Chihuly In The Times (UPDATED)

The New York Times catches up with the Dale Chihuly copyright lawsuit we've been following closely, most recently here.

UPDATE: Now that the lawsuit's made it to the front page of the Times, lots of commentary.

Professor Patry properly identifies "the essence of the dispute" as "the possible attempt by Mr. Chihuly to assert rights over techniques and style." He says it is "the scope of [Chihuly's] claims that are the most troubling." In the comments, he also points to a District Court opinion by Judge Leval (Fisher v. Klein, 16 USPQ2d 1795 (S.D.N.Y. 1990)) that "has some good discussion about sculptuors being able to employ assistants and still remaining sole authors" (which goes to the second of the two issues the Chihuly case presents; see my earlier discussion here).

Professor Ed Lee agrees "that there's a danger in allowing a broad assertion of copyright over a style of glass art, but without seeing the competing works, I'm not sure that's what this case involves. At least in the NYT, Chihuly says he only wants to stop the 'knock off' or verbatim copying of his work."

Professor Althouse first wonders why is this a copyright case and not a contracts case: "If Chihuly hired Rubino and kept him on for 14 years, why did he he never make Rubino sign a contract that would have limited Rubino from making similar shapes to sell on his own?" I must say I'm not aware of any artist requiring his studio assistants to sign something like that. And corporate law prof Gordon Smith suggests in the comments that such a contract might not be enforceable in any event: "Employers cannot use contracts to prevent their former employees from using general skills or knowledge that they have acquired in their employment. So it seems to me that Chihuly would not be able to prevent Rubino from working as a glassblower. The issue would be whether Chihuly could restrict Rubino's glassblowing in any meaningful way while passing judicial muster. The test for covenants not to compete is 'reasonability.' Restrictions usually fall into three categories: geographic, temporal, and subject matter. Chihuly would not benefit much from a geographic restriction ('you can't make glass sculptures in California') and any meaningful temporal restrictions would likely be unreasonable ('you can't blow glass for 10 years'). Would he be able to describe the subject matter of his sculptures with sufficient precision to craft a meaningful constraint on Rubino? Maybe. Would a court think that is reasonable? Hmm. I don't remember ever seeing a case quite like the one you imagine."

As to the infringement claim, Althouse notes: "Artists are always copying each other's styles. It's disturbing to think that they should have to worry about being sued by the more successful artists who came before them. The old could prey on the young mercilessly, and the development of artistic styles would be crippled by litigious artists." She also makes the point, responding to a commenter who said "I had no idea that Chihuly didn't blow his own sculptures": "Right. Who did? He's publicizing the information himself by bringing the lawsuit. Plus, he's bullying another artist. Even if his claim is sound, it might not have been wise to sue . . . . This is hurtful to Chihuly's reputation, even if he wins. I'm just saying that you have to think through everything before suing. You may feel aggrieved, but you have to picture what the opponent will throw back at you. Someone who never would have sued you will now come up with defenses and counterclaims, and there will be articles like this one on the front page of the NYT."

Law prof Mike Madison addresses the co-authorship angle: "Take a look at this exhibit: a fax from the plaintiff to the defendant that communicates some sketches — and adds, 'Here’s a little sketch but make whatever you want.' At the least, this sounds to me like the defendant has a plausible claim of joint authorship with respect to at least some of the plaintiff’s works." But I think Professor Tushnet has the better of this argument: "I'm not sanguine about the chances of joint authorship, which in the 9th Circuit (among others) requires that the person who was generally considered the author before the dispute erupted to have intended to treat his collaborator as a joint author. And the reason that Chihuly's name is on the works -- he's the core of the business, the author-figure on whom a large industry is founded -- is good reason to believe he didn't intend that, no matter what the collaborator thought. If Chihuly contributed any copyrightable expression at all, he will probably get 100% ownership."

And patent lawyer Steve Barns has a nice bottom line summary: "Chihuly may have developed a distinctive style of blowing glass but the style is not copyrightable, only the specific expressions of that style (the individual pieces) are copyrightable. Copyright policy is not to protect an artist’s ‘signature style’ but to reward the artist for creating individual works. Just as Picasso cannot sue all cubists, Chihuly shouldn't be able to prevent glass artists from making 'lopsided creations, and other designs inspired by the sea.'"

