Friday, July 31, 2009
"Copyright law exists for a purpose: to make creativity pay. Making accurate photographic copies of paintings is no doubt valuable and involves painstaking work. But it isn’t—and isn’t meant to be—creative. With all the digital assaults on the old copyright verities, the champions of intellectual property can’t afford to waste their energies trying to monopolize images that already properly belong to us all."
Thursday, July 30, 2009
UPDATE: Much more from Felix Salmon.
UPDATE 2: Still more from the Art Market Monitor: "It would appear that both sides in this battle have made a bad deal."
Wednesday, July 29, 2009
Tuesday, July 28, 2009
Again, I hate to rain on the parade, but the museum is not closing. As the Future of the Rose Committee put it in their interim report in May: "Brandeis is not closing the Rose and selling all the art work, though we must say in the same breath: it remains a possibility that some will be sold." The Committee's charge is to "recommend ways for the Rose to continue to play a vital role in the cultural and educational mission of the University," and they are expressly committed to the proposition "that the University must do all it can to insure that the Rose remains a vibrant and distinguished part of the University, and it must in the coming period reaffirm in very concrete ways its commitment to the Arts. To that end, we are considering how the mission of the museum can be enhanced and maximized."
The Committee is still in the midst of that process. So what is it that these plaintiffs are seeking to "stop"?
Another problem with the suit is the usual one of standing. We saw this most recently in the Tennessee Court of Appeals decision in the Fisk-O'Keeffe case, where the O'Keeffe Museum was tossed from the proceedings. It was also the basis for the dismissal of the most recent Barnes Foundation lawsuit. In general, the enforcement of gifts to charities lies with attorney general of the state in which the charity is located. "Based on the traditional rule that enforcement of charitable trusts is reserved to the attorney general, donors and heirs of donors usually are denied standing to sue for the enforcement of such trusts. Having made a gift for the benefit of the public, a donor is viewed as having no stronger claim to that gift than any other member of the public" (Marie Malaro, A Legal Primer on Managing Museum Collections, p. 26). The complaint in this case says that "in April, 2009, the Attorney General of the Commonwealth met separately with Brandeis, and certain overseers," and the Attorney General is actually named as a defendant in the suit.
I'm not familiar with the relevant law in Massachusetts; maybe thay have more relaxed standing requirements. But this is certainly going to be another problem for the plaintiffs here, and perhaps a fatal one.
Brandeis's lawyer -- Thomas Reilly, a former Massachusetts attorney general -- calls the lawsuit "frivolous" and says:
"The university has a responsibility to provide the very best education and faculty to fulfill its higher educational agenda. Apparently, these three overseers are oblivious to the Brandeis mission."
Monday, July 27, 2009
I haven't read the complaint yet (you can do so here), but keep in mind that the latest version of the plan is not to "close" the Rose but instead to turn it into "a teaching and exhibition gallery." A faculty-student-trustee committee has been formed to figure out how that might best be accomplished. In fact, this weekend brought reports that the museum had "reopened" with an exhibition featuring the paintings of Alfred Jensen. So, right off the bat, a lawsuit seeking to prevent Brandeis from closing the museum would seem to face the problem that it isn't closing the museum.
UPDATE: Paddy Johnson calls me "famously deaccession-friendly" and says I have "predictably" taken the position that, since the university is not closing the museum, "the suit has no merit." I did not say the suit has no merit. Indeed, I said I hadn't even read the complaint (still haven't). All I did was pass along the observation that, for a suit that (as Paddy characterizes it) aims "to halt closure of Brandeis University’s museum," it's something of a problem that there is no plan to close the museum.
Saturday, July 25, 2009
As I've said before, if only these museums had a source of revenue to tap into when times got tough.
The core of the argument seems to be that, in his book, "Colting takes ... the seemingly authentic and fiercely independent Holden, and 'adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message' to create a new work of fiction -- a new story that is entirely 'transformative'" (p. 41, quoting the Supreme Court's decision in Campbell v. Acuff-Rose Music).
