Tuesday, July 7, 2015

Bill to Protect Art Authenticators Passes in NY

The New York State Senate has passed legislation which amends the New York Art and Cultural Affairs Law to limit the liability of art authenticators and appraisers. The bill needs to be voted on by the State Assembly before it passes into law. The legislation attempts to address the chilling effect of recent high cost litigation and encourage experts to authenticate artworks.  Experts and boards created to authenticate art have been sued not only for pronouncing art inauthentic, thereby radically devaluing it in the market, but also for expressing an attribution which is later questioned, for refusing to voice an opinion as to its authenticity, for omitting a work from a catalogue raisonné, and for determining that it is unclear whether a work is authentic or not.  These lawsuits, often brought by very wealthy collectors or dealers in the art market, intimidate experts and scholars, compelling them to withhold valuable information from the art market and art scholarship in general by refusing to offer opinions.

The new legislation attempts to incentivize these experts by protecting them from such suits and the accompanying astronomical legal fees. The bill broadly defines “authenticators” protected under the amendment, though it specifically excludes those who authenticate art in which they have a financial interest. Additionally, the bill heightens the pleading requirement for plaintiffs bringing actions against authenticators, making it more difficult to bring a claim into court. A discretionary fee shifting provision authorizes the court to grant legal costs to prevailing authenticators and also precludes prevailing plaintiffs from recovering legal costs. However, the passed legislation does not include a heightened pleading “with particularity” requirement which was included in a previous version of the bill. Even in its previous form, legal scholars questioned the effect the legislation would have on the art market.  It is doubtful the amendment in its current form will convince experts to return to the market.

More via The National Law Review.


“As if the cleverness of the theft excuses the theft itself.”


Although probably dismissed by the all-appropriation-is-fair-use posse, here’s a very poignant (feminist) take on (white male) appropriation artists.

As if the cleverness of the theft excuses the theft itself. These loopholes benefit the thief, have you noticed? They rely on this power, and they’ve habitually used it only to profit on the backs of people less powerful, with much more to say. It’s a reflection of art history at large, upheld by art law itself. You know what? Art law is misogyny. It defends the abilities of those already in power. Of course it doesn’t defend me and other women who’ve had our work appropriated. Of course Richard Prince and his children of the corn will get away with this. It’s written on the walls. How many women artists have been erased from museums through pre-Instagram modes of re-appropriation: their works attributed to male colleagues in their studios, their mentors or their lovers or more visible friends. How many women only get into museums by being muses, and never the artist themselves?


Graffiti Artists in Queens Sue Under VARA

5pointzThis month, nine graffiti artists filed suit in federal court under the Visual Artists Rights Act (“VARA”) against developer Jerry Wolkoff, the owner of the 5Pointz site in Long Island City, Queens, for damages caused by the destruction of their artwork when the site was whitewashed without notice in 2013. The artists claim that because they were not granted notice, they were unable to retrieve and preserve their work.  Wolkoff had allowed graffiti artists to create work on the interior and exterior of the property for many years; this work transformed the neighborhood into a tourist attraction, increasing its value as a development site. They initially sued Wolkoff for an injunction in 2013 following his announcement that the buildings would be demolished, and while Brooklyn Judge Frederic Block recognized the artistic value of the graffiti, some of which may have qualified for legal protection under VARA, the building owners’ rights prevailed. The new suit claims the whitewashing was “entirely gratuitous and unnecessary” given the slated demolition, and that the artists were entitled to written notice and a 90-day period to remove their artwork.  More than 350 works of visual art adorned the site, inside and out, at the time of destruction.

More via artnet News.


Sculptor Wins Copyright Lawsuit in Las Vegas

Orange_copyrightA Las Vegas federal court recently awarded artist Steven Liguori over $2 million for violations of copyrights and a licensing agreement.  In the 1990s, Liguori created two large scale sculptures for Bert Hansen, the owner of the High Scaler Café and Hoover Dam Snacketeria, including a bronze piece depicting a worker on the Hoover Dam and another which serves as a monument to the Café. The judgment stems from a 2011 suit filed by Liguori against Hansen for breach of a licensing agreement for products based on the artworks and failure to pay royalty fees, the majority of compensation for the works. According to the suit, Hansen agreed to pay a 17% royalty on all licensed products for the right to sell souvenirs based on Liguori’s sculptures, but used likenesses of the pieces in ways which far exceeded the terms of their agreement and refused to fulfill the royalty obligation.

More via the Las Vegas Review-Journal.


