THE DIPLOMAT > Reports > Battle over heritage to Brancusi
Vol. 2 No.2  

Battle over the heritage to Brancusi

Wonder why there are no models or t-shirts of Brancusi in Romania? Copyright law places the reproduction of his work out of the hands of its owners, finds Anca Pol

     In 1927, a version of sculptor Constantin Brancusi’s sculpture ‘The Bird in Space’ was transported from Europe to the American continent, following its purchase by an American for 600 USD. Seeing the lean and simple abstract figure, the American customs clerks labelled the merchandise ‘industrial object’ and charged the buyer a 40 per cent import tax.
     Irritated, Brancusi sued the American customs department and won, proving that the piece was real art and not, say, a spare part for a train undercarriage or printing press.
     Last year a version of the industrial object was sold at Christie’s New York for over 27 million USD, becoming the most expensive work of art ever sold at auction. But, 50 years on from his death, Brancusi’s works are still the subject of many legal disputes.
     While Brancusi may be the most famous sculptor of the 20th century and Romania’s most illustrious international artist, his work cannot be reproduced or used in advertising or promotion without the consent of his heir and a legal team for now and decades to come.
     Brancusi lived and worked in Paris from the beginning of the 20th century until the 1950s, while retaining his Romanian citizenship.
     He was in his 70s when he decided to come to Romania and offered the then Communist state the copyright for all his work. However, after examining the offer, the Romanian Academy said his work was too ‘decadent’ for a country where Proletarian art was at its peak.
     Hurt and disappointed, Brancusi returned to France, where he applied for and received French citizenship. Anger at this snub was further compounded when Brancusi left his studio to the French state. This Atelier now stands in the shadow of the Centre Pompidou in the heart of Paris.
     At the same time, he appointed two Romanian artists, Natalia Dumitrescu and Alexandru Istrati, husband and wife, as legal heirs.      They came to Paris on an arts scholarship and helped assist Brancusi during his final days.
     At Dumitrescu’s death in 1997, her nephew Theodor Nicol, a Canadian citizen of Romanian origin, took over the rights to the international copyright of Brancusi’s work and its reproduction.
     Regarding the legality of Nicol’s claim, Doina Lemny, researcher at the Pompidou Centre and Brancusi expert says: “There is no doubt about it.”
     Adds Paris lawyer Jean-Marc Sabatier: “Mr Nicol can ask for royalty costs for the reproduction of Brancusi’s work in France.”
     Nicol tells The Diplomat he has no property rights over Brancusi’s works in general, but the owners of these works, such as individuals or institutions, do not have copyright, including rights to reproduce the art in the audiovisual, multimedia or editorial formats.
     Targu Jiu, the nearest city to Constantin Brancusi’s native village Hobita, hosts three outdoor sculptures by Brancusi: the Infinity Column, the Gate of the Kiss and the Table of Silence. These were dedicated to the Gorj County heroes of the First World War and the Association of Gorj Women (Femeile Gorjene), the first owners of the three works, donated them to the Targu Jiu Municipality.
     Five years ago, the sculptures were surrounded by broken beer glass and cigarette butts, with no guards. Now, a visitor can admire the three works at their best, after the World Bank financed their restoration.
     But there are no T-shirts with a picture of the Gate, neither pencil sharpeners emblazoned with the image of the column, nor gift shops. In short, the City Hall is not and, arguably, cannot, capitalise on its ownership of these works.
     “It is not acceptable,” says Sorin Buliga, director of the Constantin Brancusi Culture and Art Centre in Targu Jiu, the cultural branch of the local municipality. “I cannot sell anything bearing images of Brancusi’s works and everyone criticises us for this.”
     Targu Jiu-based Brancusi author Ion Mocioi argues that the City Hall is the “absolute owner” of the three works. He also thinks that intellectual property law should not apply in this case because Brancusi received “no money” for the creation of the masterpieces.
     However the Targu Jiu Municipality, as current owner of the three pieces, started to collect money for the Brancusi copyright in Romania, bypassing the Romanian association appointed to collect royalties for artists - Visarta. In 2002 the City Hall charged an advertising agency 3,000 USD to use the image of the Infinity Column in a soft drink commercial.
     “They wanted to make some money,” said Gheorghe Voican, executive director of Visarta.
     That year Visarta sued the City Hall. This has passed through various judicial bodies, from the Targu Jiu Court to the Supreme Court, where the case continues.
     “We do not understand why we cannot use the images of the works, since they are in our direct property,” says Buliga.
     Paris-based Sabatier says a distinction must be made between the material property and the patrimonial or intellectual rights. “A museum can expose a work of art it has acquired, with the condition of not reproducing it,” he adds.
     French and Romanian intellectual property laws remain similar, says lawyer Mihaela Giuraniuc. “During the copyright protection period, the owner of the work of art, individual, gallery, museum, cannot reproduce the work, inclusive through photographing and filming without the preliminary agreement of the copyright holder.”
     To protect against potential litigation, galleries and museums often place signs warning that the photographing, filming or any form of reproduction is prohibited.
     The Art Museum of Craiova owns and displays six works by Brancusi.
“It is normal to have to pay royalty for these images,” says Florin Rogneanu, director of the museum.
     Visarta represents the French-based owner of Brancusi’s royalties, the
Association of the Authors in Graphic and Plastic Arts (ADAGP). When it
comes to approving the use of Brancusi images, Voican says nothing can be done without the approval of ADAGP Paris and this French association, at its turn, does nothing without Nicol’s approval.
     “If you break this, it’s a crime,” he adds.
     Many want to use images of Brancusi’s works for different purposes, such as in models for sale.
Voican says a former Hunedoara prefect thought he could create a mould replica of the Infinity Column because he had in his possession Brancusi’s plans for the sculpture.


