Wednesday, December 2, 2015

The DMCA: A Year In Review

By Talia Kosh, Esq.

DMCA_Talia_Kosh_ClanccoSince it became law in 1998, the Digital Millennium Copyright Act (DMCA) has become the avenue for content management for copyright holders, but it is also an easily-deployable weapon for anyone who wants to censor content on the Internet. Let’s take a look at how recent developments are shaping content on the web, for better or for worse.

In short, the DMCA protects “online service providers” from copyright lawsuits if they comply with various parts of the DMCA, including swiftly removing potentially infringing content after receiving a takedown notice from the alleged rights holder. It also provides a mechanism for challenging improper takedowns.

In October, 2015, the U.S. Copyright Office and the Librarian of Congress issued a set of exemptions for the DMCA-as it does every three years. These exemptions basically “allow” people to do what they should already have a right to do under the First Amendment. For example, one exemption grants documentary filmmakers a renewed exemption to DMCA, which includes an expansion of authority for breaking encryption and allowing access to content on Blue-ray, for fair use purposes.(1) Also, now we legally can tinker with our tablets, smart watches and car control systems during the holiday season.(2)

Digging in to the most current DMCA conflicts, back in October, 2015, George Orwell’s Estate issued copyright takedown notices to merchandise seller, Cafepress, for a vaguely-worded reference to copyrights owned by the Orwell estate. The Estate ended up taking a lot of heat for their “Big Brother” approach to sending takedown notices to merchants. However, according to the Estate, it was being blamed for a unilateral decision by Cafepress to takedown every single item of merchandise that might reference any intellectual property owned by the Estate, including anything marked with “1984″, the title of Orwell’s novel “1984,” representative of our current surveillance culture.

Read the rest of this entry »


Come Out for the First-Ever Art & Law Wikipedia Edit-a-Thon!

The Art & Law Program and The Law Office of Sergio Muñoz Sarmiento are happy to announce the first ever Art & Law Wikipedia Edit-a-Thon.


Where: The School of Visual Arts (NYC), 33 West 21st Street, 9th Floor MFA FLEX ROOM, New York, NY

When: Saturday, December 12, 2015, 11:00 am – 6:00 pm

Free and Open to the Public: You must RSVP by Thursday, December 10th, to Nicole Beletsky. (

Snacks and drinks will be provided. Feel free to drop in anytime, because even if you’re not editing you can cheer us on!

What Should You Bring: Please bring your laptops and power cords. Wikipedia does not accept edits via hand-held devices or tablets, so laptops are crucial (free WiFi will be available). If you can also bring books, journals, magazines and newspapers that include information on art & law matters (see below for examples) that would be great. We’ll have some on-hand just in case.

Why are we doing this and what will we be doing?

During this time we will create, update, and improve Wikipedia articles pertaining to art & law, including art and culture law, authentication, contracts, certificates of authenticity, The Artist’s Reserved Rights Transfer and Sale Agreement, appropriation art, deaccessioning, “fair use” principles, copyright, copyleft, moral rights and the 1990 Visual Artists Rights Act, freedom of expression, property law, right of publicity and right of privacy, public art, trademarks, and legal cases, including Cariou v. Prince, Mass MoCA v. Büchel, Serra v. U.S. General Services Administration, Rogers v. Koons, Blanch v. Koons, Greenberg Gallery v. Bauman, and Kelley v. Chicago Park District.

The following artists and how their practices relate to law are also in need of articles, updates and improvements: Ai Weiwei, Michael Asher, Christoph Buchel, Lygia Clark, Dan Flavin, Andrea Fraser, Felix Gonzalez-Torres, Hans Haacke, David Hammons, Donald Judd, Mary Kelly, Sherri Levine, Santiago Sierra, Elaine Sturtevant, and of course many more!

The following art movements and how they relate to law and language are also in need of articles, updates and improvements. They include, Pop Art, Fluxus, Conceptual Art, Institutional Critique, The Pictures Generation, and Feminist Art.

Everyone is welcome to attend: artists, art historians, architects, art critics, art students, lawyers, law students, regardless of experience. We are happy to teach you the basics of editing Wikipedia. The public is welcome to this event, and The Art & Law Program will provide light snacks and refreshments.

