"I have to be honest—I don’t like the sound of this"

Paddy Johnson wonders about the strength of the Rose lawsuit.

Balancing Act

Eric Felten writes in the Wall Street Journal on the National Portrait Gallery-Wikipedia dispute:

"Copyright law exists for a purpose: to make creativity pay. Making accurate photographic copies of paintings is no doubt valuable and involves painstaking work. But it isn’t—and isn’t meant to be—creative. With all the digital assaults on the old copyright verities, the champions of intellectual property can’t afford to waste their energies trying to monopolize images that already properly belong to us all."

Forgery Suit

Josh Baer: "ACA Galleries Inc have sued Joseph Kinney alleging that he sold them a Milton Avery painting 'Summer Table Gloucester' for $200,000 in 2007 that was a forgery. They assert that Kinney actually bought the work for $65,000 from Angela Hamblin who had been convicted of other art forgeries." Related post, from 2007, here.

Another Bull Suit

Arturo Di Modica, who created the famous "Charging Bull" sculpture near Wall Street, has sued Random House and the authors of a new book about the collapse of Lehman Brothers for using the sculpture on the book's cover without permission. Story here. Previous suit mentioned here.

Leibovitz Suit (UPDATED 2X)

Art Capital Group is suing photographer Annie Leibovitz. Story in the NYT City Room blog here. The Art Market Monitor has more. Art Capital's loans to Leibovitz were mentioned in a front-page NYT story on art-based lending back in February.

UPDATE: Much more from Felix Salmon.

UPDATE 2: Still more from the Art Market Monitor: "It would appear that both sides in this battle have made a bad deal."

Clearwater Cuts Bait

The city of Clearwater, Florida has agreed to pay $55,000 to settle the fish mural first amendment case mentioned earlier here. The bait shop owner gets to keep his mural up; the money goes to the ACLU.

More on the Rose Complaint

I've now had a chance to read the Rose complaint. It's no easy task. It's 12 pages long, but then they attach about 140 pages of various exhibits -- and they just kind of dump it all there, with no real effort to tie the documents back to the specific allegations in the complaint. (These two blog posts by Felix Salmon are now part of the official record in the case, Exhibits F and G.) I guess the clearest statement of their claim is that "Brandeis has reneged on its duty to keep the Rose open as a permanent, public museum" (paragraph 17c). "Brandeis's actions to close the Rose and prepare its collection for sale for cash for general university operations contradict the charitable intentions of ... the plaintiff donors and other donors, [and] abrogate Brandeis's promise that the Rose would be maintained in perpetuity as a [m]useum ..." (paragraph 24).

Again, I hate to rain on the parade, but the museum is not closing. As the Future of the Rose Committee put it in their interim report in May: "Brandeis is not closing the Rose and selling all the art work, though we must say in the same breath: it remains a possibility that some will be sold." The Committee's charge is to "recommend ways for the Rose to continue to play a vital role in the cultural and educational mission of the University," and they are expressly committed to the proposition "that the University must do all it can to insure that the Rose remains a vibrant and distinguished part of the University, and it must in the coming period reaffirm in very concrete ways its commitment to the Arts. To that end, we are considering how the mission of the museum can be enhanced and maximized."

The Committee is still in the midst of that process. So what is it that these plaintiffs are seeking to "stop"?

Another problem with the suit is the usual one of standing. We saw this most recently in the Tennessee Court of Appeals decision in the Fisk-O'Keeffe case, where the O'Keeffe Museum was tossed from the proceedings. It was also the basis for the dismissal of the most recent Barnes Foundation lawsuit. In general, the enforcement of gifts to charities lies with attorney general of the state in which the charity is located. "Based on the traditional rule that enforcement of charitable trusts is reserved to the attorney general, donors and heirs of donors usually are denied standing to sue for the enforcement of such trusts. Having made a gift for the benefit of the public, a donor is viewed as having no stronger claim to that gift than any other member of the public" (Marie Malaro, A Legal Primer on Managing Museum Collections, p. 26). The complaint in this case says that "in April, 2009, the Attorney General of the Commonwealth met separately with Brandeis, and certain overseers," and the Attorney General is actually named as a defendant in the suit.