Jones predicts "a lively Second Circuit hearing, likely to take place later this summer or fall."
Thursday, July 23, 2009
"The right way to frame the question, I think, is whether an artist who creatively appropriates a ... photograph needs to pay for a license to do so. This strikes me as a hard question. [Doug] Lichtman’s take is that there was a well-functioning market here, so that all Fairey would have had to do is ask for permission to use the photo (and perhaps pay a small fee) in order to avoid liability concerns. And Garcia has said that he would have given Fairey permission to use the photo if Fairey had simply asked him about it beforehand .... If that were true, it would be a strong argument against fair use ...."
He goes on to discuss the question whether the fourth factor "should include the enormous positive impact that Fairey’s taking has had on Garcia’s career (his photography is much more in demand now that he is associated with the iconic Obama poster)." The AP's lawyer calls this the "I did you a favor by ripping off your work" claim, but Fagundes finds it convincing: "at the very least, it seems to me that this argument should be part of the factor-four discussion rather than dismissed as readily as it is by most courts and commentators." In the end, he concludes that "the fair use issue is a truly difficult one."
Marquette's Bruce Boyden, who's been doing his own muti-part series on the case, turns up in the comments to say, in response to Fagundes's point that it may in fact be true that "Garcia is much better off thanks to Fairey’s unauthorized use than he would have been in a world where that use never happened":
"That's one possible world; but here's another one: The world in which everything is the same as it is now, except that Fairey paid Garcia a license fee before making the poster. Garcia is clearly worse off in the actual world than he is in that possible world, to the tune of X hundred dollars (whatever the license fee would have been), and his right to make the decision. ... You could argue that if Garcia had sought a fee, Fairey would have gone elsewhere; but that runs into the point that ... if any old photo of Obama would have done, Fairey could have gotten one for free from the campaign. There's reason to believe here that not just any old photo would have sufficed."
Finally, I refer again to the recent Catcher in the Rye decision, where Judge Batts (who also has the Cariou-Prince case) said that the fourth factor "requires the courts to 'consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market for the original.'" The defendants' argued that that there was "no evidence that 60 Years will undermine the market for Catcher or any authorized sequel," but Judge Batts countered that "it is quite likely that the publishing of 60 Years and similar widespread works could substantially harm the market for a Catcher sequel or other derivative works."
UPDATE: This update is relevant here too.
UPDATE 2: Doug Lichtman adds a comment (just below Boyden's): "Imagine, for instance, that you made a movie based on my book. Would your movie likely increase sales of my book, and its sequel? Sure. Is that a windfall that indicates I should just pipe down and be grateful for your appropriation of my work? Hardly."
Nonsense, says Friedman. This is an "easy case." "The court's conclusion that the stamp significantly reworks the sculpture is pretty convincing." Why? Because (1) when you look at the stamp, "you can't tell you're looking at figures that originate in a sculpture" (you can't? what do you think you're looking at then?) and (2) "other than the figures themselves the entire image set forth on the stamp is not present in the sculpture" (I'm not sure what that means, exactly).
But it certainly doesn't undermine my point -- let alone show that it's "ridiculous" -- to say that the court's conclusion was "pretty convincing." My point is just that it's easy to imagine another judge making a "pretty convincing" case in the other direction. Would it not also be "pretty convincing" to say what we really have here is a photograph of a sculpture, only in the snow, and that simply isn't "transformative" enough to be a fair use? Why did the author of the Catcher in the Rye sequel recently lose? Was there not a "pretty convincing" case to be made that he "significantly reworked" the original? Did his book not have (to use the Gaylord court's phrase) a "different expressive character" than Salinger's? Did it not have a "new and different character"? Was that an "easy case" too?
And what about Shepard Fairey's case against the AP?
Or Patrick Cariou's suit against Richard Prince?
Does anybody really have any idea how those cases will turn out?
Or are they "easy" too?
