Friday, July 28, 2017

Does Street Art Violate Unfair Competition Laws?

The Los Angeles city attorney’s office has filed a lawsuit against ten graffiti artists associated with the MTA tagging crew, charging them with violating California’s unfair competition laws because they’re selling art works on the strength of their outlaw names and reputations. “They’ve obtained an unfair advantage because they gained fame and notoriety through criminal acts,” said Anne Tremblay, assistant city attorney. “This is unlawful competition.”

Via The Huff Post. I’m on a panel today on the legal and policy issues surrounding street art, so quite timely indeed.


Art, Copyright, Litigation: A Conversation With Dan Brooks

If you’ve been following the Cariou v. Prince copyright case, you won’t want to miss this. I’ll be in conversation with Cariou’s attorney, Dan Brooks, discussing the case and possible ramifications. Q&A after.

When: Wednesday, April 20, 2011, 6-8pm

Where: Volunteer Lawyers for the Arts, Auditorium, 1 East 53rd Street, NY, NY 10022 (corner with 5th Avenue)

On March 18, 2011, the United States District Court for the Southern District of New York granted summary judgment for plaintiff, artist Patrick Cariou, ruling that artist Richard Prince, in conjunction with the Gagosian Gallery, infringed Cariou’s copyrighted works. Dan Brooks successfully represented artist Patrick Cariou in Cariou’s copyright infringement lawsuit against artist Richard Prince. Mr. Brooks will be speaking about the case as well as issues raised by the decision. A Q&A session will follow Mr. Brooks’ presentation.

This talk will be moderated by VLA’s Associate Director, Sergio Muñoz Sarmiento.

Mr. Brooks is a partner with Schnader Harrison Segal & Lewis LLP. He is currently the Chair of the Securities Litigation Practice Group.  He concentrates his practice in complex commercial, corporate, and securities and commodities litigation and arbitration. He has engaged in complex commercial business litigation in state and federal courts nationwide, as well as in numerous alternative dispute resolution forums in the U.S. and abroad. He has substantial expertise in defending broker-dealers in customer and employment disputes. He has also defended other corporate clients in employment-related matters, including disputes over bonus and severance packages and sexual harassment complaints. Mr. Brooks received his J.D. from Yale Law School, and his B.A. from Columbia University.

Fees: (seating is limited)
Artists, Arts Administrators, Students: $35
Legal Professional VLA Member: $125
Legal Professional Non-Member: $150

CLE: Two CLE credits available for admitted attorneys: 1 professional practice, 1 skills

All proceeds will benefit VLA’s Art & Law Residency Program.

For more information, please e-mail Sergio Muñoz Sarmiento at:

To register, please complete this registration form. All registration fees are non-refundable. For more information, please call Sergio Muñoz Sarmiento at 212.319.2787 x 13


Artists Sue Over Removal of Mural

Artists and a few others filed a lawsuit in federal court over Maine Gov. Paul LePage’s decision to remove a mural and relocate it tot a more suitable place. The lawsuit seeks to confirm the mural’s current location, ensure that it’s adequately preserved, and ultimately to restore it to the Labor Department building in Augusta.

Via Bloomberg Businessweek.


Drafting From the Left Side of the Brain: Drawing for Lawyers

For this project, I bring together a group of practicing lawyers and legal scholars and through the medium of drawing, teach them how to draw and thus release their creative potential. A location willing to host this performance/event is approached, and thus houses this one day project. This project is recurring. -sms


Lawyers spend too much time using the left-side of their brain and hardly tap into their creative right-side. With this in mind, I’ve decided to create a drawing class strictly for lawyers. Whether you’re a novice or experienced draftsperson, I encourage you to put down that summary judgment brief and pick up a drawing pad and pencil and let that artist out.

No CLE credit, no statutes (although perhaps a statue or two), and no partners breathing down your back. Just you and a group of like-minded attorneys interested in expressing themselves through drawing and two artists hanging out with you teaching you how to “see” and draw. This will be an ongoing series, and depending on interest and energy we may meet in different locations around the city, both indoors and outdoors.

This class will be led by Sergio Muñoz Sarmiento and Luis Nieto Dickens.

When:  Saturday, May 14, 2011
Where:  Paley Park (next to 1 East 53rd Street. Look for the waterfall)
Time:  11am – 2pm (but you can leave when you want)
Fee:  Free

To sign-up for this free class, please rsvp to Please include name, law firm affiliation, e-mail address, and years in professional practice. This class is limited to 15 attorneys, so please notify me if you will not be able to attend.

For more information, or if you have questions, please contact Sergio Muñoz Sarmiento at

Required Materials:

1. 11 x 14 drawing pad, 50 sheets, 70 lb. paper (approx $7)
2. 1 Eraser, Staedtler (approx $1)
3. 2- 2B pencil (what you have in law firm conference rooms) (free)
4. 2-Black ink pen (Pilot, Uni-Ball) (approx $1)

All of these materials can be purchased at any art store, such as Pearl Art & Craft; Blick Art Materials; and Ultrecht Art Supply.

This free class is part of’s Art School for Lawyers™ series.


