Tuesday, May 31, 2011

Friday, May 27, 2011

Ink Think

Lots of interesting commentary on the Hangover II tattoo case.  David Post says it "precisely mirror[s]" a hypothetical he uses in his Intro to IP class.  He thinks the tattoo artist "has a very strong infringement claim"; the trickiest question is "whether Mike Tyson’s face is a 'tangible medium of expression,'" but "by my reckoning, the tattoo here clearly fits the bill: once it’s on Tyson’s face, it can be perceived by others for more than a 'transitory duration.'"

Mike Madison and Ann Bartow both think the tattoo artist should lose -- Madison because "human skin is not a 'tangible medium of expression' for copyright purposes," and Bartow on grounds of "copyright scope. My understanding is the Hangover tattoo is not identical to Tyson’s. It may be similar [but] I wouldn’t give the artist much protection beyond exact copying."  Aaron Perzanowski pushes back a bit:

"Can you point to any statutory support or case law that articulates the 'medium of expression' as a discrete requirement for protection, apart from fixation and originality? And can you provide any support for the notion that if such a requirement exists, it implies some sort of human body exception?
There might be good reasons for the plaintiff to lose in this case – a lack of originality, implied license, fair use – but I don’t think Hangover II presents a big enough problem to formulate new doctrine."

Monday, May 23, 2011

"The suit isn’t frivolous, however, legal experts say."

The New York Times had a front-page story over the weekend on the Mike Tyson facial tattoo lawsuit, mentioned earlier here.

Saturday, May 21, 2011

"It also, if affirmed, could shake the foundations of appropriation art."

In his latest Copyright Law column in the New York Law Journal [$], Robert Bernstein discusses the Prince-Cariou decision.  His conclusion:

"Much is at stake, both for the parties and for those similarly situated.  It should be kept in mind, however, that, in copyright, there is no clear separation between creators and users.  New works are rarely created out of thin air.  Thus, we may very well find, a year or so from now, that the Second Circuit has given the appropriation artist more 'breathing space,' albeit well short of the carte blanche he seeks."

"What curator worth his or her salt couldn't come up with a plausible argument that the deaccession of any item or group of items would not refine a collection?"

Amy Goldrich on the new deaccessioning rules:

"[A]lthough the new rules appear to require a more carefully justified decision to deaccession, at least one criterion -- accomplishing refinement of collections - could end up being a virtual 'get out of jail free' card."

Thursday, May 19, 2011

Still more on the tough, new deaccessioning rules

Sergio Muñoz Sarmiento:  "Among the more perplexing of criteria is the requirement that the art 'item has failed to retain its identity.' What the hell does this mean? It was once a painting but it is now a frisbee?"

Judith Dobrzynski:   "Not bad."

I find the praise of the new rules pretty funny.  I can't emphasize enough how little the new rules do, how minimal the changes are.

They prevent the use of sales proceeds for operating expenses -- but that was always the case.  That's not a change.

They "told museums and historical societies that may may not deaccession objects unless they meet one of ten specific criteria" -- but one of those criteria is "refinement of the collection," which as I've said is no different than saying "because we felt like it."  So as a practical matter, that's not a change either.  The ability of museums to deaccession is not an ounce more restricted than it was before these rules were passed.

They do add a requirement that each museum include in its annual report a list of all items deaccessioned in the past year.

Let me know when the parade is.

Monday, May 16, 2011

More on those tough new deaccessioning guidelines (UPDATED 2X)

From Cristina del Rivero:

"What, if anything, does that last criterion [i.e., refinement of collections] accomplish? Arguably nothing since as drafted it is completely open to abuse and will neither ensure possession in the future (donors' big fear) nor guarantee public access to artworks held in 'public trust' (i.e., remedying the incomprehensible reality that collections are largely in storage while museums are increasing on the verge of financial collapse and closure)."

Background here.

UPDATE:  Lee Rosenbaum concedes that ""refinement of collections' leaves a lot of wiggle room" and that "one person's 'redundancy' is another person's 'depth,'" but still she describes the new (now passed) rules as "allow[ing] museums to dispose of works from their collections only if at least one of the following 10 criteria is met."  The emphasis on "only" is hers, but I can't imagine any possible deaccessioning that cannot be described as "refining the collection."  Isn't it true, almost by definition, of any sale by a museum?  It's just more smoke and mirrors.

UPDATE 2:  The New York Times reporting on the subject continues to misleadingly suggest that, until this latest set of rules was adopted, museums could use sales proceeds for operating expenses.  That's not true.

