Directors' liability by manufacturing false certificates of authenticity

Forging certificates of authenticity of several photographs by an art gallery leads to directors' liability. That's what the Amsterdam court ruled in July 2021 a proceeding initiated by the photographer and copyright holder of the photos.

What was going on?

In this matter, a photographer had licensed prints to an art gallery in 2016. The license allowed the art gallery to sell two prints per work at a pre-agreed price. The art gallery subsequently assembled several photographs into a triptych without the photographer's consent and sold them at a discounted rate. In doing so, the art gallery exceeded its license. Indeed, the photographs had been reprinted several times and in addition were provided with a (forged) certificate of authenticity.

What progress is the photographer making?

In the proceedings before the Amsterdam District Court, the photographer claims, among other things, a declaratory judgment that the art gallery has infringed the photographer's copyrights and personality rights, and has also acted unlawfully by providing false certificates. The photographer also claimed compensation for the costs incurred and damages suffered by her from both the art gallery and the director of the art gallery.

What does the court rule?

In this matter, the court condemns the conduct of the art gallery and its director. In the court's opinion, the works were placed in an inferior context by offering them in a triptych, at a reduced rate. This conduct qualifies as an infringement of the photographer's personality rights. These personality rights aim to protect the connection between the creator and the work. By forging the certificates, the art gallery wrongfully created the impression that the triptych would have been authorized by the photographer. That is unwarranted. Indeed, according to the court, it should have been crystal clear to the art gallery (which was operating as a professional (art) dealer) that such conduct was unacceptable. In fact, this conduct is damaging to the reputation of the photographer, since the very purpose of these certificates is the exclusive value of her works. There was also copyright infringement, according to the court, by selling more copies than agreed upon.

Because the director of the art gallery was personally involved in exceeding the number of prints (as stipulated in the license agreement), the manufacture and distribution of the triptych, and the manufacture of the false certificates of authenticity, the court finds that the director acted with such negligence that he can be personally blamed. The director is therefore jointly and severally ordered, alongside the art gallery (as a company), to pay compensation for the damages suffered by the photographer as a result of the aforementioned wrongful acts.

Practical tips for practice

Licensing copyrighted work can be an interesting way to generate income. When licensing work through a license agreement, it is important that the agreement clearly states what is covered by the license and what is not. By stating in the agreement what is licensed, for example, how often a copy may be sold and at what price, not only is the exclusivity of the work protected, but it also sets clear frameworks within which the licensee may operate.

Because in this case the art gallery had merged works without permission, sold multiple copies, and even forged certificates, the actions (outside of the license agreement) could be classified as unlawful. In situations where unlawful acts are not evident, a clear license agreement can make all the difference in successfully enforcing certain claims legally. It is therefore important to design the license agreement in a way that minimizes the risk of ambiguity or differences in interpretation.

If you have questions about copyright licensing or drafting licensing agreements. Ask them to Valerie Lipman or Joost van Dongen.

This page was last updated on August 8, 2023.