Berry-Hill Bankrupcty

As part of its bankruptcy proceedings, Berry-Hill Galleries is selling its E. 70th St. headquarters. The property is listed at $20 million; bids are due June 12. The gallery filed for Chapter 11 protection last December, but the listing indicates that "this is a court supervised sale, sold free and clear."

Today in Art Theft

Lots of international art theft news today. In England, two more bronze statues have become the latest in what police believe is a scheme to grab artworks solely for their scrap value (mentioned earlier here). In Turkey, two 6th Century BC artifacts -- which were returned to Turkey in 1993 after the Metropolitan Museum admitted it had known they were stolen when it purchased them-- have been stolen again, this time from a museum in western Turkey. (The thieves had replaced them with fakes.) Nine people, including the director of the museum, have been arrested. And in Canada, 30 paintings, 10 sculptures, and about 30 pieces of jewelry by various artists were stolen from a group show at the Blink Gallery in Ottawa. They even took the labels for the pieces.

"The Last of the Real Soft Touches"

The New York Times had a piece this weekend on artists and their participation in the increasing number of benefit auctions. Lots of interesting stuff, but from an art law perspective the story made two important points: (1) When an artist donates her own work, she gets an income tax deduction equal only to the cost of materials (though there currently is, as there has been off and on for years, proposed legislation to change that); and (2) When a collector donates a work to be sold, the tax deduction is equal to the price she paid for it (as opposed to its fair market value, as would be the case if the work were donated to a museum for exhibition). The latter is a result of the so-called "related use" rule of section 170(e)(1) of the Internal Revenue Code, which requires that the use of the donated property by the recipient organization be related to the purpose constituting the basis for its tax-exempt status. So a donation of a work of art to an art musuem is (generally) a related use, and the donor gets an income tax deduction for the full fair market value of the work. But if the same work is donated to an arts organization for inclusion at a benefit auction, that's an unrelated use and the donor's tax deduction will be limited to what she paid for the work.

"A slap in the face, an act of misguided love"

That's what Jerry Saltz calls Triple Candie gallery's just concluded exhibition of "re-created" Cady Nolands -- re-created, that is, without her permission. He says "if I were Cady Noland I'd think about getting a lawyer to get medieval on Triple Candie." Given what it costs to get a lawyer to get medieval (or even Early Modern) on people, however, and the likelihood that a lawsuit, and its attendant publicity, is exactly what the gallery is looking for, this may have been a case where discretion was indeed the better part of valor. But there's no question that Triple Candie's actions here amounted to a blatant violation of Noland's copyrights.

Brooklyn College Show to Reopen

The New York Times reports that the Brooklyn College MFA show is opening in its new Dumbo location Wednesday night. The students still say they are planning a First Amendment lawsuit against the city.

"One of the most lucrative art scams in years"

Canada's Globe and Mail reports on the latest art scam: forgers purchasing (authentic) works by relatively minor European artists, "altering them in a process known as 'Russification,' painting on the signature of major Russian artists, and selling them for many times their worth." A curator at the National Museum of Russian Fine Art is quoted as saying he believes "at least 120" paintings have been purchased throughout Europe at prices ranging from $1,000 to $20,000 and then "Russified" and resold for as much as $1 million.

At Least The Litigators Will Be Grateful (UPDATED)

The May Entertainment Law Reporter has the following take on the Bill Graham Archives fair use decision:

"On the whole, this opinion doesn’t uniformly benefit or harm the entire entertainment industry. Instead, it invites litigation (instead of licensing) on a case-by-case basis. . . . The difficulty with the 'fair use' doctrine – and especially this opinion’s expansive notion of 'transformative use' – is that determining which uses actually are 'fair' requires litigation that almost always will be more expensive than a license would have been."

I had a similar reaction here (and here).

UPDATE: Professor Lessig thinks the decision is "fantastic."

