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Providing timely updates and commentary on legal issues in the museum and visual arts communities

Remaining Creditor Sharpens Knives Over Detroit Institute of Arts Collection Value

By Nicholas O'Donnell on Posted in Appraisal, Bankruptcy, Detroit Bankruptcy, Museums, Uncategorized

After Syncora Capital settled its objections to the Detroit bankruptcy plan of adjustment, it looked like the battle over the Detroit Institute of Arts collection would subside.  Not so fast, it turns out.  A major contest looms next week with a remaining creditor, Financial Guaranty Insurance Corporation, over the valuation of the collection.  Just to recap, the creditors (including both Syncora and FGIC) submitted a valuation of the entire DIA collection that put the value between $8 billion, performed by Victor Wiener Associates, while DIA and the city advanced an appraisal by Artvest Partners and Michael Plummer (who testified last week) putting it at closer to $2.4 billion (after an initial appraisal by Christie’s of only part of the collection).

The Detroit Free Press has an article today (in which I’m quoted) breaking down the methodology and other aspects of the competing appraisals.   It’s a must-read for anyone curious how these values are reached.

I still don’t expect this issue to move the needle much in the grand scheme of things, but in the meantime, stay tuned for more developments next week.

Less Fun Than a Barrel Full of Monkeys (As a Matter of Law): The U.S. Copyright Office and the “Monkey Selfie”

By Nicholas O'Donnell on Posted in Copyright

There has much much Internet mirth about the recent publication of the Third Edition of the Compendium of U.S. Copyright Office Practices, more specifically, the Compendium’s statement that “the Office will refuse to register a claim if it determines that a human being did not create the work.”

My IP partner Lawrence Robbins has an excellent run-down of the new publication and the case that either inspired or spotlighted it here (“No, Your Musical Cat and Artistic Dog Aren’t Going to Make You Rich”), at the Art Law Report’s sister blog Trending Trademarks (bookmark it!).  In a nutshell, a crested black macaque picked up a camera owned by a British nature photographer named David Slater, and pressed the shutter button.  The result has become known as the “monkey selfie.” 

The Copyright Office explained its Compendium provision about non-humans based on the premise that copyright can only attach to “fruits of intellectual labor” that are “founded in the creative powers of the mind,” and exempted from possible registration, among others, (a) a photograph taken by a monkey, and (b) a mural painted by an elephant.

While understandable from a certain perspective, my thoughts are that this categorical prohibition goes too far.  As Donn Zaretsky mused when the Compendium was published,

the more I’ve thought about this issue, the less obvious the conclusion has seemed. The problem with the actual case under discussion is that the photographer admitted it was an accident; the monkey just picked up his equipment and started snapping the shutter.  But imagine a photographer whose work is to leave a camera in a room with various animals and waits for them to press the shutter, or perhaps sets up tripwires in the room that causes the camera to shoot.  It’s not so obvious to me that the photographer shouldn’t own the copyright in the resulting photos in that situation.

I agree.  It may well be that Slater’s photograph would have failed to qualify on its own, but the broad ruling is not entirely consistent with the creative process. 

Have Some Foie Gras with Your Ethanol: Auction Houses Urge Ninth Circuit Not to Rehear California Resale Royalties Act Argument

By Nicholas O'Donnell on Posted in Copyright, Legislation, Moral Rights, Resale Royalties

The defendants in the case on appeal over the constitutionality of California’s Resale Royalty Act have just briefed the court’s question about whether the full court should rehear the case.  Responding to an order that the parties explain whether the case conflicts with recent Ninth Circuit precedent, Christie’s, Sotheby’s, and eBay all argued emphatically that no conflict justifies reinstating the law that a District Court struck down in 2012. 

Two years ago, the U.S. District Court in Los Angeles held that the California law—which obliges a royalty to the original artist upon resale of the work under certain circumstances—was unconstitutional.  The court concluded that the law violated the Commerce Clause of the U.S. Constitution, or more specifically the “Dormant Commerce Clause,” which is another way of describing the negative implications of the Constitution’s exclusive grant of authority to Congress to legislate interstate commerce.  Put another way, the Dormant Commerce Clause describes the extent to which states are prohibited, by virtue of the Commerce Clause, from passing laws that regulate or unduly burden interstate commerce because that is Congress’s job.

Artist Chuck Close and others sued, seeking royalties that would otherwise have been due under the act.  But the court found that the law had a “substantial effect” on interstate commerce by regulating secondary sales: “the CRRA explicitly regulates applicable sales of fine art occurring wholly outside California.”  That was enough for Judge Jacqueline H. Nguyen. 

