Saturday, January 30, 2016

Knoedler Trial Day 5 (UPDATED 2X)

Brian Boucher has you covered.

UPDATE:  Here's NPR on the case.

UPDATE 2:  Jerry Saltz tweets:  "[Freedman] will get off. In my opinion she is 100% guilty." Paddy Johnson replies:  "I hope she doesn't get off because I share your opinion."

Friday, January 29, 2016

"That is an argument that should be made to Congress and the President, not to me."

The monkey selfie opinion has been released.  Background here.

"Woman sues AP for taking and selling stock photo of her wearing a headscarf"

Eugene Volokh thinks she will lose under New York law.  Sergio Muñoz Sarmiento agrees. Copyright Librarian Nancy Sims says it's a "good illustration of my oft-repeated refrain: most people don't have right to control images taken in public places."

Knoedler Trial Day 4 (UPDATED)

Sarah Cascone reports here.

UPDATE:  Some more general thoughts from Blake Gopnik.

Thursday, January 28, 2016

Knoedler Trial Day 3 (UPDATED 3X)

Sparks flew.

UPDATE:  Georgina Adam:  "'Secret Santa' seems a killer line."

UPDATE 2:  Art Advisor Jay Grimm is blogging the trial.  Start here and scroll down.

UPDATE 3:  Laura Gilbert's report is here.

Monday, January 25, 2016

"We would not only be dwarfed by the scale, but I feel like I would be in a dungeon -- in chains."

Bloomberg:  Manhattan's Next Super-Tall Condo Plan Faces Neighborhood Battle.  One of the issues is blocked light for a collector's Picassos.

Reminder: the Knoedler trial starts TODAY (UPDATED 2X)

Excellent preview from Graham Bowley and Colin Moynihan in the Times here.

UPDATE:  Another from Laura Gilbert in The Art Newspaper.

UPDATE 2:  And one from the Post.

Sunday, January 24, 2016

It would also be a violation of VARA (UPDATED)

The New York Post has a story today on the possible destruction of (my client) Dorothea Rockburne’s murals in the Sony building.

The demolition hasn’t started yet, and there’s no reason in the world why this shouldn’t be taken care of before it does.

UPDATE:  Good news.

Friday, January 15, 2016

Ai Weiwei 1, Lego 0

NYT:  "The Lego Group has said that it would no longer ask customers what they intend to do with bulk orders, following an outcry last fall when it rejected a request by the Chinese artist Ai Weiwei, whose work has often been critical of the Chinese government."

As predicted.

Monday, January 11, 2016

Thursday, January 07, 2016

VARA claim in Detroit

Story here.  It involves a mural, painted by artist Katherine Craig on the side of a building in 2009. One interesting twist is that apparently, in her contract with the building's original owner, they agreed the work would remain in place "for at least 10 years."  Would that count as a waiver under VARA? Could they wait her out until 2019?  Remember:  judges don't like, and don't get, VARA.

BREAKING: Monkey loses selfie suit

"U.S. District Judge William Orrick said in federal court in San Francisco that 'while Congress and the president can extend the protection of law to animals as well as humans, there is no indication that they did so in the Copyright Act.'"

Background here.

Wednesday, January 06, 2016

"If you can get away with this, what is left of copyright?" (UPDATED)

Artnet's Brian Boucher talks to some experts about the latest Richard Prince lawsuit, and the above quote, from Stanford's Paul Goldstein, seems to sum up the prevailing consensus.  I may be too wedded to my belief that fair use law is basically indeterminate, and I can certainly see the argument that the Second Circuit's formalist approach in the Cariou case puts Prince in a very difficult position here, but two brief thoughts in response to the Goldstein view:

1.  Judge Leval's recent decision in the Google Books case -- decided after Prince-Cariou -- tells us that the fourth fair use factor -- "the effect of the copying use upon the potential market for or the value of the copyrighted work" -- is the most important.  Is it really the case that Prince's work will deprive Graham of "significant revenues because of the likelihood that potential purchasers may opt to acquire [Prince's work] in preference to [Graham's]"?  Does Prince's work threaten Graham with "significant harm" to the value of his work?  Google Books says "some loss of sales" is not enough:  "There must be a meaningful or significant effect" upon the market for the copied work. Do we have that here?  Doesn't someone who buys a Richard Prince do so because he wants a Richard Prince?  Is Prince really siphoning any sales away from Graham?

2.  I think there may be a sense that, unlike with the 20 works the Second Circuit blessed in the Cariou case, Prince hasn't "done anything" to (or with) this one, and so how can he possibly have "transformed" it?  I think that may miss something important about what's going on here.  There is a thing called appropriation art. Not everyone likes it, but it's a thing, and Prince is an important practitioner of the genre. When he takes a work like this and puts it in a show at Gagosian Gallery alongside other similar images he has done something to it. You may not like it as art, and you may not think he's done enough to it to qualify as fair use (as if anyone has any idea what "enough" means in this context).  But he has done something to it.

And one final point, from Greg Allen:  "Unfortunately for Mr. Graham, he only registered his copyright for the image after Prince's show, so even if he were able to prove infringement, he would only be able to recover actual damages. Since Prince sold his New Portrait to his dealer Larry Gagosian, those actual damages probably range between the profit from one 4x5 photo print and $18,500, Prince's half of the $37,000 retail price for the IG works at that time."

UPDATE:  Techdirt's Mike Masnick:

"[I]t's not the underlying work that makes it worth that much, it's the fact that it was created by Richard Prince. That's what's transformative. The original photo was worth x. The Prince version is worth many times x. You and I might not understand *why* but that's how the art world has valued them.  So my argument is that it's transformative ... in that 'people value it entirely differently.' Something is different about the work, and that difference is, basically 'Richard Prince did this.' You're focusing too narrowly on whether the image *looks* different to determine if it's transformative. But that's not the way to look at it. It's a question of whether the overall way it's viewed is different. And that's why it's transformative."

"New York Comes Down on Art Collectors"

Barron's:  "Our call: Expect the aggressive enforcement to continue indefinitely. It’s an inexpensive way for New York State to raise revenue, and its return on effort could potentially be large."

"[T]he really dangerous forgers are the ones who can infiltrate and corrupt the core of the knowledge system upon which the art world relies"

Purchase College's Jeff Taylor:  The secret to all great art forgeries.

Monday, January 04, 2016

"Who’d Steal Lincoln’s Hand?"

Art Theft Baffles Illinois Museum.

Here we go again

Another photographer has sued Richard Prince for use of a Rastafarian image.  Should be an easy case to decide:  all the court has to do is follow the Second Circuit's crystal clear guidance from the Prince-Cariou case.