Tuesday, July 28, 2015

Google v. Garcia: Full Panel Finds No Copyright for Individual Performance

This week, the full panel of the 9th Circuit Court of Appeals found in Google vs. Garcia that an actress portrayed in the film Innocence of Muslims, Cindy Lee Garcia, did not hold copyright in her performance. The 2012 film, which led to protests and attacks in several Islamic countries because of its insulting content, included a dubbed over version of five seconds of a performance Garcia gave in response to a casting call for a different film, an action-thriller titled Desert Warrior. Last year, a three-judge panel of the 9th circuit issued a preliminary injunction which required YouTube and Google to take down any version of the Innocence of Muslims which included her performance, based on a finding that Garcia would likely prevail on her claim that her performance was independently copyrightable. The full panel has now reversed that holding, and YouTube can post the film.

film-productionThe Court clarified whether actors, or any other of the many individuals who contribute to the production of a film, have an independent copyright in their specific contribution.  A motion picture, qualified as an “audiovisual work” under the Copyright Act, but the Copyright Office denied Garcia copyright protection of her performance, which could not be registered separate from the work itself, a “single integrated work.” This single work includes the contributions of many individuals, resulting in a “joint work” with multiple authors. Garcia disclaimed any authorship in the entire work and instead attempted to protect only her personal contribution. The Court found the Copyright Act does not support this type of protection; if all contributors to a motion picture asserted copyright for individual parts, the film would fragment into many, separately copyrighted works, an untenable theory.

Garcia also did not satisfy the basic requirement of “fixation” to copyright her performance, which the Court found had been fixed by the director and crew rather than the actress. The decision places copyright firmly in the creators of the audiovisual work rather than its participants.

Additionally, the Court dissolved the injunction because of First Amendment considerations. By requiring removal of Innocence of Muslims, the takedown order suppressed the political message of the film and deprived the public of a film of substantial interest. At times, including this one, copyright infringement must yield to First Amendment rights.

More via Frankfurt Kurnit.


Out-of-state Royalties Rejected in CA

2000px-Flag_of_California.svgThe 9th Circuit of the U.S. Court of Appeals struck down a clause in a section of the 1976 California Resale Royalties Act, the only law in the country which requires sellers of art to pay the artist a 5% cut of the price when their work is resold. In the en banc decision, the court found that part of the law violated the dormant Commerce Clause of the U.S. Constitution and interfering with other states’ commerce by attempting to regulate sales which occur out of state on behalf of California owners.  In 2012, a district court struck down the entire law as unconstitutional because of this violation.  However, on appeal, the court upheld the artist royalty if the sale takes place within California, severing the offending section from the law.

Auction houses, collectors, and gallery owners are therefore not required to pay the royalty for non-California sales, which California art sellers have complained places an unfair burden on them by placing a premium on California art sales compared to those in other states.

JDSupra raises a question in response to the decision: whether the Resale Royalty Act interferes with the first-sale doctrine of the Copyright Act, which preempts any state intrusion into federal copyright laws, an issue which may be considered on remand. This decision demonstrates the necessity of aligning the royalty rights of visual artists with those of musicians and filmmakers, as recently proposed by the U.S. Copyright Office.

More via The LA Times.


Venice Police Label Christoph Büchel Art Project a Public Safety Threat

Swiss artist Christoph Büchel is presenting the first Mosque ever to occupy the historic center of Venice as his contribution to the Icelandic Pavilion at the 56th Venice Biennale.

According to Artnet News,

The project—with the rather self-explanatory title THE MOSQUE: The First Mosque in the Historic City of Venice­—is installed in the former Catholic church of Santa Maria dell’Abbazia della Misericordia, a 10th century building that has been closed for over forty years.

However authorities in Venice have notified the Icelandic Art Center that Italian police believe the Icelandic national pavilion is a “threat to safety.”

The letter—which has been given to The New York Timesstates that Venice police is concerned about of the location of the installation, among other things.

More here.


Group roars against Christo’s River Project

A volunteer group, Rags Over the Arkansas River (“ROAR”), opposing Christo’s planned project to drape the Arkansas River with fabric has filed a brief asking the Colorado Supreme Court to review the case. Christo first proposed the project in 1996, and plans to drill steel anchors and erect frames to suspend 900 silver fabric panels 8-25 feet above 5.9 miles of the river between Salida and Cañon City. Installation would take about 27 weeks and the artwork would be displayed for an additional two weeks. The projected cost is $50 million.

The Court of Appeals rejected ROAR’s request in February to reverse the Colorado State Parks’ 2011 approval of the plan through the Bureau of Land Management. The Court of Appeals agreed with ROAR that the parks division violated its own procedures by approving the project through a cooperative agreement, and that the permitting shift was “arbitrary and capricious.”  However, the court ruled that this shift was “harmless error” and that the project would have been approved regardless, based on an extensive 1,700 page Environmental Impact Statement and 13 years of intense study of the project’s environmental effects. ROAR argues in its brief that this decision will have far reaching effects and threatens the state Constitution because the agency ignored its own regulations.

ROAR’s four previous legal challenges to Christo’s project have failed.

More via the Denver Post and The Gazette.


BREAKING: U.S. Copyright Office Publishes Index of Fair Use Decisions


Register of Copyrights Maria A. Pallante today announced the launch of the U.S. Copyright Office’s Fair Use Index, which is designed to provide the public with searchable summaries of major fair use decisions.

According to the U.S. Copyright Office, “Although not a substitute for legal advice, the Index is searchable by court and subject matter and provides a helpful starting point for those wishing to better understand how the federal courts have applied the fair use doctrine to particular categories of works or types of use, for example, music, internet/digitization, or parody.”

You can search for cases or just scroll down the list here.

On first sight this looks quite exciting and useful. Props to government on this one.


Tax Break for Art Collectors May Face Elimination

A provision in the tax code which has been used by art investors to avoid federal taxes may be eliminated by the Obama administration, leading to a surge in anxiety among those who treat art as an investment commodity. The provision, § 1031 of the Internal Revenue Code, allows those who invest in art to delay any taxes owed on a sale by immediately reinvesting the gain in a similar, or “like kind,” asset.  As long as the investor continues to exchange the art for more art, and the transfer qualifies, no capital gains tax (as high as 28% for sales of art or other collectibles) may ever be owed, even after the investor dies. There is no limit to the number of exchanges an investor can use to delay taxes. The IRS does scrutinize these transactions; the buyer must prove that the purchase was made as an investment for profit rather than personal enjoyment. The growth of the art market may rely on treating art as another asset class, but whether this particular asset class deserves favorable tax treatment is part of the debate.

The proposed revision of the law for the 2016 fiscal year would eliminate this tax break for sales of art, a change which could potentially bring in $19.5 billion in tax dollars that would otherwise have been avoided. However, some supporters of the provision say the savings promotes growth and creates jobs. The direct link between tax breaks for very wealthy art buyers and job growth seems tenuous.

More via the New York Times.


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.


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