When the chips are down (or lost) the courts can still award compensation

In a recent German case, first reported on the IPKat here, an artist was awarded €2,000 for the loss of some 22 year old chips (known elsewhere in the world as "fries" (French or freedom). The chips were used as the basis for "pommes d'or" (a golden cross made from two chips).

An alternative to the golden arches?
Photo: Stefan Bohnenberger

The golden chips were the work of artist Stefan Bohnenberger. Mr Bohnenberger argued that both his Golden chips and the more biodegradable template were works of art and that he was entitled to compensation from the gallery for the loss.

The Higher Regional Court of Munich (OLG München, case reference: 23 U 2198/11) agreed with the artist but refused to rule on the question of whether or not the fries were art (presumably if they were, they would be a sculpture). Instead the court awarded €2,000 on the basis of the chips' economic value. Key evidence appears to have been given by an art collector who said she had offered to pay €2,500 for them. However, as the artist had only asked for €2,000 in compensation, that was the amount the court awarded together with an order that the art gallery pay 90% of the artist's costs.

The award was made on the basis of the gallery's breach of its contract to store the chips securely. It is worth noting that this was an appeal from a lower court ruling which held in favour of the gallery on the basis that it could not see any loss to the artist.

Can a mouldy bit of potato be art? Where should the line be between what the public/artistic community considers to be art and what the courts treat as art? It is worth returning briefly to Lucasfilm v Ainsworth which did not made any hard and fast definitions of sculpture but endorsed the view of Richard Meade QC (in a different case - Metix v Maugham that “a sculpture is a three-dimensional work made by an artist's hand” [35].