The plaintiffs appealed, and the issue was briefed and argued on April 8, 2014 to a three-judge panel of Judges Ferdinand F. Fernandez, N. Randy Smith, and Mary H. Murguia.

Somewhat unexpectedly (and before a decision by the three-judge panel), the panel issued an order on August 29, 2014, directing the parties to brief:

whether there is a conflict in our case law regarding the applicability of Healy v. Beer Inst., 491 U.S. 324 (1989). Compare Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070, 1101 (9th Cir. 2013) (“[T]he dormant Commerce Clause holds that any ‘statute that directly controls commerce occurring wholly outside the boundaries of a State exceeds the inherent limits of the enacting State’s authority.’” (quoting Healy, 491 U.S. at 336)), with Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 951 (9th Cir. 2013) (“[T]he [Supreme] Court has held that Healy . . .[is] not applicable to a statute that does not dictate the price of a product and does not ‘t[ie] the price of its in-state products to out-of-state prices.’” (quoting Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 669 (2003)).

Healy dealt with a Connecticut law that required out-of-state shippers of beer to affirm that their posted prices for products sold to Connecticut wholesalers were no higher than the prices at which those products are sold in the bordering States of Massachusetts, New York, and Rhode Island..  The Supreme Court struck down the law in 1989, because it:

has the impermissible practical effect of controlling commercial activity wholly outside Connecticut. By virtue of its interaction with the regulatory schemes of the border States, the statute requires out-of-state shippers to take account of their Connecticut prices in setting their border-state prices and restricts their ability to offer promotional and volume discounts in the border States, thereby depriving them of whatever competitive advantages they may possess based on the local market conditions in those States. Moreover, the short-circuiting of normal pricing decisions based on local conditions would be carried to a national scale if and when a significant group of States enacted contemporaneous affirmation statutes similar to Connecticut’s that linked instate prices to the lowest price in any State in the country. It is precisely such results that the Commerce Clause was meant to preclude.

It is interesting, then, that the Ninth Circuit asked these parties to review Healy’s effect on two of its decisions, one from 2003 and one from last year.  Rocky Mountain Farmers Union v. Corey concerned California’s fuel standards and efforts to regulate carbon dioxide output, California’s Low Carbon Fuel Standard (Cal. Code Regs. tit. 17, §§ 95480–90 (2011)).  In Rocky Mountain, the Ninth Circuit held that the law’s provisions were not facially discriminatory to out of state ethanol, nor discriminatory in purpose or effect against either that ethanol or against crude oil.

By contrast, Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris affirmed the District Court’s denial of a motion to preliminarily enjoin the State of California from enforcing California Health & Safety Code § 25982, which bans the sale of products that are the result of force feeding birds to enlarge their livers beyond normal size.  The plaintiffs, non-California entities that raise ducks for slaughter, argued that the law discriminated against them as out of state actors, but the Ninth Circuit allowed the law to be enforced.

The question in the resale royalties case is whether the Ninth Circuit needed to harmonize its caselaw in some respect such that the Close case should be reheard.  This is really two questions in one, one substantive and one procedural.  The first is whether the Ninth Circuit’s caselaw is inconsistent with Supreme Court precedent, and the second is whether the answer to the first question justifies re-briefing and re-hearing the case (the very sort of thing that Google is asking the Ninth Circuit to do right now in the Garcia/”Innocence of Muslims” case).

Not surprisingly, Christie’s and the other auction houses submitted their briefs this week arguing that the answer to both questions is “no.”  “Both the Supreme Court and the Ninth Circuit, in an unbroken line of cases, have made clear that states may not directly regulate transactions that occur beyond their borders or use their regulatory powers to control out-of-state conduct,” Christie’s brief argued.

Commerce Clause decisions bring with them big stakes.  The extent to which an action affects interstate commerce can either justify federal regulation of all stripes (e.g., the battleground over the Affordable Care Act before the Supreme Court upheld it as a tax), or be the basis to prohibit state law and regulation (e.g., wine shipment restrictions).  California is a very active state in things like environmental legislation, so pushing the balance even slightly one way or another could be a very big deal, particularly since recently-introduced federal legislation shows no sign of going anywhere after early signs of action. 

