Fairly Useless

Sergio Muñoz Sarmiento points to a strange case in the Court of Federal Claims which ruled that a postage stamp featuring a photograph of a sculpture was a fair use. The Court held that the stamp was "transformative, providing a different expressive character than [the sculpture]." The photograph "transformed [the sculpture's] expression and message, creating a surrealistic environment with snow and subdued lighting." It all "resulted in a work that has a new and different character than [the sculpture]." Not a particularly tough standard to meet.

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"

Bloomberg reports that the Picasso sketchbook stolen in June still hasn't been recovered, and places the theft in the context of "several French arts institutions to have been robbed or vandalized recently."

More on the Fisk Decision

More on the Court of Appeals decision in the Fisk-O'Keeffe case from Diverse magazine here and the Wall Street Journal Law Blog here. The latter characterizes the decision as holding "that Fisk owns O’Keeffe’s work at this point and therefore is free to do what it wants with its 101-piece, $60-million collection," but, as noted yesterday, that isn't quite right. You can read the decision here, the upshot of which is that on remand Fisk must establish that "the change of circumstances subsequent to the gift render literal compliance with the conditions [of the gift] impossible or impracticable." If they are able to do that, then "the trial court is to fashion a form of relief that most closely approximates Ms. O'Keeffe's charitable intent." The "best interests of the people of the State of Tennessee," which the lower court seemed to get so hung up on, would not seem to factor into that analysis (there may be forms of relief that are better for the people of the State of Tennessee but do not closely approximate O'Keeffe's intent).

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."

Bridgeman Two?

The Guardian reports that London's National Portrait Gallery "has threatened legal proceedings" against a US resident "who downloaded thousands of high-resolution images from its website, and placed them in an archive of free-to-use images on Wikipedia." As Sergio Muñoz Sarmiento points out, this is Bridgeman v. Corel redux -- to what extent are photographic reproductions of public domain works protected by copyright? It's worth noting that Bridgeman was initially decided under UK law; and even in the final ruling, Judge Kaplan wrote:

"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."

"We reverse the trial court’s finding that the Georgia O’Keeffe Museum has standing"

"We also reverse the trial court’s finding that the gifts to the University were motivated by a specific charitable intent instead of a general charitable intent, the finding that the University cannot establish that it is entitled to cy pres relief, and the order dismissing the Amended Petition of the University for cy pres relief. In furtherance of our decisions, we remand with instructions to strike all pleadings and motions filed by the O’Keeffe Museum, ... to dismiss the O’Keeffe Museum as a part to this action, to vacate all judgments entered in furtherance of the relief sought by the O’Keeffe Museum, including, without limitation, the trial court’s order entered March 6, 2008, and for further proceedings consistent with this opinion."

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."

Sotomayor and Photography

The NYT's David Dunlap discusses another art law connection for Judge Sotomayor. Related post here.

ALR Acquisition

"The Art Loss Register (ALR) announced the acquisition of the register of stolen art and antiques from Trace, a subsidiary by MyThings which will become a minority shareholder in the ALR."

A Second Salander Indictment (UPDATED)

Bloomberg has the story here.

UPDATE: More from Judith Dobrzynski.

"Daniel Moore and the Neverending Lawsuit"

The Tuscaloosa News brings us up to date on the lawsuit between the University of Alabama and sports artist Daniel Moore. The short version: "Now, the case may be close to reaching its sixth judge, and attorneys are back to arguing over year-old motions."

The AP-Fairey Case Just Got Even More Interesting

The American Lawyer reports that "freelance photographer Mannie Garcia, represented by Boies, Schiller & Flexner partner George Carpinello, filed a memorandum of law in federal district court in Manhattan seeking to intervene in the dispute that so far has pitted The Associated Press against artist Shepard Fairey." Garcia claims that he (not the AP) owns the copyright in the photo.

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."

"It had to be someone who knew me, knew my house and possibly knew my habits"

"Burglars broke into [a Texas] home on June 23 and stole a dozen pieces of art from a who's who of 19th and 20th century artists: Pablo Picasso, French post-impressionist Henri de Toulouse-Lautrec, early abstractionist Paul Klee and Alexander Calder .... [The 85-year old homeowner] initially reported only the theft of an original work by Picasso, worth between $15,000 and $20,000, but this week noticed that 11 other pieces, including seven more by Picasso, ... were missing. Those pieces were on loan to her from dealers in New York and Los Angeles for an upcoming art show at her home."

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."

Charitable Deductions Update

A NYT story today on the apparent "collision course" between House and Senate Democrats "over how to pay for a sweeping overhaul of the nation’s health care system" notes that "the president, in his initial budget, had called for capping certain deductions, including those for charitable contributions, at the 28 percent income tax bracket, an idea initially rejected by a number of Democrats in Congress," but says that "some lawmakers who opposed Mr. Obama at that point said they were willing to consider a higher limit — at the 35 percent bracket — [when] the highest tax bracket reverts to 39 percent if the Bush tax cuts are allowed to expire."

Fairey Guilty Plea

The AP reports that Shepard Fairey "was sentenced to two years' probation Friday after pleading guilty to three vandalism charges. Prosecutors dropped 11 other charges. [Fairey] pleaded guilty in Boston Municipal Court to one charge of defacing property and two charges of wanton destruction of property under $250, all misdemeanors." He also "must pay $2,000 to a graffiti removal organization and cannot possess tagging materials — such as stickers or paste — in Boston except for authorized art installations. He also must tell officials when he plans to visit Suffolk County, where Boston is located."

"The museum violated no formal rules, but both we and the art world wish its leaders had exhibited more prudence, openness and collegiality"

The LA Times editorial board on the OCMA private sale.

"Artists hold applause for Obama"

Politico looks at the Obama administration's approach to the arts so far.

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."

Salinger and Prince

A reader points out that Deborah Batts, the Judge who just blocked publication of a Catcher in the Rye sequel, is also the Judge in the Richard Prince infringement lawsuit. So is there anything in the Catcher opinion that gives us any insight into how Judge Batts is likely to rule in the Prince case?

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.

Roxanna Brown Settlement

Seattle Times: "The federal government has agreed to pay $880,000 to settle a lawsuit filed over the death of Roxanna Brown, an Asian-antiquities expert who died last year while being held at [a] Federal Detention Center."

For background on Brown, see here.

More Opportunity Cost (A Continuing Series)

Over the weekend came news that the Albright-Knox would now be open only four days a week.

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.

"In the US, the practice of 'deaccessioning' is more prevalent and even major institutions buy and sell robustly"

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."

How Best to Remove Objects from the Public Trust

Daniel Grant examines the question in the Wall Street Journal. On the one hand, those concerned with keeping artworks in the public trust should favor private sales to other museums. But the hysteria that surrounds deaccessioning tends to push people to auction:

"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."