Tuesday, May 17, 2011

Met museum and Jan Cowles -- the true owners of the Mark Tansey cow painting -- file their own complaint against Wylde

Mark Tansey's "The Innocent Eye Test" (1981), the painting
that continues to spew litigation
The true owners of the Mark Tansey cow painting sold by Charles Cowles to Robert Wylde through Gagosian Gallery have filed a complaint seeking a declaratory judgment to force Wylde to hand over the painting. The Metropolitan Museum and Jan Cowles (mother of Charles Cowles) each own 31 and 69%, respectively, of the painting. Crucially, the fact that the plaintiffs co-owned the painting was a matter of public record (see the Met's website here).
Meanwhile, litigation instituted by Wylde against Gagosian Gallery is already pending (see here) and has attracted a lot of attention as people anticipate getting a  closer glimpse at the inner workings of the Gagosian powerhouse.

UPDATED: Latest on New York's deaccessioning criteria

NEW YORK. When the "emergency" regulations on deaccessioning finally expired without renewal last October, an ad-hoc committee to the New York State Board of Regents was formed to, as the Maine Antique Digest puts it, "review and make recommendations on the deaccessioning process to the cultural education committee and the full board." By "deaccessioning process" what is meant is both the enactment and enforcement of deaccessioning criteria to be applied on a permanent basis to museums and historical societies under the Board of Regents' chartering (notably excluding the Metropolitan, "which has a legislative charter").

The proposed criteria, published on March 2 in the State register (p.14 onwards), include deaccessioning to remove an item established to be inauthentic; repatriate or return an item to its rightful owner (may seem obvious but several European museums have had problems in the past precisely because the law did not state this as a criterion for deaccessioning); return an item to a donor due to the institution's inability to satisfy donor restrictions (often a highly subjective inquiry) and deaccessioning to "accomplish refinement of collections."

What, if anything, does that last criterion accomplish? Arguably nothing since as drafted it is completely open to abuse and will neither ensure possession in the future (donors' big fear) nor guarantee public access to artworks held in "public trust" (i.e., remedying the incomprehensible reality that collections are largely in storage while museums are increasing on the verge of financial collapse and closure). The criterion is quintessentially representative of that deaccessioning "exercise in smoke and mirrors." Just as before, in practise museums would be free to deaccession pretty much as they like and the only real restriction is in the use of the proceeds that can be used "only for the acquisition of collections or the preservation, conservation, or direct care of collections" (not without its own shortcomings and contradictions). Donn Zaretsky is of the view that "museums have succeeded in guiding the process to a place where the rules make them do what they were already doing" except now (and this is important), "that exercise in smoke and mirrors -- will have the force of law."

UPDATE: a few more (varying) views on the new rules (from The Art Law Blog):
  • Sergio Sarmiento (VLA Associate Director, artist and blogger): "Among the more perplexing of criteria is the requirement that the art 'item has failed to retain its identity.' What the hell does this mean? It was once a painting but it is now a frisbee?"
  • Judith Dobrzynski (arts journalist and blogger): "Not bad."
  • Amy Goldrich (attorney): "[A]lthough the new rules appear to require a more carefully justified decision to deaccession, at least one criterion -- accomplishing refinement of collections - could end up being a virtual 'get out of jail free' card."

Sunday, May 15, 2011

Alleged copyright infringement of origami crease patterns by artist Sarah Morris

Two of the comparisons attached as Exhibit A to the complaint
Robert J. Lang, arguably the world's most famous origami artist, and several other co-plaintiffs have filed a complaint in federal court against painter and film maker Sarah Morris alleging her "Origami series" (2007) infringes their copyrighted artworks of crease patterns ["the lines of a crease pattern represent the folds needed to create a three-dimensional origami model from a sheet of paper"]. The complaint states that Morris "transferred crease patterns to canvas and applied household gloss paint to the spaces between the lines. Morris has represented in interviews and promotional materials that the paintings in the Origami series are based on "found origami designs" or "traditional" patterns." Twenty-four of the approximately thirty-seven works comprising the series are said to be "strikingly similar" to the copyrighted crease patterns, which are in no way referenced nor attributed to their original authors. Each of the original artworks was either the subject of a valid Certificate of Copyright Registration or of a pending application for registration, though failure to register an original artwork ("original" in a legal sense) does not preclude copyright protection completely -- it goes to the question of the relief a plaintiff can seek. Except in relation to those rights under §106A(a), to be able to claim statutory damages in the alternative to compensatory damages and attorney's fees, the work the subject of the litigation must have been registered no later than the earlier of 3 months from the date of first publication or 1 month after the copyright owner learnt of the infringement, which explains why the relief sought differs depending on the crease pattern.

The complaint lays out the facts in detail but doesn't state why it is that Sarah Morris' actions allegedly constitute copyright infringement for which the plaintiff is entitled to relief at law. In other words, the complaint doesn't point to the relevant law under which Morris' actions could amount to copyright infringement (most likely because the applicable pleading standard merely requires the plaintiff to put the defendant "on notice" rather than pleading the complaint "with particularity"). However, if you go to Lang's website you will find a brief summary of the main legal argument, this being that the owner of a copyright has exclusive rights under § 106(2) of the Copyright Act (17 U.S.C.) not only over an original work but also in respect of any and all "derivative works" (see § 101 for the statutory definition of "derivative work," though note that case law has added significant substance to such definition). If the court (often a single district court judge on a motion for summary judgment) finds that the "Origami series" paintings are derivative of the copyright-protected crease patterns then defendant's counsel may raise the affirmative defense of "fair use," recently posted about in the context of the Patrick Cariou v. Richard Prince litigation. There's quite a bit of overlap in the facts between Morris and Prince and I would expect the defense to fail in this case, just like it did for Richard Prince... One final thought on the complaint: curiously, it emphasizes throughout how Morris' actions were "wilful." This is interesting since there is no mental requirement to be found liable for copyright infringement (i.e., liability can attach irrespective of whether the infringement was intentional or not). Therefore, I assume the reason for making the allegation is because the court may, and likely would, award a greater amount of damages where the infringement is found to have been wilful.