In fact, not everybody agrees that the court got it right in the Gaylord case. Here is IP lawyer Pamela Chestek:
"In my book what [the court] describes is two derivative works, not a transformative use. I'm in the school that the 'transformation' in the fair use analysis refers to whether the second work has a different use and purpose than the original, not how far removed the second is from the original (which instead goes to substantial similarity)."
That's actually very close to what Gaylord argued in one of his post-trial briefs:
"The adaptation of 'Harry Potter and The Sorcerer's Stone' from a book into a movie effected a dramatic 'transformation' of the work from literary to motion picture . . . . But that is not what 'transformative' means in the context of 'fair use' . . . . Thus, the Government erroneously equates 'transformative' to 'changed' or 'different' and thereby confuses the fair use doctrine with the 'derivative works' principle. . . . [The photographer's] contributions are 'additive,' not transformative, and the Government's transformative argument is a 'derivative works' argument in disguise . . . ."
Friedman also argues that "if you want to look at the other [fair use] factors, those too are pretty convincingly [again with the 'pretty convincingly' - DZ] on the side of fair use." He mentions (1) that "the sculpture is public art and therefore constantly viewed for free," (2) it was "done for the government," which, "last [Friedman] heard, is one of the people, by the people, and for the people," and (3) because the stamp "is a government product," it's a "non-profit product." The first two seem completely irrelevant to me, and, as for the third, the Postal Service sold $29 million worth of these stamps. That seems pretty commercial to me.
I'm not convinced (or even pretty convinced) this is as easy a case as Friedman seems to think it is.
UPDATE: Friedman responds (at length) here. I still don't see anything in it that remotely suggests that it's "ridiculous" to think that, in any interesting fair use case, there's no way to predict with any degree of confidence which way a court will rule. He says he "wouldn't be shocked" if the Catcher in the Rye case is reversed on appeal. But that's just my point. I wouldn't be shocked if it's reversed either, but I also wouldn't be shocked if it's upheld. I wouldn't be shocked if the Gaylord decision is reversed. I wouldn't be shocked if Richard Prince wins. I wouldn't be shocked if he loses. I wouldn't be shocked if Fairey wins his case against the AP/Garcia. I wouldn't be shocked if he doesn't. As I said in my initial post, what we have now is a situation of massive uncertainty.
"I've always thought it wise to be a bit skeptical of anyone claiming the high-road in serving public interest . . ."
Wednesday, July 22, 2009
This also reminds me that I forgot to mention that I'm writing a regular column for ARCA's new Journal of Art Crime, the first peer-reviewed academic journal in the study of art crime. My first column is on Vineberg v. Bissonnette. The issue is not online yet, but you can find information about the publication here.
UPDATE: A response to the NYT article by the ARCA folks here.
For more on Park West, start here.
Tuesday, July 21, 2009
The deputy director of the Wikimedia Foundation (which runs Wikipedia) says: "It is hard to see a plausible argument that excluding public domain content from a free, non-profit encyclopaedia serves any public interest whatsoever."
But the British Association of Picture Libraries and Agencies nicely lays out the counterargument: If museums like the National Portrait Gallery can't have their photographs protected, and "anyone [is therefore] able to use them for free, they will cease to invest in the digitisation of works, and everyone will be the poorer."
UPDATE: The Art Market Monitor says it's "a compelling case of self-interest presented as public interest."
Monday, July 20, 2009
Sergio wonders whether "sculpture has been gutted of copyright protection." I don't know about that, but it's another good example of how you can make the traditional four-factor fair use analysis do whatever you want it to do. As Judge Kozinski has said, the analysis can always go in either direction. The result is just massive uncertainty for all concerned.
"I could design a museum where there would be almost no risk of theft, but it wouldn’t be fun to visit"
Thursday, July 16, 2009
The decision also goes out of its way, it seems to me, to say that "it is apparent" that "the charitable intent motivating the gifts" was "to make the Collection available to the public in Nashville and the South" (emphasis importantly in the original). If that's the intent, then a deal whereby the University sells a 50% undivided interest in the Collection for $30 million to, say, a new museum in Bentonville, Arkansas, with the University retaining the right to display the Collection for six months of every year, starts to look pretty good. But again, that's step two. Before they get there, they first have to show that compliance with the terms of the gift has become "impossible or impracticable."
