Christoph Büchel’s “Training Ground for Democracy” covered by Mass MoCA. Modification? Distortion? Derivative work?

I’m happy to be part of this artlaw series, Rethinking Artists’ Rights. In particular, I’ll be on a panel dealing with moral rights and the 1990 Visual Artists Rights Act.

From the Website:

Artists played a pivotal role in protests and government hearings on resale royalties, moral rights, and free speech during the 1960s-90s, but the legacy and relevance of that activism remains under-discussed. Since the destructive culture wars of thirty years ago, collaboration with law and policy makers has seemed fraught, leading us to question whether we should work with government or institutions, or build self-determined alternatives. Recent case law has produced an equally contested terrain, revealing ways in which artists’ rights issues can challenge cultural and legal norms of value, ownership, and free speech, while also demonstrating that the privilege granted to artistic expression can be manipulated towards conservative ends. In this time of heightened political involvement, how might the art community re-engage artists’ rights as a local politics? And how do we come to terms with the use of artists and artists’ rights in the larger context of ‘culture wars’ and anti-intellectualism deployed in the political field today?

This three-part round table series will bring together practitioners from art and law to unpack the legacies of artists’ rights statutes and cases, and imagine new ways forward.

Organized and facilitated by Lauren van Haaften-Schick, former Associate Director and fellow (’12) of the Art & Law Program and Kenneth Pietrobono, fellow (’16) the Art & Law Program.

Rethinking Artists’ Rights
Roundtable series at Pioneer Works
April 18 // May 15 // June 18 // 7-9pm
159 Pioneer Street, Brooklyn, NY

All events free and open to the public with advance registration

On Tuesday, April 10, 2018, the Ninth Circuit Court of Appeals heard, once again, oral arguments on the validity of the California Resale Royalty Act (“CRRA”), which provides that, subject to certain limitations, “[w]henever a work of fine art is sold and the seller resides in California or the sale takes place in California, the seller or the seller’s agent shall pay to the artist of such work of fine art or to such artist’s agent 5 percent of the amount of such sale.” Specifically, the Court heard whether the CRRA conflicts with the first sale doctrine under U.S. Copyright Law.

As this post concludes, regardless of how the Court rules it does seem like the battle against resale royalties in visual art is not over.

You can view and listen to the oral arguments here.

No, the right to free speech does not include the right to disrupt the speech of others. “Otherwise there would always be a heckler’s veto,” said Erwin Chemerinsky, constitutional law scholar and dean of UC Berkeley School of Law. “The only speech then we would ever hear is that which is sufficiently noncontroversial that no one wants to stop it,” he added.

More here.

UPDATE: After the recent and disturbing events at CUNY Law, this post in In a Crowded Theater is quite apropos and on-point.

The firm will licence Wiley’s paintings for use on screen as well as “identify directing opportunities” for the artist, “option books” on his behalf and help him “produce, develop his own material [and] collaborate with other screenwriters,” according to a report on the film and entertainment news website Deadline.

More here.

This article spells out why James is likely to fail in copyright infringement claim against Nick Saban and the University of Alabama. Unfortunately, this same article also confuses trademark and copyright law.

At least under the Second Circuit umbrella? Scott Alan Burroughs seems to think so, first taking sharp jabs at the Second Circuit’s Cariou v. Prince opinion:

One of the more off-base elements of [the Cariou v. Prince] decision was the Second Circuit’s conjuring and application of the “transformative” fair use factor, which supposedly looks to how the unauthorized use “transforms” the original work. If this factor seems amorphous and out-of-place in a field of law that is well-delineated by the Copyright Act, that is because it is appears nowhere in the Copyright Act’s express list of fair use factors.

Burroughs then notes that a more recent Second Circuit decision may just right this “fair use” wrong:

[In Fox News Network, LLC v. TVEyes, Inc, the Second Circuit] saw through TVEyes’ claims of transformation and noted that the company was “unlawfully profiting off the work of others by commercially re-distributing all of that work that a viewer wishes to use, without payment or license.” Notably, the analysis looked to the market effect (a factor expressly stated in the Copyright Act) and placed less emphasis on the transformation of the use (which is not).

More here.

In what is being heralded as a victory for scholars, a New York State Supreme Court judge has dismissed London dealer James Mayor’s claims against Pace Gallery president Arne Glimcher and the Agnes Martin catalogue raisonné committee for excluding 13 works from the artist’s catalogue raisonné, a decision he says cost him $7.2 million. In an unusual step, the judge also awarded the gallery and committee members the full cost of their legal fees, an amount in the hundreds of thousands of dollars for which Mayor Gallery is now liable.

More here.