Chrismas Spirit

The L.A. Times reports this weekend on a lawsuit filed by Greek artist Jannis Kounellis against veteran dealer Doug Chrismas. The lawsuit, in Los Angeles Superior Court, says Kounellis consigned more than $4 million worth of art to Chrismas, who then "ke[pt] most of the profits and refus[ed] to return the pieces that did not sell." The complaint seeks punitive damages of "no less than $20 million." Punitive damages are rarely awarded in breach of contract actions, but presumably the complaint includes other claims as well (e.g., breach of fiduciary duty). Chrismas is no stranger to the legal system -- the Times reports that in the 1980's he pleaded no contest to criminal charges that he stole works by Rauschenberg, Warhol, Stella, and Judd and he's filed for Chapter 11 bankruptcy protection "at least six times" since 1982 -- but in this case he basically waves the white flag, telling the Times he is "doing a full accounting of the proceeds ... -- minus the expense of exhibiting [the work]" -- and is returning all the unsold pieces. One interesting question is whether he has the right to deduct the exhibition expenses. Normally that's determined by the parties' agreement -- which, in this case, was oral. In a post discussing the lawsuit, Caryn at art.blogging.la says: "I think that a contract is necessary and, most importantly, it opens up a discussion of what is expected of both gallery and artist and then it's agreed upon in writing. A contract is proof that your terms have been discussed and, in my opinion, if someone doesn't want to draw up and sign an agreed upon contract, something is fishy." I couldn't agree more.

Damages for Infringement-Induced Depression?

An interesting decision by Judge Haight in the Southern District this week (no free link that I can find, but NYLJ subscribers can access the decision, Gary Price Studios Inc. v. Randolph Rose Collection Inc., here), excluding proffered expert witness testimony as to the overall "productivity loss" caused by defendant's alleged copyright infringement. The case involves four bronze sculptures that were allegedly infringed. The expert was prepared to testify that the artist's "awareness of Defendants' alleged infringements so distracted and diverted him that [his] creative focus and energies were diminished and the number of his created sculptures were consequently reduced." Noting that "such a damages theory leads inevitably to the highly subjective and personal subtleties and mysteries of artistic creation," and quoting a Wordsworth sonnet, Judge Haight rejected the proposed testimony "without difficulty": "The services of the sensitive mind and heart demanded by Creative Art are subject to inexplicable obstacles. ... In my view, the ... productivity loss theory advanced by [the expert] cannot be tested within the context of the mysterious ebb and flow of an artist's creative powers." On the other hand . . . Judge Haight did not hold that copyright damages could never include this sort of productivity loss -- just that expert testimony could not be introduced on the subject: "The jury is capable without assistance from [the proffered expert] to determine [if] Defendants' conduct served to diminish Price's creative output, and, if it finds such effect occurred, to determine Plaintiffs' resulting economic loss on the basis of the fact witnesses available to Plaintiff and the Court's instructions on the law of damages in copyright infringement cases."

Grateful Dead Decision

Robert Bernstein and Robert Clarida have a piece in today's New York Law Journal ($) on the Second Circuit's fair use decision in the Grateful Dead case that I posted about earlier in the week. They conclude that the decision "has strengthened the arsenal of defendants in fair use cases." That's certainly true, though, as I argued earlier, the decision -- involving seven shrunken images in a 480-page book containing over 2,000 images in total -- strikes me as too fact-specific to be really useful.

Through A Glass Darkly

The Seattle Times has the latest on the increasingly contentious lawsuit between Dale Chihuly and a former studio assistant. There seem to be two things going on:

1. As a defense to Chihuly's copyright infringement claims, the assistant is invoking the familiar idea-expression distinction. His counterclaim accuses Chihuly of seeking "a monopoly on any and all glass art that is curved, nested or uses certain kinds of colors. [Chihuly] cannot use copyright registrations to protect an idea or process that is so elementary that it would preclude any other glass artist from working or creating any glass art at all."

2. Beyond that, the assistant is apparently claiming co-authorship rights in a number of Chihuly works, which, among other things, would entitle him to a share of the profits from exploitation of those works. This is obviously a more radical claim: Absent an express agreement to the contrary, I'm not aware of a single case where a studio assistant was awarded co-authorship rights in a case like this. (Seattle P-I art critic Regina Hackett touched on this issue in a recent profile of Chihuly: "Throughout art history, artists have used assistants, sometimes liberally, but in the 20th century artists directly challenged the idea that art is more valuable as a hands-on operation. From Marcel Duchamp to Andy Warhol, Jeff Koons, Lawrence Weiner and Robert Gober, artists say that hands-on production is a choice, not an imperative.")

