When visiting an exhibition or a museum, we often do not resist taking a selfie next to a work of art that we like or using it as a backdrop. Our desire to do so may be prompted by our appreciation of that particular artist or by our thirst to trigger the envy of our friends on social media (or, if you’re an influencer, by the will to show an ensemble is perfectly co-ordinated with a work of art you don't know anything about…). Yet, if you wanted to use that picture for commercial purposes (say for a book or a record cover), you would have to ask for the permission of the artist who made the work, their estate or the museum where the piece is preserved.
The fair use of artworks in commercial images is a theme that came up in the news this week when it was announced that, on Tuesday, the Joan Mitchell Foundation (JMF) sent a cease-and-desist letter to the Paris headquarters of Louis Vuitton asking to withdraw the French luxury brand's campaign showing three images of French actress Léa Seydoux with a Capucines handbag, posing in front of three works by the American abstract artist.
The paintings used include Mitchell's "La Grande Vallée XIV (For a Little While)" (1983), "Quatuor II for Betsy Jolas" (1976) and "Edrita Fried" (1981). The artworks, characterised by a bright and intense palette reflecting Mitchell's search for colour and light, appear in cropped images for the ads, but without credit to Mitchell or her foundation. The works were indeed used without authorization.
According to the Joan Mitchell Foundation, that promotes the study of the works of the late artist, last December Vuitton approached it to request permission to use works by the artist in an upcoming advertising campaign. The request was declined by JMF "in accordance with its longstanding policy that images of the artist's work be used only for educational purposes," as highlighted in the official statement on the foundation's site (JMF has a limited commercial use that regards the merchandise linked to an exhibition).
Louis Vuitton asked again for the permission in January - one request also came on behalf of Jean-Paul Claverie, an adviser to Bernard Arnault, chief executive of LVMH. The email highlighted the request came from Arnault and also offered a donation to the Joan Mitchell Foundation, but JMF declined again. Yet, while the Foundation never licensed the artist's works for use in commercial campaigns or for the promotion of other goods or services, Vuitton went ahead with the campaign that first appeared in the New York Times Sunday Style section on February 12, as well as online.
"It is a grave disappointment to JMF that Louis Vuitton has such disregard for the rights of an artist and would exploit her work for financial gain," JMF added in the official statement.
One interesting point in this story is that Joan Mitchell is currently the subject of an exhibition at the Fondation Louis Vuitton in Paris, an entity legally separate from Louis Vuitton Malletier, both owned by LVMH, the French multinational luxury conglomerate.
Entitled "Monet-Mitchell" (closing February 27), the event is a dialogue between Claude Monet and Joan Mitchell and the three paintings in question are part of this exhibition.
Aside from this event, the Fondation Louis Vuitton also organised a Joan Mitchell retrospective - in collaboration with the San Francisco Museum of Modern Art (SFMOMA) and the Baltimore Museum of Art (BAM) - to raise public awareness of Joan Mitchell's work.
In a way it looks as if Louis Vuitton Malletier had legitimate rights to use the artwork exhibited at its Fondation, since the group owning it had invested in an art exhibition.
So this counts as two violations, as LVMH-owned Louis Vuitton infringed the copyrights of the artist, while the Fondation Louis Vuitton violated its agreement with JMF as the images feature paintings from the exhibition and the photographs also appear to have been taken at the Fondation Louis Vuitton during the Mitchell exhibition.
There's another note that should be added: Louis Vuitton established itself as a patron of the arts through a series of collaborations and advertising campaigns, and often releases capsules with artists, creating unique accessories inspired by their works (think about Jeff Koons, Takashi Murakami or, more recently, Yayoi Kusama). In the adverts Seydoux poses with Capucines handbags, some of which sell for $10,500. As the paintings are prominently featured in the advert, consumers may think this was another collaboration, this time with JMF, something that mistaken consumers may deem inappropriate with the mission of the late artist's Foundation.
It is somehow astonishing and rather irritating that a fashion company that has its own department for pursuing intellectual property disputes and a dedicated page entitled "Brand Protection" in which it highlights it has a zero tolerance policy to counterfeiting, protects creativity ("preserving the creativity and the rights of designers, artists, and brands is vital to their long-term survival," the site states) and claims that in 2017 only it "initiated more than 38,000 anti-counterfeiting procedures worldwide", behaves in this way towards an artist. It looks indeed as if the protection of copyrights only applies to its brand and not to other people's works.
"If Louis Vuitton does not promptly halt this campaign and cease the illegal use of Mitchell's artworks, JMF will promptly take further legal action to address this matter," the Joan Mitchell Foundation concludes on its website (in case, it will send a separate cease-and-desist letter to the Fondation Louis Vuitton for breaching its agreement regarding the display of the paintings).
But if the case goes to court, JMF will have an easy win as there are many precedents that rewarded artists: in 2018 artist Anish Kapoor filed a copyright infringement lawsuit against the National Rifle Association (NRA) for using an image of his Cloud Gate work in Chicago's Millennium Park in an advert. Kapoor eventually reached an out-of-court settlement and also obtained that the unauthorized image of his work was removed from the video. Louis Vuitton, the Fondation Louis Vuitton and LVMH may have all the money in the world to hire the best lawyers, but, in this case, complying with JMF's requests and looking for an agreement, would be the only sensible way out of this situation.
Image credits for this post
1. Joan Mitchell, La Grande Vallée XIV (For a Little While), 1983 © Estate of Joan Mitchell.
4. Joan Mitchell, Edrita Fried, 1981 © Estate of Joan Mitchell.
5. Joan Mitchell, Quatuor II for Betsy Jolas, 1976 © Estate of Joan Mitchell.
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