Monday, July 25, 2016

Court: Tattoo Parlors Protected by First Amendment

Remember this case, Johnny Anderson vs. City of Hermosa Beach, concerning a city ordinance that banned tattoo parlors within the City of Hermosa Beach? The crux of the City’s argument was that a tattoo artist was merely a “tool,” a “medium” of sorts, for the expression of a client’s chosen design.

Well, the Ninth Circuit Court of Appeals, showing a rare glimpse of reason, has struck down the anti-tattoo parlor law from the City of Hermosa Beach. The Ninth Circuit stated that the US Constitution protects “collaborative creative processes” like newspaper reporting, which is assigned and reviewed by editors, or tattooing. The Court added, “Tattooing is a process like writing words down or drawing a picture, except that it is performed on a person’s skin.”

The lawyer for the tattoo artist, Robert Moest, told the LA Times that the ruling “will overturn similar ordinances in many small cities in Los Angeles County. Local governments could still pass zoning restrictions and charge license fees to fund health inspections of tattoo parlors, which generally operate safely and have a financial incentive to do so.”

The three Ninth Circuit judges presiding over this appeal were John T. Noonan, Richard R. Clifton and Jay S. Bybee. More from the LA Times here. You can also view the Ninth Circuit’s unanimous ruling here.


Will the US Supreme Court Decide What Is Art?

junkcar.sanmarcos-300x243The College Art Association (“CAA”), some artists, and a few other organizations have filed a “friend of the court” brief with the US Supreme Court asking the nine justices to hear a case concerning a removed artwork and the city of San Marcos, Texas. (pdf version of brief here.)

CAA argues that the Fifth Circuit Court of Appeals made a grave error by declaring that the advertising art “installation” in front of a business establishment was not “great art.” (Background here.) However, as I read the Fifth Circuit’s decision, they’re not saying that at all. What the Fifth Circuit is saying–rightly–is that when visual objects contain both speech and non-speech factors, intermediate scrutiny will apply and therefore grant the state the right to limit that speech. The Fifth Circuit also argues that when it is a mixture of expressive and non-expressive speech, the tedious task of deciding which it is is a case-by-case problem.

In the case of the City of San Marcos (Kleinman v. City of San Marcos), the Fifth Circuit rightly asserts:

Irrespective of the intentions of its creators or Planet K’s owner, the car-planter is a utilitarian device, an advertisement, and ultimately a “junked vehicle.” These qualities objectively dominate any expressive component of its exterior painting.

Finding that the car-planter was a utilitarian device with incidental expressive content, the Fifth Circuit looked to the Eighth Circuit’s reasoning when it faced a similar quandary. The Eighth Circuit,

… confronted … with a wrecked auto that was displayed streetside to remind the public how the owner’s son had been killed, had no difficulty finding that the auto’s removal under a junked-vehicle ordinance survived intermediate scrutiny. Davis v. Norman, 555 F.2d 189 (8th Cir.1977). When the “expressive” component of an object, considered objectively in light of its function and utility, is at best secondary, the public display of the object is conduct subject to reasonable state regulation. We therefore pretermit “recourse to principles of aesthetics.”

In other words, the question is not whether the “planter” is art or great art. The Supreme Court has already decided that. The question is whether the “planter,” which has both speech and non-speech factors, and its location, can be regulated by government. It appears that it can. I sincerely doubt the US Supreme Court will grant certiorari (to hear the case). Good luck!


Artist Uses Barbie; Mattel Loves It

After reading so many accounts of artists being stifled by copyright and trademark law, it’s a breath of fresh air to see an artist that is not only using a corporate asset in her artwork, but more so that she’s also working with the corporation to create artwork.

Not only does artist Margaux Lange use “dismembered” Barbie doll parts to create jewelry, she’s even designing an exclusive line just for Mattel. She’s not alone, so is Phillippe Starck and Jonathan Adler. This is not to say that all artists should only create with the permission or consent of another artist or corporate giant (there is after all fair use). This is only to say that if given a choice between defending a trademark and copyright lawsuit, and working with Mattel, it would take an idiot to choose the first (see Shepard Fairey).

More on Lange and Mattel here.


Judge Orders Filmmaker to Give Testimony

A federal judge in Manhattan ruled on Tuesday that a documentary filmmaker must submit to depositions in a case involving Chevron, writing in a strongly worded opinion that the oil company’s original request to see the filmmaker’s raw documentary footage was “no fishing expedition.”

Background on story here.


Damien Hirst Faces New Plagiarism Allegations

Charles Thomson, co-founder of the Stuckists art movement, alleges that several Hirst works – among them his medicine cabinets and spin paintings – were based on existing pieces. Hirst’s rebuttal coming soon. Hirst is no stranger to threats and allegations.

Via The BBC and The Telegraph.


NFL Logo Not Fair Use

An amateur artist who designed the original logo used by the Baltimore Ravens won a partial victory Thursday when a federal appeals court ruled the commercial use of game and highlight films from the Ravens’ first three seasons violates his copyright. The Ravens could appeal the Fourth Circuit’s majority decision to the full appeals court or the U.S. Supreme Court.

Via Boston Globe. Inside Higher Ed has some more recent thoughts on this here.


Happy Birthday VARA!

We would type-out the lyrics to that song, but you know what will happen.

Anyhow, Daniel Grant over at the WSJ has just written an article on the Visual Artists Rights Act of 1990, commemorating in part the statute’s 20th anniversary.

Grant asks,

[Q]uestions have arisen that were not predicted in 1990. Do artists have the right to stake out where that artwork will be permanently placed? Can artists claim that whatever they make and identify as art has to be treated accordingly? If a damaged artwork undergoes restoration and the artist doesn’t like how it was done, can the artist claim the work was “destroyed”?

Grant also wonders if “making something better actually makes it worse.” This raises a whole slew of questions and fact-finding, mainly the double-edged issue of what constitutes “better” and who gets to decide what that “better” is. Cleaning and restoration aside, under VARA, this right would belong to the artist.

Grant correctly notices that one thing VARA has provided the arts community is contractual commissioning language where the artist waives her/his moral rights. Is this bad? Not necessarily. If artists continue to educate themselves in law and artists’ rights (copyright, fair use, free speech, contracts), they will have educated themselves not only in the nuances of contractual language, but also in the art of negotiation and professional decision-making. Not every art commission is worth the trouble, and certainly no business arrangement should be one-sided.

One thing Grant notices is true: VARA decisions–particularly those at the appellate and Supreme Court level–are few and far between. Correct VARA decisions are another matter.

Two issues of note in Grant’s article:  one, Mr. Büchel did not initiate litigation against Mass MoCA. It was Mass MoCA that sued Mr. Büchel, seeking a court order granting them the right to exhibit Mr. Büchel’s work without his consent. Secondly, the District Court granted Mass MoCA permission to exhibit Mr. Büchel’s art work without his consent, so long as Mass MoCA made it apparent to viewers that what they were viewing was not the work of Christoph Büchel. [Disclaimer: I am one of the attorneys that is co-representing Mr. Büchel in this litigation].

Read Grant’s article in today’s WSJ here.


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