Saturday, July 22, 2017

Bananas

I'm a little late on this one too, but the 9th Circuit heard oral argument in the ridiculous monkey selfie lawsuit last week.  It sounds like it didn't go so well for the monkey side:

"'There is no way to acquire or hold money. There is no loss as to reputation. There is not even any allegation that the copyright could have somehow benefited Naruto,' said Judge N Randy Smith. 'What financial benefits apply to him? There’s nothing.'

"At one point, Judge Carlos Bea considered the question of how copyright passes to an author’s heirs.

"'In the world of Naruto, is there legitimacy and illegitimacy?' Bea asked. 'Are Naruto’s offspring "children", as defined by the statute?'

...

"The lawyer for Slater’s publisher, which is also a defendant, also raised the question of whether Peta has even identified the right monkey – something that Slater [the photographer] disputes.  'I know for a fact that [the monkey in the photograph] is a female and it’s the wrong age,' he said. 'I’m bewildered at the American court system. Surely it matters that the right monkey is suing me.'"

Speaking of appropriation

Donald Graham's daughter had this to say about Richard Prince's use of her father's work:

"That Richard Prince stole his work for his crass commercial purposes is not only against the law, it is an affront, an ugly reminder that successful artists such as Richard Prince believe themselves beyond the law. They can steal now and pay later from their profits."

Actually, that wasn't Graham's daughter at all; it's Lygia Pape's daughter, who just brought an infringement lawsuit against LG Electronics.

The challenge for those seeking to make sense of this area of the law is to distinguish the two cases.  Why are some kinds of appropriation okay and others not?  What is the theory?

Friday, July 21, 2017

Bringing Home the Bacons

Three of them, at least.  Story here.  Background here.

"What can account for this peculiar set of rules, which seem to prevent museums ... to take actions that are not only consistent with, but would often seem otherwise mandated by their charitable purposes?"

At the Faculty Lounge, Brian Frye has some thoughts inspired by the fact that most museums can only show 2-4% of their collection at any given time.  And he teases an upcoming article tentatively titled "Deaccessioning Norms are Unethical."  I love it already.

"How much can you conserve an artwork before it becomes something entirely different?"

"This question is at the heart of a lawsuit filed in New York earlier this week by the artist Cady Noland."

Thursday, July 20, 2017

Motion to dismiss denied in Prince-Graham fair use case (UPDATED)

I was on a plane all day yesterday, so am a little late getting to this.  Laura Gilbert has the story in The Art Newspaper.  For background, start here.  More later after I've had a chance to read the decision.

UPDATE:  Okay, I've had a chance to read it.  It's a long opinion, but it can basically be boiled down to: the fair use question is "a fact-sensitive inquiry that cannot be completed ... on a motion to dismiss."  That's it; that's all there is to it.  "[B]ecause the Court can only review the narrow set of facts that appear in the Complaint and its appended exhibits -- and because all of the plausible factual allegations contained in those documents must be viewed in the light most favorable to [Graham] -- the Court cannot conclude that any of the four fair use factors favors [Prince]."

Saturday, July 08, 2017

Should an artist's testamentary direction to destroy unfinished work be honored? (UPDATED)

From the New York Times, the case of Edward Albee:

"'It presents a moral and legal quandary,' said John Sare, a partner at Patterson Belknap Webb & Tyler and the co-author of 'Estate Planning for Authors and Artists.' 'You may feel a moral obligation to do as you’ve been asked, but that may be in competition with a moral obligation to do what’s best for the history of arts and letters and a legal obligation to conserve the assets of the estate for the beneficiaries.'

"Eva E. Subotnik, an associate professor at St. John’s University School of Law, argued for some skepticism about such provisions.  'There is something special about these kinds of assets — they’re not just like a mansion or a fancy watch, but they’re socially valuable, and that has to play into the calculus,' Ms. Subotnik said. 'I definitely argue against full-throttle enforcement of artistic control after death.'

"But another expert on the subject, Lior J. Strahilevitz, a professor at the University of Chicago Law School, disagreed. 'Part of what we value in a great artist is not just raw ability but the ability to curate, and it’s frequently the case that artists build great reputations by being selective about what they show to the world,' he said. 'It’s problematic to force Albee to share these plays when he didn’t think they were good enough.'"

UPDATE:  Sergio Muñoz Sarmiento connects this to another current controversy over artistic control -- David Mamet's discouragement of post-show discussions -- and says:  "Why is it that if an artist wants to control her artistic property or, god forbid, destroy it, the general public seems obliged to shriek and criticize the artist? Why is it that this public thinks they know better than the artist as to the artwork’s fate and, more so, that they have some “right” to read or view it?"

Ann Althouse agrees:  "Mamet doesn't need to prove that there's something objectively wrong with post-show talks. He's the artist, and he's determining how he wants his play shown."