Books of Note: “The Art Collecting Legal Handbook” Reviewed

By Nicholas O'Donnell on Posted in Art Fairs, Auctions, Immunity from Seizure Act, Legislation, Litigation, Moral Rights, Museums, Publications, Restitution, World War II

In the course of our work here, I like to call out books and articles that I feel are worthy of praise, usually the in the course of a particular post or issue.  After a too-long stay on the corner of my desk awaiting time to read it, I finally finished a book published last year that should be an essential for any collector, or lawyer dealing with clients across borders.  Entitled The Art Collecting Legal Handbook (Thomson Reuters), the book is edited by Bruno Boesch and Massimo Sterpi, both notable European practitioners in art and cultural affairs law, at Froriep in London and Studio Legale Jacobacci & Associati in Rome, respectively. 

The book opens with several excellent essays.  The editors’ introduction poses the question: does art escape law?  By way of response, they survey the impact of (in no particular order) rapidly escalating prices, security of title, art fairs, forgeries & authenticity concerns, and the issues that accompany antiquities. 

The real genius of this book is in its conception: rather than attempt broad brush answers to these queries, the editors respond with more questions.  Specifically, they put this series of identical questions to practitioners around the world:

1)    Does your country have regulations on national patrimony, cultural heritage, indigenous art and the like and, if so, what are the essentials?

2)    Is your country party to the 1970 UNESCO Convention?  What are the striking, distinguishing features of your national implementation legislation?

3)    Is your country a party to the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects and/or any other international conventions or bi-lateral treaties relating to cultural property and their trade?

4)    Is the art and cultural property market thriving in your country?  Please provide data about trade volumes, dealer presence, etc., where available.

5)    What is the due diligence required from a buyer?

6)    Are there any particular features of local law that require a buyer’s attention, whether in private treaty purchase or purchase at auction?

7)    What are the remedies in case of fake, forgery or counterfeit?

8)    Is there any VAT or sales tax and, if so, what are they (distinguishing between goods imported and exported, by local buyer or foreign buyer)?

9)    Is there an artist’s resale right (droit de suite) and, if so, how does it apply?

10) Are there any export restrictions, in respect of certain cultural property or otherwise and, if so, what is the procedure?

11) Are there any ‘free ports’ and, if so, what is their regime?

12) What are the rules on import customs and VAT clearance?

13) What is the buyer’s protection against title claims in general?  Is good faith relevant and, if so, what are the requirements?

14) What is the buyer’s protection against Holocaust-based claims?

15) What is the buyer’s protection against restitution claims for violation of foreign export restrictions (‘looted property’)?  Please explain conditions (and recent practice, where appropriate) on which your country grants assistance to foreign countries seeking restitution of cultural objects.

16) What are the policies, regulations and practices of your country seeking the repatriation of illegally exported cultural property?

17) Is there a regime of anti-seizure guarantee ensuring the safe return of objects on loan to local institutions?

18) Are there artist rights (author’s rights, copyrights) affecting the use of artworks by their owners (eg, public exhibition, reproduction in museum and auction catalogues, and other reproduction)?

19) What is the due diligence required from the seller?

20) Are there any particular standards of due diligence applicable to the trade (dealers and auctioneers), extending to collectors?

21) Is there a regime of temporary import for sale?

22) What are the remedies against a defaulting buyer (private treaty sale and public auction)?

23) What are the essential rules (other than tax rules) and practices in relation to loan, deposit and donation to public museums?

24) What is the legal regime for private foundations and private museums?

25) Is wealth tax levied on art and other cultural property assets?

26) Is there a capital gains tax on their disposal or any other event?

27) Is there a gift and/or inheritance tax?

28) What are the tax breaks, if any, available when loaning/depositing, gifting or bequeathing art or other cultural property to public institutions?

29) What is the taxation of private foundations and private museums, upon creation/endowment and thereafter?

This is an exquisitely-constructed list.  Notable lawyers from North America, Europe, the Middle East and Asia respond.  Each provides nuanced, expert answers, making the book exactly what it proposes to be: a handbook.  This is infinitely more useful than something of greater abstraction.  The section on the United States, for example, incudes consideration of both New York and California state law, as well as federal law.  Each country also includes a jurisdiction-specific list of important regulations and laws. 

The book also includes essays by Julien Anfruns (Director General of the International Council of Museums); Sam Keller (Director of the Fondation Beyeler); Sabina von Arx (Morgan Stanley); and Daniel McClean (Head of Art and Cultural Property at Howard Kennedy FSI). 

As noted above, anyone who ever steps foot, phones, or e-mails across a border in the art world, whether as attorney or principal, should have this book as a starting point, at the very least.