"Finally, the amicus argues that this result is contraindicated because public art collections in the United Kingdom charge fees for reproductions of photographic images of works in their collections, thus evidencing their view that the images are protected by copyright. But the issue here is not the position of an economically interested constituency on an issue that has not been litigated, at least in this century, but the content of the originality requirement of the British Copyright Act. … For all of the foregoing reasons, the Court is persuaded that its original conclusion that Bridgeman's transparencies are not copyrightable under British law was correct."
Wednesday, July 15, 2009
As the NYT reports, Fisk "must still win permission in a lower court to sell an interest in the collection." And as Lee Rosenbaum points out, they may have gotten the O'Keeffe Museum out of the way, but Tennessee Attorney General Robert Cooper still needs to be dealt with, and he is on record as strongly preferring a solution "that would allow the Stieglitz Collection to remain in Nashville on a full-time basis."
Tuesday, July 14, 2009
Monday, July 13, 2009
As Marquette's Bruce Boyden noted back in February, "it all comes down to whether [Garcia] was an [AP] 'employee' at the time he took the photo." In his filing, Garcia says he is "an independent, freelance" photographer and worked for the AP "for approximately five weeks." He "worked from his apartment and his car and used his own equipment," and he "selected what photographs to take." He was "not eligible to join the union" and "received no health, vacation, unemployment or other benefits." He was "free to -- and did -- work for other individuals and corporations while working with the AP."
In a statement, the AP says it is "evaluating Mannie Garcia's position, but remains confident in AP's ownership of the copyright because Mr. Garcia was an employee of AP when he took the photo."
Back in February, Boyden commented: "How in the world could this happen? How could an organization like AP not ensure that they have the copyright over the material that they publish? ... [I]f it did happen, it strikes me as a bizarre lapse on AP’s part."
He has a new post this afternoon, which says, first, that "Garcia’s motion will very likely be granted. He claims ownership of the photo, and this litigation will, among other things, determine AP’s ownership rights in the photo and whether Fairey infringed it. Not only is he a mandatory intervenor under Fed.R.Civ.P. 24(a), but he’s likely a necessary party under Rule 19(a)(1)(B)(i)." He also says that "it seems that Garcia has a pretty good case that he was not an AP employee at the time he took the photo" and, therefore, "[u]nless AP can produce some sort of writing, I think they may be in trouble."
Art Theft Central's Mark Durney has some questions: "Surprisingly, none of the art was insured. I would not expect such naiveté from a former gallery owner or her associates. Additionally, how has it taken two weeks for her to realize her colleagues' art is missing in action? One might presume if she were including the loaned works in a show at her private residence, then she (and her colleagues) would have been all the more eager to confirm whether or not they had been among the works stolen."
Friday, July 10, 2009
Thursday, July 09, 2009
Wednesday, July 08, 2009
Judith Dobrzynski is quoted as saying: "Obama had a well-defined arts policy and a task force during the transition, so expectations in the arts community rose very high. They disappointed people by not having an arts czar. ... I think it' still up in the air about whether, a few months from now, people say they are doing right or not."
Tuesday, July 07, 2009
The opinion walks through the four-factor fair-use analysis pretty methodically, relying fairly heavily on quotes from other fair use cases. On transformativeness (part of the analysis under "purpose and character of use"), it notes that "60 Years borrows quite extensively from Catcher ... such that ... the ratio of the borrowed to the novel elements is quite high, and its transformative character is diminished" (p. 22). As a result, "the determination of whether it constitutes fair use will depend heavily on the remaining factors" (pp. 22-23). Also, because 60 Years "is to be sold for profit, ... this [separate] prong of the first factor weighs against a finding of fair use" (p. 23).
