Druet v Cattelan: a missed opportunity to capitalise on the legal framework for collaborative art works

Druet v Cattelan

It’s the story of a baffling legal case, where neither of the parties come out on top, having lost either reputation, or money, or both, in the process. Daniel Druet lost an occasion to make a splash in the art world, because his statement of claims was extremely poorly drafted and badly structured. Emmanuel Perrotin and Maurizio Cattelan came out as a bunch of amateurs, no more than unsophisticated stakeholders of the contemporary art business, from this legal saga. Here is how this case could have boosted the ego and pockets of Mr Druet, and adorned the respective blasons of Mr Perrotin and Mr Cattelan.

1. Facts

Daniel Druet, a French sculptor of wax sculptures, in particular for the ‟musée Grévin” (i.e. the Paris equivalent to the Madame Tussauds‘ wax museum in London), was contacted by Emmanuel Perrotin, a Paris-based art dealer, specialising in selling contemporary art, in 1999. According to Mr Druet, it was at the request of Maurizio Cattelan, an Italian artist with a reputation as a provocateur and ‟outside-the-box thinker”, that Mr Perrotin (Mr Cattelan’s galerist) reached out, in order for Mr Druet to execute several wax sculptures between 1999 and 2006, as follows:

  • Him”, 2001;
  • Now”, 2004.

By letters from the early noughties, addressed to Mr Perrotin and his art gallery company, D. Druet requested that ‟all distribution of (his) art works mention (his) name as the sculptor and director of the wax sculptures (in the same way that the name of the photographer, author of the distributed pictures, is set out)” (sic). He received no reply from Mr Perrotin.

Then, between October 2016 and January 2017, the Paris museum ‟La Monnaie de Paris” hosted an exhibition entitled ‟Cattelan, not afraid of love”, which featured four of the above-mentioned artworks (i.e. ‟La Nona Ora”, ‟La Rivoluzione Siamo Noi”, ‟Him” and ‟The young Cattelan of Rotterdam”) (together, the ‟Litigious artworks”) – again, without any reference to Daniel Druet, notwithstanding his above-mentioned requests.

Arguing that his quality as ‟exclusive author”, according to him, of the Litigious artworks, was yet again unrecognised, Mr Druet filed some summons against Mr Perrotin and his art gallery, Mr Perrotin’s publishing business, Turenne Editions SARL, and ‟La Monnaie de Paris”, with the Paris ‟tribunal de grande instance” (since renamed ‟tribunal judiciaire”) for copyright infringement and counterfeiting.

By acts executed by a bailiff, in December 2018, ‟La Monnaie de Paris” filed some summons against Maurizio Cattelan and his Italian company Magis S.r.l., in forced intervention (‟intervention forcée”) and guarantee, pursuant to the terms of the partnership, loan and copyright assignment agreement, entered into between them, in relation to the Litigious artworks.

2. Procedure

The two above-mentioned legal proceedings (i.e. for copyright counterfeiting and for forced intervention and guarantee) were joined in January 2019.

By judgment dated 28 February 2022, the Paris tribunal rejected the request of inadmissibility for lack of quality to defend, raised by Emmanuel Perrotin and his gallery, as well as Turenne Editions SARL.

On 8 July 2022, after a hearing held on 13 May 2022, the Paris ‟tribunal judiciaire” handed down its judgment (the ‟Judgment”) setting out that:

  • Daniel Druet had not reversed the lawful presumption of authorship, granted to Maurizio Cattelan, by the provisions set out in article L. 113-1 of the French intellectual property code (‟IPC”), pursuant to which Mr Cattelan was deemed to be the sole author of the Litigious artworks since such artworks had been divulged in the public domain exclusively under the name of Maurizio Cattelan;
  • while Daniel Druet made the wax sculptures, the Litigious artworks were much more than these mere wax sculptures, and that it was Maurizio Cattelan who made all decisions, and gave all directives, relating to the scenography, positioning in space, lighting, destruction of various pieces of furniture on which the those wax sculptures were placed, for each one of the Litigious artworks;
  • Daniel Druet did not file any summons against Maurizio Cattelan, therefore he could not argue, in such legal proceedings, about some rights aiming at evicting Maurizio Cattelan from the benefit of the presumption of ownership, without Mr Cattelan being part of these proceedings;
  • Maurizio Cattelan was not a principal defendant to the joint proceedings, but was only brought in as a guarantor and ‟forced intervening party‟ for ‟La Monnaie de Paris”, therefore no legal nexus was created, by such ‟forced intervention” between Mr Druet and Mr Cattelan;
  • Consequently, and since Mr Druet did not file any summons against Mr Cattelan – the presumed author of the Litigious artworks – against who he argued the ownership of the rights on the Litigious artworks, Daniel Druet must be declared inadmissible in all his claims for copyright counterfeiting, and
  • the warranty claim raised by ‟La Monnaie de Paris” against Maurizio Cattelan and his company Magis S.r.l., without any cause, would not be reviewed.

