Who: Ai Weiwei and Volkswagen’s Danish distributor, Skandinavisk Motor
When: 17 July 2019
Law stated as at: 5 February 2020
Volkswagen Denmark used an image of Ai Weiwei’s work, Soleil Levant, in an October 2017 campaign for the VW Polo without seeking permission from the artist or Kunsthal Charlottenborg, the exhibition building on which the work was installed.
Soleil Levant, installed from 20 June to 1 October 2017, obscured the windows of Kunsthal Charlottenborg with more than 3500 life jackets, discarded by refugees who had fled by sea to Europe. The work was intended to highlight the wide-spread humanitarian crisis entailed by the displacement of thousands of people.
Having unsuccessfully attempted to negotiate some form of compensation (or an apology) from Volkswagen, in July 2019 Ai Weiwei sued Volkswagen’s Danish distributor, Skandinavisk Motor, for infringement of copyrights and violation of good marketing practice under the Danish Marketing Practices Act, claiming that by free-riding on Ai Weiwei’s reputation and goodwill Volkswagen had made improper use of the artwork. Volkswagen acknowledged that copyright infringement had taken place but denied any breach of “good marketing practice” under the Danish Marketing Practices Act.
There was, explained Volkswagen, a reason why permission to use the image had not been sought. The photographer for Volkswagen claimed he had not realised he was photographing an artwork and at the time had no prior knowledge of Ai Weiwei or Kunsthal Charlottenborg (despite this being one of the largest exhibition spaces for contemporary art in Europe and the official exhibition gallery of the Royal Danish Academy of Art). Volkswagen denied that any infringement was intentional or the result of gross negligence.
In July 2017, the Danish court ruled in favour of Ai Weiwei, agreeing that the artwork had been improperly exploited for marketing purposes and also that Volkswagen had free-ridden on the Ai Weiwei brand. The court also found that the photographer was guilty of gross negligence, observing that not only had the exhibition been the subject of massive media attention in the summer of 2017, large signage concerning the exhibition was also in place on the façade of Kunsthal Charlottenborg at the time the photographs were taken.
Ai Weiwei was awarded 1.75 million Danish krone (circa £200,000) in compensation. Volkswagen has appealed the decision, so watch this space for further updates from the Danish courts.
Why this matters:
Marketers could be liable if they reproduce a whole or substantial part of an artist’s work without permission.
When preparing campaign materials, brands should ensure that all intellectual property clearances have been obtained and that those involved in creating materials have a proper understanding of what may constitute an intellectual property rights infringement.
Most marketers have a good understanding of and robust policies concerning the reproduction of trademarks in campaign materials and an informed approach to copyrights and other proprietary rights should be similarly adopted.
This finding also concerned breaches of Danish good marketing practice rules. While equivalent rules to those considered do not apply in the UK, this highlights the importance of understanding the requirements and restrictions of local markets when planning international campaigns.