Tuesday, March 28, 2017

In Cheerleading-Copyright Scuffle, US Supreme Court Cites Duchamp

Star Athletica v. Varsity Brands, Justice Breyer's Dissent.

Star Athletica v. Varsity Brands, Justice Breyer’s Dissent.

In a 6-2 decision, the U.S. Supreme Court held last week that designs on cheerleading uniforms were protected by U.S. Copyright law.

You can read the opinion and Justice Breyer and Justice Kennedy’s dissent here. Art law nerds might find it interesting to scroll to the last page, where one will notice an image of Marcel Duchamp’s 1915 snow shovel as art object, better known as In Advance of the Broken Arm. Breyer cites Duchamp’s art work as an example of industrial design that, although could be thought of as an work-of-art, should not necessarily obtain copyright protection.

If only they had used Fountain instead of a snow shovel.


Should Organic Artworks Be Excluded From Copyright Protection?


Zahr Said has just posted her 2015 law review article on copyright’s fixation requirement and conceptual art on SSRN.

Via his abstract, Said argues,

This Essay argues that copyright illogically excludes conceptual art from protection on the basis of fixation, given that well-settled case law has interpreted the fixation requirement to reach works that contain certain kinds of change so long as they are sufficiently repetitive to be deemed permanent. While conceptual art may perhaps be better left outside the scope of copyright protection on the basis of its failure to meet copyright’s other requirements, this Essay concludes that fixation should not be the basis on which to exclude conceptual art from protection. There are of course both normative and descriptive questions around the copyright-ability of conceptual art; this Essay addresses itself primarily to the descriptive question of fixation, and whether works of art that contain change, by design, must be excluded.

Worth a read.


Should Writers Be Granted Moral Rights?


Here are eight reasons why they should. Not saying we necessarily agree.

Keep in mind that in the U.S., only visual artists currently get moral rights protection, and only for certain types of art works.


How Long Does Copyright Protection Last…In China?

Image courtesy of jmhuillot via Wikipedia, CC BY 3.0.

Image courtesy of jmhuillot via Wikipedia, CC BY 3.0.

Apparently forever. Or at least from 209 BCE to the present.

Unfortunately this article via The Art Newspaper mixes trademark, copyright and patent IP protections, but that may not be their fault. The problem is most likely caused by the inability of the Emperor Qin Shihuang Mausoleum Site Museum in north-central China to figure out just how the heck they are going to argue that they own the intellectual property rights (or all rights) to the famous Terracotta Warriors.

As the rock band Genesis once said, there must be some misunderstanding.


Getty Research Institute Acquires Allan Sekula’s Papers

The Getty Research Institute in Los Angeles has acquired the photographer Allan Sekula’s papers, which take up approximately 400 boxes, and include correspondence, records, photographs, research materials, archival notes, and more.

One of my favorite teachers of all-time. My days at CalArts were certainly filled with many studio hours (plural) long visits with Allan. And if this treasure trove is only a fraction of the depth of Allan Sekula’s mind, readers will be in for a real treat.


Spiral Jetty Is Utah’s Official State Work of Art

Both the Utah House and Senate have approved the designation of not only an official “state work of art” — the Spiral Jetty in the Great Salt Lake — but also separate official plural “state works of art,” namely ancient rock art scattered around the state.

Now let’s just hope Utah doesn’t alter or modify it. More on story here.


Dubai, Where Architecture, Labor and Copyright Collide

Mexican architect, Fernando Donis, has filed a lawsuit against the Dubai municipality alleging copyright infringement of his architectural designs, which he created for a competition in 2008.

Interestingly, this NY Times article also highlights the interrelationship between and exploitation of labor, property and intellectual property, particularly within regions where law seems to be applied arbitrarily at the ruler’s whims. Notice also how entities attempt to lure artists in with promises that artists will keep their intellectual property, only to have that promise erased by new contractual terms where the artist, already blessed with a winning entry, is pressured into transferring the same intellectual property.

As some may recall, protection of architectural structures and buildings under U.S. Copyright law is a fairly recent phenomenon, if you consider 1990 recent. I wrote about this in Perspecta, the Yale Architectural Journal, just last year.

More on the lawsuit here, via the NY Times.


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