Saturday, February 13, 2016

Rectifying Fair Use after Cariou v. Prince: Reviving the Forgotten Statutory Text and Requiring that Unauthorized Copying Be Justified, Rather than Merely “Transformative”

Another law review article hot off the press. This time authored by our good friend, Dan Brooks, counsel for Patrick Cariou in the infamous Cariou v. Prince appropriation/copyright infringement case.

Brooks’ thesis,

Recent court decisions, epitomized by the Second Circuit’s majority opinion in Cariou v. Prince , have applied the fair use doctrine in a manner that undermines the rights of copyright owners by permitting wholesale, unauthorized appropriation of their works, provided only that the otherwise infringing secondary use is perceived by the judge or judges randomly assigned to hear a particular case as being “transformative.” Applying this standard, courts have ruled in favor of appropriators of copyright owners ’ works. Under Cariou, the determination of transformativeness is based on a subjective “side by side” comparison of the contents of the original and secondary works, without any consideration of the appropriator’s stated purpose. This analysis also fails to ask whether it was necessary to borrow the particular copyrighted work in the first place, let alone whether it was necessary to do so without paying a licensing fee.

This Article discusses how the entrenched and multi pronged fair use doctrine gave way to the unitary “I know it when I see it” approach. This Article will also discuss a solution to reverse this anomalous trend. The solution proposed in this Article giving effect to the statutory text would provide fair use protection only where there is a sufficient reason for copying a particular original work and where, because the market cannot be relied upon to allow a socially beneficial transfer of rights, the copying must be done without obtaining the copyright owner’s consent.

The stack of good reads is piling up.


The Law of Banksy: Who Owns Street Art?

Fresh from the press, a new law review article on street art and property rights by Peter N. Salib, currently a J.D. candidate at the University of Chicago Law School and a future clerk for the eminent 7th Circuit jurist and scholar, Frank H. Easterbrook.

Salib’s thesis,

Street Art — generally, art that is produced on private property not owned by the artist and without permission — has entered the mainstream. Works by such artists as Banksy, Jean-Michel Basquiat, and Shepard Fairey now sell at the world’s most prestigious auction houses, fetching prices in the millions. Strangely, however, the law governing street art ownership is entirely undeveloped. The circumstances of street art’s creation — often involving artists’ clandestine application of their work to the sides of buildings owned by others — render traditional legal paradigms governing ownership intractable. If Banksy paints a valuable mural on the side of my house, who owns it? Me? Banksy? Someone else? American law is currently ill-equipped to answer the question.

This article rigorously investigates the problem of street art ownership. It accounts for the unusual circumstances of street art creation and distribution. It then considers the possible legal regimes for governing street art ownership and comes to a surprising recommendation.

Looks like a good read.


How Google Stole the Work of Millions of Authors

Roxana Robinson, president of the Authors Guild in New York, on why the U.S. Supreme Court should hear the Author’s Guild lawsuit against Google. (It’s on the WSJ, so need paid subscription. Probably due to copyright reasons.)


Aesthetics and Law Symposium at RISD

art_law_sarmientoI’m very happy to be presenting at the Questioning Aesthetics Symposium at the Rhode Island School of Design on March 11th and 12th. I’ll be on the Saturday afternoon panel, Aesthetics and Law. I do hope to see you there.

A bit on the symposium:

“Questioning Aesthetics Symposium-RISD” (QAS-RISD) provides a timely opportunity for the RISD community to come together and critically examine the nature and ramifications of art and design practices. In recent years RISD education has been moving toward transcending traditional disciplinary boundaries to encourage more holistic, multi-faceted approaches to art and design practice. This symposium aims to promote cross- and trans-disciplinary dialogues on aesthetic issues not only through presentations by prominent scholars and practitioners but more importantly through sustained discussion by all participants and audiences.

“Questioning Aesthetics Symposium-RISD” (QAS-RISD) is part of a series. Each QAS will explore, cultivate, and sustain new forms of transdisciplinary, international aesthetics research generated by contemporary art and design, new developments in aesthetics in other disciplines, current social-political conditions, or other instigators.

Please click here to register for the RISD conference, and here for a program of the event. A list of speakers, with bios, may be found here.


What’s Going on in the Knoedler Trial?

No one has a better–and daily–update on the art market trial of the decade than my friend Donn Zaretsky over at The Art Law Blog.


El Chapo Uses Trademarks to Protect Outlaw Brand


This just in from a confidential source. It appears that the wives (yes, plural) and daughter of Mexican drug lord, El Chapo Guzman, have applied for twenty-four Mexican trademarks.

Alejandrina Salazar Hernández and Emma Coronel Aispuro, wives of Joaquin “El Chapo” Guzman, and Alejandrina Gisselle Guzman Salazar, daughter of El Chapo have submitted 24 applications for trademark registration to market products under the name of El Chapo. Requests that have been submitted to the Mexican Institute of Industrial Property (IMPI) are: El Chapo, El Chapo Guzmán, Joaquín El Chapo Guzmán, El Chapito Guzmán, El Chapito, Joaquín Archivaldo Guzmán Loaera, Don Chapo Guzmán. The registration of trademarks is in the Global Brand Database of the World Intellectual Property Organization.

Some more on this story here.


Will Naruto Return to the Planet of Appeals?


Last September, PETA brought a copyright lawsuit on behalf of selfie-taking macaque, otherwise known as Naruto. Although the judge dismissed the suit in early January of this year, we were waiting for his written opinion, just released last Friday. Although the judge’s ruling remained firm, the judge did state that Naruto has leave to amend—meaning that if he wants, Naruto can try yet again to get damages from photographer David Slater and the self-publishing company Blurb, Inc.

The opinion is available here.


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