I'm not familiar with the relevant law in Massachusetts; maybe thay have more relaxed standing requirements. But this is certainly going to be another problem for the plaintiffs here, and perhaps a fatal one.

Brandeis's lawyer -- Thomas Reilly, a former Massachusetts attorney general -- calls the lawsuit "frivolous" and says:

"The university has a responsibility to provide the very best education and faculty to fulfill its higher educational agenda. Apparently, these three overseers are oblivious to the Brandeis mission."

"Another day, another deaccession controversy"

Daniel Grant has the latest in the Maine Antique Digest. It involves the St. Augustine Historical Society, which apparently "maintains a collection of documents, maps, photographs, and other printed material about the history of St. Augustine (the oldest city in the U.S.) and early Florida." They sold a bunch of sketches by artist Martin Johnson Heade, "who is often associated with the Hudson River school." As a historical (rather than an art) museum, they're not bound by the AAMD/AAM anti-deaccessioning rules, but there are calls for implementation of the Ellis Rule nonetheless ("Another local museum director ... noted that he ...would have been less unhappy had the historical society sold the collection in its entirety 'to another institution or at a public venue'").

Rose Suit (UPDATED)

The NYT's Randy Kennedy reports that "three overseers of the Rose Art Museum filed suit Monday in state court in Massachusetts, seeking to halt Brandeis University's plans to close the museum and clear the way to sell some of its work."

I haven't read the complaint yet (you can do so here), but keep in mind that the latest version of the plan is not to "close" the Rose but instead to turn it into "a teaching and exhibition gallery." A faculty-student-trustee committee has been formed to figure out how that might best be accomplished. In fact, this weekend brought reports that the museum had "reopened" with an exhibition featuring the paintings of Alfred Jensen. So, right off the bat, a lawsuit seeking to prevent Brandeis from closing the museum would seem to face the problem that it isn't closing the museum.

UPDATE: Paddy Johnson calls me "famously deaccession-friendly" and says I have "predictably" taken the position that, since the university is not closing the museum, "the suit has no merit." I did not say the suit has no merit. Indeed, I said I hadn't even read the complaint (still haven't). All I did was pass along the observation that, for a suit that (as Paddy characterizes it) aims "to halt closure of Brandeis University’s museum," it's something of a problem that there is no plan to close the museum.

"Knowledge, Labor, Property"

Sergio Muñoz Sarmiento gets a few things off his chest regarding copyright ("It's time that U.S. courts put an end to the belief by many that it's ok to make a bountiful living off the work of someone else") and deaccessioning ("While museums continue to suffer closings, layoffs and cutbacks, the College Art Association initiates an anti-deaccessioning petition. This position is absurd at best and irresponsible at worst").

Come On In

I missed this before the weekend, but apparently the court granted Mannie Garcia's motion to intervene in the Shepard Fairey-AP lawsuit.

" . . . and some are even closing"

The Deaccessioning Blog points to a USA Today story under the headline "Museums' funding sources going bone dry" and quips: "Continue those anti-deaccessioning petitions!"

As I've said before, if only these museums had a source of revenue to tap into when times got tough.

Speaking of the Catcher in the Rye decision ...

The New York Times reports that the plaintiff has appealed Judge Batts's no-fair-use decision. You can read the appellate brief here. At the Wall Street Journal Law Blog, Ashby Jones says "it’s pretty clear that [the plaintiff's] lawyers understand that the case will likely turn on [the] 'transformative' issue": the brief "focuses to a large degree on this 'transformation' idea, largely by highlighting the degree to which [the book] allegedly comments on Salinger’s relationship to the novel and the Holden Caulfield character itself."

The core of the argument seems to be that, in his book, "Colting takes ... the seemingly authentic and fiercely independent Holden, and 'adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message' to create a new work of fiction -- a new story that is entirely 'transformative'" (p. 41, quoting the Supreme Court's decision in Campbell v. Acuff-Rose Music).

Jones predicts "a lively Second Circuit hearing, likely to take place later this summer or fall."