Saturday, May 14, 2011

Fisk Follow-ups

I flipped through the Attorney General's brief in the Fisk appeal.  No surprises, but I continue to scratch my head at the argument that "the Collection obviously will not be available to the public in ... the South ... when it resides in Bentonville, Arkansas."  This could be an example of this phenomenon, but I always thought Arkansas was part of the South.

Much more interesting is this law review article by BU's Alan Feld:  Who Are the Beneficiaries of Fisk University's Stieglitz Collection?  The whole thing is worth reading (and I thank Terry Martin for the pointer), but I'd like to highlight a couple of points here.

First, on why the debate should be different when it's a Brandeis or a Fisk that seeks to sell work:  "When a university rather than a museum owns artwork, ... the institutional calculus becomes more complex.  The university appropriately considers the educational value of the artworks, their relationship to the core educational mission, and the university's capacity to derive maximum educational utility from continued ownership of the work.  Other educational needs may deserve higher priority.  The public reaction to any proposed sale often fails to balance the school's multiple obligations."  (But it's always so much easier to be OUTRAGEOUSLY OUTRAGED than to balance multiple obligations.)

Next, he reminds us that the Fisk-is-selling-the-work narrative doesn't really accurately describe what's going on here:  "Under the proposal, Crystal Bridges would pay Fisk $30 million for an undivided half interest in the collection.  Fisk and Crystal Bridges each would display the collection for six months of each year.  The proposed sale to Crystal Bridges thus would reallocate some of Fisk's ownership rights to a public institution pursuing an arts education mission, keeping the works out of private hands, while enabling Fisk to proceed with its proposed educational improvements."  (I know, repulsive, right?)

He has the following answer to those who "fear that the failure to respect donor wishes after they make the gift will discourage subsequent donors from donating gifts to charity:  "[T]his disincentive should have only modest effect on rational donors who see that the modification of conditions results from the combination of changed circumstances and the passage of a long period of time."  (Or, as Jack Siegel put it, "Let's get real.")

He also points out that we are often dealing with "thin or cryptic evidence of donor intent":  "If cy pres requires a court to ask, 'what would the donor do in the face of changed circumstances?,' the answer comes close to guesswork in such cases.  We simply cannot know precisely what either Stieglitz or O'Keeffe would have directed had they known of Fisk's current economic difficulties. ... Would they have favored the sale to Crystal Bridges of a half interest in the collection?  We do no know."  (I made a similar point -- that "we actually have no idea what [O'Keeffe] would have wanted had she known Fisk would end up in the condition it's in" -- here.)

He ends up arguing for a pragmatic approach:  "The institution should maintain fidelity to donor conditions until circumstances have changed.  At that point, an inquiry broader than donor intent should ensue.  The court ... should identify the parties whose interests bear on the matter at hand -- including, but not limited to, the explicit concerns that the donors expressed when they made the gift -- and determine the best current outcome."

Strict Scrutiny

Also in the Maine Antique Digest, an update on the New York Board of Regents ad-hoc committee's proposed regulations for deaccessioning.  The thrust of the article is that new "criteria" for deaccessioning are being developed, but, as I noted here, since one of the "criteria" is "refinement of the collection," they may as well just say "because we feel like it."

So the conversation will now go something like this:

New York State (deeply, deeply concerned with the loss of works held in "the public trust"):  "Why did you sell that Renoir?"

Museum:  "To refine our collection."

New York State:  "Okay, you pass."

Wow. Scary stuff.  The museums must be shaking in their boots.

Some quotes by the executive director of the Everson Museum of Art in Syracuse towards the end of the article kind of give the game away.  He praises the proposed rules because they "avoid[] any ... conflicts that might exist between regulations that we follow as a part of our professional accreditation and associations, and what is required of us here in New York state."  The museums were interested in "mak[ing] sure we don't get over-regulated."  The new rules "pretty much lin[e] up with what we are already doing," whereas the guidelines "as they existed before still needed work to refine" in order to make sure that they "truly did line up with what we already do as a part of" the AAM and AAMD.

So the museums have succeeded in guiding the process to a place where the rules make them do what they were already doing.  Except now those rules -- that exercise in smoke and mirrors -- will have the force of law.

MAD on Prince-Cariou

I'm quoted in this Maine Antique Digest piece on the Prince-Cariou decision.

Thursday, May 12, 2011

Fisk News

Forfeiting his neutrality, the Tennessee Attorney General has filed his appellate brief in what Nashville Public Radio accurately calls the "drawn out Fisk art case."  The brief is here.  I haven't read it yet, but in the meantime:

Lee Rosenbaum has a fairly testy exchange with the executive director of the Crystal Bridges Museum, which is attempting to enter into a collection sharing arrangement with Fisk (and we all know that sharing arrangements between museums are a terrible thing).

