[Guest Post] Remember the case of Ai Weiwei v Volkswagen?

With thanks to Hanne Kirk and her team at Gorrissen Federspiel (Denmark) for their overview of a fascinating case that may have passed readers by:

As 2019 passes and 2020 begins, this GuestKat has one more post to share about an interesting Danish decision handed down in July, then neglected and almost forgotten during the summer heat.

Located in Copenhagen’s historical Charlottenborg Palace, Kunsthal Charlottenborg is one of the largest and most beautiful exhibition spaces for contemporary art in Northern Europe. On 20 June 2017, the United Nations International Refugee Day, it also became the backdrop of an art installation by infamous Chinese artist and activist Ai Weiwei, as he covered the building’s façade with more than 3,500 salvaged life jackets to form an artwork titled Soleil Levant (Rising Sun).

[From the Kunsthal Charlottenborg website, we learn that the name ‘Soleil Levant’ “stems from Claude Monet’s painting Impression, Soleil Levant from 1872, which depicts the harbour in Le Havre at the end of the 1870-71 Franco-Prussian war. Whereas Monet’s landscape painting captures the political and social reality of its time with its cranes, steamboats and industrialisation, Ai Weiwei’s Soleil Levant draws attention to the political and social reality of today through refugee lifejackets.”]

The life jackets had been collected from refugees who had reached Europe via the Greek island of Lesbos, and Ai Weiwei’s stated intention behind the installation was to shine a light on the humanitarian crisis sweeping the continent as thousands of refugees arrived, having fled their homes in the search of a better life.

In August 2017, the Danish Volkswagen importer (‘Volkswagen’) took a photo of the new Volkswagen Polo, conveniently parked in front of the Charlottenborg Palace. Ai Weiwei’s Soleil Levant installation, on display until 1 October 2017, featured in the background.

Without permission from either Ai Weiwei or Kunsthal Charlottenborg, the photo was then used by Volkswagen in a marketing campaign for the Polo, including appearances in a print car magazine and on the Danish Volkswagen website.

The campaign caused Ai Weiwei to file a lawsuit against Volkswagen at the District Court of Glostrup. (It is worth noting that, due to the principled nature of the case, it was heard by a panel of three judges rather than the usual one.)

Before the court, Ai Weiwei claimed that Volkswagen’s photo violated his rights as an artist, damaged his credibility, and, worst of all, damaged the artwork itself, as well as the general understanding of human rights and the public’s view of refugees and their situation.

The photographer, on the other hand, explained that he had no idea the installation was even an artwork, and that he had no prior knowledge of either Ai Weiwei or Kunsthal Charlottenborg. That was why, he explained, he had not asked for permission, as was otherwise standard procedure within the Volkswagen organization.

Ai Weiwei claimed that his copyrights (including both financial and moral rights) had been violated, and that Volkswagen had free-ridden on his reputation and goodwill, thereby making improper use of his artwork in the marketing campaign. Volkswagen acknowledged that a copyright infringement had taken place, but denied having additionally violated “good marketing practice” under the Danish Marketing Practices Act. Volkswagen further denied that the infringement had resulted from either intent or gross negligence.

The court ruled in favor of Ai Weiwei, agreeing both that the photo had clearly been used for marketing purposes and that Volkswagen had free-ridden on the Ai Weiwei brand. Furthermore, the court found that the photographer was, at the minimum, guilty of gross negligence. In reaching this conclusion, the court observed, inter alia, that (i) the façade of Kunsthal Charlottenborg carried two large signs (80 x 120 cm) informing of the Ai Weiwei exhibition, and (ii) the exhibition had been the subject of massive media covered in June and July 2017.

As for the measure of damages to Ai Weiwei, the court’s decision is favorable and seems, perhaps, to break with the Danish courts’ general tradition of modesty in awarding damages for IP infringements. Copyright violations and acting against ‘good marketing practice’ each give rise to (i) ‘reasonable remuneration’ to the infringed party for the exploitation and (ii) ‘damages’ for any additional losses. Furthermore, (iii) compensation for non-financial losses (e.g. droit moral infringements and the like) is entitled in the Danish Act on Copyright. The basis for the measure of ‘reasonable remuneration’ is the usual fee payable by the infringer for its use of the intellectual property right – provided that such a ‘usual fee’ exists.

In the case of Ai Weiwei vs. Volkswagen, it was clear that Ai Weiwei never would have accepted Volkswagen’s use of his artwork for commercial purposes, and a ‘usual fee’ could therefore not be identified. Instead, the court resorted to a discretionary assessment, taking into consideration that (i) the car magazine in which the photo was published had been printed in 216,500 copies, (ii) the photo had been visible on Volkswagen’s Danish website from 31 October until 28 November 2017, and (iii) an assessment prepared by Sotheby’s suggested that a grant of permission to use the artwork for commercial purposes would be valued at 600,000 USD.

In the end, the Danish court awarded Ai Weiwei a total 1,750,000 DKK (USD 260,000) in remuneration and damages, 250,000 DKK (USD 40,000) of which was for non-financial losses.

Finally: Volkswagen has appealed the decision to the High Court of Eastern Denmark. This GuestKat assumes that the appeal is driven mainly by the measure of damages. Nevertheless, she has her fingers crossed for Ai Weiwei.