The Superior Court of Justice of Madrid (TSJM) has partially accepted the appeal of a man who was sentenced to four years in prison for plagiarizing and selling 15 works of art attributed to artists such as Eduardo Chillada, Roy Lichtenstein to an auction house in Madrid. and Edward Munch. The judges maintained a year and nine months in prison for him for the crime of fraud, but they acquitted him of the crime against intellectual property: “Curious and paradoxical as it may be, attributing to famous artists what was not created by them is not, in this case, a crime against intellectual property”.
The decision issued on June 6 by the Civil and Criminal Chamber of the TSJM to which El Confidencial has had access thus revokes part of the conviction issued in February by the Provincial Court of Madrid, although it maintains the full account of proven facts. Guillermo Chamorro signed a mediation contract with the auction house Setdart, based in Madrid, in 2018. The agreement was for the sale of 16 works of art attributed to 15 artists of which 15 are fraudulent copies made by himself or by other people. The fake batch included six serigraphs and a lithograph by Chillida, a lithograph by Munch, another by Lichtenstein, another by Saul Steinberg and five by José Guerrero.
All the works were intervened by the XXVII Group of Crimes against Intellectual Property of the National Police after a complaint filed in 2019 by a client who had acquired a false Chillida lithograph. Munch did not have rights to the works because he died more than 75 years ago and, in the case of Lichtenstein and Steinberg, the owners of their rights are not registered with the General Society of Authors and Publishers (SGAE) and were not in person. in the cause. But, for the holders of the rights of Guerrero and Chillida, the Provincial Court imposed on the defendant the obligation to compensate them with 48,000 euros and 39,700 euros, respectively..
Plagiarism, according to the RAE
The defendant filed an appeal under the representation of the Ospina Abogados firm and now the TSJM frees him from going to prison by partially accepting his arguments in what has to do with the crime of intellectual property. The judges describe the facts as “acts of plagiarism of known works or what is to say forgeries that are intended to pass off as authentic works of the authors, the object of plagiarism being works of a clear artistic nature.”. The sentence stops to analyze the word plagiarism etymologically: “According to the Royal Academy of Language, it is substantially copying the works of others, giving them as their own”.
“Not all infringement – added the judges – of the author's moral and patrimonial or exploitation rights, of the so-called intellectual property rights, constitutes a crime. The facts described in the account of proven facts are easily conceivable as damaging, at least morally, for the authors who are falsely attributed screen prints that were not theirs.. They could be fraud and civilly reprehensible but not as a crime against intellectual property “. For this crime, he had been sentenced to two years and three months in prison..
However, the TSJM does consider the crime of fraud proven: “The presence of an unequivocal fraud typical of fraud is easily concluded. The appellant knew perfectly well that the authors to whom he attributed them were not the creators of the silkscreens, but he took advantage of such fame to deploy, with the clear intention of illicit enrichment, such a ruse to consummate the sale, thus concurring with deception”.