Wednesday, October 18, 2017

When It Comes to Resale Royalties, How to Interpret the First Sale Doctrine?


This is the main question currently before the Ninth Circuit Court of Appeals.

The plaintiffs argue in their opening brief that “[t]he first sale doctrine prevents copyright holders from prohibiting or controlling downstream distribution of copyrighted works. . . .  It has nothing to do with the right of copyright holders to possess a financial interest in the proceeds of a sale.”

The defendants counter that “[u]nder the first sale doctrine, once a visual artist sells artwork, the artist loses the ability to interfere with future sales.”

Regardless of the court’s decision, this is a case the art industry should watch. As this online article points out, “[i]f the Ninth Circuit decides in favor of the plaintiffs, holding that the CRRA is not preempted by the Copyright Act of 1976, it may inspire other states to enact similar legislation codifying droit de suite. If the defendants prevail, and the CRRA is struck down, it may re-ignite interest in a federal codification of droit de suite that amends the first sale doctrine..


Is Baking Cakes Art?


If tattooing, passing out syringes, and kissing is art, then obviously the answer is, yes.

But the real question is whether the U.S. Supreme Court agrees. Here’s an interesting overview of a case now before the U.S. Supreme Court on whether a baker may refuse to serve a gay couple because the baker sees his practice as art, therefore arguing that the government cannot compel him to say something he does not agree with. The baker’s argument rests in part on a 1977 U.S. Supreme Court decision concerning state license plates.

Do you agree? The case is Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.


Does a Copyright License Cure Past Infringements?


No, says a New York district court, noting that “a license or assignment in copyright can only act prospectively.”



No Infringement; Play is Parody of “How the Grinch Stole Christmas!”

On a side-by-side comparison in a Rule 12(c) motion. Opinion here.


Why Is a Law Firm Investigating the Walker’s Handling of the Sam Durant Fiasco?

Does anyone else think it’s odd that the Walker Art Center has hired a law firm to investigate how the Walker’s executive director, Olga Viso, handled the Sam Durant fiasco?

Has anyone even addressed the potential moral rights claims yet?


“Wrapping an Instagram heading around somebody else’s photograph, I don’t see how that is transformative.”

Images in question in the Graham v. Prince copyright infringement case.

Images in question in the Graham v. Prince copyright infringement case.

Another article on Richard Prince and his appropriation practice. Not much new here, except perhaps to those as yet uninitiated (or bored).


Tired of Monkeying Around, Copyright Dispute Settled

The Naruto-Slater circus act has been settled.


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