Can art be created in the metaverse from works by existing authors? The commercial court number 9 of Barcelona estimates that it is. This is what he considers in the case of the textile company Mango, owned by Isak Andic, which had been sued by the Visual Artist Management Entity (Vegap) for being inspired by paintings by Barceló, Miró and Tàpies to create NFTs (non-fungible tokens or encrypted digital assets).
In a pioneering ruling made public on January 11, the court dismissed the lawsuit, absolved Mango of all responsibility and ordered Vegap to pay the costs of the procedure. The ruling can be appealed within a period of twenty days.
The origin of the conflict initiated by Vegap is at the opening of the company’s store on Fifth Avenue in New York, in May 2022. Mango then created the aforementioned NFTs, inspired by five works of art belonging to the Mango Group (two by Miró , two from Tàpies and one from Barceló), which was uploaded to the OpenSea platform, in the metaverse, without the possibility of purchase, download or reproduction by users. The original physical works and NFTs were displayed at the opening of the US store.
Vega subsequently proceeded to sue the company for, in his opinion, violating copyright. He claimed a total of 1.37 million euros in compensation: 875,000 euros for property damage, 500,000 euros for moral damages and 380.21 euros for investigation expenses. However, the ruling, to which La Vanguardia has had access, exempts Mango from paying these amounts and orders Vegap to pay the entire costs of the procedure, including those corresponding to the separate piece of precautionary measures, not only to see rejected their claims, but also because of the bad faith and recklessness that can be seen in their actions.
“The question to be resolved is whether the use of the works by the defendant has been a legitimate use, which does not require authorization, or if, on the contrary, the defendant infringed the intellectual property rights of the authors of the original paintings by the fact to transform it and expose it publicly (in the physical, virtual and digital world) without authorization from said authors,” the judge underlines in his ruling.
In its conclusions, the court considers that the company “has not made any use that infringes the copyright on the works “Oiseau volant vers le soleil” and “Tète et Oiseau” by Joan Miró, “Ulls i Creu” and “Esgrafiats ” by Antoni Tàpies and “Dilatation” by Miquel Barceló, but has made a fair, legitimate and harmless use of them, without causing any harm to the authors of said works or their heirs. Mango’s legal department has had the support of the White law firm