Injunctions

Professor Nimmer has a good post on the Supreme Court's decision in the much-discussed EBay patent case yesterday (which includes some discussion of copyright as well). His bottom line: "So, what happened here? Very little. In my view, the most important result is that the Court affirmed the right of a property owner to prevent use of its property in most cases. The risk avoided by the Court was that this case would be a vehicle to diminish the strength of patents and copyrights as property. The Supreme Court got it right by rejecting that result."

$150,000,000 for the Barnes

The Barnes Foundation has raised the $150 million it says it needs to move to downtown Philadelphia. I previously posted about the move, which raises difficult questions involving "settlor's intent," here.

Long Strange Trip

The New York Law Journal ($) reports on a Second Circuit decision holding that reproductions of seven concert posters in a book on the Grateful Dead was a fair use. The publisher had tried to get a license to use the images from the copyright-holder, but went ahead and used them when permission was refused. A friend who is an eminent copyright lawyer emailed to say the opinion is "smart and important," but I'm not so sure, at least about the "important" part. The decision strikes me as just another case-specific application of the four fair use factors. This court found they tipped in the defendant's favor, but one can just as easily imagine another court coming to the opposite conclusion on the exact same facts. So things are just as uncertain as they were before this decision. No one really knows whether or not a given use is permitted. At the end of the day, the best definition of "fair use" remains Larry Lessig's: the right to hire a lawyer.

Kozlowski Sales Tax Deal

Dennis Kozlowski, the jailed former Tyco CEO, has agreed to pay approximately $3 million in sales tax, interest, and penalties to avoid further prosecution. (He also agreed to pay about $17 million in back income taxes.) Art dealer Christine Berry had testified in the earlier trial that Kozlowski bought more than $14 million worth of paintings and had the invoices sent to Tyco's offices in New Hampshire, though the paintings actually went to Kozlowski's apartment in Manhattan. A memo from Berry to the shipping company showed how blatant the fraud was: "Here is a list of the five paintings to go to NH (wink, wink). Please make cardboard boxes or use crates to match the piece count. Cheers & thanks.'' Tyco prosecutor John Moscow makes an appearance to remind us that the sales tax evasion was the catalyst to the entire prosecution: "This is where we started four years ago, when we first looked at the sales tax due on the paintings and discovered the man who could afford $14 million for art was cheating on the 8.25 percent sales tax." So trying to save a million bucks or so in sales tax, Kozlowski ends up serving 8-25 years in (state!) prison and paying well over $100 million in restitution and back taxes (and who knows how much in legal fees). And counting. Think he'd like to have that one back?

"It's a real loss of innocence"

New York Magazine had a short piece this week on the "hot Chelsea art trend: shoplifting."

Brooklyn College Update

The Brooklyn College MFA students have decided to accept the offer to move the show to the space offered by developer David Walentas in Dumbo. Story here.

Can't Win Them All

As a follow-up to my earlier posts on Sotheby's increasing use of guarantees to attract business, I notice that Carol Vogel's report on last night's auction included the following:

"Last night's sale featured 'Sinking Sun,' a 1964 sunset scene by Roy Lichtenstein being sold by Joseph Helman, the Manhattan dealer. ... Sotheby's gave Mr. Helman a guarantee — an undisclosed minimum sum promised to a seller regardless of the outcome of a sale — that experts say was about $17.5 million. If so, Sotheby's lost money on the deal. The painting had only one bidder — Dominique Levy, a partner in the Manhattan gallery L&M Arts — and she bought it for $15.6 million."

eBay Art Fraud

Wired News has an interview up with Kenneth Walton, the Sacramento lawyer who in 2000 sold a fake Diebenkorn on eBay for $135,000. Walton, who pleaded guilty to federal felony charges, lost his law license, and was banned for life from eBay, has a new book out about the story called Fake: Forgery, Lies, & eBay. He says in the interview that eBay has "really cracked down on shill bidding, and made it much more difficult for sellers to bid on their own items or (let) people they know bid on their own items. They put into place some very complex pieces of software to police that. I'm not going to say it's impossible anymore, but I think that's much tougher." There's a review of the book here. An earlier post of mine on eBay fraud, including one art dealer's claim that "the majority of things that appear on eBay are fakes," is here.

