Tuesday, May 5, 2015

Group roars against Christo’s River Project

A volunteer group, Rags Over the Arkansas River (“ROAR”), opposing Christo’s planned project to drape the Arkansas River with fabric has filed a brief asking the Colorado Supreme Court to review the case. Christo first proposed the project in 1996, and plans to drill steel anchors and erect frames to suspend 900 silver fabric panels 8-25 feet above 5.9 miles of the river between Salida and Cañon City. Installation would take about 27 weeks and the artwork would be displayed for an additional two weeks. The projected cost is $50 million.

The Court of Appeals rejected ROAR’s request in February to reverse the Colorado State Parks’ 2011 approval of the plan through the Bureau of Land Management. The Court of Appeals agreed with ROAR that the parks division violated its own procedures by approving the project through a cooperative agreement, and that the permitting shift was “arbitrary and capricious.”  However, the court ruled that this shift was “harmless error” and that the project would have been approved regardless, based on an extensive 1,700 page Environmental Impact Statement and 13 years of intense study of the project’s environmental effects. ROAR argues in its brief that this decision will have far reaching effects and threatens the state Constitution because the agency ignored its own regulations.

ROAR’s four previous legal challenges to Christo’s project have failed.

More via the Denver Post and The Gazette.


BREAKING: U.S. Copyright Office Publishes Index of Fair Use Decisions


Register of Copyrights Maria A. Pallante today announced the launch of the U.S. Copyright Office’s Fair Use Index, which is designed to provide the public with searchable summaries of major fair use decisions.

According to the U.S. Copyright Office, “Although not a substitute for legal advice, the Index is searchable by court and subject matter and provides a helpful starting point for those wishing to better understand how the federal courts have applied the fair use doctrine to particular categories of works or types of use, for example, music, internet/digitization, or parody.”

You can search for cases or just scroll down the list here.

On first sight this looks quite exciting and useful. Props to government on this one.


Announcing: The First Ever Limited Edition Art & Law T-Shirt


You heard right. The very first–and official–Art & Law “original, no borders, no rules, NYC” t-shirt is out. This t-shirt is original, limited edition (only 50 printed) and comes with its very own certificate of authenticity (this way you can eventually flip it for a profit). This t-shirt is soft and cozy, and you can easily cut off the sleeves for a tougher look. So get yours now and become a nomad before they sell out!

Only $25.00 (USD, plus $3.00 shipping), and available in small, medium and large. All proceeds go to The Art & Law Program‘s Dire Need Fund (“Fund”). The Fund is meant to help Art & Law Program alumni who need small amounts of money to pay off medical bills, utility bills, rent, travel, art and research materials, etc. Get yours now.




Tax Break for Art Collectors May Face Elimination

A provision in the tax code which has been used by art investors to avoid federal taxes may be eliminated by the Obama administration, leading to a surge in anxiety among those who treat art as an investment commodity. The provision, § 1031 of the Internal Revenue Code, allows those who invest in art to delay any taxes owed on a sale by immediately reinvesting the gain in a similar, or “like kind,” asset.  As long as the investor continues to exchange the art for more art, and the transfer qualifies, no capital gains tax (as high as 28% for sales of art or other collectibles) may ever be owed, even after the investor dies. There is no limit to the number of exchanges an investor can use to delay taxes. The IRS does scrutinize these transactions; the buyer must prove that the purchase was made as an investment for profit rather than personal enjoyment. The growth of the art market may rely on treating art as another asset class, but whether this particular asset class deserves favorable tax treatment is part of the debate.

The proposed revision of the law for the 2016 fiscal year would eliminate this tax break for sales of art, a change which could potentially bring in $19.5 billion in tax dollars that would otherwise have been avoided. However, some supporters of the provision say the savings promotes growth and creates jobs. The direct link between tax breaks for very wealthy art buyers and job growth seems tenuous.

More via the New York Times.


First Amendment Protects AFDI Ad for MTA Buses

On Tuesday, Judge Koeltl, a federal judge for the Southern District of New York, ordered the Metropolitan Transportation Authority (“MTA”) to display on its buses an advertisement, which criticizes Hamas and radical Islam, as protected speech under the First Amendment. The politically controversial ad was submitted by the American Freedom Defense Initiative (“AFDI”), a pro-Israel group. The ad had previously run in Chicago and San Francisco in early 2013 without inciting violence.

