Ip and Art: an International Perspective

• Jurisdiction: European Union
• Citation: Vol. 47 No. 4
• Publication year: 2022
• Author: Cristina Manasse
• topic: Intellectual Property

IP AND ART: AN INTERNATIONAL PERSPECTIVE

Cristina Manasse
Manasse Studio Legale, Milan

James C. Roberts III
Global Capital Law Group PC

NFTS AND MASTERPIECES: CONFLICTING FORCES IN THE EU AND ITALY

Introduction

Hardly a day goes by without another article on controversies involving the NFT (non-fungible token) art market.¹ A new controversy has erupted in Europe in relation to cultural institutions using NFTs to "sell" copies of artworks considered to be masterpieces and part of a nation's "Cultural Heritage."²

The works these institutions hold are so important to the people and governments that many, if not most, of them are considered treasures essential to the "cultural heritage" of each such country. The question is not that these cultural treasures should or should not be "commercialized" through NFTs, as it is already underway on a massive scale. As we note below, companies in many EU member states have already contracted with cultural institutions to generate revenue from digital copies of their major and minor masterpieces. The question is: how do cultural institutions balance their responsibility to provide greater public access to artworks that are part of the cultural heritage with the revenue allure of NFTs? The old saying of between a rock and a hard place comes to mind.

Some NFT Initiatives Underway

NFTs have made their way, even with some initial skeptical reactions, in some countries with cultural institutions deciding to digitize assets in order to: a) reach new audiences; b) experiment with new media and technology; c) generate more revenues; d) adapt themselves to the evolutions of the market and their public; e) finance social projects; and f) survive both during and after COVID lockdowns decimated the number of visits. Here are some examples of NFT initiatives involving museums.

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The Not-So-Stodgy British Museum

Although The British Museum might have a stodgy reputation, it seemed to disprove that perception by entering into an agreement with La Collection, which bills itself as "the NFT platform certified by the world's greatest museums."³ La Collection minted NFTs for some artworks by Katsushika Hokusai, known for many works, among them The Big Wave of Kanagawa and, later, works by J.M.W. Turner.⁴ Depending on the number of pieces available, the digitized artworks are divided in categories, from Ultra Rare (only one piece available) to Rare and Public. For example, the La Collection created only two copies of Hokusai's Big Wave, with one copy kept by the British Museum. According to some interviews, the museum is "largely" rewarded by the agreement. For example, in case of resale of an NFT on the secondary market, 10% goes to the museum and La Collection gets 3%.

Pieces of a Kiss and Postcards

Vienna's Belvedere Museum chose a different path, borrowing from a technique pioneered by an artist several years ago: auctioning 10,000 pieces of a digital copy of Gustav Klimt's masterpiece, The Kiss.⁵ Purchasers have access to a site where they can check which they own in relation to the entire artwork. The museum launched the initiative to celebrate Valentine's Day in 2022. Also in Vienna, the Leopold Museum, owns a large collection of works by another Austrian artist, Egon Schiele. The museum used NFTs to create digital postcards of some of Schiele's works that had been recently discovered after having been "lost" for decades.⁶Proceeds from the NFT sales will be used to finance restoration of some of the works.

The Italians Take Yet Another Path(?)

Several prominent museums have entered the digital copy realm, including the Pinacoteca Ambrosiana (which holds the largest collection of da Vinci's works); the Uffizi Gallery in Florence and Milan's Pinacoteca Brera. Each of them has engaged the company, Cinello, to digitize and sell digital copies of a limited number of their masterpieces. When the Uffizi sold, through Cinello, a digital copy of Michelangelo's Doni Tondo, the museum received around €140,000. This was not without controversy, as we shall see below.⁷ However, Cinello has been quick to point out that their approach differs in an important way. Cinello does not use NFT to sell these masterpieces. Cinello sells an individual copy, called a DAW, a trademarked acronym for "Digital Artwork." The DAW comes with a certificate of authenticity from the relevant museum. Purchasers can elect to acquire an NFT, however, for further security. Whether this is a distinction without a difference depends in large part on whether or not one believes that an NFT that provides access to a unique hashtag in fact transfers title to the digital copy in the first place or merely serves as a form of authentication of that digital copy.⁸

The EU and Open Access: Give the Public More Access. Now.

The NFT "explosion" arrived just as the EU member states were implementing what is known as the EU Copyright Directive that directly affected museums (the topic of one of our previous columns).⁹ The EU had long pressed for great public access to the vast number of artworks in museum collections, works in public domain, many of which had never been seen or rarely shown in exhibitions that come around once every few generations. In 2019, the EU enacted the EU Copyright Directive, driven in large part by this desire...