Sunday, August 28, 2016

Copyright and Free Speech at the Supreme Court?

The Supreme court has been petitioned to overrule the Ninth Circuit’s ruling in the infamous “dancing baby” case where it was decided “no matter how unreasonable that belief,” copyright holders could use their own standards to decide if a use was infringing. The short video, posted to youtube, showed a baby dancing to a Prince song. YouTube removed the video for copyright infringement per Universal’s request.

The lawsuit comes from the Electronic Frontier Foundation (EFF). EFF’s Staff Attorney, Corynne McSherry, reportedly stated; “copyright holders should be held accountable when they undermine non-infringing fair uses like this video.”

The petition is part of EEF’s mission to protect the first amendment, often stunted by spurious copyright disputes. McSherry commented on the Supreme Court petition, lamenting that the Ninth Circuit ruling allows copyright holders to send take down notices “based on nothing more than an unreasonable hunch, or subjective criteria they simply made up must be held accountable.”


The Peter Doig Case In A Nutshell

Amongst the ongoing challenges of art authentication that have come up in recent news, namely concerning art foundations, one would think at the very least that the word of the artist affirming that the work was or was not authored by them would be the end of it (a luxury not often afforded to art foundations and auction houses). This was not the case for a work claimed by its owner to be created by artist Peter Doig.

As we reported here back in July the owner of a work signed “Peter Doige” sued Doig for claiming the work was not his. At trial, Doig offered evidence that he was not present where the owner claimed he was when the painting was created and sold. There was also evidence that someone named Peter Doige was in fact present and creating amateur paintings.

This week we watched the case finally play out, with Doig winning the surreal trial. Judge Feinerman stated “Most narratives in law and life have gaps. Very few narratives are airtight. This is especially true when considering events from 40 years ago, and all the more so when the events are routine quotidian events of daily life. While most narratives have gaps, and certainly both narratives have gaps, the evidence conclusively demonstrates that despite some gaps, Peter Marryat Doig absolutely did not paint the disputed work.”

Oddly enough, considering the hoops Doig had to jump through, the Judge went on to say, “an artist is well within his rights to ensure that works he did not create are not sold under his name.”

NPR reported a statement from Doig’s attorney, “I have rarely seen such a flagrant example of unethical conduct in the U.S. courts nor a case that inflicted such needless burdens on a defendant. Artists should be grateful to Peter for having the ethical and financial fortitude to fight tirelessly to ensure that justice prevailed in today’s verdict.”

The plaintiff is pondering an appeal.


Can Destroying Cultural Objects be Prosecuted as a War Crime?

On August 22 the International Criminal Court prosecuted Malian Islamic extremist, Ahmad al-Faqi al Mahdi, for a war crime. Faqs’s criminal activity, to which he pleaded guilty, was the destruction of Sufi shrines in Timbuktu, the destruction of cultural heritage.

Shortly after UNESCO pronounced the West African trading city of Timbuktu an endangered heritage site, Faqi and his cohorts destroyed the shrines. Faqi faces up to 30 years in prison.

more here



NPR on the Surreal Story of…Who is the Author of This Painting?

I’m quoted in this NPR story regarding the case of Doige vs. Doig, or rather, who made this painting?


Four Letter Word for: What is a Jointly Held Work?

A 91-year-old visitor to the Neues Museum, Hannelore K., filled in an empty crossword that was part of an artwork by Arthur Köpcke. According to her lawyer, Ms. K. was following the instructions “insert words” and is claiming she holds copyright as a collaborator over the “augmented” work. Ms. K. is threatening to sue the museum claiming when the museum repaired the work, it violated her copyright.

This brings up a number of questions, such as,  could everyone in trouble for copyright infringement or damaging a work make this claim? Could the ability to claim this nullify many copyright and VARA protections afforded to artists?




Can Your Tattoo Artist Sue When Your Body is Depicted in a Video Game?

The relationship between tattoos and art law is often a topic of discussion. In most recent news, Solid Oak Sketches is suing the designers of video game NBA 2K16, Take-Two Interactive, for animating basketball player’s copyrighted tattoos. Included in this dispute are tattoos on LeBron James and Kobe Bryant’s arms. Evidenced in the lawsuit, Solid Oak Sketches offered Take-Two Interactive a $1.1 million license to depict the tattoos in NBA 2K16, with no response.

In the past, tattoo artists have won significant damages for their work being portrayed in video games without licenses, so much that, according to ESPN, the NFL Players Association now specifically asks players to obtain waivers from their tattoo artists before participating in video games and the like.


Update in Peter Doig Case

Peter Doig faced a courtroom on Monday to prove an artwork attributed to him by it’s owner is not his. If he fails to do so, the owner seeks both damages of at least $5 million and for Doig’s official authentication of the work. The parties involved shared remarkably different recollections of Doig’s life during the 1970s when the work was created.

More here



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