Guest Post: The Most Interesting “Appropriation” Cases to Watch in 2016

January 19th, 2016 by Sergio Muñoz Sarmiento

You gotta play to win in fair use. Do you think Prince is making appropriation artists braver or is Jeff Koons a glutton for litigation with his 6th lawsuit? Either way, Koons is in it to win it, being sued by photographer Mitchel Gray for the use of his photograph in an artwork without permission. In this case, Gray took a photograph of a couple on the beach for a Gordon’s Gin ad in 1986. As part of his series Luxury and Degradation, Koons reproduced the photograph in its entirety and most of the advertisement. Ads can be tricky because it’s easier to argue (in the Second Circuit, at least) that there’s been a transformation of purpose from ad to art.

Ok, so not the most interesting case of 2016, but it’s Koons. I think he wants another shot after Roger v. Koons was overruled by Cariou.

7. Some Germans Think They Can Take Works Out of the Public Domain

In 2015, the Reiss Engellhorn Museum (REM) in Mannheim, Germany, filed a lawsuit against the Wikimedia Foundation for making high-resolution images of public domain artworks from its collection, which are available for download. This issue was decided in the United States in  Bridgeman Art Library v. Corel Corp., which ruled that exact photographic copies of public domain images are not protected by copyright since they lacked originality. It matters not how much “sweat of the brow” and “skill” someone puts into rendering photographic copies of a public domain work. Apparently, this issue has not before been decided in Germany.   The German museum asserted that Wikimedia hired a photographer whose time and skill now qualifies these images as new works with a new copyright term. If their court gets this wrong, it could cause quite an international stir.

 

I’ll keep you posted on the happenings in these cases throughout 2016. Happy trolling!

 

Notes:

[1] The case is Williams et al. v. Bridgeport Music Inc. et al., case number 15-56880, in the U.S. Court of Appeals for the Ninth Circuit
[2] Trekmovie.com, “Star Trek Axanar Film Sued By Paramount and CBS over Copyright Infringement.” December 30, 2015 [3] Wouk, Kristofer, “Double or Nothing: Spotify Hit With Another Class-Action Lawsuit for $200 Million.” www.digitaltrends.com. January 11, 2016.

[4] Authors Guild v. Google, Inc., 804 F.3d 202, 116 U.S.P.Q.2d 1423 (2d Cir. 2015) (84 U.S.L.W. 514, 10/20/15).

[5] The Author’s Guild, “Future of Fair Use Hinges on Supreme Court Review of Google Books Case.” www.authorsguild.org. October 26, 2015.

[6] Mazumdar, Anandashankar, Petition Asks Supreme Court to Review Google Books Case.” www.bna.com. January 4, 2016.

[7] Graham v. Prince et al (1:15-cv-10160), New York Southern District Court, Filed: 12/30/2015.   ***
Talia Kosh holds a J.D. from Loyola University New Orleans College of Law and an LLM. in International Law from American University. Talia practices law in Santa Fe with The Bennett Law Group and is Founder and President of New Mexico Lawyers for the Arts, counseling and educating artists on a wide variety of legal issues. Talia also serves on several nonprofit boards, as well as the Governor’s Counsel of Film and Media Industries, and as past Chair and board member of the Intellectual Property Section of the New Mexico Bar . Talia also teaches at Santa Fe Community College and University of New Mexico’s Continuing Education Program. She received the Santa Fe Mayor’s Award for Excellence in the Arts in 2014. The views expressed by Talia are hers and not those of any entity and/or organization.

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