Thursday, May 28, 2015

First Amendment Protects AFDI Ad for MTA Buses

On Tuesday, Judge Koeltl, a federal judge for the Southern District of New York, ordered the Metropolitan Transportation Authority (“MTA”) to display on its buses an advertisement, which criticizes Hamas and radical Islam, as protected speech under the First Amendment. The politically controversial ad was submitted by the American Freedom Defense Initiative (“AFDI”), a pro-Israel group. The ad had previously run in Chicago and San Francisco in early 2013 without inciting violence.

As described in Judge Koeltl’s decision, the MTA had refused the ad based on advertising standards adopted in 2012, specifically MTA Standard § (a)(x), which prohibits advertisements that “could incite or provoke violence or other immediate breach of the peace and so harm, disrupt, or interfere with safe, efficient, and orderly transit operations.” This language invokes two categories of unprotected speech previously defined by the U.S. Supreme Court: “fighting words,” in Chaplinky v. New Hampshire, 315 U.S. 568, 572 (1942), and incitement of violence or lawlessness, in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).  The MTA Security Director, Raymond Diaz, concluded that the ad submitted by the AFDI promoted violent attacks on Jewish people, and that it was reasonably foreseeable that the ad would incite violence in violation of the above standard.

The AFDI intended the ads as a counter to a “My Jihad” campaign run by the Council on American-Islamic Relations, which depicted Muslim individuals with positive messages, such as “‘#MyJihad is to build friendships across the aisle.’ What’s yours?”. The AFDI ads mimicked this structure and include Islamic extremist quotes or acts of violence, with the text “That’s #My Jihad. What’s yours?”.

Judge Koeltl first found that advertising space on the side of MTA buses is a “designated public forum,” where content-based restrictions on expression must be analyzed under strict scrutiny, the highest burden for a government (or state agency) to satisfy.  The MTA conceded that the refusal to display the ads at issue was based on their content. However, Judge Koeltl found that the content in the AFDI ad did not constitute “fighting words” nor “the advocacy of the use of force” and therefore is afforded the highest level of protection under the First Amendment.  The court then held that the standard cited in MTA Standard § (a)(x) failed to satisfy the requirements of strict scrutiny.

More via the Washington Post.


Jasper Johns Assistant Sentenced for Thefts

James Meyer, a former, longtime assistant to Jasper Johns who stole paintings from the artist’s Connecticut studio, was sentenced yesterday to 18 months in prison and ordered to pay restitution of $13.4 million to Johns and buyers of the works. Meyer was indicted in 2013 for stealing 22 artworks between September 2006 and February 2012. He had arranged to sell the artworks through a New York gallery, telling the owner that the works had been gifts from Johns. Meyer provided buyers with fictitious authentication certificates and required purchasers to agree not to resell, exhibit, or loan the art for eight years in an attempt to cover up the crime. Part of Meyer’s duties involved destroying art Johns was not happy with and protecting a studio drawer containing unfinished works, from which Meyer stole many of the pieces. Though Meyer returned 41 works after his arrest, prosecutors are still attempting to track down all of the works sold.  This case highlights the sometimes feeble information and authority relied on by galleries in sourcing works, even by living artists.

More via New York Daily News.


A Moral Defense for Copyright Breach?


The estate of Joseph Goebbels, Adolf Hitler’s minister of propaganda, is suing Random House for breach of copyright and demanding royalties over a biography of Goebbels which was published in Germany in 2010; the English edition is scheduled to be published in the UK in early May.  The biography quotes extensively from his diaries, which are copyrighted until the end of 2015.  Cordula Schacht, daughter of Hitler’s minister of economics who was acquitted at Nürnberg, represents the estate and initiated the suit.  Random House initially agreed to pay 1 percent of the net retail price to the estate but later retracted, based largely on moral grounds.

Rainer Dresen, general counsel of Random House Germany, believes paying for the excerpts would be immoral, especially considering the role of Goebbels in the Nazi regime. As Dresen told the Daily Mail, “[w]e are convinced that no money should go to a war criminal. This war criminal didn’t really commit acts by his hands, but by his words. These words prolonged the war… [and] should not bring any money… to [his] heirs.” However, Dresen suggested to Schacht that royalties could be paid  if she donated them to a Holocaust charity.

The author of the biography, Peter Longerich, the professor at Royal Holloway’s Holocaust Research Centre, believes this case has important censorship implications with respect to historical documents. “If you accept that a private person controls the rights to Goebbels’ diaries, then – theoretically – you give this person the right to control research,” the Guardian reports, “Control of the rights could have included an inspection of the manuscript before publication, which did not happen in this case. But generally speaking we cannot allow such control from private persons, whatever their interests are.   In this case, we are dealing with the daughter of a cabinet colleague of Mr. Goebbels. This is an absolutely unacceptable situation. It’s a question not only of morality, but of professionalism for a historian.” Yet the system of copyright law does not uphold a moral code or judge the recipients of its protection, and owners of copyright are entitled to an economic benefit.

Random House’s legal argument questions the ownership of the copyright by Goebbels’ estate. Hitler’s publisher had intended to publish the diaries posthumously, but the offices were destroyed by Allied bombing raids and no record exists of these plans. However, based on evidence within the diaries, Dresen argues the Bavarian government should own the copyright.

The case will be heard in the UK on Thursday.

More via The Guardian.