Bad Sequel? Second Claim is Filed Asserting Another Actor’s Copyright in “Innocence of Muslims”

By Nicholas O'Donnell on Posted in Copyright, Fair Use

Like a bad 1980s movie, the most infamous copyright decicion of the year has now spawned a sequel.  The Ninth Circuit Court of Appeals has been considering since early March whether to rehear en banc its decision in favor of Cindy Lee Garcia concerning her performance in the movie Innocence of Muslims.  Plaintiff Cindy Lee Garcia, one of the actresses in the video, claimed that she had no idea what the movie was to turn out to be when she performed her scenes, and that the Islamophobic audio had been dubbed over whatever she actually said when filming.  She then sued, arguing that her performance was an independently copyrightable work, such that the producers needed her permission to distribute and reproduce it.  The complaint was universally disregarded by copyright experts when it was filed.  This reaction was so nearly unanimous because Garcia’s performance (which, it was later learned, had been denied registration by the Copyright Office) seemed clearly to be a work for hire, or a joint work—if Garcia’s performance even met the other requirements for copyright. 

On appeal from the District Court’s denial of an injunction, the Ninth Circuit Panel framed the question not as a joint work, but as whether “a copyright interest in a creative contribution to a work simply disappears because the contributor doesn’t qualify as a joint author of the entire work,” and if so “whether it’s sufficiently creative to be protectable.”  The Court of Appeals expressed concern over whether if an actor’s performance is “fixed” (which of course it is in every single video and motion picture), “it evinces some minimal degree of creativity . . . ‘no matter how crude, humble or obvious’ it might be.” 

The Ninth Circuit’s application of copyright law astounded nearly everyone ( “Of course, by hiring Garcia, giving her the script and turning a camera on her, [Mark] Youssef implicitly granted her a license to perform his screenplay.”).  But that should have been the point: Garcia was clearly hired for her performance (alone). 

The implications of the decision are far-reaching: anyone captured onscreen, unless the studio or director had a written work for hire agreement, seemed a class of plaintiffs waiting to be born.  An unknown judge on the Ninth Circuit swiftly requested briefing on whether the full court should re-hear the case en banc.  The parties did so, but the request has been under advisement for nearly six months.

The continuing uncertainty has now borne fruit: a second actor has filed suit claiming a copyright in his Innocence of Muslims performance.  Gaylord Flynn has sued Youssef, Google, and dozens of others.  The theory of the complaint is the same, as are Flynn’s attorneys.

The lawsuit is just another reminder that the Ninth Circuit needs to step in and turn things around. 

“Saving Africa’s Elephants, Changing the Art Scene” on October 14, 2014

By Nicholas O'Donnell on Posted in Customs, Events

Volunteer Lawyers for the Arts has organized an interesting panel presentation and discussion on October 14, 2014 that will be held at Herrick, Feinstein LLP in New York.  From the event description (online registration available):

Please join Volunteer Lawyers for the Arts and Herrick, Feinstein LLP for a lively panel discussion on the recent ban on ivory sales pursuant to federal regulations and New York State law. Speakers will explore how this change in the legal landscape impacts the trade, purchase and transport of items containing ivory, including artworks, antiques and musical instruments.

This is no small thing, both for the visual arts and musical instruments (think, for example: ivory in stringed instrument bows).  Speakers include Frank Lord of Herrick, Feinstein LLP;  David Freudenthal, Director of Government Relations, Carnegie Hall; Craig Hoover, Chief, Wildlife Trade & Conversation Branch, US Fish and Wildlife Service; Lark Mason, President, iGavel; Michael McCullough, Partner, Pearlstein and McCullough; and Hartley Waltman, Senior Counsel, Art Business, Christie’s.

Hope to see you there.

Fair Use and Transformativeness Pushback: Seventh Circuit Takes a Swipe at “Lazy Appropriators”

By Nicholas O'Donnell on Posted in Copyright, Fair Use

Much ink has been spilled over the new world order seemingly announced by last year’s Second Circuit decision in Prince v. Cariou with regard to copyright, fair use, appropriation art, and “transformativeness.”  In a nutshell, while roundly criticized, most commentators have taken the Prince decision to announce the apotheosis of “transformativeness” among the fair use factors in § 107 of the Copyright Act.  Prince looked at the four statutory factors and applied them in such a way that to be considered “transformative” was to qualify for fair use.  Most troubling was the “know it when you see it” character of the opinion.  The Google Books opinions took a similar view.