In its Judgment, the tribunal sentenced Daniel Druet to support his own expenses and legal costs, of course, but also to pay 10,000 Euros to Emmanuel Perrotin, his art gallery and Turenne Editions SARL, as well as another 10,000 Euros to ‟La Monnaie de Paris”, pursuant to article 700 of the French civil procedural code (‟CPC”). Mr Druet also had to pay full costs (‟entiers dépens”) to the law firm of Mr Perrotin, his art gallery and Turenne Editions SARL, pursuant to article 699 CPC.

3. Mr Druet needs to reverse the authorship presumption, first and foremost

While reading the Judgment, and the legal arguments developed by the claimant, I was baffled by the lack of legal sophistication of Daniel Druet and his legal ‟counsel”, Jean-Baptiste Bourgeois.

Firstly, Mr Druet alleged, in his statement of claims, that he was the ‟exclusive author” (sic) of the Litigious artworks, as if these Litigious artworks were solely constituted by the wax sculptures made by him under the directives of Mr Cattelan.

In this day and age, a large portion of contemporary art is made up by conceptual art (i.e. a branch of modern art, and contemporary art, which is defined not by the aesthetic properties of the art works, but solely by the concept or idea of art, with the ready-made created by Marcel Duchamp being the epitome of conceptual art).

Maurizio Cattelan is recognised as a master of conceptual art, whose artworks are mostly valued for the message, and/or emotions, that they convey and/or trigger, in the viewer, rather than the aesthetic characteristics of such works. Most telling, is the controversy and mixed emotions created by one of the Litigious artworks, ‟Him”, when it was exhibited in Warsaw’s Jewish ghetto, while it represents the small version of the anti semitic dictator who attempted to erase the Jewish race from planet Earth, before and during World War II, Adolf Hitler (with many of the killings taking place in Warsaw’s ghetto, at the time).

Mischievous Maurizio Cattelan conveys a message, triggers violent emotions, via his artworks – a lot of which are not made up of wax sculptures, such as ‟Trotski’s ballad” (1996) and ‟Naturalised male Ostrich” (1997), which are based on taxidermied animals (a horse, for the former, and an ostrich, for the latter), or ‟L.O.V.E.” (2011), a 11-metre white marble sculpture middle finger sticking straight up from an otherwise fingerless hand, pointing away from Borsa Italiana in Milan.

Therefore, Mr Druet’s claims that he may be the sole and exclusive author of the Litigious artworks are outrageous, denoting a complete lack of understanding (and desire to understand) conceptual art.

Secondly, Mr Druet and his counsel did not file any summons against Maurizio Cattelan directly: they filed only against his art dealer, this art dealer’s gallery business and art book publishing business. What a rookie’s mistake!

It is evident that, if one’s legal claims are that one is the author of an artwork in lieu and place of someone else, one must file some summons against that someone else who has a presumption of being the sole author of that artwork, in court.

This lack of summons against Maurizio Cattelan by Daniel Druet and his counsel did not deter them, though, from requesting, in their statement of claims, Maurizio Cattelan to:

  • pay Daniel Druet the sum of 100,000 Euros for damages, in alleged breach of the right to paternity of the Litigious artworks;
  • always associate the name of ‟Daniel Druet” with the Litigious artworks, under penalty of 5,000 Euros by infringement observed, and
  • set out on all media, of any nature, and in particular on the sites www.perrotin.com and www.store.perrotin.com and www.monnaiedeparis.com, the name and quality of author of Daniel Druet, upon the distribution and reproduction of the Litigious artworks, jointly with Emmanuel Perrotin, his art gallery, Editions Turennes SARL and ‟La Monnaie de Paris”.

This lack of basic understanding of the CPC rules is so gross, it is actually shameful that a Paris lawyer (the bar to which I also belong, in France), allegedly steeped in intellectual property, was even allowed to send such a statement of claims to the ‟tribunal judiciaire” and the co-defendants.

