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How copyright works in cases of intellectual production and what to consider when buying a work of art
The authorship of works of art is a theme that opens up a wide range of subjects, curiosities and discussions. Be it the intentionality of the work, the context of its creation, its insertion among the other works of its creator or even the legal implications of considering authorship. It is to deal with this last point that the Copyright. These rights can be attributed to singers, authors, writers, directors, visual artists, painters, photographers, etc. In the case of visual arts, the history of fake works is not new, but the increase in the circulation of images on the Internet and the advancement of copying and reproduction techniques have made the issue even more sensitive. How to know if a work is fake or if the person claiming to be its author is really responsible for it? What is the impact of the forgery of works? What is the importance of knowing whether a work is fake or not? And, first of all, what exactly is copyright?
COPYRIGHT
Copyright law arises precisely to prove the originality of a work and to formalize its true author, responsible for the creation and owner of the patrimonial rights. A work does not need to be registered to have its rights protected, but registration serves as the beginning of proof of authorship. The person who “owns” a work and has these rights over his creation must be compensated for any reproduction, dissemination and exploitation of his art. In this way, Copyright Law seeks to encourage artists to continue creating – in a creation > protection > incentive cycle for new creations.
Still on the nature of copyright, it is possible to divide them into morals – of a non-transferable character –, which guarantee the authorship of creation to author; e patrimonial – subject to transfer or concession at the discretion of the author –, which deals with the representation or use of creations. The most important thing to note is that the author relies exclusively on his creation and can use it any way he prefers.
It is worth pointing out that the conception of a creator’s right over his work is not a recent historical fact. Since ancient Greece it is possible to observe the idea of intellectual property. In modern times, international instruments were also created to protect these rights, such as the Berne Convention for the Protection of Literary and Artistic Works, of 1886, to which Brazil has been a signatory since 1922.
At the national level, authorship rights were treated precariously for the first time by a law of the Empire that instituted the first legal courses in the country – guaranteeing a 10-year privilege on the textual works produced by its professors.
It was only in 1830, with the Criminal Code, that the first penalties and sanctions were imposed on anyone who injured and/or disrespected authorship rights. It was only in the Criminal Code of 1890 that punishment was established for the forgery of artistic property – the crime of counterfeiting – which was also included in the Constitution of 1891.
The current conception of copyright was introduced in the Medeiros e Albuquerque Law of 1898, the first law to deal directly with the subject and which had devices still present in our legislation. Since then, the laws on this right have also been adapted according to the evolution of reproduction technologies and the conception of the character of authorship, with the last revision made by the Brazilian Copyright Law of 1998. Even so, it is already possible to consider that Brazilian legislation on the subject is outdated. Criminality with cultural property is complex and multifaceted, in addition to evolving much faster than legal developments, which represents a challenge for verifying the veracity and for the application of punishments.
THE ART MARKET AND FAKES
And why is this a relevant agenda? With the growth of the art market, the number of scams and forgeries by individuals seeking to profit from the work of others also grew. Counterfeiting activity can take the form of a false signature, an illegal reproduction sold as the original, and many other forms. In the case of Brazil, approximately US$200 million in works of art were traded within the legal art market in 2021. A market of considerable relevance that, in a country that still has fragile laws regarding copyright, calls the attention of forgers and art criminals. A factor driven not only by financial movements, but also by the increased relevance of national artists within the international art circuit.
Still on the Brazilian market, it was noted that, compared to other countries, one of the most common ways of acquiring works of art is through auctions. Auctions, especially those held online, end up being a fertile ground for the transfer of forged works, as the guarantee of veracity becomes even more difficult at the time of purchase.
In this way, fake works of art end up circulating the country’s art market and, thus, forged works can be inserted in prominent places – without those involved having full knowledge of the origin of such pieces. “The fact is that the best art forgeries in Brazil are today on the walls of wealthy Brazilian families, who do not know and even suspect that they are fake”, says lawyer Raimundo Tarakevicius Salles. The importance of identifying these works and mitigating this type of crime goes beyond repairing any victims, as the discovery of forgery can lead to the discovery of other crimes, such as criminal organization and even money laundering.
