Wednesday, July 18, 2018

"G.M. Used Graffiti in a Car Ad. Should the Artist Be Paid?"

The New York Times reports:

"Mr. Falkner’s case is set to turn on another unsettled question of copyright law. Last month, lawyers for G.M. sought to end his lawsuit by claiming in court papers that the company was allowed to use his parking garage mural because of a provision in the law that says images of 'architectural works' do not have copyright protections. In their papers, the lawyers argued that the parking garage was itself an architectural work and that Mr. Falkner’s mural was not protected under the law because it was 'incorporated into a building.'"

And in response:

"Last week, Mr. Gluck [the artist's lawyer] filed his own court papers, suggesting that the architectural exemption was put in place to protect the public from being sued for taking and posting photos of significant structures like the Washington Monument or the Space Needle in Seattle. If a parking garage — even one covered in art — could be construed as a significant structure, Mr. Gluck maintained, it would have widespread implications.  'If GM’s view prevailed,' he wrote, 'all graffiti art that exists on a building — that is, most graffiti art — would suddenly be unprotected by copyright.'"

Saturday, July 14, 2018

"A new criminal case was recently opened in Geneva after a fraud complaint was filed in late 2015 by an unnamed industrialist from the Baltic region, who has accused an art dealer of overcharging for works by artists such as Pablo Picasso, Henri Matisse and Alberto Giacometti."

"This may sound like a familiar story, but it has nothing to do with the battle between Yves Bouvier and Dmitry Rybolovlev."

"Monterey’s Dalí17, which displays the 500-work private collection of the Ukrainian-born real estate developer Dimitry Piterman, features the Surrealist’s face—complete with upturned moustache—on its logo."

The Art Newspaper: Dalí foundation sues California museum for use of artist’s name and image.

Brandon Butler tweets:  "This lawsuit seems crazy—if a museum full of Dali art can’t use 'Dali,' what should it be called? 'Museum of the Melting Clocks Guy—You Know, with the Weird Mustache'?"

On the other hand:

"Coblentz Patch Duffy & Bass partner Lawrence Siskind, who’s not involved in the case, said at first blush it sounds as if the foundation has a strong case. If the museum called itself 'The Museum of Surrealism' and exhibited Dali retrospectives, that probably wouldn’t break any laws. It could even create a website called and publish commentary and criticism about his artwork.  But use of 'Dali' as part of the museum’s name might imply that Dali’s heirs or owners of the rights have authorized use the name, or endorsed the museum, Siskind said."


"UC Hastings School of Law civil litigation professor David Levine said Piterman 'may well have a problem' by using Dalí’s name and image to promote the museum. It’s one thing, Levine said, to display a Dalí painting on a museum wall. It’s another thing to use Dalí’s image to promote it.   To be safe, Levine said, Piterman needs a different strategy.  'If he advertises it as "Dmitry’s Museum Featuring Works of Salvador Dalí" without using Dalí’s likeness, that’s probably OK,' Levine said."

"Now Ms. Columbus, 43, has filed a complaint with the New York City Commission on Human Rights, asserting the museum discriminated against her in violation of the city’s laws on caregivers, pregnancy and women’s rights."

NYT:  Curator Says MoMA PS1 Wanted Her, Until She Had a Baby.

Paddy Johnson comments here.

"The Wayfair decision looks like a sales tax game-changer for many New York galleries."

Says Tom Danziger in this artnet piece on a recent Supreme Court decision involving the power of states to require out-of-state sellers to collect sales tax on objects shipped into the state -- say works of art, for example.  Here's the New York Times story on the decision.  More here generally, and more here as it relates specifically to the art market.

"Having determined that the face of plaintiff’s sculpture is distinct, original, and protected, we find that defendant’s use was infringing."

Here's an interesting one:  the US Postal Service owes an artist $3.5 million for using what they thought was a photo of the Statue of Liberty on a stamp but which turned out to be a photo of a variation on the actual statue that lives outside a New York-themed hotel in Las Vegas.  The decision is here.

Berkshire Update

At the Center for Art Law, Jennie Nadel has a good summary of where things stand.

The Berkshire Eagle says a "new era" for the museum has begun.

And, in case you were wondering, opponents of the sale are still opposed.  They have not changed their minds.

More on the California Resale Royalty Decision

Lots of coverage over the last week.  Nicholas O'Donnell has a very good, comprehensive overview of the twists and turns the case has taken.  His conclusion:  "Barring unexpected developments (or Supreme Court intervention and reversal), this is probably the end of the line for droit de suite in America."

