The Curious Case of the Peters Doig(e)

Periodically we share outstanding “IP News” essays written by undergraduate students for the Intellectual Property course (BUS 502). Below you will find the first, written by Laura Alford


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The Curious Case of the Peters Doig(e)

A recent case involving a prison guard from rural Ontario, LSD, and the letter “e” has captured the attention of many shocked that a living artist could be sued five million dollars for claiming that he did not paint something. And though Fletcher v. Doig[1] was finally settled through factual investigation, behind the case lies a question about a creator’s moral rights: what is their connection to the pecuniary value of the work, and does a creator have the right to abandon them?

Robert Fletcher was a prison guard at the Thunder Bay Correctional Center. In 1976, he bought a painting that an inmate convicted of LSD possession had produced in the prison’s art classes. He paid $100 for a desert landscape signed “Pete Doige.”

Years later, a friend noticing the signature suggested that he might be in possession of an early work of one of the most famous living artists. Fletcher investigated Peter Doig’s career and learned that he had been a “roustabout” in the 1970s and had openly acknowledged the influence of LSD on his art.[2] Fletcher watched YouTube videos of Doig and became convinced that he possessed an extremely valuable work. [3]

Indeed, Doig’s career was soaring. In 2015 an early work, Swamped, would sell at auction for $25 million.[4] In anticipation of an exorbitant return, Fletcher contacted Doig to notify him of the impending sale. Doig’s agent replied by email: “The painting is NOT by Peter Doig. Anyone can see that. We are not interested in any further communication related to this.”[5]

But Fletcher persisted, contacting a Chicago auction house to arrange the sale. Doig’s agent also contacted the house to prevent the sale of a misattributed work.[6] Litigation ensued.

Fletcher v. Doig:

In Fletcher v. Doig, Robert Fletcher sued Peter Doig for tortious interference with prospective economic advantage.[7] He also sought a declaratory judgement that Peter Doig was the author of the work.[8] Action commenced in 2013 and was resolved in 2016 when the identity of the artist was determined. However, an intellectual property question would have fallen before the court had the work been declared Peter Doig’s. Does an artist have the right to abandon their right to paternity? And if so, are they liable for the economic consequences to the owner of the work?

Moral rights exist alongside the property rights in a work.[9] According to the Canadian Supreme Court, moral rights treat an artist’s work “as an extension of his or her personality, possessing a dignity which is deserving of protection.”[10] While property rights are objects of commerce which terminate after a period fixed by law, moral rights are attached to the creator and may persist – depending on the jurisdiction – beyond the copyright’s term.[11]

Among moral rights, the right to paternity is the right of a creator to be associated with his/her work in the manner that s/he chooses, or to remain anonymous.[12] Pierre Masse described the right of paternity accordingly: “Le poète, le peintre, versent dans leurs oeuvres ce qui est en eux de meilleur: ils s’identifient avec elles au point que chacune apparaît comme un instant de leur existence… En donnant le jour à une oeuvre à laquelle son nom rester éternellement attaché, l’auteur prolonge en quelque sorte sa personnalité.”[13] This quotation has particular resonance for the Doig case, as it ultimately turned on a precise instant of the artist’s existence. Masse also captures the connection but separateness of moral and personality rights.

In the civil law tradition, moral rights have been understood as extrapatrimonial, but their purity in this respect is challenged by the appetite of the market. While the French Code de propriété intellectuelle lists the right to paternity as perpetual, inalienable, and imprescriptible,[14] in Canada and the United States, the right to paternity may be waived.[15] The waiver of moral rights secures the exploitation of the work for the holder of property rights.

