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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
Tribute to Bablo’s Lizard
Alan Limbury
“Sculpture is an art of the open air. Daylight, sunlight, is necessary to it and, for me, its best setting and complement is nature. I would rather have a piece of my sculpture put in a landscape, almost any landscape, than in, or on, the most beautiful building I know.” –Henry Moore 1951
General Information
Twenty years ago, Avery Argenta, at that time a penniless arts student, began working for the famous sculptor and painter Bablo Bogasso in his Paris studio near the Sacré Coeur in Montmartre. They became friends and Bablo accommodated Avery at his home for a couple of years. Avery produced sculptures under Bablo’s tutelage and managed the studio during Bablo’s absences. In 1998, Bablo held one of his numerous exhibitions, called the “Lizard” exhibition, in which all the works (both paintings and sculptures) conveyed some resemblance or allusion to a lizard. The following year, Bablo commissioned and paid Avery as a fabricator to realize in bronze one of Bablo’s own sculpture creations, based on a plaster maquette1 designed and made by Bablo. Bablo donated the finished bronze sculpture to the Louvre Museum, where it was installed in the forecourt and has since become known as one of Bablo’s finest works.
A short time later, Avery submitted a proposal to the Vatican for a sculpture s/he would create, to be permanently displayed in Saint Peter’s Square in Rome, as a gift from Avery. In support of this proposal, Avery secured letters to the Vatican from various admirers, including Bablo; a small financial contribution from the Italian minister for the arts; and a written agreement from Luigi della Nosco, a great patron of the arts and chairman of Agnosco SPA, a well-known engineering company based in Milan, under the terms of which Agnosco SPA would supply all the materials and a workplace and would assist in the production, all at no cost.
Upon receiving formal approval from the Vatican, Avery was employed by Agnosco SPA at its Turin Division to learn the welding and fibreglass techniques s/he would need to produce the sculpture. Avery began work on the sculpture at the Turin premises. Shortly thereafter Bablo died, leaving many of his works and all of his copyrights to his wife Louise.
Soon afterwards, Avery, as a tribute to a friend and benefactor and with no financial gain in mind, decided to change the design of the sculpture intended for the Vatican into a greatly magnified interpretation of one of Bablo’s blue lizards. Louise agreed. Bablo’s original version stood about one metre high. When it was eventually finished, Avery’s version stood over 12 metres high and, but for being brown and a little fatter, was otherwise a virtually identical replica.
Avery had yet to decide upon a name for the work when the Vatican said it was not impressed with the changed design and withdrew its consent to any display in Saint Peter’s Square, whereupon Luigi asked Avery for payment of €100,000 for all the materials used in the manufacture of the sculpture and for the use of the Agnosco SPA premises. Avery refused, saying this was contrary to their agreement. In turn, Agnosco SPA refused to release the sculpture, which remained inside the Turin premises. Louise said she could do nothing to help Avery, who could not afford to take Agnosco SPA to court.
After Bablo’s death, Louise attracted quite a lot of sympathetic publicity, since Bablo was well remembered and his flamboyant life with Louise had been a constant topic of media discussion. In one heavily publicized move, Louise established the Bogasso Estate, a trust that she controlled and to which she transferred all the works and copyrights she had inherited. One of the claims she made constantly to the media was that she owns all Bablo’s works, wherever they may be, and that those in museums or in private collections are merely on loan from the Bogasso Estate.
Four years ago, unbeknown to Avery, Agnosco SPA decided to close its Turin Division. Since it wanted to be sure that it could retain the sculpture, Luigi approached Louise and proposed an arrangement under which Agnosco SPA would display the sculpture in Milan and receive a small
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part of the proceeds of any subsequent sale. Louise agreed and they entered into a lease agreement under which:
Avery knew nothing of this at the time. Last year, Avery found out that changes had been made to the sculpture and that it had been moved when s/he read a story about Louise in a magazine and saw a photograph of the sculpture in the forecourt of the Agnosco SPA building in Milan. The shape was slimmer and it was no longer brown but blue. The base displayed a plaque titled “Lizard by Bogasso, realized by Avery Argenta, Louise Bogasso and Agnosco SPA”. Incensed, Avery approached Alexis della Nosco, cousin of Luigi (who had retired a year earlier) and the present chairman of Agnosco SPA. Alexis told Avery that the company was leasing the sculpture from the Estate. During the conversation Avery mentioned that s/he was having financial difficulties and Alexis gave Avery €30,000 in cash. Alexis refused to alter the plaque in any way, claiming s/he had no right to do so.