New Home for Brooklyn College Art (UPDATED)

Thanks to DUMBO real estate developer David Walentas, the controversial Brooklyn College MFA Exhibition has a new home. UPDATE: Or maybe not. The New York Times is reporting this morning that it's unclear whether the students will accept the offer. The Times also reports that Mayor Bloomberg, who it's safe to say has very different attitudes towards art than his predecessor had, believes the closing of the show was appropriate: "'Nobody's suggesting that anybody shouldn't be allowed to exhibit art,' Mr. Bloomberg said. 'The issue here is this is not a museum. This is a war memorial.' He added, 'There has been an understanding ever since art was put here that the art would be appropriate for families and respectful of and appropriate for a war memorial and this time it was not.'" Apparently the students will sue the city regardless of whether the exhibit is reinstalled in the new space.

Chihuly defendants counterattack

I've posted several times about glass artist Dale Chihuly's copyright lawsuit against a former studio assistant. See here, here, and here. The Seattle Times had a report this weekend on the assistant's counterclaim, which includes allegations that Chihuly is not involved in conceiving, creating, designing, or signing many of his works, and that he sometimes buys glasswork from other artists, removes their names and puts his on instead. Volataire once quipped that "I was never ruined but twice: once when I lost a lawsuit and once when I won one." I have a feeling, no matter how his suit turns out, Chihuly will know what he meant.

More College Censorship?

Some have been grouping the closing down of this Brooklyn College MFA exhibition with the recent cases of censorship at Penn State and Brandeis. The Times ran two stories on it this weekend, and the former head of the ACLU was quoted as calling it "quintessential censorship." I'm no expert in constitutional law, but this one strikes me as different from the others. In the Penn State and Brandeis cases, the issue was whether the works could be exhibited at all given their political content. Here, the issue seems to be where they will be seen: the parks commission concluded that, because of its sexual (rather than political) content, the exhibition was not appropriate for the War Memorial site, but the college immediately stepped in and pledged to move it to an on-campus location. It's not clear to me why that couldn't be defended as a reasonable "time, place, and manner" regulation.

Weekend Graffiti

This weekend the Miami Herald had this story about Marc Ecko's constitutional challenge to a Miami Beach graffiti law. And Newsday had this story about how City Councilman Peter Vallone has become graffiti artists' "enemy No. 1." "In January, on a giant billboard near the Manhattan Bridge, they spray-painted in enormous bubble letters a common four-letter insult followed by his name. Also this winter, a graffiti cleanup group's trailer _ which said 'Sponsored by Peter Vallone Jr.' on the side _ was stolen, robbed of its paint buckets and rollers, and abandoned many miles away in Staten Island. "

More True Trouble

Marion True, currently on trial in Rome on charges of conspiring to import antiquities allegedly looted from Italy, now faces the possibility of similar charges in Greece. Story here.

Guarantees in Action

Last week I wrote about Sotheby's increased use of "guarantees" to attract works to sell at auction. Carol Vogel's report on last night's sale, which featured a Picasso which went for $95 million and total sales of more than $207 million, included the following:

"Experts say Sotheby's had given the sellers .. a guarantee — an undisclosed minimum sum regardless of the outcome of the sale — of $53 million. And the Picasso wasn't the only work in last night's sale with a big guarantee: for the last week, dealers have been saying that Sotheby's had invested $80 million in guarantees. Dangerous as it seemed, the tactic paid off."

There was one other art law connection last night: "Tyco International was selling two paintings that had been at the center of a scandal when its former chairman and chief executive, L. Dennis Kozlowski, was indicted in 2002 on charges that he evaded more than $1 million in New York State taxes by having art dealers ship empty boxes to Tyco's offices in New Hampshire while having messengers deliver the paintings to his Fifth Avenue apartment."

Missing Truck Found

The truck full of artworks that disappeared (along with its 6'8", 280-lb convicted felon bigamist driver) on its way from Florida to New York, has turned up. In a trailer park in Gainesville. Everything seems to be intact. Story here.

Today in Graffiti News

Fresh off his success yesterday obtaining a preliminary injunction barring enforcement of a New York City graffiti-paraphernalia law, Marc Ecko has brought a claim in federal court in Florida challenging a Miami Beach law barring graffiti on the grounds that it "violates his freedom of speech and artistic expression." Story here. Meanwhile, according to the New York Daily News, Mayor Bloomberg said he had "wondered about the [New York City] law's constitutionality when it was passed" but added: "First Amendment rights are First Amendment rights. But you do not have the right to walk up and deface a subway car ... and the same thing is true of private property." The New York Press has a lengthy and interesting piece on the New York lawsuit.

