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Gift or loan: Vincent Van Gogh and Francis Bacon.

Case Note on the Appeal Decision handed down by the Court of Appeal of Aix-en-Provence on 22nd April 2010 in the case of Clarke, Hunt, Cook and Newsquare v. The Association for the Creation of the Vincent Van Gogh Foundation--Arles, on appeal from a decision by the First Instance Court of Tarascon rendered on 21st November 2008. The decision, as well as all the evidence, was recorded in French: the case note is thus compiled entirely through translation. Certain legal terms unique to French law are translated with the original French terms following in parentheses.

I. FACTUAL BACKGROUND

This case involved a dispute over a 1985 painting by the British artist, Francis Bacon ('Bacon'), inspired and in honour of an earlier painting by Vincent Van Gogh, Le peintre sur la route de Tarascon, a work that was sadly lost during the Second World War. The work by Bacon, Homage to Van Gogh, study after Van Gogh for the 1988 Van Gogh exhibition in Arles, 1985 (the 'work'), had been painted following a request by the Association for the Creation of the Vincent Van Gogh Foundation--Arles (the 'Association').

The Association sought to establish a foundation to honour the painter Vincent Van Gogh, who spent over a year in the Provencal town of Aries between 1888 and 1889, a period which concluded famously with his admission to the H6tel-Dieu for reasons of mental instability. The Association, founded in 1983, undertook to celebrate Van Gogh by requesting a number of artists to create works in his honour. The list of co-operating artists is lengthy and includes a veritable who's who of late-twentieth-century European painting, including Fernand Botero, Christo, Roy Lichtenstein, Robert Rauschenberg, all of whom created works for the Association in commemoration of the centenary, to be held in 1988, of Van Gogh's sojourn in Arles.

Of note in this case is the request made by Yolande Clergue, president of the Association, to Francis Bacon in 1984. Mrs Clergue invited Bacon to participate in the upcoming launch of the Foundation by making the poster for the exhibition, expected to take place in 1988. Bacon agreed and painted a work which was inspired by Van Gogh's Tarascon piece. A photograph of the piece was then used as the image for the exhibition poster.

II. THE ACTION

The trustees of the estate of John Edwards (who had inherited the entirety of Bacon's property upon the latter's death in 1992) started proceedings before the first instance court of Tarascon, near Aries. Edwards himself had died in 2003. The question at issue was whether the Association, for whom the poster had been created, also had title to the original painting, a work that had been in its possession, with only a brief hiatus, since the 1980s.

At first instance, the Association had defeated the action. The trustees' claim was dismissed in a decision delivered on 21st November 2008. The appeal was heard before the Court of Appeal of Aix en Provence in a hearing that began on 4th March 2010, and the decision overturning the first instance judgment was handed down on 22nd April 2010.

The Appeal Decision

i) Questions on Appeal

* Did the plaintiffs have sufficient interest to bring the claim?

* Did Francis Bacon intend to make the work a gift to the Association?

* Was the work effectively loaned to the Association?

* Were the Appellants Asserting a Right of Retreat or 'Repentir'?

* Did the Appellants Commit a 'Notorious Abuse' in Failing to Respect the Display Rights Associated with the Work?

* What was the 'destination' of the work?

* Was the work part of a larger collaborative work?

* Was the work part of a collective work?

ii) Issues on Appeal

Interest of the Plaintiffs

The question whether the plaintiffs, who were now the appellants, had sufficient interest to bring the claim was answered by the appeal court in the affirmative. The work had been created by the artist Francis Bacon. When he died in 1992, he bequeathed all his property to his friend John Edwards. The work at issue was listed in the inventory of Bacon's assets and was referred to as being 'on loan to Van Gogh Foundation, Arles'. Following the execution of Bacon's will, his assets were transferred to Mr Edwards.

When Mr Edwards died in 2003, his property was bequeathed to Brian Clarke and Jeremy Guy Hunt, who, as named executors, also created a trust under English law, pursuant to Mr Edwards's will. The plaintiffs, as trustees, therefore under English law, had the legal ownership of and title to the paintings of Francis Bacon that Mr Edwards had inherited.

