Mango did not infringe intellectual property rights by displaying works by Miró and Tàpies

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Mango did not infringe intellectual property rights by displaying works by Miró and Tàpies

Mango did not infringe intellectual property rights by displaying works by Miró and Tàpies

A few weeks ago we woke up to the news that the 9th Commercial Court of Barcelona had ruled that Mango did not infringe the intellectual property rights of three works by Joan Miró, Antoni Tàpies and Miquel Barceló by displaying them as NFT on social networks, in the Decentraland metaverse and on the Opensea marketplace.

However, recently, the rights management company Vegap continued to maintain its position, denouncing that the decision of the Barcelona Commercial Court invokes American legal concepts that are not accepted under Spanish or EU law.

Origin of the conflict

As part of a marketing strategy, for the opening of its shop on New York’s Fifth Avenue, the company used NFTs inspired by five works of art by the aforementioned artists. The works had been loaned by Punta Na, the company of the group’s founder, Isak Andic, to be displayed at the opening of its shop.

In addition to the paintings, the company also displayed in the physical shop and in its digital shop in the metaverse, versions of the paintings to which different artists had added elements from the world of fashion. It was this fact that triggered Vegap’s initial lawsuit, considering that the new works infringed the law, violating the moral rights (integrity and disclosure) and economic rights (reproduction, transformation and public communication) derived from the works in question.

Moral rights

The Law on Intellectual Property establishes that moral rights allow the author or creator to take certain measures to preserve and protect the links that bind them to their works. The author or creator may be the holder of the economic rights or such rights may be assigned to one or more other copyright holders.

When it comes to intellectual property rights in art, it is necessary to know the nature of the protected works, among other relevant aspects.

The author has specific rights over his or her creations that can only be exercised by him or her, such as the right to prevent distorted reproduction, while other rights, such as the right to make copies, can be exercised by third parties, for example, by any publisher who obtains a licence from the author for that purpose.

Decision of the Commercial Court

In its decision, the court states the following:

Moral rights: The authors’ right of disclosure was exhausted with the first public exhibition of the works in the 1970s and 1990s.

Economic rights: The right of public communication is limited by the right of public exhibition of the owner of the medium, in this case MANGO, as there is no express exclusion on the part of the authors and no harm to their honour or reputation.

Right of transformation: The doctrine of fair use is applied, considering that the use of the works by MANGO was fair and legitimate:

  • Non-profit: Commercial or advertising use is ruled out, confirming the exhibition purpose.
  • No economic benefit: MANGO bore the costs of the event and did not make a profit.
  • Acknowledgement of authorship: The authorship of the works was mentioned and acknowledged at all times.

The Court declares that MANGO did not harm the authors, but rather benefited them by giving them prominence in an innovative event. Therefore, VEGAP’s claim is dismissed and VEGAP’s bad faith in not negotiating and subjecting MANGO to a precautionary judicial process that affected its reputation is declared.

As we indicated at the beginning of this article, VEGAP intends to appeal the ruling, so we will soon be able to confirm whether the moral rights of the author have certain limits, and the author of the transformed work can invoke the right to integrity of which the original author has been expropriated.

If you have any doubts regarding your rights as the author of a work, do not hesitate to contact Letslaw, our team of intellectual property lawyers will provide you with the right advice.

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