Tuesday, July 28, 2015

The Weekend: Copies and Returns

This weekend was pretty quiet art law wise, but there were two interesting articles; one from the Wall Street Journal and the other from Ray Dowd’s Copyright Litigation Blog.

The WSJ covers the business of authorized replicas and their effect on how tourists see and experience art. Dowd’s blog article focuses on what Dowd calls “the the misbehavior of U.S. museums and their lack of adherence to the Washington Principles on Nazi-Confiscated Art.” Dowd continues:

U.S. museums have it backwards and should be trying to figure out whose stolen property they are holding.  It was heartwarming to hear Goldstein affirm that museums do not have a fiduciary duty to litigate all claims and defenses relating to the stolen art in their collections.

Both worth reading; check them out.


Paul Klee Painting Recovered in Montreal

A $100,000 painting by Swiss painter Paul Klee has been returned to its owner, 21 years after being stolen from a New York art gallery. Via The Toronto Sun.


Mardi Gras Indians Threaten Photographers With Copyright Suits


I wrote earlier this month about copyright lawsuits being used to protect meaning. Interestingly enough, I was at Columbia Law School last night for an Art Law Career Panel, and a friend of mine, Kate Nelson, brought this issue to my attention via a recent NY Times article. I’m curious what “free culture-arians” think about the taking of someone else’s cultural property for monetary exploitation. 

Members of the Yellow Pocahontas tribe in New Orleans, LA, who create and wear ornate, enormous feathered performative sculptural works and come out three times a year to show them off, have been getting tired of being followed around by photographers who then use and sell these images on posters, prints, and calendars without compensating members of the Yellow Pocahontas tribe. 

Rightly so, the tribal members have been researching ways to protect their cultural heritage by looking into copyright law. They’ve begun filing for copyright protection for their suits, aided in large part by two New Orleans nonprofit legal organizations.  

The argument centers on the question of protection of the sculptural “costumes”: whether they are functional and thus not protected under US Copyright Law, or sculptural works, in which case the probability of these sculptural works receiving copyright protection increases dramatically. If it’s the latter, most non-authorized photographic images of these sculptural works would be considered derivative, therefore giving force to the tribal members’ argument of copyright infringement.  

In the NY Times article a photographer of these sculptural works is quoted as stating that he has been hearing these “complaints for years,” but that these complaints are unproductive since photographers make very little money from the images they take of these sculptural works. This photographer may want to look closer at fair use, in particular the fourth factor (“the effect of the use upon the potential market for or value of the copyrighted work”).  I would also look into the recent (and well reasoned) decision in Frank Gaylord v. United States.

This issue is ripe for a good copyright fight, and one that may indeed favor the tribal members and creators of original works of art. Read the NY Times article here. I’m curious what others think.


Katyal and Peñalver: Shepard Fairey a Necessary Altlaw

My two good friends, Sonia K. Katyal and Eduardo M. Peñalver, authors of Property Outlaws, have just written a lengthy article applying their notion of the intellectual property outlaw to Shepard Fairey’s use of the Associated Press’ (or Mannie Garcia’s) Obama photograph.

Katyal and Peñalver’s article is quite timely, and perfect for those looking for a counter-argument to my blog post, Are We Really Headed Toward Permission-Based Art Making? I want to note that my article focuses on (and at this point limits itself) to visual art, for I believe that the mediums of film, video, and music dictate a different fair use application and analysis.

Read the rest of this entry »


Clancco’s Going Mobile

We’ve discovered that over 21% of our readers access our site via mobile devices (Blackberry, i-Phone, cell phone), so we’ve decided to make it easier for you mobile people to read Clancco: Art & Law while you’re on the go. You’ll notice a new screen page on your mobile device which has been simplified to give you access to five main content areas on our website: the last 7 news articles with Share/Save capability; other Art & Law news with links; connect buttons to our facebook page, our twitter page, and our Linkedin page; a listing of the last 15 blog posts; and last but not least, a list of upcoming talks, panels, and presentations by yours truly.

Our new program also includes a mobile switcher which automatically suggests desktop or mobile presentation, but lets users switch to the other if required (and remembers your choice).

Don’ worry, this won’t affect the look and content of our current website. We’re just making it easier and more practical for those of you on the go to get the most immediate art and law news we’ve covered. We may change the look and content for mobile users in the future, but probably only if we receive requests to make other content available on the go. Thanks for visiting us and for following Clancco along. Cheers!


“Museums are morally obligated to return Nazi-looted art”

Frankfurt’s Staedel Museum has investigated its role in the Third Reich. Its art history expert and provenance researcher Nicole Roth told Deutsche Welle in an interview how she goes about examining the museum’s collection for stolen pieces.

In 1999, Germany’s Representative of the Federal Government for Culture, Michael Naumann, sent a letter to the directors of all the museums in the country, requesting that they determine and reveal the origin of any works acquired between 1933 and 1945. Shortly before Naumann’s appeal, the German federal government and state and municipal leaders had pledged to return to the rightful owners any works of art dispossessed by the Nazis. In order to make that happen, many museums hired provenance researchers, experts specially trained in critically examining the history behind works of art.


Police Seize Stuffed Tiger From Art Gallery

A stuffed tiger standing on its hind legs with bared teeth was wrestled out of London’s SHOWstudio gallery by police.

Via The Telegraph: “Police believe the tiger was shot and killed at some point in the last 20 years and they are investigating whether a crime has been committed under the Endangered Species Act.”


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