"It just shuts us down"

An article in the Philadelphia Inquirer last week mentioned that Montgomery County is "unlikely" to appeal Judge Ott's latest decision in the Barnes case. The Friends of the Barnes are still thinking about it.

The article also says the County/Friends are "looking west for a strategy" -- a reference to a recent decision of the Montana Supreme Court which the New York Times described as follows:

"The Montana Supreme Court dismissed ... the board of the Charles M. Bair Family Museum in Martinsdale, Mont., saying it breached its fiduciary duties by closing the museum from 2002 to 2005. The court said the board had not spent enough money to give a good start to the museum — home to an eclectic collection of fine European antiques, valuable art works and priceless Indian artifacts. It ordered [the creation of] a new board that has to meet within six months."

The Nonprofit Law Prof Blog has a fuller summary.

I doubt the case will be of much help to the folks in Pennsylvania. The problem for the Barnes opponents, remember, is how to get their foot in the door: Judge Ott threw out the latest round of lawsuits on standing grounds. He never got to the merits. In the Montana case, the lower court found that the relevant "Friends" group did have standing to sue, but, because the Montana Attorney General was also party to the lawsuit, the Supreme Court "decline[d] to resolve whether the [lower court] erred when it determined that the Friends of the Bair had standing in the matter. ... To decide whether the Friends of the Bair have standing would amount to nothing more than an academic exercise."

So all the Barnes Friends really have to go on is a Montana lower court interpreting a Montana statute (Section 72-33-503, conferring standing to sue to enforce a charitable trust on the Attorney General, a co-trustee, or a person possessing a "special interest in the enforcement of the charitable trust"). I'd venture to say that's not quite the game-changer the Barnes opponents were looking for.

No. 9

Performance artist Karen Finley, no stranger to legal controversy, debuted a new, law-related piece tonight. Sewell Chan has the details.

Scream Back on View

"Edvard Munch's masterpiece 'The Scream' goes back on display this week for the first time since it was stolen four years ago but has suffered permanent damage, museum officials said Wednesday. Masked gunmen stole the work and another Munch masterpiece, 'Madonna,' in a brazen daylight raid on the Munch Museum in August 2004. Police recovered the paintings ... over a year later. Two men have been convicted and sentenced. The two works show signs of damage despite extensive restoration. At a preview of the exhibition called 'The Scream and Madonna Revisited,' which opens Friday, water damage to the lower left corner of 'The Scream' was clearly visible, as were scrapes to both paintings."

See here for background.

Paducah

A story in the special Summer Travel section of this Sunday's New York Times on how art and law came together to revive the rundown town of Paducah, Kentucky:

"[Artist] Mark Barone ... was fed up with the neighborhood and challenged the city to do something about it. Barone met with the mayor at the time, Albert Jones, and told him how other cities had improved blighted communities by passing a 'rental licensing ordinance' that forced slumlords to bring their buildings up to code. Jones liked the idea, and in 2000, despite constant battles with Paducah’s building owners, the city commission passed the ordinance .... That marked a turning point for Paducah, but for Barone it was only a start. ... With his help, Paducah put together a package of real estate incentives ... including 100 percent financing, low-interest loans and architectural services — in some cases the city even gave away properties if new owners would develop a plan to rehab them."

"I believe it is mostly neuroeconomics at work, namely that we are more excited by new offerings than by familiar offerings"

Tyler Cowen on "the afternoon effect" for artworks -- i.e., "the observation that as an auction proceeds, the prices of the lots decline, even for identical goods (e.g., wines)."

Art, YouTube, and the Law

The always-interesting Virginia Heffernan had a column in this Sunday's New York Times Magazine on an exhibition, at the Kitchen gallery, of videos chosen from YouTube. Rebecca Tushnet (who is also always interesting) gives a tour of the (many) IP issues the project raises, including whether the Times might be liable for linking to the videos ("inducement, anyone?").

Lessig on Orphan Works

In a New York Times op-ed today, Stanford's Larry Lessig weighs in on the orphan works legislation making its way through Congress. He's against it: "This 'reform' would be an amazingly onerous and inefficient change, which would unfairly and unnecessarily burden copyright holders with little return to the public."

He concedes that "the problem of orphan works is real," but thinks this is the wrong remedy:

"The proposed change is unfair because since 1978, the law has told creators that there was nothing they needed to do to protect their copyright. Many have relied on that promise. Likewise, the change is unfair to foreign copyright holders, who have little notice of arcane changes in Copyright Office procedures, and who will now find their copyrights vulnerable to willful infringement by Americans.

"The change is also unwise, because for all this unfairness, it simply wouldn’t do much good. The uncertain standard of the bill doesn’t offer any efficient opportunity for libraries or archives to make older works available, because the cost of a 'diligent effort' is not going to be cheap."

