How to transform a dinner fork into a pitchfork: or rather, the miraculous properties of intellectual property.
Giorgio Spedicato
Professor of Intellectual Property Rights Law at Bologna University.
The conflicts between art – especially contemporary art – and intellectual property aren’t rare. Jeff Koons, for example, knows something about it,
having often experienced the joys (very few) and the sorrows (very many) of courts of justice first hand. Speaking more generically, many exponents of the so-called
Appropriation Art, the artistic practice based on the appropriation and the détournement of existing things, know quite a lot about it too.
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For those who are not familiar with the field, the friction between Appropriation Art and law can be explained easily:
every time an artist takes something from reality, and that object is protected under intellectual property law by someone else,
the holder of those rights can potentially take his complaints to court. And, because of the vertiginous expansion that intellectual
property has undergone in the past few decades, the chances of doing wrong with ones brush (or scalpel, or video camera, etc) have increased accordingly.
I like to think of a phrase by director Davis Guggenheim, who a few years ago suggested an admirable synthesis of the problem: «You’re totally free to
make a movie in an empty room, with your two friends».
However, in the case involving Franca Formenti – who received a cautionary letter of warning from Gambero Rosso because of her use of the trademark
“tre forchette” (three forks) during her work entitled “Identità affamate” (Hungry Identities) – I cannot help but single out a few peculiarities.
The first is that the vast majority of controversies connected to Appropriation
Art are connected to the presumed violation of someone else’s rights, and not the rights to a trademark.
The second is that, in any case, the appropriation in this case, is really very limited. The forks that the artist uses in her work look similar to
the style of a design of a fork (therefore, resembling “a fork”), but look nothing like the style of those used by Gambero Rosso. Therefore, if there is any appropriation,
it is the appropriation of a general design of a fork, and not the specific “three forks” designed by Gambero Rosso.
However one could object that it is Gambero Rosso who, notoriously, uses forks as a symbol to evaluate the quality of restaurants; in the guides devised by Gambero Rosso,
the better the restaurant, the more forks are attributed to it. Very true. In this case, however, it seems to me that the forks are being used in an entirely different manner:
“One fork” – Franca Formenti explains – is given to the chef who accepts to offer a taste of their own food to a member of the public who could never afford to sit at a
“starred” table; “two forks” are given to a chef who accepts to spoon feed a member of the public; “three forks” are given to the chef who decides to cook alongside a member of the public.
The meaning of the designed forks used in “Hungry Identities” is not therefore to reward the abilities of the chef,but merely to publicly recognize their availability and willingness to exit the golden world of
haute cuisine and connect this, albeit briefly, to real life and the reality of a world sunk in a dramatic economical crisis.
Designed forks as an instrument of social critique, therefore, and not an instrument to reward the culinary expertise of a chef or the quality of a restaurant.
So what is this letter from Gambero Rosso based on? On very fragile legal grounds, in my opinion.
I fear that, if the owner of a trademark could monopolize even the non-commercial uses of the sign,
we would have been deprived of some icons of the past century, such as the Campbell Soup and Brillo Box works by Andy Warhol, to name but a few.
If I understand this fully, in the quarrel involving France Formenti, Gambero Rosso is trying to boast a non –existent right to an idea: the idea of using designed forks as a measuring unit.
What is worrying in this story, is not the completely unfounded legal pretense of Gambero Rosso, but the actual pretense per se.
To caution someone is to make a statement which is not necessarily on the right side of the law.
But cautions, we all know, are bolts of thunder that announce a storm. A storm, legally speaking, has a very precise name: “a case”.
Now, as all lawyers will know (and their clients quickly learn at their own expense), a case takes time and money which are not always sustainable,
and even less so for who’s in the right. When faced with a caution, therefore, often people back down, even when they believe to be right.
It’s a human choice, and this is not questionable.
Very questionable, however, is the choice to threaten with legal action of dubious nature when not faced with presumed wrongdoers or disloyal competitors, but when faced with an artist.
In a time of vast increase of intellectual property – where everything under the sun is protected by law – this means to condemn art to avoid speaking of reality,
which means to condemn it to no longer being art. A risk that our society cannot take in these dark times.
