You are presumably all citizens of the Interwebs, so I’d be very surprised you hadn’t come across the famous botched Ecce Homo painting. The mural was over 100 years old. It had been painted by Elías García Martínez and was donated to Santuario de Misericordia Church in Borja, Zaragoza, Spain. One of the elderly parishioners, Cecilia Jiménez, decided that she was going to ‘restore’ the painting. The results can be seen to the left. Jiménez claimed at the time that she had permission from the parish priest; the Church denied this. The BBC Europe correspondent noted that it now resembled ‘a crayon sketch of a very hairy monkey in an ill-fitting tunic.’
Giménez was initially distressed by the adverse publicity; but now she has learned that her ‘restoration’ may be potentially profitable, she wants a piece of the action. Ars Technica reports (hat tip Dave Bath):
…ever since late August, Ecce Homo has become a tourist attraction, bringing scores of Internet jokers to the Santuario de Misericordia Church in Borja, Spain. These tourists are bringing all of their euros, and now Giménez, who earlier claimed she was having anxiety attacks from allthe press coverage, wants a cut.
According to the northern Spain newspaper El Correo cited by TechDirt (which was tipped off by Twitter user @sinkdeep), tourists started flocking to the church, but weren’t leaving any donations. So to prevent the disruptive hordes from overtaking the church, the Santi Spiritus Hospital Foundation, which owns the sanctuary, started charging a fee to visitors wanting to see Ecce Mono, or Behold the Monkey as it’s now jokingly dubbed. In just 4 days, the Foundation made €2,000, (or about $2,600).
El Correo says this has angered Giménez and her family, and they’ve sought lawyers to win royalties for her work, which epically ruined a prized fresco of Jesus Christ. It seems the Santuario de Misericordia Church intends to defend its earnings as well, and has retained lawyers. Luckily, though, Giménez is not charging the millions of Internet users who have shared and spoofed her painting all over the world with copyright abuse.
Meanwhile, Borja, Spain is dealing with being the butt of an international joke. While “this influx of ‘pilgrims’” originally bothered the mayor of the town, the tourism euros are undoubtedly welcomed by many. El Correo notes that the European airline Ryanair “has put on sale a flight from €12 to travel to Zaragoza from any of the airports where it operates to visit the ‘creative restoration.’” But whether the original author of the spin-off Ecco Mono will get any money from the mounting entry fees, or whether the church will be reimbursed for the dramatic ruining of a work of art, is still unclear.
Hah! Classic. It’s a fun exercise to wonder whether, if this had occurred in Australia, Jiménez would have any copyright subsisting under Australian law such that she could claim an account of profits or damages representing a reasonable fee. Could her botched restoration really be said to be an ‘artistic work’ pursuant to s 31 of the Copyright Act 1968 (Cth)? For an artistic work to be protected under the Act, it must be ‘original’, in the sense that it is not a copy of something else. However, the test is not difficult to surmount and a high degree of originality is not required. Sometimes courts have been prepared to award copyright to people who take an idea or information from elsewhere and reduce it to a sufficiently different tangible form. For example, Donoghue v Allied Newspapers  Ch 106 was a case where a journalist interviewed a racing identity at length and subsequently published a series of stories in The News of the World based on the interviews (a link to the case is here, along with further discussion of copyright law). Some of the articles appeared to be accounts of the discussions between the journalist and the racing identity. When the journalist later sought to publish the articles in another publication, the racing identity sought to prevent him from doing so and claimed copyright in the interview. The court made it clear that there was no copyright in ideas, but if a ‘mere amanuensis’ took down the words of someone verbatim, then the copyright would subsist in the speaker, not the scribe. In this case, the court decided that copyright in the articles lay with the journalist, as the wording and authorship of the stories was his, even if the ideas and stories were originally those of the racing identity.
Perhaps the fact that the ‘restoration’ resembles the original picture so little would be in Ms Jiménez’s favour! It is not as if she slavishly copied Martínez’s original painting: in fact the very attraction of her ‘restoration’ is that she failed miserably to copy the original painting. The Australian Copyright Council’s Information sheet for Artists(pdf) notes that artistic works are likely to be protected by copyright even if they are derived from a pre-existing work.
If Ms Jiménez was the author of the painting, then she would have a right under s 31(1)(b) to reproduce the work in a material form, to publish the work and to communicate the work to the public. But she would not have a right to exhibit the original version of her work — the church would be entitled to do so, as long as it credited her as the artist (as required by the laws on moral rights: see s 193, Copyright Act). Perhaps it could even be said that in the circumstances she intended to give a gift of her work to the Church (yeah, I know, it’s a pretty cruddy ‘gift’, although perhaps now the Church is seeing the silver lining on that cloud).
Ms Jiménez would also be entitled pursuant to s 195 to not have the work subjected to ‘derogatory treatment’; but this is balanced by s 195AS which provides that an artistic work may be subject to derogatory treatment if it was reasonable. It is strongly arguable that derogatory treatment is reasonable in this case!
Ultimately, I wouldn’t think Ms Jiménez would have much joy under Australian law in obtaining an account of profits or damages in the form of a reasonable fee because there has been no real infringement of her rights, unless (a) the Church was reproducing the ‘restoration’ in material form (eg, postcards) and making a profit thereby, or (b) the Church was not crediting her as the artist. What do you think? Should Ms Jiménez be entitled to a cut of the profits?