And don’t forget to write home to mom and pop. As an added bonus, we’ll have stamped-envelopes and paper available so you can write home to mom and dad and say “hi,” the old fashioned way!

Working online at the intersection of WikiProject Law, Wikiproject Visual Arts, and also WikiProject Open!


Certificates of Authenticity, Insurance and Conceptual Art


Since Conceptual art is all about the idea being expressed via language rather than a physical form, what exactly happens when the certificate of authenticity is lost?

Here’s an interesting article on just this question, from a legal perspective. Pushing the question further from an art historical perspective, the question becomes, what exactly constitutes the work of art, the physical manifestation or the certificate? For those interested in the relationship between the market, law and art, this is a question quite worthy of consideration.


The Art & Law Program Announces 2016 Fellows

Art & Law Program seminar on contemporary art, copyright and moral rights.

Art & Law Program seminar on contemporary art, copyright and moral rights.

The Art & Law Program is happy to announce the 2016 Art & Law Fellows. Once again, our decision-making was extremely difficult given our applicant pool. The incoming group includes a broad and diverse range of artistic, intellectual and professional interests, and we very much look forward to working with them.

The 2016 Fellows are:

Isak Berbick
Elizabeth Bick
Donald Hai Phú Daedalus
Damien Davis
Stephanie Greene
Rebecca Kuzemchak
Andria Morales
Jeremy D. Olson
Elise Rasmussen
David Smith
Rob Swainston

You may view their bios here.


YouTube Pledges to Defend Users Against DMCA Takedowns

On Thursday last week, YouTube announced that it would cover the legal costs of some of its users with what they think are strong fair use defenses who face takedown demands. Initially, YouTube will only back four creators, including Constantine Guiliotis, whose channel debunks UFO sightings, Jim Sterling, and Naral Pro-Choice Ohio, an abortion rights group. None of the creators have yet been sued but YouTube has pledged to financially support them (up to $1 million) if they face legal action in the future.


This initiative is meant to combat abuse of the DMCA, the law used by copyright holders to demand allegedly infringing content be taken down, even if the content qualifies as “fair use,” which is not infringement under the Copyright Law. Once a creator receives a takedown notice, the DMCA allows the creator to file a counterclaim, and the group which filed the takedown demand must get a court order to enforce the takedown. However, this process is not generally known by content creators, who may believe the takedown notices are finite and cannot be fought.  As Fred von Lohmann, Google’s copyright legal director, wrote in the blog post announcement, “We’re doing this because we recognise that creators can be intimidated by the DMCA’s counter-notification process and the potential for litigation that comes with it.”  YouTube’s initiative is intended to educate users on fair use and the counterclaim process and to protect free speech.

More via the New York Times.


Removing Leonard Peltier’s Art From Government Building Raises First Amendment Concerns

A letter from the National Coalition Against Censorship argues that the removal of artworks by incarcerated Native American activist Leonard Peltier from a Washington state government building raises serious First Amendment concerns, and it urges the state agency in question to restore the exhibit.


The paintings were on display at the headquarters of the Washington State Department of Labor and Industries in Tumwater as part of a celebration of National American Indian Heritage Month. But a group of retired FBI officials strongly objected to the display, given that Peltier is currently serving two life sentences for the 17975 murders of two FBI agents.

Read the NCAC’s letter, here.


Presentation-Panelist: Performing the Law

Performing the LawI’m very happy to announce that I will be participating in a two-day conference on performance and law. The conference, Performing the Law, will take place in Paris at the Institut Varenne and the Cour de Cassation (Grand’Chambre). I will be part of a round table discussion on Wednesday, December 2nd, and I will present in front of French judges at the Cour de Cassation, the highest court in the French judiciary, on Thursday, December 3rd.

The conference is organized by Barbara Villez, professor of languages and judicial cultures at the Université Paris XIII;  Christian Biet, professor of history and aesthetics of theater at the University of Paris X-Nanterre; and the Laboratoire D’Excellence Des Arts Et Médiations Humaines. You may view the conference schedule, in French, here


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