Tuesday, April 30, 2013

Friday, April 26, 2013

"We think the 2nd Circuit has been reading too many Chelsea gallery press releases." (UPDATED)

Sergio Muñoz Sarmiento has been Tweeting his responses to the Prince decision.  You can find them here.  Some highlights:
  • "The Cariou/Prince decision basically says that if you're an artist without a market, your art work is up for grabs and free to take."
  • "The 2nd Circuit's talk of art would get any undegrad art major thrown out of art school. Serene? Jarring? Hectic? Provocative?"
  • "2nd Circuit: what is critical is "how the work in question appears to the reasonable observer." Reasonable = hip, trendy, superficial."
  • "Someone please forward the Bleistein case to the Cariou/Prince judges. Here's the link!"
  • "25 out of 30. Why not just say the other 5 are NOT fair use? Why are those 5 so 'special'? Guidance, rationale. We need guidance."
UPDATE:  And here's Sergio's blog post.

"The remand notwithstanding, today’s decision protects a long-standing tradition of using existing imagery as raw material for new artistic expression and this opinion will play a key role in the fight to maintain artists’ rights to continue to do so."

Julie Ahrens of the Stanford Fair Use Project is pleased with the Prince decision:

"The decision confirms the principle that a use can be fair even if it doesn’t criticize or comment on the original work. While it it’s far from groundbreaking to say that commentary or criticism isn’t necessary for fair use, it is a principle that hasn’t been applied before in the visual art context. Here the Court held that copyrighted images can be used as raw material to create new works of art, even where the artist had nothing to say about the images he relied upon. Transformation can be found where the artist’s expression and 'composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs.'"

What You See Is What You See

I also asked my friend Bob Clarida (author of the COPYRIGHT LAW DESKBOOK) what he thought of the decision.  His characteristically interesting response:

"Two stray thoughts I had:

(1) By remanding on the five works with fewer visible changes, has the Second Circuit now closed the door (at least a little) on the argument, seemingly well-settled since Bill Graham, that transformativeness is about context and purpose, not visible changes?  By the ruling's logic, it could be argued that Prince's Marlboro Man pieces, or Sherrie Levine or Barbara Kruger, are not transformative.  So by dwelling on the surface of the works the court may be turning back the clock a little.

"(2) The new standard seems much more like it invites a jury question.  If the standard is at least somewhat tied to artist intent, you can have a case where the parties clearly state on the record what their intentions and meanings were, and the court SHOULD be able to see the disparity and say it's fair use.  There's no disputed fact issue.  But if the standard is to compare the 'aesthetic' of two works, looking only at 'results,' the court has nothing to go on but the physical changes.

"So overall, I think the decision sort of de-conceptualizes the art and treats it as merely a bunch of marks on a surface -- very old-timey and reductionist.  If not a jury, you could program a scanner to do it: 88% optically similar is infringement, 38% optically similar is fair use.  The five sent back for remand were in the middle.  Maybe the court's implicit assumption is that visual differences are key here because both works were 'fine art,' so any asserted difference in purpose is not enough to warrant a fair use finding -- certainly the purpose, context and intent of the five remanded pieces are not much different -- if at all -- from the pieces that qualified for fair use; the only difference is the way they look."

A More Positive Take

You may remember the fantastic piece on art and copyright by artist/lawyer Alfred Steiner that I linked tocouple months ago.  I asked him what he thought about the Second Circuit’s decision in Cariou v. Prince, and this is what he had to say:

Before the decision arrived yesterday, my best guess was that the Second Circuit would cite the District Court’s errors (e.g., considering all 30 works as a whole instead of piece-by-piece) and send the case back there for further review.  This is what dissenting Judge Wallace wanted to do, and clearly would have been the judicially conservative move.

Instead, the Second Circuit took a more active approach, providing additional guidance as to how courts should decide when a use is fair.  How much more guidance is the question, and as Donn suggested in his initial post on the topic, it may be quite little.  But given the inherently case-by-case nature of fair use determinations, at the very least the court has provided one more data point against which artists may compare their own work to decide whether they’re in the clear.  I, for one, believe that I’m taking considerably less risk in making my collage-based watercolor works post Cariou.

In my mind, the most important points from the decision are the following:

1.  The secondary work doesn’t need to comment on the first work.

2.  The artist doesn’t have to articulate a critical defense of the secondary work for a finding of fair use, as previously suggested by the Rogers v. Koons and Blanch v. Koons decisions.

3.  What is critical is how the work appears to a reasonable observer, which requires the court only to consider the first work and the secondary work side by side.

