelan’s name. According to the Intellectual Property Code, “The status of author belongs, unless proven otherwise, to the person or persons under whose name the work has been disclosed”.
Furthermore, Druet affirmed, according to the recent judgment, that “he, with his own hands, gave birth to the disputed works, breathed life and intensity into them, without receiving, for some of them, any instruction from Ms. Cattelan”.
Perrotin’s representation submitted to the court several examples of explicit instructions given by Cattelan to Druet, in accordance with the judge’s decision. In addition to the technical specifications of each sculpture, for example, Cattelan had sent Druet a “poem in prose”, which reads, in part: “I wonder: If when I was little, I could have imagined it . [La Nona Ora] in its current state. So exhausted with weariness…”
And on December 1, 2000, Cattelan wrote to Druet about the Him sculpture, “The most important thing is that the end result should be a hyper-realistic face with an ecstatic expression as if in this moment of devotion communicating its future mission. Hand position: hands should be thinner, hairless […] Hitler’s head must look a little lower…”
“It was also up to Druet to provide evidence to refute Cattelan’s legal presumption and not the other way around,” said de Lassus Saint-Geniès, a former student of Pierre-Yves Gautier.
Moreover, according to the decision, Druet admitted having nothing to do with the “precise directives” for the installation of the works, “in particular with regard to their positioning in the exhibition spaces, aimed at playing on the emotions of the public (surprise, empathy, amusement, repulsion, etc.), were emitted only by [Cattelan].”
The Court’s attention to the installation of Cattelan’s works led to an entirely new definition in French case law, which takes into consideration both the materialization and the display of a work of conceptual art.
“In order to determine fair credits and compensations, when drafting a contract, the creative input of a set designer or even a museum curator should be considered more carefully beforehand,” said de Lassus Saint. – Genies.
De Lassus Saint-Geniès said she believes this new judgment upholds the French precedent set in two previous cases, both of which laid the groundwork for a better understanding of concept art: Jakob Gautel against Bettina Reimswhere the installation of a work with golden letters allowed Gautel to win against Reims, and the Alberto Sorbelli case, which submitted a representation to copyright.
Sur, Perrotin’s legal adviser, said he expected this new decision to be taught in French law schools in the future: “In the first year of law school, you are introduced to the Poussin cases and Renoir. [related to attribution and co-authorship issues]. Now there is the Perrotin judgment.
And Druet could still file a complaint directly against Cattelan. “In the event of a rematch, the real question would be whether the disputed sculptures are considered collaborative works. Would Druet be able to prove that his artistic contribution goes beyond the pure and simple execution of the nine effigies? said Lassus Saint-Geniès.
Sur added, “There’s precedent now, so I’m pretty confident Mr. Druet still wouldn’t win.”
Druet will now have (after notification by bailiff) one month to decide whether to appeal the judgment to France’s highest court, or accept the judgment and pay the plaintiffs’ legal costs: $10,125 to Perrotin and Turenne Éditions and $10,125 at the Paris Mint.