As described in Judge Koeltl’s decision, the MTA had refused the ad based on advertising standards adopted in 2012, specifically MTA Standard § (a)(x), which prohibits advertisements that “could incite or provoke violence or other immediate breach of the peace and so harm, disrupt, or interfere with safe, efficient, and orderly transit operations.” This language invokes two categories of unprotected speech previously defined by the U.S. Supreme Court: “fighting words,” in Chaplinky v. New Hampshire, 315 U.S. 568, 572 (1942), and incitement of violence or lawlessness, in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).  The MTA Security Director, Raymond Diaz, concluded that the ad submitted by the AFDI promoted violent attacks on Jewish people, and that it was reasonably foreseeable that the ad would incite violence in violation of the above standard.

The AFDI intended the ads as a counter to a “My Jihad” campaign run by the Council on American-Islamic Relations, which depicted Muslim individuals with positive messages, such as “‘#MyJihad is to build friendships across the aisle.’ What’s yours?”. The AFDI ads mimicked this structure and include Islamic extremist quotes or acts of violence, with the text “That’s #My Jihad. What’s yours?”.

Judge Koeltl first found that advertising space on the side of MTA buses is a “designated public forum,” where content-based restrictions on expression must be analyzed under strict scrutiny, the highest burden for a government (or state agency) to satisfy.  The MTA conceded that the refusal to display the ads at issue was based on their content. However, Judge Koeltl found that the content in the AFDI ad did not constitute “fighting words” nor “the advocacy of the use of force” and therefore is afforded the highest level of protection under the First Amendment.  The court then held that the standard cited in MTA Standard § (a)(x) failed to satisfy the requirements of strict scrutiny.

More via the Washington Post.


Jasper Johns Assistant Sentenced for Thefts

James Meyer, a former, longtime assistant to Jasper Johns who stole paintings from the artist’s Connecticut studio, was sentenced yesterday to 18 months in prison and ordered to pay restitution of $13.4 million to Johns and buyers of the works. Meyer was indicted in 2013 for stealing 22 artworks between September 2006 and February 2012. He had arranged to sell the artworks through a New York gallery, telling the owner that the works had been gifts from Johns. Meyer provided buyers with fictitious authentication certificates and required purchasers to agree not to resell, exhibit, or loan the art for eight years in an attempt to cover up the crime. Part of Meyer’s duties involved destroying art Johns was not happy with and protecting a studio drawer containing unfinished works, from which Meyer stole many of the pieces. Though Meyer returned 41 works after his arrest, prosecutors are still attempting to track down all of the works sold.  This case highlights the sometimes feeble information and authority relied on by galleries in sourcing works, even by living artists.

More via New York Daily News.


A Moral Defense for Copyright Breach?


The estate of Joseph Goebbels, Adolf Hitler’s minister of propaganda, is suing Random House for breach of copyright and demanding royalties over a biography of Goebbels which was published in Germany in 2010; the English edition is scheduled to be published in the UK in early May.  The biography quotes extensively from his diaries, which are copyrighted until the end of 2015.  Cordula Schacht, daughter of Hitler’s minister of economics who was acquitted at Nürnberg, represents the estate and initiated the suit.  Random House initially agreed to pay 1 percent of the net retail price to the estate but later retracted, based largely on moral grounds.

Rainer Dresen, general counsel of Random House Germany, believes paying for the excerpts would be immoral, especially considering the role of Goebbels in the Nazi regime. As Dresen told the Daily Mail, “[w]e are convinced that no money should go to a war criminal. This war criminal didn’t really commit acts by his hands, but by his words. These words prolonged the war… [and] should not bring any money… to [his] heirs.” However, Dresen suggested to Schacht that royalties could be paid  if she donated them to a Holocaust charity.

The author of the biography, Peter Longerich, the professor at Royal Holloway’s Holocaust Research Centre, believes this case has important censorship implications with respect to historical documents. “If you accept that a private person controls the rights to Goebbels’ diaries, then – theoretically – you give this person the right to control research,” the Guardian reports, “Control of the rights could have included an inspection of the manuscript before publication, which did not happen in this case. But generally speaking we cannot allow such control from private persons, whatever their interests are.   In this case, we are dealing with the daughter of a cabinet colleague of Mr. Goebbels. This is an absolutely unacceptable situation. It’s a question not only of morality, but of professionalism for a historian.” Yet the system of copyright law does not uphold a moral code or judge the recipients of its protection, and owners of copyright are entitled to an economic benefit.

Random House’s legal argument questions the ownership of the copyright by Goebbels’ estate. Hitler’s publisher had intended to publish the diaries posthumously, but the offices were destroyed by Allied bombing raids and no record exists of these plans. However, based on evidence within the diaries, Dresen argues the Bavarian government should own the copyright.

The case will be heard in the UK on Thursday.

More via The Guardian.


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