One of the many great things about the holiday season is that I get to catch up on some reading. Just last night I was re-reading my property casebook from law school (and what a treat), as well as The New Yorker from August 26.

I don’t think I can get our readers to peruse a property law casebook, but if you have a few minutes to spare definitely read “The Giveaway” via the New Yorker. Here’s a taste.

Given the recent controversies regarding authentication disputes, fakes, forgeries, and the wild financial speculation over modern and contemporary art, it is very refreshing to read an article based on an individual who (spoiler coming) donates fake artworks to major US museums and, get this, not for the money or the donative write-offs, but rather — and from what I can gather — simply for the philanthropic feeling and the status that philanthropy conveys.

This story is much more complex than that. But one thing I do have to say is that the sophisticated cultural narrative woven by this individual is the best piece of performance art I’ve had the distinct pleasure of reading about in a very long time — probably since Acconci’s Seedbed and Burden’s Shoot. This is art, pure and simple. There’s no criminal or unlawful intent, yet can there be philanthropic and personal reasons to donating fake works of art to multiple art institutions?

Whatever the case may be, this isn’t a simple case of fakes, forgeries and authentications. No, this is a much more creative and complicated project with creativity, subversion, social commentary and cultural critique to come along in a long while. This guy’s an artist, and yet he sees no need to call himself that or pepper his acts with art history or pass them through the myopic prisms of art institutions.

This is art. Read it.

File under, “leave the sculpture, take the cannoli.”

Facing criminal charges concerning the removal of a small church from his native country, Francesco Vezzoli, the so-called bad boy of Italian art, won’t be showing that church — his most recent art project — at MoMA’s PS1.

But not all is lost. According to Klaus Biesenbach, this controversy has aspects of “a real-time performance.” Comedy, tragedy, or publicity?

File under the “a bit unfortunate” category.

Here’s a 2-minute film short based on Star Wars. According to Brian Fung of the Washington Post, we won’t get to see the full-length version of this film because Star Wars is still under full copyright protection and will be for at least another 70+ years. Allegedly this short is based in part on Han Solo having had a child. Hopefully the filmmakers, artists, designers, and actors will get George Lucas’ attention and maybe a little fame and money. Kudos on a great job.

The Beastie Boys have penned an open letter addressing the recent GoldieBlox viral video brouhaha. In it, they portray themselves less as copyright bullies than principled artists. “As creative as it is,” they write, “make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads.”

The difficulty with this reasoning is that it places greater value on certain types of commercial speech (i.e., rap music) over others (i.e., advertising for girls’ science toys). As much as I might deride culture industry schlock as much as the next armchair Marxist, I don’t think the Beastie Boys envisioned a scenario like the GoldieBlox video when they decided to take the moral positioning they have. It’s one thing to just blatantly sample, appropriate (or even outright license) music to sell a product. I think this is more what the Beastie Boys had in mind (I can imagine, say, using, as is, the song “No Sleep Till Brooklyn” to advertise for Brooklyn Nets basketball would rub the wrong way). It’s quite another to creatively alter (into a parody, no less) music that sends a message at the same time that it sells what would seem initially a positive, empowering product for children.

Regarding fair use and commerciality, again, I reference Campbell v. Acuff-Rose, Inc.: “If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in [the 1976 Copyright Act's] preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities “are generally conducted for profit in this country.” In other words, there is no clean separation between creative and commercial expression. As much as we may admire the Beastie Boys’s stance, they, and all of us, would do well to think about the complexity of such umbrella terms as “advertising” and “commercial” in today’s always-online climate.

If anything, the Beastie’s balking makes for an even better case of fair use. The fair use doctrine is intended precisely for those instances where primary copyright holders would suppress speech they deem offensive (given their note, it’s doubtful the Beastie Boys would ever agree to license their music for advertising purposes other than their own). GoldieBlox would have no choice but to either a) use the song without consent, but attempt a fair use of it or b) abandon the project. I, for one, am glad they chose the former.

Let’s hope that in this case, the Boys make an exception to their anti-advertising golden rule. They’d be wise to.

As some of you may know, Clancco is going on it’s 9th year. As of today, there are over 1,500 published entries on this blog, and overwhelmingly mine.

Given the last debate Alfred Steiner and I had in the ‘comments section’ over the Lauren Clay v. Smith Estate situation, I started thinking that there had to be a better way to make our conversations and debates available to the general public.

Nate Harrison

And what better way than to invite individuals with whom I frequently converse about art & law issues to contribute to this dialogue directly on Clancco.com via blogposts? So, as of today, I have invited artist and writer Nate Harrison; artist and lawyer, Alfred Steiner; and artist and curator, Lauren van Haaften-Schick, to contribute to Clancco.com and to the growing art & law dialogue.

Alfred Steiner

They will be contributing as they see fit. Readers will see their names as authors below the title of each blog post. Readers will also be able to find their previous entries under the “Categories” section, located on the right-hand side of the page. Nate Harrison’s first post concerning the Beastie Boys and their copyright infringement lawsuit against a toymaker went live today, and can be accessed here.

Lauren van Haaften-Schick

I know their contributions will bring a fresh and diverse perspective to this thing of ours, art & law, and I look forward to seeing how this experiment develops. Welcome!

So it seems the Beastie Boys, along with their corporate record label cronies, have threatened to sue GoldieBlox for copyright infringement for the toy company’s recent viral video parody. The video takes its cues from the Beastie Boys song “Girls” but inverts the original’s misogynist lyrics in favor of a pro-science/math message for young girls. It’s time to change/We deserve to see a range/‘Cause all our toys look just the same/And we would like to use our brains/We are all more than princess maids goes the GoldieBlox version. In my mind this is clearly a parody and as such should be deemed a fair use. GoldieBlox has actually launched a preemptive strike in the matter by filing documents with a California Court that would force a ruling on the issue.

It’s especially ironic that the Beastie Boys are behind the infringement drama, as it’s generally understood that they, along with other artists such as Public Enemy and De La Soul, were so integral to the early and creative use of samples in ’80s hip hop. The Beasties of all people should be sympathetic with the novel use of pre-existing materials. This not to mention that the group is itself still dealing with a lawsuit from their seminal recording Paul’s Boutique.

Pundits no doubt will look to fair use’s “four factors” to help evaluate how much of a case there is here. Perhaps the strongest accusations against GoldieBlox are a) it’s a commercial venture exploiting the familiarity of the Beastie Boys’s song (though commercial activity does not foreclose fair use) and b) derivative rights (though it’s unclear how realistic it is to assume the Beasties would produce or license a version of its own song that mocks the band).

Much has been said lately of the concept of the “transformative” within the fair use doctrine (e.g., Cariou v. Prince). In my mind, there is no doubt the GoldieBlox version contains “new information, new aesthetics, new insights and understandings,” and is therefore transformative/fair use. I mean, wasn’t this already settled in 1994 with Campbell v. Acuff-Rose Music? 

PDN Pulse reports that a jury has awarded photographer Daniel Morel $1.2 million in damages after deciding that Agence France-Presse (AFP) and Getty Images willfully violated his copyright.

You may remember that last January a NY District Court judge found that Agence France-Presse and The Washington Post infringed on the copyrights of photographer Daniel Morel in using pictures from Morel’s Twitpic account that he took in the aftermath of the Haiti earthquake in January 2010. The judge also ruled that Morel did not forfeit his copyright when he published his images to Twitter.

Lindsey Comstock, of Photoforward, has more on the defendant’s reactions here.