The image has been on display for decades, yet suddenly copyright thieves have the means to make easy money through digital reproduction of Glasgow’s most famous artwork. Steven Raeburn catches up with the copyright lawyers donning their fedoras, cracking their whips and dodging the rolling boulders, as they pursue the 21st century raiders of the lost art.

It has been moved a couple of times during its 57 years of residence in Glasgow, been attacked by the occasional brick and even placed in protective custody for its own safety, but has otherwise been quietly carrying out its day job of reflecting the serene gaze of its mesmerised public since the former Director of Glasgow Museums, Dr. Tom Honeyman persuaded Salvador Dali to part with what has become one of his most recognised creations, other than his twirling moustache; the iconic painting, Christ of St John on the Cross.

During January, it also - for the first time - became a pioneer of the law of copyright in Scotland, as Glasgow City Council announced they were exercising an unexpected programme of recovery of royalties lost to the Council and the citizens of Glasgow by its illegal reproduction. In these days of file sharing, illegal downloads and disc burning, many may have thought copyright law was a thing of the past, and the exercise is likely to have caught a few people by surprise. But for Colin Hulme of Burness, who is leading the charge - and demonstrating that copyright law is part of the evolving edge of law in Scotland - catching infringers in the act was all part of the plan. 

“At this stage we can go on to Google and look who is selling it quite frequently, and we secured evidence about them by taking hard copies of their websites and pages selling it, so we have evidence if they pull it from their system,” he says.

“We did our research and drew up a list of 50 most prominent sellers of this work. Whilst the internet to an extent creates this problem, it also provides a solution; they are putting it out there.”

After over half a century in full public view, it might seem a little odd to be initiating a revenue recovery action, but far from being a historic problem, Hulme points out that the explosion of digital imaging technology has made the copying problem very real, very new, and very acute. And in an unusually inspired exercise of prescience, the copyright in the image was sold to Glasgow in addition to the canvas itself.

“This is within my core area of practice, intellectual property protection. The specific instruction is very unusual indeed, partly because of the client and a Scottish client having an asset of this value, and the piece of art they have the copyright in.  These elements don’t come together frequently. It is peculiar,” says Hulme.

“It was incredibly forward thinking of Honeyman when he secured that. When Honeyman bought the copyright from Dali in 1952, he would never have known that 50 years later you could transmit perfect copies of the work at zero transaction cost. Who would have thought that? Back in 1952, what was photocopying like, never mind digital imaging?  We will be looking at damages claims for historic royalties, and reclaiming revenue from past sales.”

Glasgow City Council may have fired the starting gun on a whole new area of claims heralded by the digital revolution, although the vesting of copyright and the popularity of the image will be the limiting factors in how busy the copyright specialists are likely to find themselves over the coming years.

“Essentially the Dali has been recognised as being of significant importance to the city and its collections. We have 1.4 million items, and the Dali is undoubtedly the most iconic,” Glasgow City Council’s James Doherty told The Firm.

“We have known for some time that we are not receiving a fair do in terms of the revenue which could be recouped from enforcing the copyright and the licensing of the image. That might not have been as great a problem in the past, when it was very difficult for someone to get a very good representation of the image. It takes our specialist team of museum photographers three days just to get the light correct to get a good image. There wasn’t  as much prevalence of digital reproduction, where you could really get a good facsimile of the image, but that has changed. So people can reproduce the Dali fairly simply, whilst the costs of reproduction have decreased. There is a bigger opportunity to mass market the image, and that is what we have recognised and seen in recent years,” he said.

“This is actually robbing the public purse and the people of Glasgow. We also want to ensure that any reproduction of the image is done in a respectful manner. It is two-fold. We are looking to recoup money that has been taken from the people of Glasgow, and want to ensure that any reproduction of the image is not only licensed, but of decent quality and decent taste.” 

The investigation by Burness combines software searches with old fashioned legwork, in cases where the internet has not been used to either market or distribute illegal copies. There has been precedent where word of mouth and physical distribution has yeilded unknown lost sale revenue that could have been recoverable. Although much of the research was done before the hunt went public, Doherty believes there is a value in publicising the chase.

“We know that Burness are using specialised software to find instances of this globally. It is very difficult to quantify just how much is being lost. It could be tens of thousands of pounds but we just don’t know at this point.  We have had members of the public sending in potential instances of breach of copyright, and we are passing them on to our legal team to determine whether the licence has been breached. It is almost like opening up a can of worms.
“What we have found is an almost universally positive reaction to taking this step. In Glasgow in particular, people believe and hold very dear to their heart that this is their collection, it belongs to them. Given that unlike the national museums, we don’t get any government funding, we want to do everything we can to protect these collections and to benefit from them as well.

“We’ll see how successful this is. It is the most popular image we have. We couldn’t do it with the Rembrandts and Van Goghs. But we still have a few years when we can do it with the Dali.”

Whilst this remains an evolving area of practice, Colin Hulme, of Burness believes the existing copyright law is in need of reform, given the pace of the enabling technology which allows material to be copied and distributed at virtually no risk of detection or sanction. Rather than tightening the law though, he believes that liberalisation is the answer, given the reality that 90% of music for example, is owned illegally.

“At best you are choosing a minimal solution. All that a minimal solution does is increase the value of the stuff that is getting through. The better your dam is, you are building up pressure behind it. Eventually everything will come through if you don’t have a complete solution. You are actually creating a more valuable illicit market.”

For now though, recovery on the Dali will continue whilst copyright subsists. Moves are already afoot to extend artistic copyright beyond the present 75 year post-mortem period, and as digital technology advances exponentially, this may be the growth area of law for many years to come.