Friday, October 24, 2014

Court Rules on University E-Reserves Copyright Case


Art teachers and professors, pay attention! Academic publishers on Friday notched a win in the ongoing legal debate about digital access to copyrighted works, as the 11th Circuit Court of Appeals rejected a broad ruling on how to determine fair use.

Rather than strike a decisive blow either for or against fair use, the legal concept that places some limits on the rights of copyright holders, the appeals court instead issued a stern warning against quick-fix, one-size-fits-all solutions to legal disputes — specifically, the idea that copying less than a chapter or 10 percent of a book automatically protects an institution from a lawsuit.

The case is Cambridge University Press et. al. v. Patton.

Via Inside Higher Ed, Copyright Librarian, and Kevin Smith of Duke University Libraries.


Louis Menand on Copyright and Why We Can Survive Without “Motown”


The copyright argument is not really a philosophical battle, but rather a battle between interest groups. This, Louis Menand argues, is really what drives us to blog about and argue over piracy, appropriation, court opinions, and anything and everything copyright. I have to agree.

In this week’s New Yorker, Menand, a Harvard professor, gives a great primer on copyright law. He then focuses on the two main philosophical rationales for copyright protection (Anglo-American and European), and with a surprising twist, explains how the European conception of copyright is in fact much stricter than the Anglo-American version. This is going to come as a huge surprise to many, especially those that love to trash the U.S. and American law.

What’s the main difference between the two? Moral rights, Menand adds, stemming from a French and German desire to assert their cultural superiority while simultaneously fending off the crass commercialization and commodification of culture.

On this point Menand quotes Peter Baldwin, professor of history at UCLA (whose book, The Copyright Wars, Menand is supposed to be reviewing), “Copyright’s evolution is often told as a story of American cultural hegemony,” he says. “In fact, the opposite is more plausible.”

Call it moral rights or call it European, copyright is a battle of interest groups (I think Clancco’s interests are quite evident). Copyright isn’t killing creativity any more than it’s keeping me from blogging, making art, viewing art, tweeting, teaching, or reading the New Yorker. Is it keeping you?

Menand emphasizes this by adding that we, as a species, can probably survive without Motown (whose copyrights William Patry laments are in limbo due to overly strict American copyright laws).

But people aren’t going to stop writing and reading novels, or making and listening to music. The analog-era industries will find—they are already in the process of finding—a sounder business model. For the rest of us, less is at risk. The species can survive without cheaper copies of Mickey Mouse cartoons and “Finnegans Wake.” It is hard to write these words, but the species can probably survive without Motown.

If we can survive without Motown, we can certainly survive without most appropriation art.


Iggy Pop on Piracy and Why the Working Class Steals

Image courtesy of Gothmeister Imaging, via Wikipedia.

Image courtesy of Gothmeister Imaging, via Wikipedia.

Rock and punk icon Iggy Pop gave a lecture the other night, and this is what he had to say about illegal downloading,

“We are exchanging the corporate rip-off for the public one. Aided by power nerds. Kind of computer Putins. They just wanna get rich and powerful. And now the biggest bands are charging insane ticket prices or giving away music before it can flop, in an effort to stay huge. And there’s something in this huge thing that kind of sucks.”

Yeah, it kind of does suck.


US Supreme Court Champions Free Speech. Almost.


I’m starting to think that many in law are just as hypocritical as those in art. If “hateful” speech can be had near funeral processions and anti-abortion protesters allowed to shame abortion-seekers, why can’t we protest on US Supreme Court grounds?


W.A.G.E. Releases Program on Artistic Labor

W.A.G.E. has just launched W.A.G.E. Certification, a paradigm-shifting model for the remuneration of artistic labor.

According to W.A.G.E.,

Certification is a program that publicly recognizes non-profit arts organizations that demonstrate a history of, and commitment to, voluntarily paying artist fees—it is also the first of its kind in the U.S. that establishes a sector-wide minimum standard for compensation, as well as a clear set of guidelines and standards for the conditions under which artistic labor is contracted.

W.A.G.E. worked in dialog with artists, arts organizations, writers, sociologists, labor historians, and critical theorists over the past four years to produce a scalable model that can be applied across the non-profit arts economy in all its variation: from small artist-run spaces struggling to support a single employee to large institutions with hundreds of full-time workers and top salaries in the seven figures.

On a quick glance, the analytical structure and fees seem to be quite reasonable. Good going!



When it comes to appropriation art, it’s kill ‘em all, let God sort ‘em out!

2ef2519dc51701b6bc5024fee8d021c6Donn Zaretsky agrees with his co-teacher, Amy Adler, that the current fair use doctrine doesn’t favor the rich over poor.

I respectfully disagree. That position is a hedge and all good in theory, but it is tantamount to saying that prison rules impact all prisoners alike. Sure, in theory. In real life there are the bullies and the bullied; the gangs and the unaffiliated.

Don’t get me wrong I’m all for Lord of the Flies, but this is different than saying that artists with financial means don’t selectively identify artists that don’t have access to power and money. Case in point, when was the last time we witnessed a copyright infringement lawsuit between Koons and Prince, or Murakami and Hirst? (As mom used to say, “pick on someone your own size.”)

Without divulging sources, there are appropriation artists who consider the financial costs of potential copyright infringement lawsuits against them as a business expense, especially when advised that the fair use doctrine may not favor a particular appropriation of copyrighted content. In other words, this “business expense” is budgeted in, put aside, as rainy-day money to be used for settlement or to defend a lawsuit. Someone, the artist with money, or the artist with a gallery with money, will foot the bill.

Opinions like the 2nd Circuit’s Cariou v. Prince opinion only heighten this problem by privileging the valuation of art and definition of artist solely on financial and commercial market criteria. Selling art for millions rather than thousands; having a studio in Manhattan rather than Queens; and having collectors like Brad Pitt over John Doe suddenly become factors naturalized as part of the fair use analysis. Copyright’s constitutional provision of promoting progress in the arts is nowhere to be found.

I’ll say this. If current copyright law does negatively impact all artists rich and poor alike, we can credit this clusterfuck to those who argue that all appropriation, regardless of intent, is fair use simply because it’s “art.” With this cute characterization of the nature and history of art and copyright law, we should not act surprised when we’re left with a shoot-first-ask-questions-later lawsuit mentality. Or, as I like to characterize it, kill ‘em all, let God sort ‘em out.


And Still More on Fair Use for the Rich and Fabulous


PDN Pulse adds to the ongoing and growing conversation on whether copyright law, at least as it is applied in the 2nd Circuit Court of Appeals, favors certain appropriation artists over others.

But the argument for transformation doesn’t work in the other direction, i.e., when unknown artists appropriate from better-known artists and then argue that they’ve created a transformative work. That’s because works by famous artists just don’t seem like raw material to juries, judges or average citizens.

Thanks to Lauren van Haaften-Schick for the heads up on this one.


Clancco, Clancco: The Source for Art & Law,, and Art & Law are trademarks owned by Sergio Muñoz Sarmiento. The views expressed on this site are those of Sergio Muñoz Sarmiento and of the artists and writers who submit to They are not the views of any other organization, legal or otherwise. All content contained on or made available through is not intended to and does not constitute legal advice and no attorney-client relationship is formed, nor is anything submitted to treated as confidential.

Website Terms of Use, Privacy, and Applicable Law.

Switch to our mobile site