File this under “Great Fucken Argument.”

Here’s a Harvard Law Review note that applies a diplomatic but devastating critique to the Second Circuit Court of Appeals’ Cariou v. Prince opinion.

I won’t bore you with a recap of the case (you should know it by now), but suffice it to say that this note takes a unique perspective on how the Second Circuit went off the rails when they relaxed the definition of “transformativeness.” In brief, the note analyzes how the Second Circuit blurred the previously established line between transformativeness and derivative, yet did “not provide an aesthetically neutral method of distinguishing between the two.”

The tension between derivative and transformative works is not new, but until Cariou, courts had resolved the tension between them by drawing an outer line at whether a work serves a different purpose than the original. By adopting a “same purpose, different meaning” definition of transformativeness, the Cariou court ventured beyond this outer boundary and did not erect another in its place. In other words, there is no clear, workable distinction between the amount of new expression sufficient for copyright protection and the level of new expression, meaning, or message sufficient to render a piece transformative under the Cariou test.

The note also raises the concern that I’ve raised before, that what the Cariou opinion did was to allocate to a judge the role of art critic (essentially arbiters of taste).

…the definition the [Second Circuit] … adopted is still the broadest of any circuit court yet — and is in direct tension with the statutory definition of derivative works. Though any definition of transformativeness necessarily will remove from infringement some number of works that otherwise would have been subject to the copyright owner’s rights, there must be some way to distinguish the two categories if the derivative work right is to have meaning. This problem is particularly acute in appropriation art, a genre that uses prior works as raw material to create new expression. Without a clear standard, judges may be likely to decide according to taste, and artists will have no principled method of conforming their actions to the law ex ante. Future courts would be wise to clarify the contours of these two overlapping doctrines, lest appropriation art be left in uncharted waters, subject to the shifting winds of judges’ artistic appraisals. [bold added]

I think it is safe to say that the Cariou opinion has — in actuality — hurt appropriation artists more than helped them, so a celebratory vibe is a bit too premature. As the note appropriately concludes, “[b]ecause outcomes based on value judgments are difficult to predict, artists will struggle to conform their actions to the law ex ante, and the ultimate outcome may be a chilling effect on the creation of cultural products.”

Yes, a more workable fair use standard for appropriation art is needed.

That’s the theme of the weekend. And all last week.

Much as been written about this issue, mostly against passing such a bill, the American Royalties Too Act of 2014, which is currently pending in Congress and may get its day on the floor tomorrow.

What can one add to the drawbacks of the “ART Act”? Donn Zaretsky makes great points against it, and some for it, based on “fairness.” Neil O’Donnell has some thoughts here. Here’s Rauschenberg’s son opining on why it’s a good thing.

As Donn also points out, I wonder why the cap is set at $35K. Why that low? If the issue is “fairness” and just desserts, then why set a ceiling?

Manuel Noriega: “Hey, I might have been ousted by the U.S. military for questionable governmental practices, but that doesn’t mean you can use my image and portray me like a lunatic criminal, let alone profit from it.”

Or does it? In his lawsuit against Activision, Noriega asserts claims for alleged violation of Noreiga’s common-law right of publicity, unjust enrichment and unfair business practices.

On February 18, 2014, and at a time when global exchanges are de rigueur, the Vera List Center for Art and Politics, in collaboration with The Art & Law Program, presented a conversation on intellectual property, local culture, and international commerce between Vera List Center Fellow Jill Magid and artist and art lawyer Sergio Muñoz Sarmiento, facilitated by VLC director Carin Kuoni.

If you missed this talk, the Vera List Center video taped the entire discussion and made it available online, here.

The conversation was anchored by artist Jill Magid’s current project, The Barragán Archives, a long-term multimedia examination of the legacy of Luis Barragán (1902–1988), one of Mexico’s most influential architects and the second winner of the prestigious Pritzker Prize (1980)—often labeled the “Nobel of Architecture.” Along with the vast majority of his architecture, Barragán’s personal archive remains in Mexico while his professional archive, including the rights to his name and work, was acquired in 1995 by Swiss furniture company Vitra, under the auspices of the newly founded Barragan Foundation. In the distance alone between archive and work arises the potential for conflict.

Framed by a discussion of the relationship between art, law, and cultural property, Magid and Muñoz Sarmiento examine the repercussions of the privatization of an artist’s (or architect’s) life work. Does private ownership, often softened by well-funded infrastructures, facilitate public access to an artist’s work or, conversely, does it restrict access? What are the legal “fictions” and cultural stories—such as Magid’s project—facilitated by such proprietary structures, and what significance and impact do they have in regards to the physical objects? Can personal and private interests align with commercial and legal agendas in ways that are productive and beneficial to a general public?

Here’s how an associate at a corporate law firm quits.Or, as Above the Law puts it,

This isn’t just another departure memo. This is a guide, an illustrated guide to exactly how a person can go from “I make $160,000 or more a year doing something I spent three years training to do” to “screw it, I’m outta here.”

A must read.

Hirst alleges that the in-situ painting was traded for another Hirst painting years ago, and therefore he is the sole owner of the in-situ painting, and now wants it destroyed. Can’t we all just get along?

Via The Telegraph.

An Auction Based on Emotions. That’s what it’s called. You can read more about this project here.

It would surprise only a few to hear me say that on its face the project itself leaves much to be desired. What is of interest to me is this particular issue of using emotions to obtain property. I wrote about this back in 2008 in an essay, Structures, published by Unbound: Harvard Journal of the Legal Left. Go to page 67 for direct reference, but if you may want to start at the beginning so as to assess the development of my argument.

On this emotions-auction, what interests me is how emotions are being quantified for the acquisition of art. It is the quantification of emotions that interests me, as I am curious as to how this may lead to the commodification –and thus commercialization — of the emotions by those more prone to deep sentiment for the sake of profit. I’m not against it (not necessarily), but very curious as to how it will be instrumentalized. I have to give this more thought.

Let me know what you think.