     Visarta has come up against some resistance.
     “I have even been threatened to be shot by a publishing house director, who said to me: ‘Who do you think you are? I don’t want to pay!’,” he adds.
     All the cases requesting the use of Brancusi images are treated case by case. The users of the image send details to Visarta and, according to this, a price is calculated.
     “The law allows me to negotiate,” Voican says.
     Only the owner of the copyright can decide gratuity or a preferential price.
     According to Buliga, he intends to ask for Theodor Nicol’s permission to make an exception for Targu Jiu. This means not charging the Municipality for using the images of the Infinity Column, Gate of Kiss and Table of Silence in its promotion.
     There have been cases, such as the publication of two books about Brancusi, where Nicol has offered the approval for free, only a commission for Visarta was collected.
     “When it is done in cultural purposes we make reductions,” the Visarta general director tells The Diplomat.
     In 2002, Theodor Nicol went to the Romanian Ministry of Culture and said that he had no financial requirements and that all he wanted was for Brancusi’s works not to be used in other purposes than what they were created for.
     This ignored the fact that the Ministry had allotted some money as a budget for Brancusi royalty costs during the Brancusi Year.
     With the 11th Francophony Summit hosted this year in Romania, the international reunion’s logo, designed by graphic artist Octavian Penda, will comprise the image of ‘The Cock’ by Brancusi. As we went to press, an approval in principal had been given by ADAGP Paris. “The price has not been established yet,” says Voican. “As for these matters you cannot establish a price per kilo.”

     The Romanian Government is still working out whether or not it wants to rebrand its country (see The Diplomat, vol 2, no. 1) and some marketing specialists want to use Brancusi’s work to promote the best of Romania but, as they understood it, they were not allowed.
     But if Theodor Nicol, the owner of the Brancusi copyright, gives the approval, it can be done.
     On the subject of using certain images of some of Brancusi’s well-known works for a projected campaign of ‘country branding’, Nicol says: “An overall answer to this question cannot be given upfront, due to the fact that each request has to be analysed and handled separately, according to its specificity and the copyright legislation in effect.”
     He says this will be individually assessed through the legal channels.
     “Respecting the spirit of the oeuvre and the image of the artist will be an essential factor in taking the final decision for granting an authorisation,” he adds.