"There's reason to believe here that not just any old photo would have sufficed" (UPDATED 2X)

Southwestern Law School's Dave Fagundes has an interesting post up at Prawfsblawg that goes to the Gaylord discussion just below, but is really more about the Fairey-AP dispute, so I thought I'd give it its own post. It's about the fourth fair use factor -- "the effect of the use upon the potential market for or value of the copyrighted work." In the post I discuss below, Peter Friedman says "it's laughable to suggest the stamp adversely affects the value of the sculpture." But Fagundes has I think a more nuanced discussion of the issue:

"The right way to frame the question, I think, is whether an artist who creatively appropriates a ... photograph needs to pay for a license to do so. This strikes me as a hard question. [Doug] Lichtman’s take is that there was a well-functioning market here, so that all Fairey would have had to do is ask for permission to use the photo (and perhaps pay a small fee) in order to avoid liability concerns. And Garcia has said that he would have given Fairey permission to use the photo if Fairey had simply asked him about it beforehand .... If that were true, it would be a strong argument against fair use ...."

He goes on to discuss the question whether the fourth factor "should include the enormous positive impact that Fairey’s taking has had on Garcia’s career (his photography is much more in demand now that he is associated with the iconic Obama poster)." The AP's lawyer calls this the "I did you a favor by ripping off your work" claim, but Fagundes finds it convincing: "at the very least, it seems to me that this argument should be part of the factor-four discussion rather than dismissed as readily as it is by most courts and commentators." In the end, he concludes that "the fair use issue is a truly difficult one."

Marquette's Bruce Boyden, who's been doing his own muti-part series on the case, turns up in the comments to say, in response to Fagundes's point that it may in fact be true that "Garcia is much better off thanks to Fairey’s unauthorized use than he would have been in a world where that use never happened":

"That's one possible world; but here's another one: The world in which everything is the same as it is now, except that Fairey paid Garcia a license fee before making the poster. Garcia is clearly worse off in the actual world than he is in that possible world, to the tune of X hundred dollars (whatever the license fee would have been), and his right to make the decision. ... You could argue that if Garcia had sought a fee, Fairey would have gone elsewhere; but that runs into the point that ... if any old photo of Obama would have done, Fairey could have gotten one for free from the campaign. There's reason to believe here that not just any old photo would have sufficed."

Finally, I refer again to the recent Catcher in the Rye decision, where Judge Batts (who also has the Cariou-Prince case) said that the fourth factor "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.'" The defendants' argued that that there was "no evidence that 60 Years will undermine the market for Catcher or any authorized sequel," but Judge Batts countered 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."

UPDATE: This update is relevant here too.

UPDATE 2: Doug Lichtman adds a comment (just below Boyden's): "Imagine, for instance, that you made a movie based on my book. Would your movie likely increase sales of my book, and its sequel? Sure. Is that a windfall that indicates I should just pipe down and be grateful for your appropriation of my work? Hardly."

Is Pretty Convincing Convincing Enough? (UPDATED)

University of Detroit Mercy Law School Professor Peter Friedman says my post on the Gaylord stamp decision is "ridiculous" and (possibly) "disingenuous." I wrote that the case is a good example of "how you can make the traditional four-factor fair use analysis do whatever you want it to do," and I cited Judge Kozinski's comment that "the analysis can always go in either direction."

Nonsense, says Friedman. This is an "easy case." "The court's conclusion that the stamp significantly reworks the sculpture is pretty convincing." Why? Because (1) when you look at the stamp, "you can't tell you're looking at figures that originate in a sculpture" (you can't? what do you think you're looking at then?) and (2) "other than the figures themselves the entire image set forth on the stamp is not present in the sculpture" (I'm not sure what that means, exactly).

But it certainly doesn't undermine my point -- let alone show that it's "ridiculous" -- to say that the court's conclusion was "pretty convincing." My point is just that it's easy to imagine another judge making a "pretty convincing" case in the other direction. Would it not also be "pretty convincing" to say what we really have here is a photograph of a sculpture, only in the snow, and that simply isn't "transformative" enough to be a fair use? Why did the author of the Catcher in the Rye sequel recently lose? Was there not a "pretty convincing" case to be made that he "significantly reworked" the original? Did his book not have (to use the Gaylord court's phrase) a "different expressive character" than Salinger's? Did it not have a "new and different character"? Was that an "easy case" too?

And what about Shepard Fairey's case against the AP?

Or Patrick Cariou's suit against Richard Prince?