A friend recently informed Avery that, following expiry of the lease term, Agnosco SPA has offered to buy the sculpture from the Bogasso Estate for €900,000 and that Louise has responded by asking for €1.8 million, saying that this is the going rate for a Bogasso.
Upon hearing this, Avery approached Louise to explain that, although the work is a well-crafted interpretation of a Bogasso since it was based on Bablo’s work and was made with Louise’s consent, in Avery’s opinion it is not a Bogasso since it was created by Avery after Bablo’s death. Louise became very angry, insisting that since she owns the copyright she is entitled to alter and dispose of the work as she sees fit. To demonstrate her rights, she gave Avery a copy of the lease agreement, which Avery had not seen until then.
Having consulted a lawyer, Avery has now written to Alexis asserting ownership of the sculpture. Through Agnosco SPA’s lawyer, that claim has been formally denied but Alexis has suggested mediation under the auspices of the ICC. Avery has agreed. Both parties have full settlement authority.
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Confidential Information for Agnosco SPA (Alexis Della Nosco)
Requesting Party
Alexis cannot believe that, after all this time, Avery is coming forward with this ridiculous claim, just as Alexis is negotiating with Louise to buy the sculpture from the Estate. Although Alexis’s lawyer has advised that the time for bringing any claim has long since expired under the applicable Statute of Limitations, Alexis is most reluctant to see this dispute handled in the courts. For a wealthy company that has a reputation as a of the arts to rely on that statute to defeat a claim by an impecunious artist would be detrimental to the company’s reputation and could adversely affect its share price.
Luigi told Alexis long ago that any dispute with Avery had been resolved when Avery first refused to reimburse Agnosco SPA for the materials and use of the premises for the manufacture of the sculpture because Luigi had kept the sculpture as security for the repayment of those costs and had assumed that Avery had given up attempting to obtain the sculpture.
It was only when Louise started making claims to own the sculpture in the name of the Bogasso Estate that Luigi thought it prudent to enter into the leasing arrangement, which gave Agnosco SPA the benefit of being seen as a patron of the arts. Since the costs of manufacture had been written off years ago, the lease arrangement was cost free and had allowed the sculpture to be publicly displayed for the first time while placating Louise for a few years.
Although Alexis paid the €30,000 to Avery because Avery said s/he was having financial problems, Alexis has asked his/her lawyer whether it could be argued that since there is no written evidence of exactly what that payment was for, the payment was meant to extinguish any claims Avery might have made. Any judge would have to decide whose story to believe.
Being able to continue to display the sculpture in public, outside the Milan headquarters, is important to Alexis, since it gives the company inestimable prominence in the engineering field as well as in the art world. An acknowledgement of Agnosco SPA on the plaque in relation to its assistance in the creation of the work is also important in this regard. Wherever ownership of the sculpture lies, it seems fairly clear, so far as Alexis is concerned, that the Bogasso Estate owns the copyright, so neither Avery nor Alexis may make changes to the sculpture without Louise’s consent. However, there is an argument that the sculpture is an interpretation of a Bogasso made as a tribute, in which case Avery might be able to claim both copyright and ownership and hence require the changes Louise demanded to be reversed.
Even if an agreed outcome can be mediated successfully with Avery, there is always the threat that Louise might revive her claims to ownership on behalf of the Bogasso Estate. The lease agreement is not very helpful because it seems to accept the Estate’s claim to ownership and permit the removal of the sculpture. Alexis has confided to his/her lawyer that s/he has spoken to Luigi, who did not appreciate the difference between ownership of the copyright and ownership of the sculpture when he signed the lease agreement with Louise. Alexis has asked the lawyer how that might now be undone and has been advised that the lease agreement might be set aside or, since the lease term has already expired, ignored, if a court were persuaded that Louise’s representation of ownership was false and, either fraudulently or innocently, induced Agnosco SPA into entering into the agreement.