Photographer Sues Pinterest for Copyright Infringement

old-cameraA fine art photographer in Seattle, Christopher Boffoli, has filed suit against Pinterest for infringement of copyright in his photographs. This suit is the most recent in a series Boffoli has filed against Twitter, Google, Imgur, and other websites for copyright infringement based on the failure to remove his photographs from their sites. Under current law, the Digital Millennium Copyright Act (“DMCA”), internet service providers and other intermediaries are exempt from liability for the copyright infringement of users if the site removes the copyrighted material on request by the copyright holder. However, according to the complaint filed against Pinterest, Boffoli claims that despite submitting multiple DMCA-compliant takedown requests since August, 2014, at least 56 of his photographs have not been removed and are still accessible on Pinterest’s server.

By permitting access to his work without attribution, Boffoli loses any potential traffic to his own website. Boffoli has attempted to articulate the impact of piracy on the creators of artwork. He told MyNorthwest.com, “[P]eople aren’t going to my website because they can go to Pinterest and see these images, out of context, a lot of times without attribution. It doesn’t help me the least if people don’t know who created the image.  I worked 30 years to hone my craft. I spend a lot of time working on these images. I use a lot of expensive equipment. Why should anybody else profit from my work?… I don’t think these people ever think that when you’re downloading, pirating that film, you’re stealing from a lot of people that depend on this for their livelihood.

Boffoli’s other suits were settled out of court under undisclosed terms. If artists must take such drastic measures to protect copyright in their work, the DMCA “notice and takedown” provisions may need to be revisited.

More via PetaPixel.



Büchel’s Mosque at the Venice Biennale Shut Down by City Officials

Iceland’s official contribution to the 56th Venice Biennale, a temporary, working mosque set up in a deconsecrated church created by Christoph Büchel, was shut down by city officials last week, only two weeks after it opened. The installation, “THE MOSQUE: The First Mosque in the Historic City of Venice,” was constructed inside the 10th century church, Santa Maria dell’Abbazia della Misericordia, and became the first ever mosque in the historic center of Venice. The interior of the church was transformed with prayer carpet, mihrab, calligraphic cartouches, and wudu area to wash in, and the piece was meant to draw attention to Venice’s historical and architectural connections to the Arab world as well as centuries-old restrictions on worship.

City officials cited various reasons for the closure, including security risk, breach of health and safety regulations, issues with the installation, and violation of building codes because it lacked special required permissions. From the opening of the installation on May 8 until its closure on May 22, hundreds of people visited to see or worship at the mosque.

Eiríkur Thorláksson, Chairman of the Board of the Icelandic Art Center in Reykjavik, which commissioned the project, responded to the closure in a statement which seeks to correct information published about the installation, including the process of approval undertaken with  Venice City officials prior to its opening, compliance with city zoning and occupation laws, and the  artistic legitimacy of the project. Additionally, in a press release, Thorláksson denounced the closure and criticized the Biennale itself for its lack of support, no longer qualifying as “a venue for truly free artistic expression” despite its “proclaimed advocacy of contemporary art.”

For its part, the Venice Biennale released a statement to artnet News expressing its hope that the installation would be reopened.

More via Curbed and The Guardian.


Google v. Garcia: Full Panel Finds No Copyright for Individual Performance

This week, the full panel of the 9th Circuit Court of Appeals found in Google vs. Garcia that an actress portrayed in the film Innocence of Muslims, Cindy Lee Garcia, did not hold copyright in her performance. The 2012 film, which led to protests and attacks in several Islamic countries because of its insulting content, included a dubbed over version of five seconds of a performance Garcia gave in response to a casting call for a different film, an action-thriller titled Desert Warrior. Last year, a three-judge panel of the 9th circuit issued a preliminary injunction which required YouTube and Google to take down any version of the Innocence of Muslims which included her performance, based on a finding that Garcia would likely prevail on her claim that her performance was independently copyrightable. The full panel has now reversed that holding, and YouTube can post the film.

film-productionThe Court clarified whether actors, or any other of the many individuals who contribute to the production of a film, have an independent copyright in their specific contribution.  A motion picture, qualified as an “audiovisual work” under the Copyright Act, but the Copyright Office denied Garcia copyright protection of her performance, which could not be registered separate from the work itself, a “single integrated work.” This single work includes the contributions of many individuals, resulting in a “joint work” with multiple authors. Garcia disclaimed any authorship in the entire work and instead attempted to protect only her personal contribution. The Court found the Copyright Act does not support this type of protection; if all contributors to a motion picture asserted copyright for individual parts, the film would fragment into many, separately copyrighted works, an untenable theory.

Garcia also did not satisfy the basic requirement of “fixation” to copyright her performance, which the Court found had been fixed by the director and crew rather than the actress. The decision places copyright firmly in the creators of the audiovisual work rather than its participants.

Additionally, the Court dissolved the injunction because of First Amendment considerations. By requiring removal of Innocence of Muslims, the takedown order suppressed the political message of the film and deprived the public of a film of substantial interest. At times, including this one, copyright infringement must yield to First Amendment rights.

More via Frankfurt Kurnit.


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