Saturday, September 5, 2015

Gary Indiana in Love With Trademark and VARA

prem.indiana.trademarkAccording to the NY Post, artist Robert Indiana is embroiled in a court fight with a former business partner, John Gilbert, over translated knockoffs of his multicolored 1960s masterpiece “Love.”

Gilbert claims Indiana signed an August 2007 agreement to license his iconic square logo for sculptures and tapestries bearing the word “prem” — Sanskrit for “love” — in both Sanskrit and English. Gilbert’s Manhattan federal-court suit seeks unspecified damages for breach of contract and unjust enrichment, along with an order barring Indiana from interfering with any future sales. Indiana counter-sued, seeking all profits from the sales of “English Prem,” as well as unspecified damages for alleged violations of trademark law and the Visual Artists Rights Act (“VARA”). Indiana also wants the Court to stop Gilbert from making “false statements” on Gilbert’s website.

Both Gilbert and Indiana are to meet in the lovely state of Maine this month to try and settle this out. Good luck! New York Post story here.


Free Culture’s Moral Panics Continue

On the heels of yesterday’s chicken little report over the death of creativity, Marc Aronson, writing for the NY Times, op-ed’s about how copyright is–you guessed it–killing the creativity of nonfiction writers. To his credit, Aronson does propose another “permission-based” structure, which I believe is actually called licensing. Here’s a snippet of his argument (and well within fair use):

[W]e have to fix a system that is broken: getting permission to use copyrighted material in new work. Either we change the way we deal with copyrights — or works of nonfiction in a multimedia world will become ever more dull and disappointing.

Really? Does the world really suck that much? Are we really starving for creative culture? Unfortunately, this “copyright is a weed to my dainty flowers” argument seems to forget that we’re still living in a free-market (and the freedom to contract to boot). Aronson continues:

Since authors and publishers have stakes on both sides of this issue, they ought to be able to come up with suggested fees that would allow creators to set reasonable budgets, and compel rights holders to conform to industry norms. [Bold text mine]

Interestingly enough, there was an argument made for the other side of productivity this week by S.E. Cupp. In her article, Idle hands are our workshop: My generation has forgotten how to make stuff, Cupp argues that her generation is one of thought and no action. Speaking of her grandfather:

Like so many from his generation, making stuff or fixing stuff or helping make stuff work better is what you did. But after the economic boom of the 1950s, that generation raised another generation that increasingly decided that making stuff wasn’t as fun or lucrative or important as thinking about stuff.

It wouldn’t be much of a stretch to argue that “thinking about stuff” is analogous now to appropriating stuff. After all, since the ’50s, we’ve been given ample academic ammunition on the birth of post-modernism and the death of originality. Think about it, wait for someone else to write about it, and then copy it. Free culture.


Word to the Wise: “[Art] dealers can do whatever they want and not tell clients about it.”

That’s news? Regardless, whether you’re an art collector or artist, today’s NY Times contains something quite rare to it: an interesting article regarding art world deals and shenanigans (among them what can happen if an artist or collector leave their art work with a gallery dealer without securing it under the uniform commercial code).


Art and Law Symposiums, Cultural Production, and Intellectual Property

Two upcoming events on art and law which you should not miss (and also because I’m participating in both of them).

The first is coming up on Friday, April 9, 2010.  The Ever changing Legal Canvas: Art Law & Culture and Its Impact on American Government and Jurisprudence consists of a number of afternoon panels on copyright, the First Amendment, art crimes, and their effects on visual artists. The event takes place at the Cornell Club’s Ivy Room, from 12pm to 5pm. For more information on this event please click here.

And then there’s, Access Restricted: “Intellectual Property in the Age of Digital Reproduction,” a round table debate between practicing lawyers, legal theorists, and a sociologist on who owns what and what is really at stake when creative production is regulated through the structures of property rights. I’m moderating this panel, which will feature Fordham Law Prof Sonia Katyal, IP lawyer and artist Alfred Steiner, Sociologist and NYU Prof Andrew Ross, and art historian/lawyer Virginia Rutledge. This event is free to the public and takes place on Wednesday, April 14th, from 6:30 to 8:30pm, at the law offices of Cleary Gottlieb Steen & Hamilton LLP. For more info on this event, please click here.

Hope to see you there!


Does Copyright Stagnate Creativity?