And the Charity Governance Blog's Jack Siegel has a response to the Attorney General and others who argue the decision "will deter donors from making gifts to Tennessee charitable institutions out of concern that their wishes will not be respected after they are dead":

"Let's get real here.  We are just as much in favor of honoring donor intent as the next guy, but does the Tennessee Attorney General really believe donors are busy reading Chancellor Lyle's prolific output?  ... But even if the Tennessee Attorney General is correct about donor reaction to Chancellor Lyle's ruling, don't her collective rulings in this case send a clear message: Donor beware.  If you are going to tie up property for the ages, you had better clearly state your intentions and build flexibility into the restrictions, or those who come after you will ignore your wishes.  At some point, donors have to be responsible in how they deed property.  Society should not have to countenance donor sloppiness by wasting additional resources--imagine the legal fees that have been devoted to this battle.  There is nothing wrong with a message that says we will honor your intent to the extent you clearly express it, but after that, all bets are off."

I had some thoughts on donor intent here (among other places).  As I asked there, what if the donor's intent was that the collection be destroyed after some number of years?  Or that the works be sold off and the proceeds used for operating expenses?  Is the rule really that the donor's intent is always the be all and end all?  Or does it only matter when it's a way to prevent work from being sold (or put another way:  are the Donor Intent Police just the Deaccession Police in a different uniform?).

"The folk art museum took on $32 million of debt to construct the 53rd Street building. But attendance never met expectations, and after sustaining investment losses in the financial crisis, the museum defaulted on its debt."

The NYT's Kate Taylor reports that MoMA is buying the American Folk Art Museum building on West 53rd Street.  "The folk art museum will continue to operate in its much smaller Lincoln Square branch."  Jerry Saltz blames the architecture.  Justin Davidson disagrees (" no architectural finesse can compensate for inadequate management, overreach, poor timing, or bad luck").

In other museum space-related news, the NYT's Carol Vogel reports today that the Met will take over the Whitney's building when the latter opens its new space in 2015, "according to the terms of a real estate agreement that the museum boards are pursuing."

And in other museum failure-related news, the Jersey City Museum is facing “imminent” foreclosure by its bank.

"Now, the Met and Jan Cowles have filed a complaint in the U.S. District Court of Manhattan, seeking a declaratory judgment that would force Wylde to hand over the painting to the museum."

The Met enters the fray over the Mark Tansey painting that was sold by a collector even though it was partially owned by the museum.  Background here.

Monday, May 09, 2011


I mentioned last week that the Friends of the Barnes were good enough to provide a link to the Foundation's brief seeking dismissal of their latest challenge to the move.  But what I didn't notice is that they didn't provide a link to the whole brief: a reader alerted me to the fact that the copy of the brief they linked to omits several pages, including the part where the Barnes argues for recovery of its attorneys' fees.  If you follow the link, you'll see it jumps from p. 43 to p. 49; the missing pages include the following:

"Case law has established for more than a decade that persons and organizations in the same position as these petitioners have no standing to bring an action of this type.  Indeed, many of these very same petitioners have been denied standing by this Court in previous stages of this litigation or other litigation involving The Foundation, some of them more than once.  These petitions were brought in total disregard of this established law, as well as in the face of a public record that refutes the petitioners' core contention that they seek to bring 'new evidence' to the Court's attention.  In particular, as set forth in detail above, the 'new evidence' involving the Attorney General's position regarding The Foundation's 2002 Petition, the Attorney General's and Governor's role in persuading Lincoln to withdraw its opposition to the 2002 Petition, and the facts surrounding the Capital budget issue, have been well-known and widely reported for years.  There was simply no basis and no justification for bringing these arbitrary and vexatious petitions. ... This is particularly egregious in that many of these petitioners ... have been through this before and know full well that they have no standing to raise these issues and that these issues have been fully litigated.  ...  It is well past the point where these serial litigations and others similarly situated should accept that they lack standing to interfere in The Foundation's affairs" (internal citations omitted).

Thursday, May 05, 2011

"The mere fact that the present petitioners do not agree with the position the Attorney General took does not mean that there was any impropriety; it just establishes a difference of opinion."

The Friends of the Barnes kindly provide a link to the brief the Barnes Foundation filed last week seeking to dismiss the most recent action challenging the move.  They really hammer the Friends on the standing issue, and honestly it's hard to imagine the case surviving past this round.