4.  Differences in target audiences matter.

5.  The court will continue to focus on actual derivative uses by the owner of the first work, not all potential derivative uses.

These are all positive developments (or at least restatements) from the perspective of an artist whose practice includes using pre-existing work.

But I believe the court made some mistakes and missed some opportunities.  

For one thing, the court has arguably made the second fair use factor irrelevant.  The second factor--the nature of the copyrighted work--asks how close the first work is to the core of copyright protection.  Expressive works are given more protection than factual works--think Harry Potter versus a biography of Abraham Lincoln.  Here, the court held that because Cariou’s works are “creative and published,” this factor weighs against a finding of fair use.  (We can ignore the “published” part here because unpublished works get even stronger protection, so the court would have to find that a creative and unpublished work would weigh even more strongly against fair use, even though, as Pierre Leval has argued, providing this added protection for unpublished works in the fair use analysis has no logical support in the framework of copyright law.)  But all copyrighted works are creative by definition, which means that the second factor always weighs against a finding of fair use. Instead of reading this factor out of the analysis, the court should have weighed it in Prince’s favor because Cariou’s photographs are primarily documentary (and thus factual) not primarily expressive (like Cindy Sherman’s grotesques).

But a larger problem with the court’s decision is posed by its split of the works into 25 works that are fair use as a matter of law and five others that may or may not be fair use.  Although I do not think that Judge Wallace’s admonition against courts “constitut[ing] themselves final judges of the worth of [a work]” is apt--courts have no need to determine the worth of an artist’s work in this analysis--I agree with Wallace that the court erred in splitting the works into two groups.  How is Judge Batts supposed to decide whether the five remaining works are fair use, especially if all she needs to do is compare the works side-by-side, which the Second Circuit could do just as easily?

As I’ve argued before, if the court had simply recognized the essential difference between one-of-a-kind objects and mass-produced objects, it could have held that this fact supported a finding of fair use with respect to all 30 works.  But according to the court’s decision, it now seems that Prince may be entitled to make T-shirts and coffee mugs featuring any of the 25 vindicated works.  That seems about as fair to me as allowing copyright holders to dictate which one-of-a-kind objects people are entitled to create, even when those objects have no plausible relationship to copyright holders’ economic interests.

--Alfred Steiner is an artist and a lawyer whose work often poses questions about copyright. One such work, Erased Schulnik (2010) is appearing in an exhibit curated by Turner Prize-winning artist Mark Leckey called TheUniversal Addressability of Dumb Things, which opens today at Nottingham Contemporary in Nottingham, England.

"Because you’ve been sort of a pill during this process, I’m also going to rule that a few of your paintings actually might not be transformative enough for fair use and send you back to that district court judge who really hates you to get a final decision."

"Have fun!"

Shane Ferro translates the Prince decision.

Thursday, April 25, 2013

NY Times on Prince-Cariou

I'm quoted in Randy Kennedy's story on the decision here.  (It's a much shorter version -- "it’s a missed opportunity to really bring some clarity to this issue" -- of what I said below.)

First Thoughts

Okay, I’ve read the decision.  I think we can hold off on the parade; I don’t think it’s really done much to clean up the fair use mess.

The Court holds, first, that the district court applied the wrong standard:  there is no requirement that the later work comment on the underlying work.  That’s somewhat helpful, but not that big a deal; everyone knew that was wrong from the start.  As the Court notes, “even Cariou concedes … the district court’s legal premise was not correct.”
The other moderately important holding is that it doesn’t matter what Prince said about the work; the question is “how the work in question appears to the reasonable observer.”  Fine, but there weren’t going to be many other fair use defendants who testify their work had no message, or any interest in the underlying work.

The Court then says all you really have to do to tell if something is transformative is look at the works side-by-side, and, having done so in this case, it was “convince[d]” that 25 works passed the test.  They reflect Prince’s “drastically different approach and aesthetic.”  They have “a different character, give Cariou’s photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou’s.”  He “added something new and presented images with a fundamentally different aesthetic.”
But … and here’s where I think things start to go awry … there were five other works that did “not sufficiently differ” from Cariou’s photos to qualify as transformative as a matter of law.  They differed, but they did not sufficiently differ.  They differed, but they are “still similar in key aesthetic ways.”

So they sent those five works back down to the district court.  But why?  Why bother?  What is the district court supposed to do now?  Stare at them side-by-side a little longer?  If the appellate court couldn’t “say for sure whether [this work] constitutes fair use or whether Prince has transformed Cariou’s work enough to render it transformative” (my emphasis), what more can the district court do to resolve that question?
Is the idea that it now has to go to a jury, to decide what a “reasonable observer” would think?  And if that’s the takeaway from the case – that in any case where we can’t “say for sure” whether a work is transformative “enough,” it goes to a jury -- is that really a victory for fair use?

