EUROPE, MIDDLE EAST AND AFRICA: GERMANY
"NO JOSEPH BEUYS PHOTOGRAPHS AT THE MUSEUM MOYLAND": ARTIST MAY PROHIBIT PUBLICATION OF PHOTOGRAPHS OF AN ART PERFORMANCE
(Decision of Higher Regional Court Düsseldorf, Judgment of 30 December 2011, Case: I-20 U 171/10)
Author: Dominik Eickemeier, Heuking Kühn Lüer Wojtek
In a judgment already attracting a lot of attention in the press, the Higher Regional Court Düsseldorf held that photographs of a dynamic 1964 performance by Joseph Beuys, broadcast on television (in the German TV show "Drehscheibe") at the time, may not be exhibited in a museum without the artist's consent. This applies even if the photographer was authorized to take the photographs and the museum acquired the photographs from the photographer.
The Higher Regional Court Düsseldorf initially gives grounds in great detail that Joseph Beuys' 1964 performance entitled "The Silence of Marcel Duchamp is overrated" is a work within the meaning of German copyright law. The Federal Court of Justice had previously ruled that a permanent embodiment of a work was not necessary and it moreover confirmed that an assignment to the categories of works provided in German copyright law was not required, either (Federal Court of Justice, GRUR 1987, 529 "Happening").
Joseph Beuys' performance piece essentially consisted of shaping a fat corner from margarine in a board partition and to work with other materials (felt cloth, bells, chocolate, walking cane), such as writing the event title on a board with paint and chocolate and to extend the walking cane with margarine. The event represented a critical examination of the art term coined at the time by Marcel Duchamp.
In confirming the artwork's quality as work, the Higher Regional Court was guided by the limitation in time and space and the course of the performance that followed an exactly defined concept.
The Higher Regional Court considered the photographs taken by renowned art photographer Tischer with the express permission of Joseph Beuys transformations of Joseph Beuys' original work, whose publication or exploitation would have required the consent of the author or his heirs. The series of photographs was thus not only deemed a reproduction of Beuys' work since it set priorities and solely on the basis of the change in media led to a shortening of the work (assuming a mere reproduction, the museum would have been allowed to display the series of photographs, as Beuys had agreed to reproduction through photography at the time).
The exhibiting museum could not claim, either, that the series of photographs was a free adaptation, meaning an independent work, which was created in free exploitation of the original work (then the exhibition of the photographs could not have been prevented, either). Since the photographer aimed at a documentary representation of the event, the art performance does not retreat behind the photographs in a manner that the Beuys work of art could be viewed only as inspiration for a new, independent work.
The publication and exploitation of a non-free adaptation requires, however, a (renewed) consent by the artist Beuys or by his heirs, which was not given. In the fact that the photographer had taken photographs with the consent of Joseph Beuys in 1964, the Higher Regional Court did not view an authorization to the effect of permitting to exhibit the series of photographs at a later time. In the opinion of the court, there existed a right to prohibit the publication even though Beuys' original work had already been published by the television broadcast in 1964. An opinion that is gaining traction protects the author in this case as well. He should be able to prevent non-free (dependent) adaptations of his works to enter the public sphere without his consent.
The decision, which will probably also come before the Federal Court of Justice (the appeal was approved) clearly shows once again that in matters of copyright it needs to be considered very precisely, which rights are given in which works. Undoubtedly, the museum had rightly acquired the photographs from photographer Manfred Tischer. All rights due to the photographer could therefore be exercised by the museum. This trial was not a matter, either, of whether the photographer had shown individual items capable of copyright protection to which the artist Joseph Beuys would still have rights, which would have continued in the photographs. Rather, the court viewed in the series of photographs a transformation of the entire work of Joseph Beuys' art performance, with respect to which Joseph Beuys and his heirs still have rights. The decision seems logical even if regrettable for the public, which will be unable to admire this series of photographs for now.