In the absence of a waiver, there are several ways that moral rights can interfere with the property holder’s full exploitation of the work. Once again, the tension between moral and property rights is enabled to different extents in different jurisdictions. French legislation goes furthest in according the creator the droit de repentir and droit de retrait.[16] Codified in article L121-4, these rights permit the author – according to his/her scruples – to retract a work from the market on the penalty of first compensating the party to whom property rights have been ceded. These two rights express the force of moral rights in the French tradition: here they enable the artist to break even the binding force of contract. Also, the requirement of compensation maintains the distinction between moral and economic rights while recognizing their connection. The droit de retrait and droit de repentir have been embraced neither by the Berne Convention, or North American copyright laws. Notably, Canada’s Copyright Act protects the right of association, that is, the artists’ right to prevent this use of a work in association with a particular cause, product, service, or institution. [17]

Conclusion

Fletcher v. Doig might have been a great intellectual property case had the facts proven the painting Doig’s. We could imagine it being an even greater case had it been tried in Canada, or France. There is no evidence that the 1976 artist waived his moral rights, and there is little to nothing in many countries’ legislation to support the right to disavow a work. If a disavowal of a moral right could have enormous pecuniary consequences for property right holder, here is a case that illustrates the relativity of patrimonial and extrapatrimonial rights.

Fletcher put before the court a price on the name of an artist. Since the right of an artist to disavow a work is a silent point in our legislation, this case raises a compelling question about the nature of moral rights.


[1] As the decision has not yet been published, reference is made to the court memos and news reports.

[2] Fletcher v Doig (30 September 2014), Chicago, Ill Dist Ct, 13 C 3270 (memorandum opinion and order) at p 4 [Doig 2014].

[3] Those interested in the conspiracy theory developed by Fletcher may consult his YouTube account: Peter Bartlow, “What the Signature Reveals” (2 July 2016), online: <https://www.youtube.com/watch?v=5fGnRUQ0GM&index=3&list=PL3OUgFd7UI0u8iki0PrI2MmzpjAcakDWj >.

[4] Lorenzo Pereira, “The Costliest Peter Doig Work Sold at Auction”, Widewalls, online: <http://www.widewalls.ch/peter-doig-artwork/swamped/>.

[5] Doig 2014, supra note 2 at 4–5.

[6] Ibid at 7.

[7] Fletcher v Doig (21 July 2016), Chicago, Ill Dist Ct, 13 C 3270 (memorandum opinion and order) at p 1.

[8] Ibid.

[9] The theory of moral rights is most developed in civilian jurisdictions but its influence is widespread: reference in this paper is made to the Canadian Copyright Act, the Berne Convention, and France’s Code de la propriété intellectuelle. The particular legislation applied in the Doig case is the United States’ Visual Artists Rights Act.

[10] Theberge v Galerie d’Art du Petit Champlain Inc, 2002 SCC 34 at para 11, [2002] SCR 336.

[11] In Canada, moral rights persist for the same term as the copyright (see Canadian Copyright Act, RSC 1985, C-42 at 14.2(1) [CCA]); in the United States, for the life of the author (see Visual Artists Rights Act, 17 USC § 106A(d)(1) [VARA]); under the Berne Convention, moral rights persist as long as the economic rights but may be shortened in particular jurisdictions (Berne Convention for the Protection of Literary and Artistic Works, 28 September 1979, art 6bis(2) [Berne Convention]); in France moral rights are considered perpetual (Code de la propriété intellectuelle, JO, 01 July 1992, L121-1 [CPI]).

[12] See CCA, supra note 10 at 14.1(1); VARA, supra note 10 at § 106A(a)1 [VARA]; Berne Convention, supra note 10, art 6bis.

[13] Pierre Masse, Le droit moral de l’auteur (Paris: Rousseau, 1906) at p 29.

[14] Code de la propriété intellectuelle, JO, 01 July 1992, L-121-1.

[15] See CCA, supra note 10 at 14.1(2); VARA, supra note 10 at 106A(e)1–2.

[16] See CPI, supra note 10, L121-4.

[17] Notably, Canada does protect the right of association: See CCA, supra note 10 at 28.2(1)(b) (the “right to the integrity of a work… is infringed only if the work … is, to the prejudice of its author’s or performer’s honour or reputation… (b) used in association with a product, service, cause or institution”).

This content has been updated on December 1, 2016 at 13:31.

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