Why Copyright Will Make Better Artists

Richard Prince Untitled (cowboy), 1989 Ektacolor photograph 127 x 178 cm © 2008 Richard Prince

The recent Cariou v. Prince copyright ruling has produced pandemonium and copious amounts of opinions and commentary. It’s disappointing to not be able to find an interesting thought that presents a unique perspective. Most thoughts regarding this case are purely emotive and without a scintilla of reason.

Today was refreshing.

Eric Felten, of the WSJ, today takes Prince and artists who use similar strategies to task.

There will be artists and critics who decry the chilling effect this will have on galleries’ willingness to sell appropriation art. But a liability-shy gimlet eye might ultimately be good for artists: Having to prove to the galleries that their work is truly transformative and not just a copy means the appropriators will have to strive to be demonstrably creative. Artists who believe that anything they do is, by definition, an act of genius are on the road to creative complacency. Might too much artistic freedom—such as an unlimited freedom to steal others’ work—breed lazy and insipid work?

This is great. In fact — and quite self-serving — I said the same thing last year on this blog, in an entry titled, Are We Really Headed Toward Permission-Based Artmaking? In that article, I write about the perceived threat to contemporary art and creativity by licensing systems and structures.

This perceived threat is guised as encompassing (and coming into being as) permission-based and license-based structures which artists would have to abide by in order to produce art works and other creative projects. This fear would be true only if artists continue to give up on the challenges posed by creativity and gave in to facile and lazy intellectual hyperbole. Why then is this threat being promulgated, and by whom? … The spectral fear of this sanctioning system of artistic production comes from an ignorance of two factors necessary to the valuation of art and artists. Those two factors are creativity and originality. Creativity has become synonymous with appropriation, while art has surprisingly bought into the academic belief in the death of originality.

Echoing Felten’s and my thoughts, Patrick Cariou agrees. When asked by the Huffington Post if he thought the recent fair use ruling would have “any negative effects on artists,” Cariou correctly responded:

It’s going to educate them. I don’t think it’s going to harm anyone. I don’t think artists should be offered a different standard from anyone else. When you’re 12 years old your parents tell you “Don’t steal the candy,” and we all try to apply that rule, and if you don’t people sometimes end up in jail. I’m interested in Warhol’s use of the Campbell soup can and Rauschenberg using readymade things — that I’m okay with. If it’s to steal photographs or paintings to create something, you shouldn’t be an artist in the first place. To me Richard Prince is more of an art director than an artist. I think he’s a good art director, and a great thief.

Cariou and Felten are right. Whether or not artists, galleries, critics, and curators learn from this decision and use it to leverage a more critically-based art world is another matter. One certainly hopes they do.


Art in the Age of Copyright Litigation

From the website:

Artinfo wonders what we’ve learned from the recent copyright and moral rights lawsuits involving artists. A little over a year ago I asked, “Why is copyright (suddenly) such a hot topic for artists?” and proposed the following,

The last few years have raised important copyright issues and concerns for artists. There are three main factors which have impacted – and will continue to impact – how visual artists relate to each other, to art institutions, and to other intellectual property right holders when it concerns issues of copyright.

I essentialized this phenomenon to the following three factors: economic recession, education regarding intellectual property and artists’ rights, and increase in litigation. You can read the rest of my thoughts on this here.

Yesterday, Artinfo posted a lengthy overview of recent cases involving Shepard Fairey, Chapman Kelley, Jeff Koons, and the recent Richard Prince knockout. Here’s a bit on their take,

Patrick Cariou’s victory last Friday in his copyright suit against artist Richard Prince — which determined that Prince’s work did not sufficiently transform or comment on Cariou’s original — signaled another startling development in the troubled and troubling history of fair-use rulings concerning the arts. But is it consistent with the other zany lawsuits of late that have seen artists go head to head with the laity in legal battles over supposed appropriation?

Are we seeing the tip of the iceberg? My guess is “yes,” and I would add that we’re only seeing the beginning. This is going to be a wild ride, and if the Cariou v. Prince outcome is any indication, a ride that will show how law — as both process and medium — will revolutionize how culture is produced and received.


Will the US Supreme Court Change What’s In the Public Domain?

Just when you thought it was safe to appropriate works in the public domain, along comes a case, Golan v. Holder. (10th Circuit decision here)

On March 7, The US Supreme Court agreed to hear arguments over whether or not Congress is constitutionally allowed to grant copyright protection to foreign works that are in the public domain under US Copyright law.

For visual artists in the US (and for anyone wanting to use current public domain works), this could be business as usual or a rethinking (and reworking) of what they appropriate, depending on how the Supreme Court decides this case. In a nutshell, Golan concerns freedom of expression and the right of the American people to use materials currently in the public domain, without fear the government will remove or restrict them from public use.

Take for example a sculptor who wishes to use a photograph whose copyright is currently owned by a German entity but in the public domain in the US, that depicts a three-dimensional object. The American sculptor would like to use this image to create an actual three-dimensional sculpture of the three-dimensional object depicted. If Golan is upheld, then the sculptor may be infringing on the German national’s copyright, and thus be susceptible to a copyright infringement lawsuit.

What this also means is that if Golan is upheld, artists would have to check to see if the image or text they want to use is still under copyright in a foreign country, even if the works are currently under public domain in the US.

Golan is scheduled to be heard fall of 2011.


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