Act May Allow Artists Higher Deductions to Donated Artworks

On April 14, Patrick Leahy, senator of Vermont, again proposed the Artist-Museum Partnership Act, which would allow artists to deduct the fair market value of artworks donated to museums, libraries, or other educational institutions. Under current law, 26 U.S. Code § 170(e)(1)(A), artists may only deduct the cost of supplies in making the artwork, whereas a collector who donates the same work can deduct its full fair market value. The Act seeks to encourage artists to give their art to public institutions, a practice which virtually ceased following the introduction of this provision in the tax code in 1969, by creating a financial benefit.

The current provision was intended to prevent abuses of the tax code, where artists would be able to deduct more than the actual value of the work, because of the difficulty of valuing art objects prior to market sale.  However, the Act requires that the donation be limited by “artistic adjusted gross income,” income from the work, and also requires the artist to obtain a qualified appraisal of the fair market value of the work, as is currently required for collectors intending to deduct the value of a donated work. Additionally, the work must be donated to a qualified organization, where the donated item is related to the institution’s tax exempt purpose, and museums are often selective in determining which works will be accepted.

Supporters include the Association of Art Museum Directors, American Alliance of Museums, Americans for the Arts, League of American Orchestras, OPERA America, Dance/USA, National Assembly of State Arts Agencies, the Vermont Arts Counsel, and the Shelburne Museum. However, Senator Leahy has proposed this bill every legislative session since 2000 and it has not passed. The current political climate and stagnation of the U.S. Congress only decrease the chance that it will succeed this time around.

More via The Art Newspaper.


Resale Royalties Bill Proposed for Visual Artists

Siegelaub's "Artist's Reserved Rights..." Agreement.

Siegelaub’s “Artist’s Reserved Rights…” Agreement.

On Wednesday, the American Royalties Too (ART) Act of 2015, which would give visual artists resale royalties, was reintroduced by senators Tammy Baldwin and Ed Markey and the representative Jerrold Nadler. If passed, the Act would require a 5% royalty payment on works of visual art sold at auction for more than $5,000 to be paid to the artist or the artist’s estate. The Act seeks to correct a perceived inequity between visual artists, who do not typically benefit from any increase in the value of art beyond a first sale, and artists who produce books, music, or film, who do benefit from derivative or reproducible income.

The Act had been proposed in February 2014 (and previously in 1986 and 1987) but Congress failed to vote on it prior to the end of the legislative session last summer.  Supporters believe the current proposal is better positioned this time because of increased support of other government agencies. The U.S. Copyright Office recently published an analysis in support of resale royalties for visual artists. Over 70 other countries have already enacted a resale royalty provision for artists, though the implementation of the Author Resale Right in the EU has been unsteady at times, drawing criticism and retaliation from art dealers and auction houses.

More via The Art Newspaper.


Photographer Wins Privacy Infringement Case



Last week, the New York Appellate Division, First Department, found that privacy law does not protect individuals in glass-walled apartments from being photographed by an artist in a neighboring building.  The artist, Arne Svenson, is a critically acclaimed fine art photographer who used a telephoto camera lens to photograph people in the building across from him, without their consent, and exhibited a series of these photographs, called “The Neighbors,” in galleries in Los Angeles and New York. Two of the neighbors, Matthew and Martha G. Foster, sued Svenson on behalf of themselves and their children in May 2013 seeing damages and injunctive relief for violation of their right to privacy under New York Civil Rights Law §§ 50, 51; however, these statutes limit the tort of privacy to appropriations used for commercial (advertising or trade) purposes to avoid contradicting the First Amendment.

In August 2013, the Supreme Court ruled in favor of Svenson, finding that art is granted a broader protection of free speech than images used for advertising or trade purposes.  An artist “may create and sell a work of art that resembles an individual without his or her written consent,” and therefore, Svenson’s photos, as art and valued artistic expression, are shielded from sections 50 and 51 of the New York Civil Rights Law. Displaying the photographs in an exhibition “promote[s] the enjoyment of art,” a purpose beyond advertising or trade.

Judge Dianne T. Renwick, writing for the Appellate Division, agreed with the Supreme Court. Because Svenson’s photographs “constituted art work,” they were not used for advertising or trade and the statute did not apply.  The court found that “advertising and trade purpose” does not extend to all objects bought and sold in commerce, and advertising to promote the art work in connection with its sale is permitted under the First Amendment. The Fosters had no viable claim for violation of the right to privacy.

More via the ABA Journal and artnet News.


Creative Time To Restage Tania Bruguera’s Tatlin’s Whisper #6 in Times Square

Havana City, Havanna, 31 March 2009

Havana City, Havanna, 31 March 2009

Creative Time is staging a performance of Tania Bruguera’s Tatlin’s Whisper #6 in Times Square on Monday, April 13 from 12:00–2:00 p.m.

According to Artnet,

The performance is a public act of solidarity with Bruguera and other artists around the world currently facing violence and criminal charges for exercising their freedom of expression. In a Facebook event to publicize the happening, organizers declare: ”As citizens of the world with a shared humanity, we urge the government of Cuba to drop all charges against Tania Bruguera, Angel Santiesteban, and Danilo Maldonado “El Sexto,” who are either imprisoned or facing imprisonment for doing what every person of the planet should be able to do: expressing themselves.”

More info via Creative Time’s Facebook page.


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