"Sir Anish Kapoor’s Clenched Fist of Copyright, the Battle Over Fair Use, and the NRA"

Sergio Muñoz Sarmiento, writing at Hyperallergic, on Anish Kapoor's lawsuit against the NRA.

Related:  Mike Masnick at Techdirt:

"This is so obviously fair use that it's not even worth going through the full four factor analysis. This is less than a second in a political video showing a public sculpture in a public location. It's not key to the video. It's used as part of commentary.  The nature of Kapoor's lawsuit, however, is quite obviously to stifle free speech he disagrees with."

"But the imperious demands of a multimillionaire who no longer wants to wait cannot trump the plain and unambiguous language of the Purchase Agreements, which do not require Mr. Koons to create the Works by any specified deadline."

Artnews:  Gagosian Gallery Files Motion to Dismiss Steven Tananbaum’s Jeff Koons ‘Non-Delivery’ Lawsuit.

This is the one with the ouroboros.

"Anish Kapoor Sues NRA for Copyright Infringement of Bean Sculpture"

Artnews story here.  They use it in an ad.

Sergio Muñoz Sarmiento thinks Kapoor is trying to use copyright to censor speech.

IP professor Christine Farley tweets:  "The Bean appears for just 1 second, but it takes up almost the entire frame. De minimis?"  (For a recent de minimis case, see here.)

And some interesting Twitter discussion among some law professors here (though I really don't get the doubts about copyrightability here).  Brian Frye says "surely the use of public art as a backdrop is - or should be! - a fair use."  Michael Risch wonders why we should think "people should be free to commercialize photos of sculptures when they can't commercialize a photo of a painting. Other than the fact that you have to pay to see one of them in a museum, it's unclear to me why these are different categories of art."  Several people seem to think there should be a statutory exception allowing the use of public art.

"In such a polarised climate, should auction houses and dealers not pay their dues to the artists from whom they profit?"

In The Art Newspaper last week, Anny Shaw uses P. Diddy's recent purchase at auction of a Kerry James Marshall painting for $21 million -- "Marshall didn’t receive a cent from the sale" -- as an occasion to wonder about resale royalties for artists.

And that reminds me to thank everyone who came out to Pioneer Books Monday evening for a stimulating conversation on the subject of resale royalties (where among other things I described what I don't like about the most recent proposed legislation and defended my tentative, still-developing idea for an alternative version that would apply, without a cap, in cases where there has been a massive increase in value).

"A New York City real estate developer who demolished the famed graffiti space 5Pointz won't get a new trial, after a federal judge Wednesday issued a scathing opinion that blasted the owner for lying in court and other 'egregious behavior.'"

Law360:  No New Trial Over 5Pointz Graffiti Destruction, Judge Says:

"The ruling paves the way for Wolkoff to take the case to the Second Circuit, setting the stage for a closely watched appeal ...."

One question for that appeal will be whether statutory damages are the appropriate remedy for the kind of behavior that seemed to tick off the Judge here.

"The court found the graffiti was 'never fully visible, let alone legible,' even when the video was paused, because it appeared on screen for less than three seconds, in the background, at an oblique angle, and in low, uneven light."

Frankfurt Kurnit's Brian Murphy on the dismissal of a recent copyright case on de minimis grounds.  Full decision here.

"Shane Campbell Looks to File a $15 Million Class Action Lawsuit Against Frieze for ‘Unbearable’ Heat" (UPDATED)

Story here.

UPDATE:  Sergio Muñoz Sarmiento tweets:  "Guess the $10 Starbucks gift card wasn’t enough?"

"I spent hours researching it, and I concluded that Arcis is a tax-free zone in search of a tax.”

A Longreads read on the new "freeport" in Harlem.

"This action arises from a greedy, malevolent, fraudulent, bad-faith and (unfortunately) successful scheme to financially devastate the Estate and, indirectly, Belinda, by destroying the value of the Estate’s most valuable asset — Jean-Michel Basquiat’s masterpiece, ‘Flesh and Spirit.'"

The next round in a dispute over a Basquiat sold at Sotheby's last month. For round one, see here.

The painting sold for $30.7 million.  The claim seems to be that, but for the greedy, malevolent, fraudulent, bad-faith scheme, it would have sold for more.

Because we said so, that's why

I've been meaning to link to the AAMD's statement regarding their imposition of sanctions on the Berkshire Museum and the La Salle University Art Museum.

It's a really good instance of the phenomenon Michael Rushton talked about here: it just states their policy as if it's self-evident; there's no real effort made to explain why the policy makes sense.

All the work is done (to the extent any work is done) in the second paragraph:

"AAMD has a long-standing policy that restricts the use of funds obtained through deaccessioning to the acquisition of works of art. Selling art to support any need other than to build a museum’s collection fundamentally undermines the critically important relationships between museums, donors and the public. When museums violate the trust of their donors and the public, they diminish the opportunity and responsibility to make great works of art available to the public. This hurts the individual institution and affects the museum field as a whole."

The first sentence just asserts the policy.  The second sentence is the closest we get to an explanation or defense of the policy, so let's take a close look at it.  The key move, the stolen base, the sleight of hand, is the sneaky introduction of the "other than":  Selling art to support any need other than to build a museum's collection fundamentally undermines (not just undermines, fundamentally undermines).  But where does that particular "other than" come from?  Couldn't we just as easily slip anything we want in there?  Selling art to support any need other than keeping the museum from going out of business.  Selling art to support any need other than providing expanded access to the museum's collection.  Selling art to support any need other than attracting the most talented curators.  Selling art to support any need other than changing the museum's mission.  Selling art to support any need other than paying legal fees.  Why does "to build a museum's collection" get to be the only "other than"?  How did that happen?

Again, it's just what Rushton calls attention to:  what they're really saying here, in their big, public statement on this big, public matter, is:  We have a policy.  To violate that policy fundamentally undermines.  It's just circular; it's no explanation at all.  This was the best they could do?

Nor is there any explanation of how those "critically important relationships" are (fundamentally) undermined.  It's just another empty assertion.

The third sentence pivots to talking about "violating the trust" of the donors and the public -- but where did that come from?  What trust?  How is it violated when a museum sells art for one purpose but not for the big "other than" purpose?  And what if selling art in a particular case expands the opportunity to make great works of art available to the public -- again by, for example, subsidizing or eliminating admission fees, or keeping the museum open longer hours, or keeping a financially troubled museum from closing its doors for good?

Or, what about the Ellis Rule?  What if a small museum in the Berkshires sells art to a museum in Los Angeles?  Has that diminished the opportunity to make great works of art available to the public, or expanded it?  Won't more people get to see it in Los Angeles?

Are they even trying any more?

The paragraph concludes with:  "This" -- referring, I guess, to the diminishment of the opportunity and responsibility to make great works of art available to the public -- "hurts the individual institution and affects the museum field as a whole."  Yes, we mustn't do anything that could "affect" the museum field as a whole.  That's always unethical.  You never want to affect the museum field as a whole.

I've said before that they need better talking points.  But really what they need is a better policy.

"In its present form, the AAM’s deaccessioning policy hinders—rather than facilitates—access to one of America’s greatest sources of cultural capital: the art museum."

Outdated Rules Are Killing Museums—Here’s How Things Can Change.