So, on first blush, I’m not sure how much this decision does to reduce the level of uncertainty around the issue of fair use going forward.  How do you know, in any particular case, whether your work is more like the 25 “clearly” transformative works or more like the five that “present[ed] closer questions”?  Aren’t we still, basically, in the dark?

BREAKING: Decision in Prince-Cariou (UPDATED)

"In a closely-followed case in the art world, artist Richard Prince has scored a big win at the Second Circuit Court of Appeal against photographer Patrick Cariou."

Much more later, needless to say.

UPDATE:  Early reactions trickling in.  Julia Halperin in The Art Newspaper.  Randy Kennedy in The New York Times.  Brian Boucher in Art in America.  Dan Duray in the Observer.  And here are the opinions in the case (plural -- there's a dissent).

Thursday, April 18, 2013

More on Facebook and Censorship

I linked last week to an ARTINFO piece on Facebook's "obscenity police."  One of my NYU Law students, Kevin Park, has written a really interesting Note on the general issue of social media and censorship:  "Facebook Used Takedown and it Was Super Effective - Finding a Framework for Protecting User Rights of Expression on Social Networking Sites."  You can read it here.

Tuesday, April 16, 2013

Wednesday, April 10, 2013

"But the plan will infuriate many charities with its renewed call to limit the value of deductions for charitable contributions"

The Chronicle of Philanthropy on President Obama's proposed 2014 budget.

"In this case the coincidences all break one way."

The Sixth Circuit affirms a district court decision vacating an arbitration award against Thomas Kinkade's company.  An interesting read.

Christie's Goes To China

NYT story here.

Wednesday, April 03, 2013

"The statute seems to contemplate and permit the very 'violation' Plaintiff alleges ..."

". . . noting, 'If the multiple was made from a master which produced a prior limited edition, ... this shall be stated.'"

That's the money quote from the District Court decision last week dismissing collector Jonathan Sobel's lawsuit against William Eggleston for making new works from the same images used to make earlier limited editions.  ARTINFO's Julia Halperin has a good summary here.  When the case was filed, Felix Salmon said it looked like "one of the silliest lawsuits the art world has seen in a very long time."  More background here.

What Are Foundations For?

Rob Reich attempts an answer in the Boston Review.  Tyler Cowen has a response here, including the following observation, which struck me as relevant to the deaccessioning debate (regarding the argument that the tax-exempt status of museums means "we" own the works they hold):

"In many localities some items are subject to sales tax and others exempt, or perhaps subject to different rates. Let’s say that I spend my money on untaxed items or lower-taxed items. Does this untaxed expenditure—an indirect subsidy of sorts—imply that 'the public' should have a greater say in how I spend my money?"

Dream Deal

While I was away last week, Steve Cohen bought Picasso's "Le Rêve" from casino mogul Steve Wynn ... for $155 million, or $16 million more than he had agreed to pay in 2006, just before Wynn accidentally put his elbow through the work.  The Art Market Monitor notes that "the question is whether the Picasso work is now a $200m painting including the [$45 million] undisclosed Lloyds settlement [Wynn received for the 2006 damage] or whether Wynn just made out like a bandit on the accident."

"More Tony Soprano than George Clooney"

The Guardian's Jonathan Jones on art theft.

Monday, April 01, 2013

Paneling (UPDATED 2X)

It seems lots of art law happened while I was on the road last week.  We'll get to all of that, but, first, some good stuff happening soon.  First, tonight at NYFA, a panel entitled Understanding Artists' Rights.”  It's sold out, but there is a waiting list.

And then, tomorrow, the NYU Law Art Law Society presents:

A Conversation Inspired by the Copyright Office's Call for Comments on a Federal Resale Royalty

Tuesday, April 2nd from 6:30 PM to 8:00 PM
Reception to follow in Golding West Wing

Jane Levine '85, Worldwide Director of Compliance, Senior Vice President, Sotheby's
Christopher Reed, Senior Advisor for Policy & Special Projects, U.S. Copyright Office
Christopher Sprigman, Visiting Professor of Law, NYU School of Law
Frank Stella, Artist

Amy Adler, Emily Kempin Professor of Law, NYU School of Law

NYU School of Law, Vanderbilt Hall 210
40 Washington Square South
New York, NY 10012


UPDATE:  And here's one on legal issues relatingto digital art, next week.

UPDATE 2:  And another!  The Fordham Art Law Society, April 10: "Defining Cultural Ownership: Shifting Focus, Shifting Norms."