If you work in film, video and/or are a journalist, you’d better pay attention.

Wanting to compete with the 2nd Circuit’s boneheaded Cariou v. Prince ruling, the 9th Circuit’s Judge Kozinski gives ample competition to Judge Parker’s abominable Cariou opinion.

Quick background: an actress, Cindy Garcia, was duped into appearing in the film “The Innocence of Muslims,” the inflammatory anti-Islamic film that earned everyone associated with it, including Garcia, death threats from angry Muslims. Garcia rightly wanted out. Judge Kozinski gave her that out, ruling that the film producer violated Garcia’s copyright to her performance in the film.

As The Washington Post’s Timothy Lee rightly points out, it is easy to see why Judge Kozinski wanted to rule in favor of the performer. It’s how he got to that conclusion that leaves one wondering what the hell is going on over on the West Coast.

Here’s the thing. It’s not just that Kozinski’s copyright ruling gave Garcia the opt-out. That in-and-of-itself is a boneheaded opinion. It’s more that Kozinski’s ruling will have profound negative effects on almost all creative industries.

Usually, when an artist films or videotapes a performer there isn’t a big deal made about who owns the copyright to that performers performance? It’s implied, just as it is when a journalist interviews someone and that someone gives the journalist implied license to her/his performance. Well, after Kozinski’s ruling, all that just went out the window.

If you’re wondering about the work-for-hire doctrine, Kozinski pretty much writes his own book on how that doctrine applies to filmmakers. This is a good laugh.

There’s nothing in the record to suggest that Youssef [the filmmaker] was in the “regular business” of making films…. He’d held many jobs, but there’s no indication he ever worked in the film industry. And there’s no evidence he had any union contracts, relationships with prop houses or other film suppliers, leases of studio space or distribution agreements. The dissent would hold that Youssef was in the “regular business” of filmmaking simply because he made “Innocence of Muslims.” But if shooting a single amateur film amounts to the regular business of filmmaking, every schmuck with a videocamera becomes a movie mogul.

Yes, that’s right! Every schmuck with an i-Phone is a movie mogul and artist. Don’t like it? Change the Copyright Act. As Techdirt’s Mike Masnick also rightly points out,

There is nothing in copyright law that says you have to be a “movie mogul” to qualify, and it’s troubling both that Kozinski implies that only “movie moguls” get to make use of the works made for hire doctrine and that small independent first-time filmmakers not entrenched in Hollywood somehow have fewer rights.

There’s so much wrong with this ruling and I just don’t have time to elaborate on the other factors, but Masnick and Lee do a good job. For now, if you’re an artist using film or video, you’d be wise to obtain a smartly written and signed release from your actors and performers.

I’ll leave you with this interesting wrinkle courtesy of Kozinski’s ruling, as articulated by Lee,

Hollywood will hate it because it will complicate the process of producing and distributing films. Technology companies will hate it because it could lead to more takedown requests and frivolous litigation.

Strange bedfellows, indeed. Techdirt has the opinion in full, here (bottom of page).

A look from Jeremy Runway collection for Moschino | Source: Nowfashion.com

Here’s Moschino’s upscale take on the classic McDonald’s attire.

Here’s another great shot via @altamiranyc for the NY Times style.

Haute Couture or trademark infringement? Anjli Patel takes us through the steps.

“Light in the Valley,” a quilt pattern (seen above) that creates an optical illusion that lends it a three-dimensional effect, can no longer be quilted, at least not unless it’s licensed or falls under fair use.

Apparently, an Amish woman registered the copyright to the design pattern some years ago and she recently sold that copyright to the Almost Amish, an internet company focused on selling (mostly) Amish products. According to Almost Amish, it intends to police its copyright vigorously.

Good morning! More here via Lancaster Online.

Regarding the ongoing and increasing copyright battle between artists and artists (who primarily use the photographic medium), the NY Times‘ Patricia Cohen pens a lengthy article regarding the current state of this war. Quoting Mickey H. Osterreicher, general counsel for the National Press Photographers, “Fair use started out as an exception to copyright law…Now it seems that copyright is the exception to fair use.”

But more interesting still is how more than half a dozen groups, including the National Press Photographers Association, Professional Photographers of America and the Picture Archive Council of America, are considering hiring a Washington lobbyist.

Well, if the activist courts can’t get it right we hope our legislators will. Let’s hope.

Illustration by Chris Foss.

The U.S. exports many things. Add stupidity to the list. Here’s a rigorous explanation of why appropriating a preexisting image and creating a secondary work with few physical alterations and no conceptual intent is, well, let’s say, an non-infringing artwork.

“He uses other artists’ work, but that doesn’t mean to say you could possibly mistake his work for theirs … he takes the image, he transforms it, he gives it a completely different scale.”

Sound familiar?

Nine art collectors sued the Keith Haring’s Foundation today, alleging the foundation has cost them at least $40 million by publicly labeling about 90 paintings by the late Haring as “counterfeit” and “fake” as it refuses to fully evaluate them.

The lawsuit was filed in U.S. District Court in Manhattan. On an unrelated note (I’m sure), The Keith Haring Foundation donated $400,000 to establish Keith Haring Fellowship in Art and Activism at Bard College.

A big hat tip to Lindsay Henry for the heads up on this one.

What do you do when you don’t want the neighbors to know you’re selling grandma’s heirlooms because you need the money? Make sure you have a good confidentiality clause.

Certainly, one way to lessen the embarrassment factor from a subsequent public sale in the world of Big Art, would be to contract for a lengthy — but not indefinite — “no-resale period.” Let the waters calm, let the interested observers move-on and focus elsewhere. If the work is desirable enough, and a purchaser’s time horizon is long enough, such a limited limitation on sale might potentially work to both parties’ interests. By incorporating such a clause, it can save the seller embarrassment that, in some circles, comes with exposing a weak financial position.

A nice lesson in contract drafting, peppered with a bit of common sense.