The Center for Social Media at American University just released a survey on the impact of copyright and fair use on communication scholars. The survey was conducted by the Ad Hoc Committee on Fair Use and Academic Freedom in the International Communication Association (ICA), and which, in their words:

[R]eveals that copyright ignorance and misunderstanding hamper distribution of finished work, derail work in progress, and most seriously, lead communication researchers simply to avoid certain kinds of research altogether.

The survey notes that many communication scholars avoid, or worse, abandon, research subjects because of copyright concerns, while others encounter resistance from publishers, editors, and university administrators.

I took a quick look at the charts presented on this survey, and I’m a bit surprised by what the numbers show. Only 17% of respondents said that they had faced resistance from a journal publisher to use copyrighted material without permission or payment for an academic article. Facing resistance from book publishers, only 19% said yes. When these respondents were asked whether or not they had to pay for material when they were sure that their use fell under fair use or another exemption, only 14% said yes, with 24% saying they had to get permission. This is interesting, considering that only 15% of respondents seek advice on fair use and copyright from lawyers in university counsels.

I’m a bit suspect of the language used in this survey, because if there is one thing we can be sure of when it comes to fair use it is that there is nothing we can be sure of when it comes to fair use. (This is one example of near-hyperbolic language in the survey.) The three numbers above, 17%, 19%, and 14% do not seem to me to be indicative of an apocalypse of creativity. What they do show is the need to educate communication scholars in intellectual property law–particularly copyright and fair use. In fact, what is truly needed is the education of creative individuals in all professions and fields. The survey seems to indicate this educational need:

The great majority of researchers are less than fully confident in their own knowledge of copyright, want to learn more, and often seek help to know how best to proceed when using copyrighted works. Nearly half of them rated their own understanding of copyright as fair (31%) or poor (12%). Only 17 percent rated their knowledge as excellent, although another 40 percent rated it as good.1 Those who have a fair or poor understanding are not generally satisfied with this and want to know more. Of this group (43%), 16 percent have a very strong and 45 percent have a moderately strong desire to know more about such copyright exemptions as fair use. Nineteen percent of all respondents say that they have had concern or anxiety when they have included unlicensed copyrighted work in their own published work.

I can definitely say this. There are lawyers–your truly included–who are never sure of what copyright and fair use protect and liberate. This survey is a good beginning, and hopefully one that will engender dialogue between communication scholars and copyright practitioners. I’m in.

The Survey is available here.


Copyright: Proposal and Lament

Two interesting blog articles today concerning copyright. The first blog article, by Alyson Stanfield, takes a fresh approach to the copyright issues museums face when exhibiting work to which they do not own the copyright. Alyson proposes a “blog room” of sorts analogous to press rooms, which would provide bloggers with some sample images and content which bloggers could use to review and promote museum exhibitions. Not a bad idea.

The other blog article comes to us via The Atlantic’s Kembrew McLeod, an associate professor of communication studies at the University of Iowa and an independent documentary filmmaker. Note that Kembrew lacks any formal legal training (and presumably a J.D.). I say this not as educational snobbery or pretension, but rather to highlight the ongoing “free culture” cry by those that lack any true understanding of the legal and constitutional underpinings of copyright and law in this country (the U.S.), not to mention artistic creativity. Kembrew’s lament adds fuel to a moral-panic fire in dire need of some rationale, legal understanding, and practical understanding of the fair use nuances dictated by each individual medium (music, film, visual art, writing).


Duchamp: Still Playing With the Art Market

Speaking of Duchamp’s readymade, a few Art & Law residents mentioned this to me last night:

Collectors of contemporary art are comfortable acquiring individual works in series, but they don’t relish unlimited editions or dodgy authorship. Some may be dismayed to learn that there are at least three more “Duchamp urinals”. Gio di Maggio, a collector whose Fondazione Mudima is in Milan, and Luisella Zignone, a Duchamp collector based in Biella, both have “Fountains” that Mr Schwarz says he gave as gifts. Sergio Casoli, a Milan dealer, is also thought to own one.

According to The Economist:

The artist’s estate is not pleased. …Some Duchamp connoisseurs are outraged. …Others appear more ambivalent.

Sure enough, if you guessed that this was Duchamp’s strategy, you may be right.

One wonders whether the Dada master, who challenged the notion of the authentic artwork, might not be amused by the way these questionable “Fountains” muddy the waters of his current market. “My production,” he once said, “has no right to be speculated upon.”


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