More Censorship on Campus

I posted Monday about an instance of censorship of art at Penn State. Now it's Brandeis's turn. The Boston Globe reports today that university officials shut down a student exhibition because the exhibited works "depicted only one side of the Israeli-Palestinian conflict." As David Bernstein points out at the Volokh Conspiracy, because Brandeis is a private university there is no constitutional issue. But it's still stupid. As Tyler Green puts it: "Art does not equal journalism. An art exhibit is not a newspaper story. It is not required to present 'both sides' of a story."

Driving Off With The Loot

A driver transporting artwork to New York City from Florida has disappeared with several million dollars worth of work, including seven Milton Averys. The driver has a long criminal record, including convictions for trafficking in stolen property, grand larceny, auto theft . . . and bigamy. He has a bigamy conviction from 1992 in Virginia and, according to authorities, currently has two wives in Florida.

Art or Vandalism?

A federal judge today issued a preliminary injunction barring enforcement of a New York City law banning the possession of spray paint and fat-tipped markers to people under 21. The court held that the ban improperly singled out a particular age group. The suit was brought by seven high school and college students, with financial backing from fashon designer Marc Ecko, who says graffiti "is a visual dialect practiced around the world." Full story here.

Scream Verdicts

In Norway today three men were sent to prison for their role in the Scream theft. Three other men were acquitted. The painting itself still hasn't been recovered. "Police believe that the brazen daylight robbery was ordered by a notorious crime boss to distract investigators from another multimillion-pound raid in which a policeman was killed."

Tax deduction for fakes?

The Kansas City Star had a piece on an interesting income tax dispute involving Santa Fe dealer Gerald Peters and the so-called "Canyon Suite," a group of 28 paintings that at one point had been attributed to Georgia O’Keeffe but later turned out to be fakes. In the early 90s Peters had sold two dozen of the paintings to Kansas City banker Crosby Kemper for $5 million, but ended up refunding the money. But he had also donated four paintings to the Kemper Museum of Contemporary Art, taking a $1.1 million tax donation in the process. The IRS disallowed the deduction, saying that the works, having been shown to be inauthentic, were worthless. (The IRS has also made the alternative argument that “there was no true donation because the donation was an integral part of the sale of the 24 other paintings to Kemper.”) Peters has brought suit in U.S. District Court in New Mexico, seeking $692,000 in taxes and penalties he paid. It's an interesting question. The first reaction is: why hasn't the case been dismissed? If the works were fake, they were worthless, and why should it matter what anyone thought at the time of the donation (the news story describes Peters's position to be that "his deductions were fair and reasonable at the time of the donations, which was almost three years before they were publicly tainted and judged worthless")? It shouldn't matter that I reasonably believed I was giving away a genuine O'Keeffe if the fact is I didn't and the museum didn't receive one. On further reflection, though, maybe there is an argument that what the museum received was a kind of lottery ticket -- that at the time of the donation it wasn't clear whether or not they were genuine O'Keeffe's, but that four works with a chance of being O'Keeffe's were still worth something. You might not pay full value for such works, but you'd still pay something greater than zero. If I donate a lottery ticket to a charitable institution, with say a one in 10 chance of winning $1,000, and we later find out that it was a losing ticket, isn't it nevertheless the case that I gave something of value to the institution? In any case, I don't think that's the argument Peters is making, since he's pretty clearly seeking to deduct their full value (he's claiming a $1.1 million valuation for the four works when he sold the 24 similar works to Kemper for $5 million -- although I suppose it's possible to claim the price to Kemper reflected the same discount for the possibility they would turn out to be inauthentic).

Art Censorship at Penn State

Over at the Volokh Conspiracy, GMU law prof David Bernstein has been closely following an instance of art censorship at Penn State. His latest post is here.

What can you do . . .

. . . if you're a photographer and you find that a foreign nation (Burundi, say) is using a photo you took on the reverse side of its new 10,000 Franc note? That's what's happened to photographer Kelly Fajack, and the answer apparently is: not much. Professor Patry has the details. As he explains, the chief hurdles to the suit the photographer recently filed in U.S. District Court are (1) the Foreign Sovereign Immunity Act and (2) the fact that the Copyright Act doesn't apply extraterritorially (that is, you can't sue over activity occurring wholly overseas).