If Louise were to make a claim, there is no doubt that Agnosco SPA could outlast and outspend her and perhaps show her to be greedy and her claim to ownership to be utterly without foundation. This would ruin her reputation in the art world, which she has done much to enhance since she established the Bogasso Estate. The fact that Bablo was dead when Avery made the sculpture is strong evidence that, whoever might own the copyright, the Estate has never been the owner of the work. On the other hand, if the work is perceived by the art world to be a genuine Bogasso, it would be worth a lot of money and can only increase in value. Only Avery can testify against the proposition, represented on the plaque, that it is a genuine Bogasso. It may be worth paying something for his/her silence. There is certainly no shortage
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of funds to do so, and as a company expense, it would be tax deductible. Whether it would be a good idea is another matter.
Controversy in the art world would be very embarrassing to Agnosco SPA if any kind of dispute with Avery or with Louise over the sculpture were made public, no matter what the eventual outcome might be.
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Confidential Information for Avery Argenta
Responding Party
There is no doubt that the modifications Louise ordered to be made have changed the sculpture significantly and Avery would like to see them reversed, although Avery recognizes that if Louise owns the copyright, only Louise can permit this. This is not the work Avery made as a tribute to a friend. It is not a Bogasso because Bablo was dead when it was made. It is either a realization or a well-crafted interpretation of a Bogasso since it was based upon the smaller sculpture made by Bablo for the “Lizards” exhibition. Louise had inherited Bablo’s copyrights at the time she consented to Avery’s idea of the tribute. There can therefore be no question of copyright infringement by Avery. Indeed, Avery’s lawyer says there is an argument that, since the sculpture is an interpretation of a Bogasso made as a tribute, Avery might be able to claim both copyright and ownership and hence require the changes to be reversed.
Avery’s lawyer has advised that, whatever might be Louise’s rights under whatever might be the applicable copyright law, even if Louise might have been entitled to direct Agnosco SPA to modify the work, there is an important difference between ownership of copyright and ownership of the actual sculpture. Avery never agreed to sell the sculpture, to Agnosco SPA or anyone else. It was always Avery’s intention that it would be donated for public display and Avery would happily have called it “Tribute to Bablo’s Lizard, by Avery Argenta, with acknowledgement to Agnosco SPA for its assistance” if the Vatican had not withdrawn its agreement to put it on permanent display in Saint Peter’s Square and if Luigi had not reneged on their arrangement to provide materials and workspace, etc., at no cost.
One problem identified by Avery’s lawyer is that the applicable Statute of Limitations would effectively bar any claim to ownership Avery might make in court. However, the very idea that a wealthy company with a high profile in the arts world would stoop so low as to plead the aid of that statute is unthinkable, so Agnosco SPA would be most unlikely to do such a thing.
Avery had been happy to receive the €30,000 from Alexis because Avery was having financial difficulties at the time. Avery thought the payment might have been contemplated in the lease agreement (which Avery had not seen at the time), and accordingly expected that agreement to give due recognition to his/her ownership.
Avery is disappointed to find that the lease agreement contains no such acknowledgement, although the mention in the agreement of the intended payment might indicate acceptance by both Agnosco SPA and Louise that Avery has (or had) an interest of some kind that needed to be accommodated.
Avery is alarmed at his/her lawyer’s suggestion that Avery might be found by a court to have relinquished his/her rights in exchange for the €30,000, since it would all depend on whose story the judge believed.
Avery suspects that the remodelling was an attempt to authenticate the work as a genuineBogasso and that Alexis and Louise are together seeking to maximize the value of the sculpture by doing so, while excluding Avery from any share of the proceeds of any sale on the open market. If Alexis insists that Louise can sell it as a genuine Bogasso, then Avery will insist on getting a large share of the price.
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Colin J Wall
Case Analysis
This is quite a complex role-play which centres upon the legal difference between ownership of the copyright and ownership of a physical work. Additionally, the conduct of the role-play is heavily influenced by a party who is not present, Bablo’s widow Louise.
While the original dispute stems from the Vatican’s refusal to accept Avery’s work, which in turn led Agnosco to demand Avery repay €100,000 for the costs of production of the sculpture and to Agnosco keeping the sculpture as security for non-payment, the rather assertive Louise has added a further layer of dispute. Louise has wrongfully asserted ownership of Avery’s sculpture via the Bogasso Estate, and this has in turn induced Agnosco to enter into a lease agreement for the use of the sculpture. That lease agreement was either based on a mistake by Agnosco in not understanding the difference between ownership of copyright and ownership of a physical work or more likely induced as a result of Louise’s either fraudulent or innocent mistake in representing that the Bogasso Estate owned the sculpture.