Wednesday, May 11, 2011

Swedish Artists' National Organization (KRO) calls for tax incentives for private investments in art

STOCKHOLM. The Art Newspaper has reported that Sweden's KRO has called for tax incentives to encourage private investments in art. The organization is banking on the leader of the country's opposition party to back their proposal and push it forward to come into fruition but as Professor Emma Stenström is quoted as saying, above all the proposal opens the debate regarding funding of the arts. The UK recently engaged in a similar debate as the government announced a 30% cut in public funding last October but failed to accompany such cut with much-needed tax reforms to incentivize private donations. The highly anticipated tax incentives eventually did arrive and were announced last month. Perhaps a trend will develop throughout Europe away from the traditional European model of public funding towards the American model premised on private funding, the cornerstone of which are tax incentives.

Thursday, May 05, 2011

UPDATE: End of winning streak for Louis Vuitton

Remember that lawsuit LVMH brought against the Dutch artist Nadia Plesner for using an image of a child holding a Louis Vuitton bag in the painting Darfurnica? A court in The Hague yesterday ruled in favor of the artist stating that her right to freedom of expression outweighed LV's right to protection of property. While it's true that this balancing act between such competing rights underlies copyright law in most (possibly even all) jurisdictions, I'm surprised that the outcome (I haven't had a chance to read the actual judgment handed down by the court) was expressed in such terms. In other words, I would have thought that Plesner had some sort of affirmative defense under EU copyright law akin to the "fair use" defense under US copyright law (which in essence is the embodiment at law of the balancing act discussed above) rather than have to structure her defense along the lines of a "freedom of expression" argument. (This is what I meant when I first posted about the lawsuit).

Monday, May 02, 2011

Notes from "A Conversation with Dan Brooks"

On April 20, the VLA hosted a talk with Dan Brooks ("DB"), attorney to Patrick Cariou in Cariou v. Prince, to discuss the case and the intersection between copyright laws and appropriation art generally. Here are some notes on what was said that evening:
  • Failure to register an artwork such as a photograph does not mean the work is completely void of copyright protection. However, damages would be limited to actual damages - statutory and special damages would not be awarded, nor would disgorgement of profits or reimbursement of attorneys fees (injunctive relief may still be available though).
  • Likewise, the court quickly dismissed Prince's initial argument that Cariou's works comprising the series "Yes, Rasta" were not copyright protected because, by merely documenting facts, they didn't constitute "original" works ("factual" statements and "ideas" are not protected). It was clear that Cariou worked relentlessly to capture the shot he wanted and a lot of thought went into the subject matter, the lighting and the composition of the (original) photos.
  • Interestingly, the court considered the series "Canal Zone" as a whole when determining whether Prince could successfully avail himself of the affirmative defense of "fair use" (following a finding that the defendant has as a matter of law committed copyright infringement). DB did say though that it's likely the works will be considered individually at the sentencing proceeding (yet to take place).
  • One way to think about the "fair use" defense is essentially as the recognition at law that most things are not "new" but rather build on what has come before, whether it be literature, visual arts, music etc.
  • Most of the cases are decided as motions for summary judgment (so by a single district court judge) since there are hardly, if any, genuine disputes of material fact (i.e., those that are outcome-determinative) that need to go to a jury -- most of the evidence is with the plaintiff and the defendant themselves. Only they really know the facts pertinent to the four prongs of the test...
  • ... Ironically this implies that the law puts a not insignificant premium on perjury. And hiring a top lawyer to draft the party's affidavit in light of the weight it carries in these cases.
  • In summarising "fair use" case law to date, DB said the first prong (the purpose and character of the use, including whether the use is of a commercial nature) of the four-prong "fair use" test is still the most important and while the list is not intended to be exhaustive, in practice it is. Crucially too, the use must relate back to one or more of the 6 permitted uses in the lead-in to s.107: criticism, comment, news reporting, teaching, scholarship or research.
  • The third prong regarding "the amount and substantially of the portion used" is measured against the original work, not the second work i.e., it is no defense to point to how much of the allegedly infringing work is original and not appropriated. Rather, the court looks at how substantial what was taken is as a proportion of the original work.
  • The "Blanch" case is the only time an appropriation artist has successfully argued the "fair use" defense.
  • The Cariou v. Prince decision is, as the VLA's Sergio Sarmiento put it, above all a decision in favor of art criticism for it forces appropriation artists to think about and articulate what and why they have created the work the subject of the litigation (probably to the dismay of some artists). US copyright law does not distinguish appropriation artists from among artists generally and it is not enough for a defendant artist to merely argue that he/she is an "appropriation" artist and therefore not guilty of copyright infringement. As Sergio said, that's just a "ploy" -- we're no longer in the 70s!
Donn Zaretsky of The Art Law blog (whom I had the huge pleasure of meeting at the event) has posted some links to commentary on the case: see here for artist Brian Dupont's views and here for law firm Sullivan and Worcester's analysis.