The Court of Appeal also held that the interest of the trustees, pursuant to the English law of trusts, was not contrary to French public order, as had been alleged by the Association. While trusts are not legally recognised entities in French domestic law, the establishment of a trust in the United Kingdom is accepted by France as a signatory to the Hague Convention on the Recognition of Trusts. France also has regulations providing for jurisdiction in relation to proceedings brought by trustees, so rendering such proceedings part of French positive law. There is therefore nothing in the law of trusts that is contrary to French public order.

The Artist's Intention

Lastly on the question of the plaintiffs' judicial interest, the court considered the intention of the creator of the work itself. The Association had claimed that the work had been a gift, bestowed by Bacon on the Association, and therefore could not form part of the succession inherited by Mr Edwards.

After Mrs Clergue's letter of 28th August 1984, asking Bacon to participate in the centenary by creating the poster for the exhibition, Bacon responded that he would accept the invitation to make the poster, which, he claimed, would be a 'great honour and a great pleasure'. In early 1985, he sent the ektachrome for the poster, explaining that his inspiration was Van Gogh's painting Le peintre sur la route de Tarascon. In this and subsequent letters, Bacon refers only to the 'poster' and never to the painting itself. Nowhere, according to the court, did he state that the original work would be given to the Association.

Even testimonial evidence from a witness, photographer Pierre Richard, who knew Bacon and, in conversation, had heard the artist display an intention to leave the work to the Foundation in Arles, did not receive significant weight from the appeal court. It held that this indirect testimony as to what Bacon may have intended did not prove the man's definitive decision.

Nor could the work be considered a provision for the enjoyment of the work ('apport en jouissance'). No consideration was given in exchange for the work. The work, currently valued at over 10 million Euros, was never included in the Association's accounting records. The Association's constitution, in addition, specifies its purpose to establish a collection 'through loans' and not through any other legal exchange.

On this issue the appeal court is very clear: the work was neither a gift nor a promise of a gift from Bacon to the Association; nor was it an 'apport en jouissance' or promise of such.

The Work was Effectively a Loan

The Court of Appeal concluded categorically that the work by Francis Bacon had been, throughout the period of its possession, the subject of a loan to the Association. The copious exchange of letters between Mrs Clergue and Bacon between 1988 and the artist's death in 1992, demonstrated clearly that Mrs Clergue and the Association considered the work to be a loan from the artist, requesting its renewal at successive intervals. The correspondence repeatedly referred to the Association's possession of the work in terms of a 'loan'. The painter and, following his death, his representative Mrs Beston, made it clear that the loan would be renewed at each request for a specific period each time. Only after July 1996 was the loan renewed for an indefinite duration.

The Right to Take Back the Work

The Association alleged that the plaintiff trustees were attempting to exercise a right to take back the work ('droit de repentir ou de retrait'), a right established under article L.121-4 of France's Intellectual Property Code. The claim by the Association was that such a right exists only in favour of a living artist. With Bacon's death, the right expired. By characterising the action as one of 'repentir' or 'retrait', the Association was attempting to have the action dismissed on grounds that the fight had expired.

However, the court rejected this argument quite succinctly. It held that such a fight would exist under the Intellectual Property Code only if the work had been initially transferred from the artist's ownership through sale or gift. Since there had only been a loan of the work, there was no transfer of title and so the trustees' action could not be characterised as one of 'repentir' or of ' retrait'.

The Right of Display

Under French intellectual property law, there exists a right of display, forming part of the moral rights of the author of a work. In the case where an author is deceased, article L.121-3 of the Intellectual Property Code provides that any situation involving a notorious well known/clear abuse ('abus notoire') by the representatives of that author can be rectified by the court. Such an abuse would have to be through the use or non-use of the right of display.

The Association raised a defence based on the argument that the trustees, as representatives of the deceased Bacon, in their non-use of the right of display, were committing a notorious abuse. The hypothetical situation envisaged by the argument was that, were the painting to be returned to the appellants, as a result of sale or storage, the work would no longer be on display. The court would then be able to make an order to rectify the situation, such as refusing to allow the work to be handed over to the trustees.

