Tuesday, September 27, 2016
 


Do We Really Own the Tats on Our Bodies?

Many of us function under the assumption that tattoos on our bodies are ours to display in any form we wish. Intellectual property lawsuits regarding the rights of tattoo artists have begun to highlight a number of questions concerning who owns the art on our bodies.

Most notably, tattoo artists that created works on well-known athletes are fighting video game programmers that re-created tattoos on the animated athletes. Likewise, “The Hangover 2” faced copyright claims when they reproduced Mike Tyson’s tattoo in the film. As reported by the National Post, (LINK), these issues are not limited to celebrities bearing tattoos. A New York barista, sporting an I <3 NY tattoo on his hand, was threatened with trademark infringement after his hand showed up in an add for his coffee shop.

These disputes bring up somewhat terrifying questions: can a court require the covering or removal of a tattoo found to infringe on intellectual property rights?

 

Artist Suing Police for Violating her Constitutional Rights

The American Civil Liberties Union (ACLU) of Idaho and Co-counsel have filed a lawsuit against Idaho State Police on behalf of the Visual Arts Collective, Alley Repertory Theater, and performance artist Anne McDonald. McDonald is claiming the police violated her free speech by reprimanding her for a partially nude performance. Her burlesque show was hosted by the Visual Arts Collective. According to police, McDonald was in violation of the Idaho Code Section 23-614(a), which states that the following acts upon premises with an alcohol license will be penalized:
“(a)  Employment or use of any person, including allowing any person on the premises, while such person is unclothed or in such attire, costume or clothing as to expose to view any portion of the female breast below the top of the areola or of any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals.

(b)  Employment or use of any person who touches, caresses or fondles the breast, buttocks, anus or genitals of any other person, or who is so touched, caressed or fondled by another person.

(c)  Employment or use of any person to wear or use any device or covering, exposed to view, which simulates the breast, genitals, anus, pubic hair or any portion thereof.

(d)  Employment or use of any person to perform acts of or acts which simulate sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law.”

McDonald maintains her performance addresses “gender issues, sexuality, gay rights, and politics…no part of the evening’s performance was obscene,” and that the police violated her constitutional rights to free expression, equal protection and due process.

The ACLU reported a statement from attorney Deborah Ferguson, Co-counsel to the ACLU on the case: “Idaho’s alcoholic beverage laws are unconstitutional because of the limits placed on free speech and artistic expression in Idaho. We are asking the court to strike down the statute so that Idahoans have the opportunity to enjoy the arts without government censorship,”

The lawsuit is filed in federal court. The ACLU seeks an immediate injunction to prevent the law from being enforced.

 

Proposed Law will Protect International Art Loans from US Court Jurisdiction

According to many museum professionals, certain countries are reluctant to loan works of art to arts institutions in the United States due to ongoing ownership or provenance questions. A recent bill sent to Senate for consideration, the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, would ensure artworks can be loaned across country boarders for exhibition, without being subject to legal ramifications of the United States .

Under certain specifications: “The bill grants a foreign state or certain carriers immunity from federal or state court jurisdiction for any activity in the United States associated with a temporary exhibition or display of a work of art or other object of cultural significance…”

While this has been heavily criticized as a bill protecting plundered work, the opposition argues the bill allows controversial works to continue to travel and be made available to museum visitors as their disputes pan out.

A compromise was negotiated between the conflicting interests. Works looted by the German military or its allies between 1933 and 1945 are exempt from the bill, preventing skeptics from calling the bill a safeguard for owners of Nazi-looted art to profit from the loaning of their works.

Read the bill here: https://www.govtrack.us/congress/bills/114/s3155/text

 

Rock Band and Football Team Continue Trademark Fight Against Government

Their battle concerns the right to register “disparaging” trademarks. According to the Washington Post,

The Supreme Court could decide as early as this month whether to hear the dispute involving the Portland, Oregon-area band. And if the football team has its way, the justices could hear both cases in its new term.

At issue is a constitutional challenge to a law barring the U.S. Patent and Trademark Office from registering trademarks that disparage minority groups. The office denied a trademark to the Slants in 2011 after finding the name disparaged people of Asian descent.

The U.S. Supreme Court will decide whether to hear the cases by end of this month.

 

The Sexiness of Law in Art and Fashion

The sexiness of law has been here for some time, certainly in art as witnessed in the work of some contemporary artists. Lay folk like this (both makers and receivers); it’s their way of “addressing” law without really having to dig into the dirt and grime that the understanding of law requires. Everyone has their thoughts on abortion, immigration, affirmative action and of course, our little darling, appropriation. But how many of these artists or lay folk actually take the time to investigate the structures of law and power? Not many. And why should they when the likes of NPR and the NY Times arts section makes one feel as if they understand Suprematism or stare decisis?

So why would we expect the industry of fashion to be any different? We don’t, or we shouldn’t. After all, it is the industry of what is superficially cool and stylish. But this is why fashion can allow itself to be more superficial and thus represent law with a more glamorous approach. Take a look at this article by The Fashion Law and judge for yourself. Good, better, or just as bad?

 

Grey Areas in Fair Use Defense Continuously Confuse Artists

Products featuring George Bush’s artwork have been removed from the Society6 webpage. Mashable suggests, per Cariou v. Prince, the artist of the Bush inspired works could argue fair use. Just as a start to addressing this problematic assumption, the idea seems to ignore the fact that Prince’s work was found to be “transformative” whereas the Bush inspired works are merely prints of the paintings on various goods for commercial use. Likewise, Fair Use is an affirmative defense, meaning a maker must first be sued before they can attempt to argue it.

That being said, a closer examination of statues and proper reading of case law should be completed before artists rely on the Fair Use defense.

 

Revisiting: Jill Magid and Sergio Muñoz Sarmiento on Cultural Property

If you missed the original conversation back in February of 2014, or haven’t seen the video of that conversation, we’re revisiting the chat between Sarmiento and Magid on access to cultural property. Check it out!

 
 
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