Two interesting blog articles today concerning copyright. The first blog article, by Alyson Stanfield, takes a fresh approach to the copyright issues museums face when exhibiting work to which they do not own the copyright. Alyson proposes a “blog room” of sorts analogous to press rooms, which would provide bloggers with some sample images and content which bloggers could use to review and promote museum exhibitions. Not a bad idea.

The other blog article comes to us via The Atlantic’s Kembrew McLeod, an associate professor of communication studies at the University of Iowa and an independent documentary filmmaker. Note that Kembrew lacks any formal legal training (and presumably a J.D.). I say this not as educational snobbery or pretension, but rather to highlight the ongoing “free culture” cry by those that lack any true understanding of the legal and constitutional underpinings of copyright and law in this country (the U.S.), not to mention artistic creativity. Kembrew’s lament adds fuel to a moral-panic fire in dire need of some rationale, legal understanding, and practical understanding of the fair use nuances dictated by each individual medium (music, film, visual art, writing).

Speaking of Duchamp’s readymade, a few Art & Law residents mentioned this to me last night:

Collectors of contemporary art are comfortable acquiring individual works in series, but they don’t relish unlimited editions or dodgy authorship. Some may be dismayed to learn that there are at least three more “Duchamp urinals”. Gio di Maggio, a collector whose Fondazione Mudima is in Milan, and Luisella Zignone, a Duchamp collector based in Biella, both have “Fountains” that Mr Schwarz says he gave as gifts. Sergio Casoli, a Milan dealer, is also thought to own one.

According to The Economist:

The artist’s estate is not pleased. …Some Duchamp connoisseurs are outraged. …Others appear more ambivalent.

Sure enough, if you guessed that this was Duchamp’s strategy, you may be right.

One wonders whether the Dada master, who challenged the notion of the authentic artwork, might not be amused by the way these questionable “Fountains” muddy the waters of his current market. “My production,” he once said, “has no right to be speculated upon.”

This weekend was pretty quiet art law wise, but there were two interesting articles; one from the Wall Street Journal and the other from Ray Dowd’s Copyright Litigation Blog.

The WSJ covers the business of authorized replicas and their effect on how tourists see and experience art. Dowd’s blog article focuses on what Dowd calls “the the misbehavior of U.S. museums and their lack of adherence to the Washington Principles on Nazi-Confiscated Art.” Dowd continues:

U.S. museums have it backwards and should be trying to figure out whose stolen property they are holding.  It was heartwarming to hear Goldstein affirm that museums do not have a fiduciary duty to litigate all claims and defenses relating to the stolen art in their collections.

Both worth reading; check them out.

A $100,000 painting by Swiss painter Paul Klee has been returned to its owner, 21 years after being stolen from a New York art gallery. Via The Toronto Sun.

I wrote earlier this month about copyright lawsuits being used to protect meaning. Interestingly enough, I was at Columbia Law School last night for an Art Law Career Panel, and a friend of mine, Kate Nelson, brought this issue to my attention via a recent NY Times article. I’m curious what “free culture-arians” think about the taking of someone else’s cultural property for monetary exploitation. 

Members of the Yellow Pocahontas tribe in New Orleans, LA, who create and wear ornate, enormous feathered performative sculptural works and come out three times a year to show them off, have been getting tired of being followed around by photographers who then use and sell these images on posters, prints, and calendars without compensating members of the Yellow Pocahontas tribe. 

Rightly so, the tribal members have been researching ways to protect their cultural heritage by looking into copyright law. They’ve begun filing for copyright protection for their suits, aided in large part by two New Orleans nonprofit legal organizations.  

The argument centers on the question of protection of the sculptural “costumes”: whether they are functional and thus not protected under US Copyright Law, or sculptural works, in which case the probability of these sculptural works receiving copyright protection increases dramatically. If it’s the latter, most non-authorized photographic images of these sculptural works would be considered derivative, therefore giving force to the tribal members’ argument of copyright infringement.  

In the NY Times article a photographer of these sculptural works is quoted as stating that he has been hearing these “complaints for years,” but that these complaints are unproductive since photographers make very little money from the images they take of these sculptural works. This photographer may want to look closer at fair use, in particular the fourth factor (“the effect of the use upon the potential market for or value of the copyrighted work”).  I would also look into the recent (and well reasoned) decision in Frank Gaylord v. United States.

This issue is ripe for a good copyright fight, and one that may indeed favor the tribal members and creators of original works of art. Read the NY Times article here. I’m curious what others think.

My two good friends, Sonia K. Katyal and Eduardo M. Peñalver, authors of Property Outlaws, have just written a lengthy article applying their notion of the intellectual property outlaw to Shepard Fairey’s use of the Associated Press’ (or Mannie Garcia’s) Obama photograph.

Katyal and Peñalver’s article is quite timely, and perfect for those looking for a counter-argument to my blog post, Are We Really Headed Toward Permission-Based Art Making? I want to note that my article focuses on (and at this point limits itself) to visual art, for I believe that the mediums of film, video, and music dictate a different fair use application and analysis.

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