Thursday, September 18, 2014

LAPD’s Full-Time Art Cop

Meet Los Angeles Police Department Detective Don Hrycyk, the country’s only full-time art cop.


Want to Deface a Banksy Mural? Think Again

It could cost you five months of jail time, probation, and $13,000 restoration fees. 


“The fair-­use privilege … is not designed to protect lazy appropriators.”

Screen shot 2014-09-16 at 4.32.08 PM

I’ve been called a lot of things (including, “lawyer”), but one thing I can be proud of is never having been called a liar.

I’ve been saying that appropriation-for-appropriation’s sake is nothing but pure formalist laziness, pretty much since I was born (evidenced here), and others, like this law review article, have also opined on how the Cariou v. Prince case makes no distinction between the right of copyright holder to “transform” her copyrighted work and a secondary user’s fair use right, upheld by a “transformative” judicial standard. Leave it to a Illinois-based judge to pen identical thoughts.

The case concerns the use of a photo of the Mayor of Madison, Wisconsin on some t-shirts (see pic above), where the photographer sues the appropriator for copyright infringement.

You have to read the entire seven-page opinion not only to get a good dose of judicial analysis, but also get a sense of how damning the 7th Circuit is of the Cariou court. In fact, I would say that the 7th Circuit (reluctantly) stops short of calling the Cariou court “stupid.”

Noting that the “transformative” aspect of a secondary use is not part of the US Copyright Act but rather judge made (by the US Supreme Court, no less), Judge Easterbrook opines, “The Second Circuit has run with the suggestion [of transformativeness] and concluded that ‘transformative’ use is enough to bring a modified copy within the scope of [fair use]. [The] Cariou [Court] applied this to an example of ‘appropriation art,’ in which some of the supposed value comes from the very fact that the work was created by someone else.” (Brackets added)

That thought alone eviscerates the post-modern art-is-holier-than-anything-else dictum that so many in the art-world and some art lawyers love to profess. The author may be dead in MFA and art history programs, but it’s pretty much still alive in the world of law.

Instead, Easterbrook writes, “We think it best to stick with the statutory list, of which the most important usually is the fourth (market effect). We have asked whether the contested use is a complement to the protected work (allowed) rather than a substitute for it (prohibited).”

Read: “We think it’s best to stick to the separation of powers and apply the law, rather than play art critics like the 2nd Circuit and just, you know, make stuff up out of thin air.”

To conclude my rant, Easterbrook and the 7th Circuit find the use of the photo, in this instance, to be fair use. What I want you, keen reader, to keep in mind as you put head-to-pillow tonight, is why the 7th Circuit would go out so far out of its way to criticize the 2nd Circuit. Do you think, keen reader, that perhaps they are welcoming a Cariou v. Prince-like case in the 7th Circuit? Just sayin’.


Distraction, an Artist’s and Lawyer’s Best Friend

“It’s to keep living in a way one wants to live and work; to distract constructively; to distract in ways that are in themselves satisfying; to do things that are intrinsically gratifying,” he says. “Melancholy is not one of my emotions. Quite seriously, I don’t do melancholy. It’s a miserable way to be.” Walter Mischel via the NY Times.


What can law do to stop nude celebrity ‘art’ photos from floating around?

Apparently, not much.

[T]he fact that the photos were obtained by obviously criminal activity does not itself prevent publishers or artists from using the photos. This may seem counterintuitive — after all, if a thief breaks in to your house and steals a piece of your jewelry, an artist cannot then buy the stolen jewelry from the thief and display it as “artistic commentary” on an “individual’s security in this age of crime.” As appealing an analogy as this might be, it does not work here.


Texas Will Allow Prada Marfa to Stay

Prada Marfa

After nearly a year of negotiations, the Texas Department of Transportation has reached an agreement with Ballroom Marfa that will save the Prada Marfa art installation by Elmgreen & Dragset by classifying it as a museum.

The nine-year old installation came under scrutiny when the Texas DoT at first determined that it was a sign, and therefore in need of a permit. Glad they resolved this dispute. Now if they could only get rid of the annoying hipsters and baby-strollers. A big thanks to our dear friend, Gabe Aguirre, for the heads-up on this one.

UPDATE: 8:10pm EST

Ballroom Marfa comments.



The Battle of Booklyn (not a typo)


Having two entities using the same word to identify similar services (books and reading) is likely a problem. I was confused. It doesn’t matter that both entities are nonprofits. Here’s my latest ink on a trademark battle between two Brooklyn nonprofits.


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