On the second factor -- "the nature of the copyrighted work" -- "there is no question that [Catcher in the Rye] is a 'creative expression for public dissemination that falls within the core of the copyright's protective purposes.' Consequently, this factor weighs against a finding of fair use" (p. 24).
Regarding the third factor -- "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" -- "the ratio of the 'borrowed to the new elements' in 60 Years is unnecessarily high" (pp. 30-31). "Because Defendants have taken much more from Salinger's copyrighted works than is necessary to serve their alleged critical purpose, the third factor weighs heavily against a finding of fair use" (p. 32).
Finally, the fourth factor -- "the effect of the use upon the potential market for or value of the copyrighted work" -- "requires the courts to 'consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market for the original'" (pp. 32-33, emphasis added). In response to the defendants' claim that there was "no evidence that 60 Years will undermine the market for Catcher or any authorized sequel," the opinion says that "it is quite likely that the publishing of 60 Years and similar widespread works could substantially harm the market for a Catcher sequel or other derivative works" (p. 34, emphasis added again). As a result, "the fourth factor weighs, albeit only slightly, against fair use" (p. 35).
Adding it all up, the Court finds that the "limited transformative character" of the work is not enough to overcome "the obvious commercial nature of the work, the likely injury to the potential market for derivative works ..., and especially the substantial and pervasive extent to which 60 Years borrows from Catcher" (p. 36).
All in all, one senses a very cautious approach, and not someone who is likely to embrace more ambitious theories of appropriation art not securely grounded in existing caselaw. But, barring settlement, we'll soon see.
For background on Brown, see here.
Monday, July 06, 2009
Other cost-cutting measures include (1) eliminating extended hours on Thursday evenings, (2) reducing programming on free Fridays, and (3) reducing the number of major exhibitions. Earlier this year the museum also raised the admission price from $10 to $12.
Of course, to the Deaccession Police, none of this matters. It doesn't make a difference if the museum is open four days a week, or three days a week, or 15 minutes on alternating Tuesdays. The purpose of a museum is to hold onto the works it happens to have -- every last one of them -- so that they are accessible to future generations (even if they are only accessible for those 15 minutes a week). Questions of access, engagement, and so on are not permitted to enter the discussion.
In fact, as this WBFO story reminds us, the museum does have "a separate $67 million endowment dedicated to purchasing new work." (I assume as a result of this.) And, of course, from the AAMD anti-deaccessionist perspective, buying every one of those unspecified future works is more important than any other museum purpose you care to name, including keeping the doors open for people to see the work.
Saturday, July 04, 2009
"In the US, the practice of 'deaccessioning' is more prevalent and even major institutions buy and sell robustly"
But remember: "once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations."
Thursday, July 02, 2009
"In most cases, museums prefer going to auction. Whatever criticism these institutions receive for selling objects only increases if they don't do it that way. Take, for example, the Albright-Knox Art Gallery in Buffalo, N.Y., a museum devoted to contemporary art that sold 207 of its older artworks at Sotheby's, raising $67.2 million. There was some discussion at the board level of selling pieces directly to other museums or through art dealers, said Louis Grachos, the Albright-Knox's director, 'but in the end, it just seemed like going the auction route was the safest and wisest choice.' Certainly wise in this case, but why safest? 'We were under a microscope, and people were looking for any reason whatsoever to attack us,' he said. 'Going to public auction made all our actions transparent. No one could claim that we were pursuing back-room deals.'"
But Grant suggests that "museum directors fearful of public criticism might want to broaden their outlook. The Albright-Knox was probably right to take its disparate objects to auction, ... while artworks that ought to stay together ... call for a perhaps less lucrative 'friendly' sale to another institution. It made sense that when Philadelphia-based Thomas Jefferson University sought to raise money by selling its painting 'The Gross Clinic' by Thomas Eakins, it gave first dibs to the Philadelphia Museum of Art .... The subject of the painting, Dr. Samuel Gross, was a renowned Philadelphia physician, and Eakins himself spent most of his life in that city. Raising money and doing well by the art aren't mutually exclusive goals."