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.’
The botched painting became the subject of numerous memes, and has been nicknamed “Ecce Mono” (Behold the Monkey), “Potato Jesus”, “Dum Dum Jesus” and “Beast Jesus”.
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 [1936] 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?
18 Comments
The “back off” is surely to say “you destroyed our artwork, this is partway to a remedy, lucky we don’t sue you for the original, and that we are treating this as a way of paying off the damages”
Yes – just imagining what causes of action they could use sue her? Hmm. In terms of causes of action that would sound in damages, trespass might be possible, presuming the Church is right that she was not authorised to do the repairs? Thing is that Martínez no longer had copyright, so it’s not like she was infringing his rights by doing it.
Alternatively they could go down the criminal route with criminal damage to property or some kind of crime designed to deal with graffiti? Though that’s not very Christian and forgiving of them…
Oh, forgot to hat tip you, Dave, for showing me the Ars Technica post – was having problems with connection errors – will just add that in.
I am just hoping she gets into enough trouble to prevent “copycats” doing similar things to better artworks (one can imagine “irreperably improving” the Mona Lisa would be a great way to achieve fame and maybe later, derivative fortune.
Now, it’s one thing “doing a Mr Bean to Whistler’s mother”, it would be another if Salvador Dali had run into the Louvre and painted his moustache on the ACTUAL Mona Lisa (he did a painting along those lines), where the vandalism would have had artistic merit, and, unless it was the Mona Lisa, the vandalism by a great modern artist to a so-so work by a professional but forgettable artist could actually be /more/ valuable in art auction rooms than the original.
LE are there any examples you can think of where the ‘derogatory treatment’ clause was invoked? That’s an interesting concept.
Mind you, if Robert Rauschenberg was still alive, you could get him to rub it out, and then it would be worth even more. Just think of the endless philosophical insights one might draw (pun) from that!
Check out Daubism. Particularly one Driller Jet Armstrong.
KVD, the one I always think of is Schott Musik International GmbH v Colossal Records of Australia Ltd [1996] FCA 1033 (affirmed in (1997) 75 FCR 321). The case involved an Australian techno dance adaptation by a group called Excalibur of Carl Orff’s O Fortuna from Carmina Burana. Orff’s widow sued saying it was debasing the work, but did not succeed. (Incidentally in the link to Excalibur’s remix, you have to watch excerpts of Evangelion Neongenesis – no idea why?)
This link has some other cases. It also has a classic line from the Full Federal Court’s judgment affirming Schott – the question was whether the licensed use of a song for an advertisement debased it:
My husband tells me that on hearing O Fortuna he thinks of the opening of Jackass: The Movie, a most unfortunate congruence of thought in my mind.
Hmm… on the debasement matter, Lt. Ricketts, who wrote “Colonel Bogey”, would have one helluva case against whoever came up with the lyrics: “Hitler has only gone one ball… etc”
As for the old crone’s family claiming royalties as a consequence of her “improving” the ..er… monkey painting…. I’m speechless. How brass faced can people be? They ought to be hanging their heads in shame.
There’d be no royalties, or anything else, were I on the jury.
LE@8 thanks. On another subject entirely, the “kvd” in kvd@7 is not my good self – however appropriate.
SATP, I don’t think she’d fare very well if I were the judge. I think I’d say that none of her rights were in fact infringed, and that (as Dave said) the Church should be entitled to profit as a way of compensating them for the wrong she did to them (albeit in good faith).
You know, when we were kids we went through a phase at primary school of singing that Hitler song – I knew that before I knew Colonel Bogey. Dunno why kids in Australia in the 80s would be singing that song; I think it was just because it was RUDE, and we could legitimately be RUDE because everyone knew Hitler was nasty.
I suspect it’s rather mean, but I find this whole thing very funny. I find the purported ‘artist’ even funnier… and now it’s become a tourist attraction.
Every time I say to myself ‘I’ve seen everything’, something comes up and proves me wrong. Always.
I also find this very funny, and I also suspect that it’s rather mean of me…but it’s just SO TERRIBLE. It boggles me how anyone could make a ‘restoration’ which was so appalling.
If I understand correctly, the …er… restoration was unsolicited and conducted in a surreptitious manner.
Perhaps the claimant for royalties could begin by proving that the artwork was hers.
Unless I am mistaken (as until this thread I’d given this topic a entire two seconds of study) the church initially was considering criminal charges, or at the very least, civil action against the
restorative artistperp.SATP, the nature of the restoration is contested. The woman insists that she did the restoration with the consent of the parish priest and points out that she was in plain view for weeks working on this monstrosity. The Church counters that it did not give her permission to do so, and had just received a donation from the original artist’s granddaughter which they planned to use to restore the painting properly.
I don’t know whether they were going to bring legal action against her…pure speculation on my part, as I don’t know Spanish law, but surely they at least contemplated it!
firstly it was Duchamp not Dali who pencilled a moustache and goatee on the postcard of the mona lisa. secondly, there are many examples throughout art history of artists appropriating the work of other artists for their own purposes. English artist Colin Self, the late Enrico Baj, and most recently the winner of the inaugural howard arkey prize jake walker won with a daubist style artwork. I continue to make daubist work to this day and am very happy and highly equipped to defend myself in court should any artist wish to take me on.
DJA, have you ever had any problems in the past? I hope that no one would be so narrow-minded to take you to court. It seems to me that part of art is necessarily taking what someone else has done and working with it.
And on that topic, I think Australian musician Gotye has got the right idea – he’s just released a mash up of all the different You Tube tributes to his Somebody That I Used To Know with full attributions to all of them. He’s celebrating the fact that people took his work and made something different out of it! What a lovely refreshing change.