Thursday, June 30, 2016

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.


Can a Cocktail Be Copyrighted?

It depends.

Like all other creative individuals, bartenders are looking to get into the intellectual property field. According to The Atlantic, bartenders are increasingly seeking protection for their concoctions. One bartender, Eban Freeman–who also led the a recent symposium on IP and bartending (yes, you read that correctly)–seems to think this is a natural progression:

“In no other creative business can you so easily identify money attached to your creative property,” Freeman went on. “There is an implied commerce to our intellectual property. Yet we have less protection than anyone else.”

When asked if bartenders and creative individuals should safeguard their ideas, Freeman was adamant:

“I think all creative people at one point or another start to think about these things.”

It’s a decent article, but like many others I’ve read recently, it makes a major mistake by conflating copyright and trademark. You be the judge: read the entire article from The Atlantic here.


Don Henley: “Copyright Office clearly has not been a strong enough advocate for copyright owners”

the-eagles-1Rolling Stone is notoriously left-wing, but one would hope that left-wing does not necessarily mean irrational. In an attempt to prove this dictum wrong, Rolling Stone magazine ran a story last week that pins The Eagles’ Don Henley as “surprisingly conservative,” simply because he wishes to protect his songs from being used by any political party for whatever purpose.

We don’t license our songs for political purposes, just as we don’t license them for commercial uses. We don’t write these songs for the purpose of selling products or people.

Why Rolling Stone would pigeonhole Henley as a “conservative” simply because he doesn’t give away his livelihood is beyond comprehension (or, maybe it isn’t). They’re probably more upset because he didn’t have the lyin’ eyes, or make the usual political distinction “free culture”individuals usually do (fair use for liberals; strict copyright enforcement for conservatives). Henley is pretty clear about their music: they don’t make their property for Obama or McCain, Palin or Pelosi. Period.There will be a heartache tonight!

His views on the Copyright Office are just as critical and blunt:

[T]he U.S. Copyright Office clearly has not been a strong enough advocate for copyright owners, particularly when you look at its most recent decisions. …Because the Copyright Office is a part of the Library of Congress, and the mission of a library is to provide free access to the public, there is an inherent conflict of interest. Perhaps the time has come to separate these institutions so that they are not at cross-purposes. …[S]ince U.S. music, film and other creative copyrights comprise one of our country’s most lucrative sectors, here and abroad, moving the Copyright Office under Commerce Department’s umbrella might be the most effective way of enforcing the law.

It is so refreshing and welcoming to finally have a famous artist speak out on behalf of artists, their property, and their copyrights. Check out Henley’s other views on copyright, the DMCA, file-sharing, and music here.


Graffiti and Muralism In NYC

Today’s WSJ has two articles on painting and public space. One on the attempt by graffiti artists to gain some respect; the other on muralism. Not quite the same of course. Upset that graffiti is viewed by many as a criminal act, graffiti activist Craig Dershowitz is forming a nonprofit, the Urban Art Foundation with the intent of “decriminalize art and at the same time promote it for future generations.” “Fashioning itself as an ACLU for those charged with graffiti-related crimes, the group plans to raise legal funds, create a database of attorneys and even attempt to turn some of the city’s high-profile graffiti spots into landmarks or protected areas.” It will be interesting to see how successful this nonprofit becomes.

Right below this story lies an article on murals, particularly those located at the northwest corner of the Bowery and Houston Street and owned by developer Tony Goldman. Goldman has chosen another artist, Barry McGee, to create an installment of murals on the same wall that used to house a mural by Shepard Fairey. According to Goldman, Fairey’s mural was attacked and defaced quite aggressively, forcing its removal earlier this week.

“I was angry about it,” he said of the damage done to Mr. Fairey’s work, “but when you’re out there, you’re out there. And when you are exhibiting in the streets you’re open to the public and you’re exposed,” he said. “My hope is that the work that is there will be respected. If there’s a message that ‘the street’ wishes to communicate, let them communicate it to me, and I’d consider making space for some valid discussion.”

Here’s a word of advice: try picking an artist with a modicum of credibility. Regardless, the question stands: was Fairey’s mural defacement due to Fairey’s hypocritical and cynical stance vis-a-vis art, copyright, and public space? The treatment of McGee’s mural will tell.


Wanted: Law Firm Art Consignments

The day of Toronto.

According to the blog, Above the Law, a young Toronto lawyer was desperate to fill his empty walls with art of high-repute. Unable to afford anything his superiors would not laugh at, this anonymous young lawyer posted an ad on Craigslist looking for artists who would loan him their two-dimensional works in exchange for exposure and, if lucky, the sale of the artwork. Unlike current gallery representations, the artist would keep 100% of the proceeds.

Above the Law has more on this story.


Filmmaker Michael Snow Sues for Commission Fee

81-year-old Canadian artist and experimental filmmaker Michael Snow is suing Toronto developers and a Hollywood producer for $950,000 in damages after he was denied payment for an installation, which they argue was never officially commissioned. Snow is suing for breach of contract, misappropriation of personality, and unjust enrichment in reference to Tower of Film, a piece he had begun for the entrance to the new headquarters of the Toronto International Film Festival. According to the Toronto Star,

Snow claims the defendants entered into agreements with both Snow and the City of Toronto to produce a modern version of historic moving-picture technology — creating an artistic monument to film, the medium rapidly being replaced by digital technology.

Also via Artinfo.


UPS Ad: Inspiration or Infringement?

SidebySideSmallGot wind of this story via our good friend and artist Ruben Verdu.

It seems another ad agency, Ogilvy & Mather located in Jakarta, has taken the work of NY sculptor Ryan Johnson and used it to promote not just themselves, but the shipping company UPS. The website, Co.Design, has their take:

Now, you might still think that there’s no way a bunch of ad hacks from Jakarta could have seen the work of a relatively obscure artist in New York. But Johnson’s work has been extremely prominent on sites such as DesignBoom and Ffffound (which in particular, as any designer will tell you, has become a first-reference for creatives looking for “inspiration”).

If you take a look at both images, there’s such an obvious similarity that the UPS sculpture ads seem derivative works of Johnson’s sculptures. What do you think? I’m not so sure that an apology from Ogilvy would be enough. According to Co.Design, both UPS and Ogilvy have commented on this coincidence (as they call it). Both deny any wrongdoing.


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