The Seventh Circuit Court of Appeals this week pronounced in Kienitz v. Sconnie Nation LLC its skepticism of that approach, to put it mildly.  The court was presented with a claim by a photographer (Michael Kienitz) against defendants who made T-shirts using a photograph Kienitz had taken.  Specifically, after seven-term Madison, Wisconsin mayor Paul Soglin took steps to shut down the city’s annual “Mifflin Street Block Party.”  To express their frustration, the defendants made T-shirts with Soglin’s face and the phrase “Sorry for partying.”  The image of Soglin’s face was from a Kienitz photograph, shown to the left of the T-shirt image:

The Seventh Circuit then considered whether this was fair use, as the trial court had found.  The court went right to the heart of its quarrel with the Prince Second Circuit: the emphasis on “transformativeness” (which the trial court had also referenced).  The Seventh Circuit stated:

We’re skeptical of Cariou’s approach, because asking exclusively whether something is “transformative” not only replaces the list in §107 but also could override 17 U.S.C. §106(2), which protects derivative works. To say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under § 106(2).  Cariou and its predecessors in the Second Circuit do not explain how every “transformative use” can be “fair use” without extinguishing the author’s rights under § 106(2).

The court instead returns to the four statutory factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The court was dismissive of competing markets; no one would buy the T-shirt instead of the photo.  Rather, the “amount taken in relation to the copyrighted work” caught the court’s attention.  As Judge Frank Easterbrook put it,

Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains.

What’s most interesting though, is the criticism that the opinion levels at an over-reliance on the “transformative” question, the Second Circuit, and practically Richard Prince himself:

There’s no good reason why defendants should be allowed to appropriate someone else’s copyrighted efforts as the starting point in their lampoon, when so many non-copyrighted alternatives (including snapshots they could have taken themselves) were available. The fair‐use privilege under § 107 is not designed to protect lazy appropriators.

If that last sentence sounds familiar, it parallels a part of Campbell v. Acuff Rose, the very decision that introduced the phrase “transformative” and thus launched a thousand ships of analysis.  Justice Souter, in that case, cautioned:

If [] the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.

It is hard to see yet how long a shadow this case will case relative to Prince.  For starters, Judge Easterbrook concludes with various ways that the case could have gone the other way.  And, like it or not, appropriation art will continue to present a number of confounding questions under both fair use and the First Amendment.  But for today, the pendulum swung a little bit the other way.

Syncora Reaches Deal with Detroit and Apologizes to Mediators, Grand Bargain to Protect Detroit Institute of Arts Likely Secure

By Nicholas O'Donnell on Posted in Bankruptcy, Detroit Bankruptcy

After months of bitter fighting over the so-called Grand Bargain to infuse the Detroit bankruptcy with hundreds of millions of dollars from (among others) the State of Michigan, the Community Foundation for Southeast Michigan, the Kresge Foundation, the Ford Foundation, the John S. and James L. Knight Foundation, the William Davidson Foundation, the Fred A. and Barbara M. Erb Family Foundation, the Hudson-Webber Foundation, the McGregor Fund, and the Charles Stewart Mott Foundation to keep the collection of the Detroit Institute of Arts out of discussion for any sale or use as collateral, the Grand Bargain’s fiercest opponent has announced an agreement with the city and the withdrawal of its opposition to the plan of adjustment.  This does not completely put an end to discussion about the role of the DIA collection, but for all intents and purposes it will likely be the last of any proposal to collateralize or sell the artwork.  The episode also provides a lesson to practitioners about the cost of overzealousness. 

Of the many creditors in the Detroit bankruptcy, Syncora Capital is among the largest.  Syncora guaranteed payment of some of the city’s pension obligations to other banks, and is thus facing a large reckoning if and when those pensions are not paid in full (as they won’t be, since the bankruptcy is necessarily going to pay less than 100 cents on the dollar on the city’s debts).  Along with the Financial Guaranty Insurance Co., Syncora has been a vocal opponent of the Grand Bargain specifically, and of the idea generally that the DIA collection (which is largely owned by the city) should be left out of the bankruptcy discussion.  Syncora has disputed—accurately—the idea that a generalized “public trust” actually prohibits such a sale for the benefit of the city’s debts, and has countered the city and DIA at every turn as best it can.  When the city had the collection appraised by Christie’s, Syncora drove a competing appraisal.  When the city and DIA claimed the art couldn’t be sold, Syncora argued that even if the city believed it shouldn’t, it actually could.

