Tuesday, October 21, 2014

Is That a Real Velázquez, or Are You Just Happy to See Me?

The Education of the Virgin, 1617-18. Photo: Yale University Art Gallery

The Education of the Virgin, 1617-18. Photo: Yale University Art Gallery

Two experts will battle it out at a symposium in Seville (15-17 October) sponsored by the Spanish bank Santander, which has paid for the work to be restored.

According to the Art Newspaper, “The foremost dissenter is Jonathan Brown, a professor of art at New York University’s Institute.” The proponent is a curator, John Marciari, now the head of drawings at New York’s Morgan Library and Museum, who attributed the work to Velázquez.


Federal Aviation Administration Approves Use of Drones by Filmmakers

"Group photo of aerial demonstrators at the 2005 Naval Unmanned Aerial Vehicle Air Demo" by U.S. Navy photo by Photographer’s Mate 2nd Class Daniel J. McLain.

“Group photo of aerial demonstrators at the 2005 Naval Unmanned Aerial Vehicle Air Demo” by U.S. Navy photo by Photographer’s Mate 2nd Class Daniel J. McLain.

On September 25, 2014, the Federal Aviation Administration (“FAA”) granted applications by numerous companies for permission to use Unmanned Aerial Systems (“UAS”) – more commonly known as drones – for film production on movie sets. This long-awaited move clears the way for filmmakers and others to use these low-cost filmmaking tools. However, a close reading of the FAA decisions reveals a number of restrictions on UAS.

More on the restrictions via Frankfurt Kurnit.


Why Copyright Owes Much to Mark Twain

Samuel Clemens (Mark Twain) poses in his classic white suit, 1905. George Edward Perine, Prints and Photographs Division, Library of Congress.

Samuel Clemens (Mark Twain) poses in his classic white suit, 1905. George Edward Perine, Prints and Photographs Division, Library of Congress.

On May 7, 1874, Samuel L. Clemens–the American author and humorist known as Mark Twain–wrote to Librarian of Congress Ainsworth Rand Spofford, seeking copyright protection for his pamphlet and its cover design.

Twain became so frustrated by literary piracy that from time to time he considered giving up books to write plays, successfully staging versions of “The Gilded Age,” “Huckleberry Finn,” “The Prince and the Pauper,” “A Connecticut Yankee in King Arthur’s Court” and “Pudd’nhead Wilson.”

Read more on Mark Twain and his promotion of copyright protection here.


Texas Rules Anti-Upskirting Law Unconstitutional

Detail from Fragonard's The Swing (1767). Via Wikipedia.

Detail from Fragonard’s The Swing (1767). Via Wikipedia.

Here we go again with another attempt at defining photography as a mere technological process.

State prosecutor, “Photography is essentially nothing more than making a chemical or electronic record of an arrangement of refracted electromagnetic radiation (light) at a given period of time[.]”

Hell no, said Judge Sharon Keller of the Texas Court of Criminal Appeals, “The camera is essentially the photographer’s pen and paintbrush, … [a] person’s purposeful creation of photographs and visual recordings is entitled to the same 1st Amendment protection as the photographs and visual recordings themselves.”

Once it had decided photography was protected by the First Amendment, the court went on to deal with the question of controlling a photographer’s thoughts.

“Protecting someone who appears in public from being the object of sexual thoughts seems to be the sort of ‘paternalistic interest in regulating the defendant’s mind’ that the 1st Amendment was designed to guard against,” Keller wrote.

In an 8-1 ruling, the Texas Court of Criminal Appeals said photos, like paintings, films and books, are “inherently expressive” and, therefore, protected by the First Amendment.

Hell, maybe Texas ain’t as conservative as some yanks think.

UPDATE: September 30, 2014

A faithful reader, Phillip Allen, tweets us and comments that the Texas Court did not say that “upskirt” and “downblouse” photos are constitutionally protected. He’s right. In fact, the Court did say that they agreed with Texas that “substantially privacy interests are invaded in an intolerable manner when a person is photographed without consent in a private place, such as the home, or with respect to an area of the person that is not exposed to the general public, such as up a skirt.”

The Court followed by saying that the law, as drafted, did not protect privacy in the least restrictive means, and that there were less restrictive alternatives which “would adequately protect the substantial privacy interests that may sometimes be threatened by nonconsensual photography[.]“

The Court concluded by saying that the current law, “to the extent it proscribes the taking of photographs and the recording of visual images, in unconstitutional on its face in violation of the Free Speech clause of the First Amendment.”

One other thing, Twitter follower dckath seems to think that we “champion” upskirt photos. What we were championing was the Texas Court’s correct reading of this law as overbroad and content-based, and thus unconstitutional.



‘If somebody’s going to profit from this art, copyright may be just the tool for ensuring that that somebody is the artists themselves.’


On the heels of my blog entry on why copyright, applied properly, benefits visual artists, there’s this article in The Atlantic on graffiti artists leveraging their copyrights against large commercial corporations who appropriate their graffiti images for commercial gain.

The more interesting question, to me, is whether the same graffiti (not commissioned murals) also garners moral rights protection.


Fair Use for the Rich and Fabulous, Part Deux


Just yesterday I was discussing my recent law review article (co-authored with curator and art historian, Lauren van Haaften-Schick) at PS1′s New York Art Book Fair. Van Haaften-Schick and I were asked by Eva Weinmayr and Andrea Francke, of AND Publishing, to discuss issues of artistic labor, medium, and class, which we address in our article.

I woke this morning to an NPR story on just this topic, where Andrew Gilden, teaching fellow at Stanford University Law School, shares our thoughts. Some of you may remember Gilden, who, with Timothy Greene, co-wrote Fair Use for the Rich and Fabulous. I mentioned it here, citing my blog entry post-Cariou-Second-Circuit-opinion.

The gist of our law review article, as with Gilden and Greene’s article, is not just that judges are, unfortunately, acting as art critics, but more perniciously, that they are doing so using affluence and sales of artworks as sole barometers with which to measure contemporary art practices and thus, fair use. Additionally, what van Haaften-Shick and I point out is the odd fact that those that seem to support this two-tiered fair-use system are mostly artists and curators that more closely align themselves (politically, conceptually, economically) with the likes of Patrick Cariou. Why then the disjunction? Read our article.

You can read and listen to NPR’s story here. If you’re interested in how the 7th Circuit analyzes a fair-use case, check out this story.


Lawsuit: Revenge Porn Law Criminalizes Artists

A coalition of artists, booksellers, and journalists, led by Dan Pochoda with the ACLU Foundation of Arizona, have united to sue Arizona Attorney General Tom Horne and all of Arizona’s county attorneys, alleging that a new state law making it a felony to distribute nude photos of someone without his or her consent is unconstitutional.

Arizona House Bill 2515 makes it a crime to “intentionally disclose, display, distribute, publish, advertise, or offer a photograph, videotape, film or digital recording of another person in a state of nudity or engaged in a sexual act if the person knows or should have known that the person depicted has not consented to the disclosure.” Violation is a felony punishable by up to 3 years and 9 months in prison.

According to Courthouse News Service, “The booksellers say the law would criminalize a number of constitutionally protected scenarios, such as a college professor who shows students ‘Napalm Girl,’ Nick Ut’s Pulitzer-Prize winning photograph depicting a naked girl fleeing her village in Vietnam, a newspaper that publishes images of prisoners at Abu Ghraib, or an educator who uses photos of breast-feeding mothers.”

The group seeks a declaratory judgment that the law is unconstitutional, and an injunction stopping its enforcement.


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