Either way, this now puts Agnosco in a difficult position. Agnosco’s legal advice is clear and thus Alexis needs to settle this matter quietly with Avery to avoid reputation damage and to subsequently deal with Louise’s reaction. To some extent therefore both Alexis and Avery are on the same side. A mediator can use this information to advantage to defuse any potential hostility by the parties towards one another by referring to this external influence, which has undoubtedly exasperated this dispute.
There is something of a red herring in this role-play as well and that relates to Alexis’s payment to Avery of €30,000. Why was the payment made and what legal effect does it have? That is not clear and, as neither party really wants to pursue litigation, it should be noted by the mediator but set to one side.
There remains a difficulty in that Avery’s original sculpture has been modified under Louise’s direction to resemble a true Bogasso and Avery wishes to restore the sculpture to its original form, so as to represent the work s/he intended as a tribute to Bablo. Who is going to pay for these changes and will Louise start legal action to prevent the changes going ahead? If she does who will pay for the subsequent litigation? Perhaps the work should be carried out secretly, so any changes become a fait accompli.
The fact pattern suggests that Louise might not wish to pursue a dispute publicly with Agnosco, but is she willing give up an opportunity to receive €1.8 million for the sale of the sculpture? This matter needs to be considered and addressed in the mediation settlement agreement, so that Avery is able to become a witness of fact in any litigation started against Agnosco. Avery can then explain that as the sculpture was produced after Bablo’s death it cannot be a true Bogasso and indeed the copyright and ownership of the sculpture have never belonged to Louise or the Bogasso Estate. It is simply a tribute to Bablo’s Lizard by a grateful friend.
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Greg Bond
Commentary for Training
Pre-Mediation Talks
Italy and France are not so far away from each other and in the context of a training course they are always just around the corner in the next training room. This role-play would lend itself well as a training opportunity for extended pre-mediation talks with each party separately, in which the mediator consults with each party in advance of the mediation. This would be made even more authentic and challenging if the student trying out the role of mediator were not to read even the General Information — though of course that is no prerequisite. Not reading the General Information would mean that the mediator would have to decide how much of the “facts” as seen through the perspectives and grievances of each party s/he wants or needs to hear in advance.
There are several reasons why thorough one-to-one pre-mediation consultation would make sense in this case. One of the main tenets of mediation is that the parties are attending voluntarily, which in this case is certainly true, and that the voluntary nature of the process also includes a real willingness to grasp — or at least sincerely try out — the opportunity mediation provides to resolve disputes. In preparation for a mediation, a mediator may want to explore the parties’ real willingness to look for solutions and to see how far their initial positions might transpire to be reconcilable. The mediator might also wish to explain in preliminary meetings how mediation works. While in the scenario here it can be assumed that Agnosco is well informed on what mediation is and Avery has a lawyer who can advise, whether the two parties really want and will be able to work in mediation towards resolution is less clear. Particularly in the case of Avery this question is worth asking. How flexible is Avery when it comes to settling this dispute? To what degree is Avery stuck on positions? What does s/he expect from mediation? Can mediation really provide this?
Another reason why pre-mediation consultation is often useful, and might be useful in this case, is that it gives the mediator an idea not only of the issues that need to be decided but also of what levels of emotion are likely to be involved and particularly what levels of aggression one party might harbour towards the other. This is a very personal conflict concerning a work of art that is invested with very high levels of symbolic and personal value — not to mention its monetary worth. Avery is convinced that s/he is the artist and so is entitled to control of and proper reimbursement for the sculpture. This is not a rational mediation or negotiation looking at material interests and how to distribute material value but rather involves much deeper recognition needs.
There is another party who will not be physically present at this mediation, but who will nonetheless play a key role. That is Louise, Bablo’s widow, who is deeply emotionally involved, and whose interests and rights will need to be kept in mind during this mediation. During pre-mediation talks, a mediator can ask about third parties and gain valuable information. There are different schools of thought on the usefulness of and best practice in pre-mediation consultations. This role-play, like others in this book, can be used as an opportunity to practice and reflect on the benefits and drawbacks of pre-mediation consultation.
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1 A maquette is a small model or rough draft for an architectural work or sculpture. It is used to visualize and test shapes and ideas without incurring the cost and effort of producing a full-scale product.