It should be noted that copying a work is not in itself a crime. The reproduction of a piece, for study purposes, for example, is perfectly legal and legitimate. The problem occurs when this reproduction is used and marketed as if it were the original work.
NOTORY CASES
Brazil also has famous cases of forged works. Among them, the case of Abílio Diniz and Geyze Marchesi Diniz concluded this year. The Grupo Pão de Açúcar businessman and the economist had purchased from the Pintura Brasileira art gallery two paintings attributed to Alfredo Volpi, designated flags and Flags with pole.
The couple’s attention was drawn to the origin of the works sold by dealer Marcelo Barbosa after a visit by the director-president of the Museu de Arte de São Paulo (MASP), Heitor Martins, to their residence for a dinner. The couple’s lawsuit against the gallery began in 2017. Pintura Brasileira, based in São Paulo, was ordered to pay R$238,000 to the couple – referring to the amount for which the works were sold plus R$100,000 for moral damages.
Another known case is “Picasso do INSS”, from 2004. An engraving rescued from the basements of the National Institute of Social Security (INSS) after a fire was proven to be a forgery. At the time, newspapers had in their headlines the “rescue” of the work of the famous artist. The piece was very possibly given to the Institute as payment for a social security debt, but the identities of its creator, who received the work and who had attested to its authenticity were never revealed. In addition, it is not known how much the work was valued at the time of its receipt.
In the mid-1990s, there was also the case of the discovery of “manufactured” works by Portinari in the Vidigal favela, in Rio de Janeiro, – as well as works attributed to Picasso, Chagall and Miró. The pieces were found for sale in a gallery in Ipanema. Also in Rio de Janeiro, a mall in Copacabana gained the reputation of being a large, if not the largest, warehouse for fake works in the country, in the 1970s.
EXPERT
Art experts are responsible for the investigations dedicated to the origin of the analyzed pieces and they are the ones who try to determine their authenticity. They also work as a team with historians, conservators, archaeologists, museologists, restorers, professors and dozens of professionals who form interdisciplinary teams.
The expert’s work is complex and involves a series of resources. Recognizing a fake work – or verifying it as authentic – can be a complicated process. A series of exams is necessary – such as merceology of the work, graphoscopy of the artist’s signature, analysis of formal and stylistic aspects of the piece, among other analyses. In a world where it is estimated that 30 to 40% of works of art are fake or misattributed, this task is even more complex.
Expertise is, then, the set of techniques and skills that allow defining whether a work of art is authentic or not. It also aims to determine the general state of conservation and its market value. The set of results allows the expert to identify and recognize the facts that are related to the artist’s production to then give his opinion.
Conventionally, it is possible to group the analyzed works into some categories. A work authentic is the one about which there is no doubt about its authorship. A work assigned it has many elements that indicate the possibility of authorship, but there are not enough resources to confirm it. already the copy it is a reproduction that imitates the material and technique of an original work of art – an act that does not necessarily intend to deceive. A imitation this is the case where an original work is imitated, trying to copy it, but the result is not close enough – works that are made with inspiration from the original work fall into this group. A replica it is a copy of an original work that is equal in measurements, techniques and characteristics. O plagiarism your falsification are copies made with the intent to deceive. And the false works are those that try to simulate a false identity, pretending to be a work by a famous artist, but in reality made by someone else (new work) – usually pieces that have fake signatures join this group.
How, then, is it possible to be sure that you are acquiring a legitimate work? One of the best indicators is the reputation and fairness of the source from which the work is acquired. Whether done in person or online, the seller or auctioneer is responsible for the item being negotiated. It is worth mentioning that some specialists indicate that whoever sells or passes on a work knowing that it is not legitimate should be treated as complicity in the crime. Therefore, research on the profile of the person, platform or gallery carrying out the transaction is essential. Whenever possible, it is also recommended to evaluate the work personally and ask for the opinion of professionals in the art market, such as gallery owners, art advisors and curators, for example. The certification with the artist’s signature or registration made by the artist who created the work are the best indications to check the legitimacy of a work. And, in case of any suspicion, it is possible that only an expert can determine this judgment.
Matheus Paiva is a cultural producer and internationalist, graduated from the University of São Paulo.
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