Of course, it was very easy for the co-defendants and their counsel to eat Daniel Druet and his ‟lawyer” alive, in their response to the statement of claims, especially since Mr Druet and his ‟counsel” disregarded a cornerstone principle of French copyright law enshrined in article L. 113-1 CPI: ‟The quality of author belongs, except in case of evidence to the contrary, to the person(s) under the name(s) of which the work is disclosed”.

If Mr Druet wants to have any chance to win this case, first he must demonstrate that the presumption that Mr Cattelan is the author of the Litigious artworks – since these works were disclosed solely under the name of Maurizio Cattelan as author – is incorrect.

THAT – requires skill and a thorough knowledge and understanding of copyright law. Mr Druet could argue – and prove – that Maurizio Cattelan never gave him any directives and instructions – to create the wax sculptures used in the Litigious artworks. He could even say – and prove – that he never had any dealings and contact with Maurizio Cattelan, all communications going through Emmanuel Perrotin and his art gallery – which would further show that there was no subordination link (and therefore no employer-employee relationship, or even principal-contractor relationship) between Mr Druet and Mr Cattelan.

Daniel Druet could also argue that he is the sole author of the wax sculptures which, along with other creative elements provided, and decisions made, by Mr Cattelan – such as the scenography, the lighting, the destruction of pieces of furniture on which the wax sculptures are placed – would constitute the Litigious artworks.

4. Mr Druet should bank on being a co-author in a collaborative work, as opposed to claiming that he is the exclusive author

I was also baffled to read, in the Judgment, that Mr Druet and his ‟counsel” never thought it necessary to clarify that the Litigious artworks were collaborative works, i.e. works, which creations were made jointly by several natural persons (pursuant to article L. 113-2 CPI).

This (more realistic) assertion would have automatically granted Mr Druet the status of co-author of the Litigious artworks, and allowed him to claim a share in the royalties earned on the exploitation of the copyright by Mr Cattelan and his gallerist Mr Perrotin (in particular, on the reproduction right used to publish the catalogue of the exhibition at ‟La Monnaie de Paris”, some postcards and all other merchandises featuring the Litigious artworks).

While Mr Druet and his ‟counsel” made a show, in their statement of claims, of requiring the co-defendants to ‟provide all documents and informations that they held, allowing to value the economic prejudice of Mr Druet, i.e. the number of visits to the pages on the internet site www.perrotin.com in the last five years, the number of visits to the pages of the internet site www.perrotin.com specifically dedicated to Mr Cattelan during the last five years, the commissions received by Mr Perrotin and his gallery during the last five years, in lending and selling works created by Mr Druet and attributed to Mr Cattelan, the turnover made by Mr Perrotin, his gallery and his publishing business Turennes Editions SARL on the sale of books and art works in relation to Mr Cattelan from the store www.perrotin.com during the last five years”, they actually never demonstrated, and gave any evidence that Mr Druet was a co-author, let alone the exclusive author, of the Litigious artworks in the first instance!

No wonder that the judges were tough on Mr Druet, sentencing him to pay 10,000 Euros to each co-defendant (except Mr Cattelan and his company Magis S.r.l. who did not ask for such compensation under article 700 CPC).

This will teach Mr Druet and his ‟counsel” a hard lesson, because issuing such statement of claims which is so clearly devoid of any sound legal reasoning and argument, and completely lacks any evidence relating to any of these unsound legal points, is just a waste of everybody’s time, money, energy, and yet another way to suffocate the court docket of the Paris’ ‟tribunal judiciaire” which is still trailing a backlog of pre-covid cases to adjudicate, in its mist. I doubt that Mr Druet will appeal and/or use the services of the same ‟lawyer” should he decide to pursue his claims of copyright infringement against Mr Cattelan.

However, the lesson for the co-defendants, and artists such as Mr Cattelan in particular, is that they need to put in place CONTRACTS with their contractors, before instructing them to do any work, which explicitly, clearly and transparently set out who owns the copyright of any artwork – or part of the artwork – created by the freelancer. In this sorry state of affair, Mr Perrotin, his gallery and Mr Cattelan have come across as a bunch of total amateurs, who dabble in the art business like mischievous schoolboys, through and through. That tarnished their reputation. This comes back to the message I have conveyed, time and again, with respect to the art sector, first in relation to art auctions and the ongoing issue of mismatch in pre-sale descriptions, and second about the use or arbitration to improve the security of art sales and transaction: contracts must be systematically drawn, in a clear, transparent and straightforward manner, and signed by all parties, before and concomitantly to any art transaction taking place.

Crefovi’s live webinar: Druet v Cattelan legal saga – 28 October 2022

 

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