Does anybody really have any idea how those cases will turn out?

Or are they "easy" too?

In fact, not everybody agrees that the court got it right in the Gaylord case. Here is IP lawyer Pamela Chestek:

"In my book what [the court] describes is two derivative works, not a transformative use. I'm in the school that the 'transformation' in the fair use analysis refers to whether the second work has a different use and purpose than the original, not how far removed the second is from the original (which instead goes to substantial similarity)."

That's actually very close to what Gaylord argued in one of his post-trial briefs:

"The adaptation of 'Harry Potter and The Sorcerer's Stone' from a book into a movie effected a dramatic 'transformation' of the work from literary to motion picture . . . . But that is not what 'transformative' means in the context of 'fair use' . . . . Thus, the Government erroneously equates 'transformative' to 'changed' or 'different' and thereby confuses the fair use doctrine with the 'derivative works' principle. . . . [The photographer's] contributions are 'additive,' not transformative, and the Government's transformative argument is a 'derivative works' argument in disguise . . . ."

Friedman also argues that "if you want to look at the other [fair use] factors, those too are pretty convincingly [again with the 'pretty convincingly' - DZ] on the side of fair use." He mentions (1) that "the sculpture is public art and therefore constantly viewed for free," (2) it was "done for the government," which, "last [Friedman] heard, is one of the people, by the people, and for the people," and (3) because the stamp "is a government product," it's a "non-profit product." The first two seem completely irrelevant to me, and, as for the third, the Postal Service sold $29 million worth of these stamps. That seems pretty commercial to me.

I'm not convinced (or even pretty convinced) this is as easy a case as Friedman seems to think it is.

UPDATE: Friedman responds (at length) here. I still don't see anything in it that remotely suggests that it's "ridiculous" to think that, in any interesting fair use case, there's no way to predict with any degree of confidence which way a court will rule. He says he "wouldn't be shocked" if the Catcher in the Rye case is reversed on appeal. But that's just my point. I wouldn't be shocked if it's reversed either, but I also wouldn't be shocked if it's upheld. I wouldn't be shocked if the Gaylord decision is reversed. I wouldn't be shocked if Richard Prince wins. I wouldn't be shocked if he loses. I wouldn't be shocked if Fairey wins his case against the AP/Garcia. I wouldn't be shocked if he doesn't. As I said in my initial post, what we have now is a situation of massive uncertainty.

"I've always thought it wise to be a bit skeptical of anyone claiming the high-road in serving public interest . . ."

". . . especially when they're potentially being sued," says Ed Winkleman in response to the Wikipedia-National Portrait Gallery dispute. Lots of interesting points by Joy Garnett in the comments too.

ARCA News (UPDATED)

The New York Times had a story today on the master’s program in international art crime studies being sponsored by ARCA (the Association for Research Into Crimes Against Art). Derek Fincham, who's one of the teachers in the program, offers some reflections here and here.

This also reminds me that I forgot to mention that I'm writing a regular column for ARCA's new Journal of Art Crime, the first peer-reviewed academic journal in the study of art crime. My first column is on Vineberg v. Bissonnette. The issue is not online yet, but you can find information about the publication here.

UPDATE: A response to the NYT article by the ARCA folks here.

"Who Buys Art on a Cruise Ship?"

The Art Market Monitor flags another Park West Galleries story and says: "Though there’s no excuse for buying art on the say-so of a dealer who tells you it is a great investment, the cruise ships should be ashamed of their willingness to embrace this confidence game."

For more on Park West, start here.

"Wikipedia painting row escalates" (UPDATED)

That's the BBC News headline on the story mentioned last week here.

The deputy director of the Wikimedia Foundation (which runs Wikipedia) says: "It is hard to see a plausible argument that excluding public domain content from a free, non-profit encyclopaedia serves any public interest whatsoever."

But the British Association of Picture Libraries and Agencies nicely lays out the counterargument: If museums like the National Portrait Gallery can't have their photographs protected, and "anyone [is therefore] able to use them for free, they will cease to invest in the digitisation of works, and everyone will be the poorer."

UPDATE: The Art Market Monitor says it's "a compelling case of self-interest presented as public interest."

"Barrel Monster" Sentence

50 hours of community service.

Background here.