All of this was in service of a relatively straightforward argument: even if the city could not be compelled to sell any artwork, once it brought DIA into the discussion for the benefit of the bankruptcy, it had had fiduciary obligation to maximize the return.  Thus, Syncora argued, the city’s “undervaluing” of the collection led to an underperforming return in the Grand Bargain, i.e., even without selling the art outright, it could and should have gotten more.  Also, it argued, the Grand Bargain treated some creditors preferentially over others, a bankruptcy no-no.

These were and are arguments to be taken seriously.  No one really believed Syncora or anyone else would be repaid in full, but this was about pressuring Detroit to come up with a plan that maximized Syncora’s recovery.  The problem for Syncora is that it badly overplayed its hand in the end.  While making its serious arguments about whether the city had done enough, it also made accusations of bias and favoritism against mediators Gerald Rosen (chief judge of the U.S. District Court for the Eastern District of Michigan) and Eugene Driker, based on former family connections to DIA.

Suffice it to say, that was a serious tactical error.  It is one thing—indeed a mandatory thing within the duties of advocacy—to make a recusal request if a lawyer thinks that a tribunal or judge is or might appear to be biased.  But once that is made, the parties are in for the ride, with the issue preserved for appeal in the event of an adverse result.  Syncora could—and should—have argued to Judge Rhodes presiding over the bankruptcy trial that the mediators should have recused themselves, and that the mediation was thus doomed from the start when they did not (we have no view of whether that was indeed the case, of course).  They should also have left it at that.  But they went the extra step to actually accuse the mediators explicitly of partiality.  Judge Rhode was furious, and separately issued a “show cause” order, putting the burden of proof back on Syncora to show why its accusation did not merit litigation sanctions.

Today’s deal was accompanied by a public apology, and Judge Rhodes has apparently accepted it and withdrawn the show cause order.  Did the sanctions drive the settlement deal?  Probably not entirely, but it cannot have been irrelevant.  Among the many lessons this case will teach, it is that no matter how strong or weak your legal position, one has to resist the urge to take up the rhetoric.  It is almost always of no use, and quite often counterproductive. 

The Art Law Report Turns Three: the Training Wheels are Off

By Nicholas O'Donnell on Posted in Copyright, Cy Pres, Deaccession, Detroit Bankruptcy, Fair Use, Gurlitt Collection, Restitution

As I have before, I wanted to mark the third anniversary of this blog since we posted three articles on September 15, 2011.  In the last year, you (the reader) have helped the Report grow beyond our most optimistic hopes.  We have done our best to cover significant events like the Gurlitt saga and restitution issues, the Detroit bankruptcy and the Detroit Institute of Arts, the Corcoran Gallery merger, auction houses and privacy in New York, the Beastie Boys GoldieBlox and copyright/fair use, the “flea market Renoir” case, and so much more.  Our monthly traffic in year three has almost surpassed the readers in all of year one, and the sky is the limit.  As always, the goal remains to present a fresh perspecive on these legal issues affecting the visual arts and its institutions, of use and interest both to the lawyer and non-lawyer alike. 

Thank you for reading, and stay tuned for more.

Just Kidding? Celebrity Hacked Photograph Exhibition Scuttled

By Nicholas O'Donnell on Posted in Copyright, Fair Use

Having presumably gotten all of us to take the bait, appropriation artist XVALA has backed off and announced that he will not include versions of hacked photographs of Jennifer Lawrence, Kate Upton, and others, in a show entitled “No Delete.”  The show will instead include, apparently, “the artist’s self-shot, life-size, nude images.”  So, there’s that. 

With that said, a few points came to mind after first considering the issue on Tuesday.  First, it is important to remember that the copyright protection that the celebrities/authors could claim in their photographs is not limited to this exhibition.  Anyone circulating the pictures would be an infringer.  The possibility of an art exhibition raised the prospect that XVALA might claim fair use, but garden variety peddlers of such things could not plausibly do so.

The other is to clarify a point we made about injunctive relief.  To be clear, no one holding a copyright in the photographs needs a court order to begin protecting herself.  Under the Digital Millenium Copyright Act, any Internet Service Provider that receives a takedown notice can spare itself from infringement liability by complying with that notice.  In a case as publicized as this, it is hard to imagine any ISP not doing so as quickly as possible.  An injunction would simply strengthen the celebrity plaintiff’s hand.

So perhaps we were just trolled on this one, but it will be interesting to see if there are any further uses of copyright.