Saturday, April 19, 2014

California Royalties Law Looks Dead in the Water

Donn Zaretsky agrees. One of the judges even asked, “Aren’t there harmful effects to the state’s art market?” The art market. The Art Market!

Oh where, oh where are our little Marxists when we need them?



Can You Have an Art Exhibition Without Art? Triple Candie Under Oath


Saturday, April 19, 2014.
Museum of Contemporary Art, Detroit
1 – 3pm
Admission: Free (Suggested $5 museum donation)

Who, or what, is Triple Candie? What does it do, and why does it exist? How can it curate art exhibitions without artists and their artworks, but rather with copies of an artist’s oeuvre? Do the two co-founders, Shelly Bancroft and Peter Nesbett, work under this non-conceptual art strategy called Triple Candie as a disguise, creating a protective veil? And if so, protection from whom, or from what? Ethical and legal conundrums, perhaps? Now comes Sergio Muñoz Sarmiento, artist and arts lawyer. On April 19, Sarmiento will interrogate Triple Candie to inquire as to its curatorial exhibitions and art historical facilitations and obstructions in order to assess the legal, ethical, and moral repercussions of its performative practices.

RSVP here.

Please join me if you’re in town.


Guggenheim Bilbao Censors “Offensive” Paul McCarthy and Mike Bouchet Public Artwork

Mural by Paul McCarthy and Mike Bouchet, on building in Bilbao, Spain.

Mural by Paul McCarthy and Mike Bouchet, on building in Bilbao, Spain.

According to Artnet, the Guggenheim Bilbao is forcing the removal of a provocative and controversial Paul McCarthy and Mike Bouchet 2,000 square foot mural installation on the side of a building in Bilbao.

The billboard is an extension of an exhibition the two artists are having at the Portikus in Frankfurt. Their collaboration at Portikus includes mostly drawings, as well as a few sculptures, that, according to a press release, depict museums as “self-serving mechanisms for their board members[.]“

Now get this, the Guggenheim is employing the strong arm of the law to allege that under Spanish law, the artists’ work infringes the Guggenheim’s copyright and trademark rights of the Frank Gehry building. The artists are, of course, retorting with fair use and have refused to comply with the Guggenheim’s demand.

But, all is not well.

Following the refusal of the artists to remove the mural, the owners of the building received a fax from the museum late today demanding removal of the installation and again asserting that the use of the Guggenheim Museum Bilbao image was an infringement of its copyright. The building has granted the museum’s request, artnet News has learned, and the artists have since been informed by a building representative that the mural must be removed.

Interesting…stay tuned!

Via Artnet.


Increase to Most Copyright Office Fees

There will be an increase to most US Copyright registration fees, effective May 1, 2014.



Contemporary Art & Law: Recent Controversies and Legal Developments


I’m very happy to announce that I will be giving a lecture presentation tomorrow for the Arts Counsel Texas, in Dallas. This event was organized by my good friend, Meg Friess, and is generously hosted by the firm of Thompson & Knight.

If you’re in Dallas, I’d love to see you. All info on event here.


W’s Portraits of World Leaders Are Not Infringing

Has W infringed anyone’s copyright in taking the sources of his portraits from Google Images, including images owned by the Associated Press? To answer this question, you have to ask what original authorship did W take from the copyrighted works? From what I can see, other than his subjects’ faces and their generic, centered, full-face compositions, W took very little. And none of those things are proprietary to a photographer. Moreover, most of the photos look like they were taken from press conferences, where photographers do not control the lighting. At the risk of alienating my photographer friends, what then is creative about the original works? Yes, the photographers may have set the shutter speed, F-stop and ISO, but if that’s all they did, the subject is centered, and they didn’t control the lighting, then there is a strong argument that the photographs are not sufficiently original to qualify for copyright protection–not that many courts would have the courage and integrity to find so.

But we don’t even need to go that far. Assuming that the photographs are sufficiently original, again, what did W take that was original? Perhaps I don’t understand photography well enough to say what is original about a centered, full-face portrait taken in what is probably a flutter of quick shots without controlling the lighting. But it is not fair to put such snapshots on par with the work of Christopher Williams or Cindy Sherman. We owe it to ourselves to ask first what is original about a photograph. Here, I would argue that  given how ham-fisted W’s portraits are, it is difficult to argue that he took enough of the originals even to support a claim of substantial similarity. If the portraits were photorealistic, the substantial similarity would probably exist, but the paintings’ amateurishness precludes it here.

But even if we assume substantial similarity, the use is fair on the four factors:  (1) This is not a commercial use, and even if you try to argue that it is commercial to some degree, a single painting is vastly different than a photo mass-reproduced in a newspaper or advertising campaign. (Courts need to do better at recognizing this enormous difference in the context of unique objects–the Second Circuit in Cariou v. Prince seems to have done so, but not explicitly.) (2) Further, the underlying works are closer to fact than fiction, and there is a strong public interest in allowing people to make artwork based on existing images of world leaders given how difficult it would be for someone who doesn’t work for the New York Times to take such photographs. (3) And again, W has taken little if any original authorship. (4) Finally, I don’t think anyone would argue that someone might buy a W portrait instead of a reproduction of, say, the original AP photograph. The two things serve entirely different aesthetic purposes–one politically newsworthy, the other arguably humorous to just about anyone other than W’s nuclear family. Yes, you could argue that W is usurping the photographers’ market to license work for use in unique artworks, but as I’ve argued elsewhere, doing so would largely eviscerate the fair use defense for artwork and at negligible economic gain to photographers.


George Bush the decider or…the copyright infringer?

According to ANIMAL, George Bush’s recent paintings of world leaders, having sparked the media’s curiosity, may be on shaky intellectual property grounds. It seems W based his work on images found through Google searches, with at least one (and almost certainly more) being copyrighted to the Associated Press. Perhaps we should try to pull an Al Capone here–if we can’t get him on more serious charges, we can try to zap the decider on copyright infringement! Greg Allen seems to think they would be fair use. I’m not so sure. Thierry Guetta anyone?


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