Tuesday, September 16, 2014

Judge Easterbrook Is Not A Fan Of The Prince-Cariou Decision Either (UPDATED 2X)

An interesting fair use decision in the Seventh Circuit, with echoes of Prince-Cariou and, even more so, the Shepard Fairey "Hope" poster case.  The defendants used a photo of the Mayor of Madison, Wisconsin on some t-shirts and tank tops; the photographer sued.

Judge Easterbrook begins by declining to follow the Second Circuit's approach in Prince-Cariou:

"We’re skeptical of Cariou’s approach, because asking exclusively whether something is 'transformative' not only replaces the list in §107 but also could override 17 U.S.C. §106(2), which protects derivative works. To say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under §106(2).  Cariou and its predecessors in the Second Circuit do not explain how every 'transformative use' can be 'fair use' without extinguishing the author’s rights under §106(2)."

Later, he provides a very clear statement of the Cariou, get-your-hands-off-my-work position:

"[D]efendants did not need to use the copyrighted work. ... There’s no good reason why defendants should be allowed to appropriate someone else’s copyrighted efforts as the starting point in their [work], when so many non-­copyrighted alternatives (including snapshots they could have taken themselves) were available. The fair-­use privilege under §107 is not designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright proprietors. (Many copyright owners would block all parodies, for example, and the administrative costs of finding and obtaining consent from copyright holders would frustrate many academic uses.)"

Having said that, however, he concludes that it's "not enough to offset the fact that, by the time defendants were done, almost none of the copyrighted work remained," and therefore affirms the district court's ruling of fair use.

UPDATE:  Copyright guru Bob Clarida emails:  "The Seventh Circuit continues to pretend that transformative use is some sort of Second Circuit aberration that merely got a 'mention' in Campbell."

UPDATE 2:  Fierce Prince-Cariou critic Sergio Muñoz Sarmiento responds here.  Nicholas O'Donnell says "it is hard to see yet how long a shadow this case will case relative to Prince."

"Detroit reaches bankruptcy deal with fiercest creditor"

Story here.

Nicholas O'Donnell:  "This does not completely put an end to discussion about the role of the DIA collection, but for all intents and purposes it will likely be the last of any proposal to collateralize or sell the artwork."

Saturday, September 13, 2014

More animal copyright

Remember my hypothetical about the artist who intentionally leaves a camera out for a monkey to use?

Well, Agnieszka Kurant's show up at Tanya Bonakdar Gallery includes the following work:

"The sculptural installation A.A.I. (whose title references the concept of 'artificial artificial intelligence') is the product of the collective intelligence of termites to which Kurant outsourced her art production. ... Working with entomologists in laboratories at the University of Florida, Kurant employed an entirely unaware worker society of millions of termite specimens to produce sculptural mounds. The artist supplied the termites with alternative building materials such as vividly colored sands, gold, and glitter resulting in the creation of hybrid forms hovering between nature and culture."

Does anyone doubt that Kurant holds (and deserves) the copyright in the work?

"No case in recent history more clearly illustrates the subjective nature of pricing art than the disparate expert opinions of value of the Detroit Institute of Art collection." (UPDATED)

Appraiser Cindy Charleston-Rosenberg:  Warning For Collectors.

UPDATE:  Related thoughts from Jay Grimm.

Friday, September 12, 2014

Tell me again about the public trust (one of O’Keeffe’s best-known paintings edition) (UPDATED)

The Georgia O’Keeffe Museum is selling three paintings, including "Jimson Weed (White Flower No. 1)" from 1932, which is estimated at $10 million to $15 million.

Three paintings which, having fallen under the aegis of a museum, are held in the public trust, to be accessible to present and future generations.

Three paintings whose sale will certainly cause potential future donors to ask, Why should I give this to you? What guarantee do I have that you're not going to sell it?

UPDATE:  My friend Peter Dean emails:

"I understand that the museum police have a self-created exception to their self-created rules about de-accessioning, but it does seem a bit odd for an O’Keeffe museum to sell O’Keeffe paintings with the proceeds to be placed in the museum’s acquisitions fund, which will be used to purchase  . . what? More O’Keeffe paintings?  To fill gaps?  We are going in circles.

"Even if one tries to follow the logic of allowing sales to 'refine' a collection, in this case one of the three paintings seems to have especial provenance (display in the White House), value and merit.  How does that fit with 'refinement'?"

Put a bird on it (UPDATED)

Willamette Week has a story up about how some people are bothered by the fact that the artist who created the Portlandia sculpture retains the copyright to it.  It starts off sort of suggesting that this is something out of the ordinary, though later in the story it concedes that "actually, it's not that uncommon" (I would say it's not uncommon period).  Cities can negotiate for the copyright to public art pieces if they want, but then that's going to severely limit the pool of artists interested in working with them.

UPDATE:  Michael Rushton argues that it makes more sense for the city to acquire the copyright upfront. He says that "greatly reduces the transaction and other costs of anyone wishing to create an image that includes the statue having to negotiate individually with the artist."  I'm not sure I agree.  First, it only reduces the transaction costs if the city agrees to put the copyrights in the public domain (which I've never seen happen) -- otherwise instead of having to negotiate individually with the artist, anyone wishing to use the work will have to negotiate individually with the city.  Six of one, half dozen of the other.  In addition, suppose it would cost the city $100 to get the work without the copyright, and $150 if the copyright is included.  Why should "we all" (that is, the general citizenry of the city) pay that extra $50, rather than letting people who want to sell posters and other tchotchkes depicting the work pay for it directly?  Last, as I mentioned in my initial post, as a general matter, the best artists won't even consider such an arrangement. Rushton says "if the artist under consideration won't take such a deal, find another artist who will" -- but I think he understates the severity of that aspect of the problem.

Thursday, September 11, 2014

The strange, self-defeating breach of confidentiality lawsuit brought by Marguerite Hoffman took another turn last week (UPDATED)

The background is here.  A news story on the latest developments is here.  The judge threw out the jury verdict against the buyer of the work (David Martinez) on the grounds that the gallery was not his agent when it entered into the contract that contained the confidentiality clause.  (So the court viewed the sale as a two-step transaction -- Hoffman to the gallery to Martinez -- rather than a sale from Hoffman to Martinez through the gallery.)  The $500,000 verdict against the gallery remains, and that's another strange aspect of the case:  the theory is that that's the amount Hoffman gave up by selling the work privately (with a confidentiality clause) rather than at auction, as if sales at auction always do better than private sales.  One wonders why anyone would ever sell anything privately if that's the case.

UPDATE:  Art and Artifice:  "Four year of litigation and no additional millions to show for it....distressing."

Tell me again about the public trust (collection of over 30 Tiffany objects edition)

The Museum of Fine Arts, Boston is selling.

Remember, having fallen under the aegis of a museum, those objects are held in the public trust, to be accessible to present and future generations.

And potential future donors will certainly being asking, Why should I give this to you? What guarantee do I have that you're not going to sell it, just like you sold off those 30+ Tiffany objects?

That's the coin of the realm folks.  Use your common sense.

Wednesday, September 10, 2014

"Detroit Clears Crucial Hurdle on Bankruptcy"

A settlement with bond insurer Syncora.  Nicholas O'Donnell tweets:  "Huge. Would resolve biggest opponent to Grand Bargain."