The New York Times report is here:  California Tried to Give Artists a Cut. But the Judges Said No.

Brian Frye says the decision is "a big deal, but should not come as a surprise to anyone."

Jori Finkel's report in The Art Newspaper points out that "the ruling could also open the door for Christie’s and Sotheby’s to hold more contemporary auctions in Los Angeles, free of both the burden of paying the 5% royalty and the pressure of navigating and litigating this issue."  And she includes a glass half-full take from ARS's Ted Feder:  "On the bright side, the Ninth Circuit decision recognises this federal pre-emption, which in our view argues for adoption of a national right, covering all the States."

On the glass half-empty side, echoing O'Donnell's conclusion, Daniel Grant's Observer report declares that "artist resale royalties in the United States, like Old Marley in the Dickens story, are as dead as a door-nail."  I think this take may overstate things.  Yes, resale royalties are currently a little deader than they were before this case, in the sense that there used to be one state that had them and now there are (and can only be) none.  But it's at least possible that, on the national level, there may be slightly more momentum for resale royalty legislation after this decision than there was before.  It's still pretty unlikely, but I don't think we can rule it out completely.  I still think there's a version of a resale royalty law that make sense.

Friday, July 06, 2018

"Our decision today means the CRRA had a short effective life."

BREAKING:  Ninth Circuit rules that the California resale royalty law is preempted by the 1976 Copyright Act (so -- at most -- the plaintiffs can pursue claims from the period between the law's effective date of January 1, 1977 and the 1976 Act's effective date of January 1, 1978).

For background, start here.

Tuesday, June 26, 2018

"Sir Anish Kapoor’s Clenched Fist of Copyright, the Battle Over Fair Use, and the NRA"

Sergio Muñoz Sarmiento, writing at Hyperallergic, on Anish Kapoor's lawsuit against the NRA.

Related:  Mike Masnick at Techdirt:

"This is so obviously fair use that it's not even worth going through the full four factor analysis. This is less than a second in a political video showing a public sculpture in a public location. It's not key to the video. It's used as part of commentary.  The nature of Kapoor's lawsuit, however, is quite obviously to stifle free speech he disagrees with."

Friday, June 22, 2018

"But the imperious demands of a multimillionaire who no longer wants to wait cannot trump the plain and unambiguous language of the Purchase Agreements, which do not require Mr. Koons to create the Works by any specified deadline."

Artnews:  Gagosian Gallery Files Motion to Dismiss Steven Tananbaum’s Jeff Koons ‘Non-Delivery’ Lawsuit.

This is the one with the ouroboros.

"Anish Kapoor Sues NRA for Copyright Infringement of Bean Sculpture"

Artnews story here.  They use it in an ad.

Sergio Muñoz Sarmiento thinks Kapoor is trying to use copyright to censor speech.

IP professor Christine Farley tweets:  "The Bean appears for just 1 second, but it takes up almost the entire frame. De minimis?"  (For a recent de minimis case, see here.)

And some interesting Twitter discussion among some law professors here (though I really don't get the doubts about copyrightability here).  Brian Frye says "surely the use of public art as a backdrop is - or should be! - a fair use."  Michael Risch wonders why we should think "people should be free to commercialize photos of sculptures when they can't commercialize a photo of a painting. Other than the fact that you have to pay to see one of them in a museum, it's unclear to me why these are different categories of art."  Several people seem to think there should be a statutory exception allowing the use of public art.

"In such a polarised climate, should auction houses and dealers not pay their dues to the artists from whom they profit?"

In The Art Newspaper last week, Anny Shaw uses P. Diddy's recent purchase at auction of a Kerry James Marshall painting for $21 million -- "Marshall didn’t receive a cent from the sale" -- as an occasion to wonder about resale royalties for artists.

And that reminds me to thank everyone who came out to Pioneer Books Monday evening for a stimulating conversation on the subject of resale royalties (where among other things I described what I don't like about the most recent proposed legislation and defended my tentative, still-developing idea for an alternative version that would apply, without a cap, in cases where there has been a massive increase in value).

Thursday, June 14, 2018

"A New York City real estate developer who demolished the famed graffiti space 5Pointz won't get a new trial, after a federal judge Wednesday issued a scathing opinion that blasted the owner for lying in court and other 'egregious behavior.'"

Law360:  No New Trial Over 5Pointz Graffiti Destruction, Judge Says:

"The ruling paves the way for Wolkoff to take the case to the Second Circuit, setting the stage for a closely watched appeal ...."

One question for that appeal will be whether statutory damages are the appropriate remedy for the kind of behavior that seemed to tick off the Judge here.