Artists have long worked with assistants, who often go uncredited, to make their works. Since the ’60s, with the advent of Minimal and Conceptual art, contemporary artists have pushed this even further, contracting fabricators to create works to their technical specifications.
The art world has long recognized that the sole author of the work to be the mastermind behind its conceptual and intellectual underpinnings. A recent French lawsuit involving Maurizio Cattelan works has effectively supported this line of thinking—and set a legal precedent in France.
Earlier this month in Paris, a panel of three judges ruled against sculptor Daniel Druet who sued in order to be recognized as the only maker of nine hyper-realistic wax effigies by Cattelan, including La Nona Ora (1999), depicting Pope John Paul II struck down by a meteor, and Him (2000), showing Adolf Hitler as a kneeling child.
Cattelan wasn’t initially named as a defendant in the suit by Druet, who filed against Cattelan’s gallery, Perrotin; Turenne Éditions, Perrotin’s publications imprint; and Monnaie de Paris, which showed some of the works in 2016. In his suit, Druet demanded “fair crediting” as the sole author of these nine sculptures, as well as financial “compensations” in addition to the $272,814 he had already received for the nine works he fabricated.
“It is with immense satisfaction that I learn of this decision, which enshrines the work of Maurizio Cattelan as a conceptual artist and rejects in every respect the inadmissible and unfounded arguments of Daniel Druet,” Emmanuel Perrotin, the gallery’s founder, said in a recent statement. “I am delighted that this decision puts an end to this controversy which has threatened a large number of contemporary artists.”
Druet’s legal representation did not respond to ARTnews’s request for comment on the case.
An unexpected tactic that Druet took in his suit was filing against everyone but Cattelan, the real target of his copyright infringement complaint. To spare itself the potential damages in case of a loss, the Monnaie de Paris attempted to make Cattelan a party to the lawsuit, which the art institution succeeded in doing through a legal tactic called impleading.
Cattelan was thus “bond[ed]” to Monnaie de Paris should the court rule against it. He ended up being involved without ever really being involved in the first place, which is a bit ironic given that the artist has made a career of playing hard to get.
“It is extremely surprising that Mr. Druet failed not only to sue Mr. Cattelan directly but also to adjust tactics along the way,” Julie de Lassus Saint-Geniès, a lawyer who is an expert on intellectual property and has followed the case closely but was not directly involved in either party’s legal representation, said in an interview.
With a legal team that included law professor Pierre-Yves Gautier and criminal attorney Pierre-Olivier Sur, Perrotin tried to raise a procedural issue to dismiss the case at this stage on the grounds that the wrong persons were being sued. The court, however, decided that instead of simply ruling on the procedural issue, it would dig deeper and proceed with the suit in order to settle the claims of the copyright infringement one way or the other.
“Refusal by the Court was a blessing in disguise: we got to win in substance rather than on a procedural technicality,” Sur, who is a former president of the Paris Bar Association, told ARTnews, adding that he was amazed at the crowd that had turned out to hear the panel of judges issue their ruling. (The final hearing took place in the Tribunal Judiciaire de Paris’s largest courtroom.)
Druet’s second tactic, which the court also ruled against, was to claim exclusive authorship over the nine sculptures he had fabricated for Cattelan, despite the fact that La Nona Ora, Him, and the other seven works were all exhibited, promoted under, and written about (in catalogues and in the press) under Cattelan’s name. According to the French Intellectual Property Code, “Authorship shall belong, unless proved otherwise, to the person or persons under whose name the work has been disclosed.”
Additionally, Druet claimed, according to the recent ruling, that “he, with his own hands, gave birth to the litigious works, breathed life and intensity into them, without receiving, for some of them, any instruction from Mr. Cattelan.”
Perrotin’s representation submitted to the court several examples of explicit instructions given by Cattelan to Druet, per the judge’s ruling. In addition to the technical specifications for each sculpture, for example, Cattelan had sent Druet a “prose poem,” which reads, in part: “I wonder: If when I was little, I could have imagined it [La Nona Ora] in its current condition. So exhausted from weariness…”
And on December 1, 2000, Cattelan wrote to Druet about the Him sculpture, “The most important thing is that the final result must be a hyperrealistic face with an ecstatic expression as if being communicated in this moment of devotion its future mission. Hand position: the hands must be thinner, hairless […] Hitler’s head must be looking slightly further down…”
“It was also up to Druet to bring elements to refute Cattelan’s legal presumption and not the other way around,” said de Lassus Saint-Geniès, who is a former student of Pierre-Yves Gautier.
Additionally, according to the decision, Druet admitted to not having anything to do with the “precise directives” for how the works were installed, “particularly with regard to their positioning within the exhibition spaces, aimed at playing on the public’s emotions (surprise, empathy, amusement, repulsion, etc.), were issued only by [Cattelan].”
The Court’s attention to the installation of Cattelan’s works led to a brand-new definition in the French jurisprudence, which takes into consideration both the materialization and the display of a work of conceptual art.
“In order to determine fair crediting and compensations, while drafting a contract, the creative input of a set designer or even of a museum curator should be studied more carefully beforehand,” de Lassus Saint-Geniès said.
De Lassus Saint-Geniès said she thinks that this new judgment confirms French precedent established in two previous cases, both of which laid the groundwork for a better understanding of conceptual art: Jakob Gautel vs Bettina Rheims, in which the installation of a work involving golden letters helped Gautel win against Rheims, and the Alberto Sorbelli case, which made a performance subject to copyright.
Sur, the Perrotin legal counsel, said he expects this new ruling to be taught in French law schools going forward: “In the first year of law school you are introduced to the Poussin and the Renoir judgements [related to attribution and co-authorship issues]. Now there is the Perrotin judgement.”
And Druet could still file a suit against Cattelan directly. “In case of a rematch, the real question would be whether the litigious sculptures qualify as works of joint authorship. Would Druet be able to prove that his artistic input goes beyond the pure and simple execution of the nine effigies?” said Lassus Saint-Geniès.
Added Sur, “There is precedent now so I am fairly confident that Mr. Druet would still not win.”
Druet now will have (after notification by bailiff) a month to decide if he will file an appeal to the judgment to France’s highest court, or accept the ruling and pay the plaintiffs’ legal fees: $10,125 to Perrotin and Turenne Éditions and $10,125 to Monnaie de Paris.