Again, the appeal court made short shrift of this argument. No such notorious abuse could be committed by the trustees, since the work was not in their possession! As for the future, in accordance with Mr Edwards's will, the trustees would not be able to transfer the work to a purchaser until 80 years following the 2003 death of John Edwards. The trustees further contemplated that the work, having already been shown in Germany, would later be exhibited on their initiative at the Tate. This demonstrated an intention that clearly ran counter to any potential non-use of the display right. This defence was therefore ineffectual.

In response to this defence, an interesting governing law issue was raised by the appellant trustees. It is well known that extensive moral rights exist in favour of the author in civil law countries such as France, whereas common law jurisdictions tend to have a more restrictive view of such rights. Needless to say, the 'right of display' as formulated in the French Intellectual Property Code does not have an equivalent in English law.

The trustees therefore contested the application of French law on this issue since the work belonged to English owners domiciled in the United Kingdom. On this analysis, the defence raised by the Association would, according to the trustees, be inadmissible, since such a defence would not exist under English law. The court, however, decided that this argument did not constitute sufficient grounds to warrant a refusal to consider the defence. The protection offered to the work, under Articles 5 and 6 of the Berne Convention of 9th September 1886, would be in accordance with the rights available under the law of the place where the work was situated. French law was therefore applicable.

The 'Destination' of the Work

In French property law, the question of the specific 'destination' of property is important. This relates to where an object is intended to be, and for what purpose. While the Association raised the argument that Bacon had intended the work to remain in Aries and, more specifically, to serve as the basis for an as-yet-uncreated Foundation, it was clear from the evidence that Bacon, while alive, never manifested any such intention. While Bacon intended that the poster, based on the painting, should be used by the Association in Arles, there was no such intention for the painting. The painting, as the appeal court re-emphasised many times, had been loaned to the Association--nothing more.

A Collaborative Work

The Association then raised the interesting argument that the painting by Bacon was in fact part of a collaborative work, one that involved all the contributions that every artist had made to the centenary (Botero, Christo, et al.). Collaborative works are protected through article L. 113-2 of the Intellectual Property Code, on condition only that several natural persons partook in the creation of the work. Were this argument well-founded, the plaintiffs would be unable to bring their individual claim because the other contributors were not impleaded.

The court, however, stated very clearly that each specific work was in fact separate. The painting had also been exhibited outside Arles, in Germany, with no reference having been made to its being part of a larger collaborative work. The other artists, therefore, did not have to be joined in the proceedings.

The decision is rather conservative in its appreciation of the definition of what constitutes a collaborative work, although the evidence does not point towards any clear collaboration. Although each artist created a unique work on his or her own, there was also an understanding that it was to be done around a single inspiration--Van Gogh's time in Arles--as well as for the purposes of a particular event--the centenary--all to be held in Arles for the benefit of the future Van Gogh Foundation of Arles.

A Collective Work

A similar interpretation could also, perhaps, be argued on the question whether the painting was part of a collective work. This was the final subsidiary argument raised by the Association. A collective work, also pursuant to article L. 113-2 of the Intellectual Property Code, is created through the initiative of a natural or legal person, who edits, publishes and displays it under his or her direction and name, in which the personal contributions of the various authors are made to accomplish the broader purpose for which the overall composite work is conceived. In such a case it is not possible to attribute to each individual contributor a distinct fight in the whole creation.

On this ground, the Association's argument was also that the other artists involved in the collection should have been impleaded. In addition--and this was probably the most far-fetched of its claims--the Association argued that Mrs Clergue, on behalf of the Association, was the author of the collective work, and that her authorship thus debarred any claim by an individual contributor to the return of an individual contributory item. In essence, the Association argued that to remove the Bacon piece from the collection would violate the integrity of the entire collective work.

In dismissing this argument, the court once again stressed the individuality and separate nature of Bacon's work. Interestingly, the court relied on the fact that the painting had always been treated as a separate work by the Association, in its dealings with Bacon and, later, with his representatives--so here, as elsewhere, the Association was hoist by its own petard.

* Lawyer, Langlois Kronstrom Desjardins LLP, Montreal, Canada.
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Title Annotation:Association for the Creation of the Vincent Van Gogh Foundation; claim to the art work named 'Homage to Van Gogh'
Author:Herman, Alexander
Publication:Art Antiquity & Law
Article Type:Case overview
Geographic Code:4EUFR
Date:Dec 1, 2011
Words:2572
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