Friday, April 26, 2019

U.S. Copyright Office issues report on moral rights

From the report, some surprises, some odd analysis, and some “what the hell is right of publicity doing in here?” moments. Regardless, and given our state of the union, we don’t think any of these proposed amendments or bills would pass muster in the next thirty to forty years. An entertaining read nonetheless.

The first proposed change would clarify that VARA’s exclusion for “commercial art” is limited to artworks both created pursuant to a contract and intended for commercial use. The second proposed change would add language clarifying how courts should interpret the“recognized stature” requirement, requiring courts to consult a broad range of sources. The third proposed change would provide that no joint author could waive another joint author’s moral rights under VARA without the written consent of each affected author.

Right of Publicity. Congress may also wish to consider adoption of a federal right of publicity law as a means to reduce the uncertainty and ambiguity created by the diversity of state right of publicity laws. A federal right of publicity law, rather than preempting state laws, could serve as a floor for minimum protections for an individual’s name, signature, image, and voice against commercial exploitation during their lifetime. Any such law, if adopted,should include an exception for First Amendment-protected activities and may require significantly more government analysis since this was not the sole focus of the current review.

A synopsis is available here. The entire 172-page report is available here.


“Commercial exploitation is not fair use”

The latest in Tracy Chapman’s copyright infringement lawsuit against Nicki Minaj over Minaj’s “Sorry.”

The Tracy Chapman’s complaint estimates that about half of “Sorry” lifts the lyrics and vocal melody of Chapman’s “Baby Can I Hold You.” Nicki Minaj’s defenses is that her sampling of Chapman’s song was fair use.

Kevin Casini doesn’t think so. He tweets,

Can we stop w/the


charade? It’s not. We know it’s not. You know it’s not. Stop trying to convince ppl that commercial exploitation is ‘fair use’. Counsel your clients.

More here.


“Whatever virtues a film like this might have, critical distance probably isn’t one of them.”

Christoph Büchel’s installation behind Mass MoCA’s yellow tarp covers.

Former Mass MoCA Director’s wife makes documentary film about Mass MoCA. What do you get? Well, apparently a not-very-objective take on the lawsuit and PR campaign that Mass MoCA aggressively launched against Swiss artist, Christoph Büchel.

Here’s The Hollywood Reporter’s take:

As she [filmmaker Jennifer Trainer] charts the museum’s growth and reception in the larger art world, Trainer can’t afford to ignore the 2007 controversy in which the museum tried to show a terrifically elaborate and expensive artwork that Swiss artist Christoph Buchel angrily declared was not complete. She tries to present both sides of the story, in which both parties end up looking bad. But while MASS MoCA’s case is made in long interviews with museum director Joseph C. Thompson, neither Buchel nor outside critics like Roberta Smith of TheNew York Times are interviewed. (Thompson was Trainer’s husband, a seemingly relevant fact the doc omits.)

And then concludes,

But a onetime public relations professional looking to move into documentary filmmaking would probably be wise to start with subjects that never paid her salary.

According to The Berkshire Eagle, Ms. Trainer has published 10 cookbooks, so she certainly has experience cooking things up.

Full disclosure: I was involved in the Mass MoCA vs. Christoph Büchel appeal to the 1st Circuit Court of Appeals, so I obviously see a problem with interviewing only one party and taking that party’s side in a multifaceted and complex dispute. – SMS


When is art “art”?

For those that follow the now-historic debacle concerning Giuseppe Panza, the Guggenheim Museum, and numerous Conceptual and Minimalist artists, here’s the low-down on this week’s two-day symposium concerning heady “art law” issues.


What? Humor, grace and wit in cease and desist letters?

Humor and grace in a cease-and-desist letter can avoid any hurt feelings, copyright lawyers say.

Also for PR purposes. More here.


Contemporary art’s undercurrent of repression

the new threat to artists stems ultimately from the growing power of the media in which they work. “The 21st century is a visual culture,” he says. “It’s beginning to be our dominant form.”

Interesting article in the Financial Times on how repressive regimes leverage the facade of contemporary art and freedom of expression for financial and cultural gains.


Mercedes Benz sues artists, argues no copyright infringement

We’ve seen this before, most recently about a year ago in the H&M v. Jason “Revok” Williams lawsuit. (This case ultimately settled.)

Now we have Mercedes Benz preemptively suing artists Daniel Bombardier, James “Dabls” Lewis, and Jeff Soto and Maxx Gramajo in a Michigan district court arguing that their use of the three artists’ “graffiti” murals in commercials does not infringe the artists’ copyrights or other rights. Mercedes is also asking the court to award Mercedes its costs to bring the lawsuit and attorneys’ fees.

Curious if Mercedes Benz will take this all the way or bow out in settlement. We’ve said before that this legal issue is ripe for courts to answer, so why not now?

More on the lawsuit here (story includes links to the three complaints).


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