And he takes the opportunity to once again plug his own preferred solution:

"Congress could easily address the problem of orphan works in a manner that is efficient and not unfair to current or foreign copyright owners. Following the model of patent law, Congress should require a copyright owner to register a work after an initial and generous term of automatic and full protection. For 14 years, a copyright owner would need to do nothing to receive the full protection of copyright law. But after 14 years, to receive full protection, the owner would have to take the minimal step of registering the work with an approved, privately managed and competitive registry, and of paying the copyright office $1."

Public Knowledge's Gigi Sohn responds to the op-ed here: "What makes this legislation a no-brainer is that with the exception of a handful of small copyright holder groups (who, to my chagrin, have been very effective), there is near unanimous agreement that an orphan works solution is a good idea. There are still some kinks to be worked out in the legislation, but the framework underlying them is basically sound."

And Ed Winkleman issues a call for more clarity.

"I think it’s better to beg for forgiveness than ask for permission" (UPDATED)

A piece in this week's New York magazine notes that "Tom Sachs didn’t bother to get permission from Hello Kitty’s owner, Sanrio, before he installed his enormous Hello Kitty sculptures in front of Lever House." He says "Hello Kitty is so much a part of our popular culture, I don’t think anyone really owns it. It’s something licensed by Sanrio, but I think her spirit and love and purity belong to all of us." There's a good photo of one of the works being loaded in here.

For its part, Sanrio seems to be tolerating the use: a spokesperson is quoted as saying, "You know, there was Marilyn Monroe and Andy Warhol, and then Michael Jackson and Jeff Koons. When you’re an icon, that’s what happens."

Related interview with Sachs here.

UPDATE: More here from Sergio Muñoz Sarmiento, including some additional photos (thank you Ms. Valencia!). One point I'd make is that, while Sergio says "it seems that Sachs’ sculptures .. infringe the intellectual property rights of Hello Kitty’s owner," on a robust enough conception of "transformative purpose" it's possible these could qualify as fair use.

"Maybe it's the trustees and administrators who ought to be deaccessioned"

Lee Rosenbaum notes, with displeasure, that Randolph College is about to sell one of the four works it originally planned to offer last November but which were then tied up in a (now withdrawn) lawsuit seeking to block the sale.

Lee offers the following analogy in support of her no-deaccessioning policy: "If someone were to suggest that funds be raised by selling important books from the library, that (one hopes) would be a non-starter: Books go to the core of the college's educational mission."

I remain unconvinced. Would we really object if a university decided it was in the best interest of the school to sell off some books -- presumably because they thought the proceeds from the sale could be put to better use in other ways (like funding athletic programs, or preserving the anthropology department, or supporting additional need-based scholarships, and so on)? What if, by some quirk in the book market, these particular books (which, important as they undoubtedly are, were really only used and enjoyed by a fraction of the university community) were suddenly worth millions and millions of dollars? Do we really want to say that university trustees and administrators can never, under any circumstances, sell off an asset that "goes to the core" of its educational mission, even if the funds raised from the sale would be used to acquire other assets (or fund programs etc.) that also go to the core of its educational mission?

Why can't we trust the school's trustees to make these decisions?

Tolerable

Interesting article by Columbia IP scholar Tim Wu on "tolerated use" -- "a term that refers to the contemporary spread of technically infringing, but nonetheless tolerated use of copyrighted works."

Wu had a more accessible version, for a broader audience, at slate.com last fall.

So derivative

Robert Bernstein and Robert Clarida had a piece ($) in yesterday's New York Law Journal on the recent string of cases dealing with the question whether a photograph of a three-dimensional object is a "derivative work" under copyright law. Two district courts have said no, but the Ninth Circuit and one district court have said yes. I recently noted this issue here and here.

Bernstein and Clarida take the no-derivative-work line (as does Bill Patry): "For what it is worth, the authors of this article consider the [photographs] at issue in all of these cases to be works of photographic expression that depict their subjects but do not recast, adapt or transform them in the manner required of derivative works."

Rauschenberg

The sad news of Robert Rauschenberg's death this week also means the end of one of the two lawsuits he recently filed over the sale of objects pulled from his trash. The Southwest Florida News-Press's Mary Wozniak reports:

"Rauschenberg's death will nullify the federal lawsuit he filed against Naples artist Robert Fontaine under the Visual Artists Rights Act, said Lawrence H. Kolin of Orlando, Rauschenberg's attorney in the case. ... Kolin said that he has asked Yale T. Freeman, Fontaine's attorney, to consent to dismissal of the case. But Kolin likely will pursue a state lawsuit Rauschenberg filed in the same case, which Kolin amended shortly before Rauschenberg's death. The state lawsuit initially asked only for fact-finding, but now alleges that Fontaine and the HW Gallery of Naples made a deliberate effort to trade on Rauschenberg's fame and creative work by offering discarded copies of Rauschenberg's copyrighted photographs as if they were completed works authorized and signed by the artist."

Rights under VARA last only for the artist's lifetime.