Wednesday, September 22, 2021

Art & Law Program application information

APPLICATIONS FOR THE NEXT TERM ARE NOW BEING ACCEPTED. The deadline for submitting your application for the next term is November 30, 2021.

At this time, given recent Covid developments, we are hoping to do the next term in-person during a three-day weekend intensive. In addition, we have yet to confirm (1) whether this three-day weekend intensive will take place this fall or in the spring of 2022, and (2) whether this three-day weekend intensive will take place in New York City or in Austin, Texas.

One other item: the Program is going through some seminal changes. In particular, the next term will also focus in part on one or two important artists whose work does NOT necessarily engage the law. The artists under consideration are: Mike Kelley, Bruce Nauman, Donald Judd, Cady Noland, David Hammons, Larry Clark, and Gabriel Orozco.

At this point we have not yet made any decisions on acceptances or rejections.

Please read this page for all information on dates, times, location, and possible retreat. If you have any questions , please email Sergio Munoz Sarmiento at


“You’ll hook up with a hot chick, and then they figure out you’re not making any money from it and they’ll dump you”

The famous Nirvana baby on why he’s suing…Nirvana.


Hot off the press: A Summary of the Copyright Claims Board

Eric Goldman gives us a generous overview of the Copyright Claims Board, otherwise known as the CCB. Enjoy!


Classic art comes alive

So to speak. Although to some in the art industry Pornhub’s appropriation of classic artworks seems a bit tasteless. What do you think?


Silence is golden

I’ve received a few emails asking why I haven’t posted since, well, sometime this past April. Summertime tends to be a bit slow in the art industry, and there really isn’t much going on art law-wise, so I feel no need to add fluff to fluff.

I’ll be back when there’s a there there. Happy summer!


Warhol Foundation petitions for en banc

I.e.- for the entire 2nd Circuit to reconsider their fair use argument.

Question: why not just give an Andy Warhol Foundation grant to Goldsmith and call it a day? ;o)


2nd Circuit delivers devastating blow to appropriationists

Images at issue.

We conclude … that all four factors favor [Lynn] Goldsmith and that [Warhol’s] Prince Series works are not fair use as a matter of law. We further conclude that the Prince Series works are substantially similar to the Goldsmith Photograph as a matter of law.

Here’s my take. The 2nd Cir ruled that if the secondary work serves the same purpose as the first, in our case, both as works of visual art, and if the dominant component of the copyrighted works remains in the secondary work, then there is no transformativeness.

This ruling is devastating to some art folk for at least three reasons. One, it makes clear that judges should not play art critic, i.e.- not read into the work, by which I mean not read into it with preconceived notions of who is and isn’t a successful artist, as well as what an artwork means given external sources.

Two, the opinion makes clear that so-called “conceptual appropriation art” is not in and of itself transformative. What do I mean by “conceptual appropriation art”? It’s an artwork where the secondary work remains both recognizably deriving from and retaining the essential elements of the copyrighted work, and where art theory and art criticism suffice to make the secondary use “critical.”

Presumably, under the 2nd Circuit, an artist copying a copyrighted photograph corner-to-corner and adding only a simple element to the secondary work would be infringing the copyright holder’s copyright, even if the appropriationist argued that the secondary work “critiqued post-techne notions of the decentered post-colonial subject through Kantian and Hegelian narratives of the oppressed individual(s) as woven through the capitalist fabric of the Pez dispenser and the National Football League.”

The final punch in the gut is to those who believe in what the court calls, “celebrity-plagiarist privilege,” where “the more established the artist and the more distinct that artist’s style, the greater leeway that artist would have to pilfer the creative labor of others.” The fame or non-fame of the pilferer is not an issue within fair use.

A major question art historians and artists will have to grapple with now, certainly in the New York artworld (within the 2nd Circuit’s jurisdiction), is whether conceptual appropriation art has run its course. According to the Second Circuit, it has.

Opinion here. Donn Zaretsky has his thoughts here.


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