This portion of the brief also caught my eye:

"[The claims that the Attorney General 'forfeited his neutrality'] reveal a misunderstanding of the ... Attorney General's role in this case. . . . The Attorney General must look out for the interests of the Commonwealth's citizens as a whole, balancing the needs of various constituencies as he determines what would be best for the public charity at issue.  His job is not to remain neutral, but instead to advocate the result he concludes is best.  Here, he concluded that the relief sought in The Foundation's 2002 Petition was in the best interests of The Foundation and the public it serves.  He reached that conclusion only after what Attorney General Pappert described as numerous meetings with the parties involved and a review of thousands of relevant documents.  Before agreeing to support The Foundation's request for relief, Attorney General Fisher sought and obtained amendments to The Foundation's petition that would satisfy his demands.   Then he and his successors publicly announced support for the requested relief in an answer to The Foundation's amended petition and in other public statements, including Attorney General Pappert's statement in open court during the hearing" (emphasis added, citations to the record omitted).

I made a similar point here:

"I've never understood this notion that it was somehow wrong for the AG to push for the move.  Once he decided that, all things considered, that was the best outcome, what was he supposed to do?  When Lee Rosenbaum calls, for example, for 'Super Cooper' to block the Fisk deal, isn't she calling on him to take a side in the dispute?  Does his having done so open the court's decision up to challenge on the ground that the attorney general favored one side in the dispute over the other?  The Friends petition accuses the AG of 'forfeit[ing] his neutrality,', but, if he has, then hasn't Super Cooper done so as well?  It's just a fundamental misunderstanding of the attorney general's role."

Wednesday, May 04, 2011

Plesner Prevails (UPDATED)

Paul Schmelzer, who's been doing a great job following the story, has the details.

UPDATE:  Plesner reacts:  "I am absolutely overwhelmed with joy, and I cried when I heard the great news."

Tuesday, May 03, 2011

Speaking of wallets . . .

A timely post from Rebecca Tushnet:  Is copying theft?

They're just making sure people's wallets aren't stolen, right?

The New York Times has a story today on Righthaven, whose business model is suing bloggers and others who use material from newspapers without permission.  They've filed more than 200 copyright lawsuits over the last year:  "Typically, the suits have been filed without warning. Righthaven rarely sends out notices telling Web sites to take down material that does not belong to them before seeking damages and demanding forfeiture of the Web domain name."

Monday, May 02, 2011

Tattoo You (UPDATED)

Here's an interesting one:  the tattoo artist who did Mike Tyson's distinctive facial tattoo "has sued Warner Bros. over the similar-looking facial art on Ed Helms' character in the upcoming comedy 'The Hangover: Part II.'"

Lawprofs Kal Raustiala and Chris Sprigman discuss the case over at the Freakonomics blog.  They point out, first, that as "works of graphic art," tattoos are subject to copyright, and add that, as attached to Tyson himself, there is probably an "'implied license' between Tyson and [tattoo artist] Whitmill that Tyson will appear on camera now and again, and therefore so would the tattoo."  But the problem here is that, in the new movie (as opposed to the first Hangover), the tattoo appears on Ed Helms's face (not Tyson's).  The "bottom line," they say, "is that Whitmill’s claim is not frivolous, and he may well get a big payday from the studio just to make him go away."

UPDATE:  George Wallace gets off a good line.

More on a Copyright is not a Wallet (UPDATED)

A couple of interesting responses to my question before the weekend about copyright and theft.

First, Sergio Muñoz Sarmiento has an entertaining post that, I think, boils down to the claim that "property law and intellectual property law [aren't] synonymous," which was precisely the point of my hypothetical (or one of them).  He says, in considering a case of possible copyright infringement, "we use intellectual property law (with the term intellectual being key, meaning that it is, unlike real property, intangible), and thus, we apply copyright’s 'fair use' schema and its four non-exclusive factors."  That's quite right, and there is no analogous schema when it comes to personal property:  we don't ask whether taking someone's wallet was educational, or a parody, etc.

Michael Rushton responds too, focusing on the incentives to the appropriator:  "Here's the policy problem: if I could take someone's wallet and they would still have their wallet, then I could quit my day job. Why bother going to work to earn money to put in my wallet if I can just spend my day as a pick-pocket, and do so with a clear conscience, since my marks haven't really lost anything - they still have their wallets (and now I do too)."  But he adds that "it is not an all-or-nothing problem, since some appropriation, some fair use, increases creators' abilities to make new and interesting work. The optimal fair use provisions establish a balance between maintaining incentives for new work and for the ability to build upon existing work."

I think both Sergio and Michael are exactly right to stress the idea that what's required in the copyright context is a balancing of interests.  So it doesn't seem helpful to me to just scream "BUT THAT'S MY WALLET."  The question we're trying to answer in the copyright context is when is it okay for me to take your wallet, and when it's not.

UPDATE:  More from Colberg.