Here's another new law review article on Cariou v. Prince, and this time it's from yours truly in collaboration with art historian and curator, Lauren van Haaften-Schick. The article is the product of a paper I presented at Texas A&M last year, and which dealt with appropriation art, copyright, and Cariou v. Prince. Rather than provide another article on how the Second Circuit's opinion went awry, I opted instead to take this writing opportunity to memorialize the numerous conversations I had with Lauren van Haaften-Schick on what this seminal appropriation art case meant for contemporary art, art history, and the current ...
File this under "Great Fucken Argument." Here's a Harvard Law Review note that applies a diplomatic but devastating critique to the Second Circuit Court of Appeals' Cariou v. Prince opinion. I won't bore you with a recap of the case (you should know it by now), but suffice it to say that this note takes a unique perspective on how the Second Circuit went off the rails when they relaxed the definition of "transformativeness." In brief, the note analyzes how the Second Circuit blurred the previously established line between transformativeness and derivative, yet did "not provide an aesthetically neutral method of distinguishing ...
That’s the theme of the weekend. And all last week. Much as been written about this issue, mostly against passing such a bill, the American Royalties Too Act of 2014, which is currently pending in Congress and may get its day on the floor tomorrow. What can one add to the drawbacks of the "ART Act"? Donn Zaretsky makes great points against it, and some for it, based on “fairness.” Neil O’Donnell has some thoughts here. Here's Rauschenberg's son opining on why it's a good thing. As Donn also points out, I wonder why the cap is set at $35K. Why that low? ...
On February 18, 2014, and at a time when global exchanges are de rigueur, the Vera List Center for Art and Politics, in collaboration with The Art & Law Program, presented a conversation on intellectual property, local culture, and international commerce between Vera List Center Fellow Jill Magid and artist and art lawyer Sergio Muñoz Sarmiento, facilitated by VLC director Carin Kuoni. If you missed this talk, the Vera List Center video taped the entire discussion and made it available online, here. The conversation was anchored by artist Jill Magid's current project, The Barragán Archives, a long-term multimedia examination of the legacy ...
An Auction Based on Emotions. That's what it's called. You can read more about this project here. It would surprise only a few to hear me say that on its face the project itself leaves much to be desired. What is of interest to me is this particular issue of using emotions to obtain property. I wrote about this back in 2008 in an essay, Structures, published by Unbound: Harvard Journal of the Legal Left. Go to page 67 for direct reference, but if you may want to start at the beginning so as to assess the development of my argument. On ...
Here’s the transcript of the interview I did with Triple Candie regarding their project at the Museum of Contemporary Art, Detroit, “I Cancel All My Works at Death,” on James Lee Byars. The interview is also accessible in print via the exhibition catalog, I Cancel All My Works at Death.
In this interview we talk a bit about copyright, moral rights, authorship, and appropriation.
No one can talk about the contents in the room. Period. That is the unyielding underlying principle of The Social Contract (2007– ), a project conceived by Jacqueline Riva and Geoffrey Lowe, who together form the collaborative A Constructed World. All those involved in The Social Contract, from curators to critics to audiences, must first agree to sign a legal document known as a Confidentiality and Participation Agreement before they are allowed to enter the room and look around. Having seen the artworks within, they continue to be bound for a set duration by a vow of silence, which includes making no reference to the contents of the room on Twitter, Instagram or Facebook, even to bedfellows.
Via Art Asia Pacific.
I feel like I write a monthly blog entry about a museum somewhere on this planet censoring Christoph Büchel. Here’s June’s entry.
The Hobart Museum of Old and New Art (MONA) was lambasted by Aborigines after they exhibited an installation by Büchel. In that art project, Büchel installed a stand offering DNA testing with a sign that read: “Are you of Aboriginal descent?” According to ABC News, “The Tasmanian Aboriginal Centre said it was disappointed it had not been consulted before the exhibit went public.”
Remarkably, MONA conceded, and they even apologized! Unfortunately, I have to say this is not surprising. MONA’s cowardly act is symbolic of the lamentable rebirth of identity politics and political correctness in the art world, as well as the recent trend of art museums in eschewing intellectually rigorous and controversial art works in favor of exhibiting commercial entertainment based on a common denominator.
MONA’s founder, David Walsh, citing Büchel’s previous legal battle with Mass MoCA, is ready for a legal battle: “If Christoph fails to approve our action he will have the right to legal process, of course. We know he knows about that. He has been involved in a long legal action concerning the failure of a previous show.”
I don’t know about anyone else, but I certainly am ready for another moral rights battle.
God bless Christoph Büchel.
This is the second and updated version of my “So, you want to be an art lawyer?” blog post, originally posted on December 19, 2009. I am writing this version for three reasons: one, given how many hits this post has acquired. Two, looking back at the 2008 economic crisis, and three, (and mostly) because of how many individuals contact me asking me for advise on how to become an art lawyer (incidentally, just today I received three e-mails from law students asking for this advise). So, here we go, an updated version with a few new thoughts and observations. I hope it’s helpful.
Imagine an artist working for another artist (typically called a studio assistant) and that same artist being asked to sign an agreement where she agrees to not work for another artist within a number of years dictated by that same agreement. Or a curator being asked to sign a similar agreement, where he agrees to not work for a competing museum or art institution. And what about an art instructor? Or writer agreeing not to write for a competing art journal?
Does it happen? You bet, albeit probably not to the extent that it does in other industries. But that might change.
A few weeks ago I read an article in the NY Times, where noncompete agreements were being signed by yoga instructors, chefs, and camp counselors, so why not workers in the art world? There are good reasons for noncompetes, such as keeping employees from walking with valuable proprietary information and intellectual property, not to mention having been trained and prepped by employer one only to lose that employee to employer two.
But there are also arguments against, primarily that most workers, certainly in the art world, do not have the bargaining power to negotiate NCAs. They also, in general, don’t have the financial capacity to hire attorneys to negotiate and review their NCAs. Lastly, it may hurt job mobility, forcing many workers to stay put rather than be unable to find a similar job with a so-called “competitor.”
As the articles below point out, there are some states that don’t enforce NCAs, such as California (roll your eyes), where as others, such as the great state of Texas place only a few limits on them.
Since that NY Times article a few weeks back, the Times has also had a “room for debate” on this topic, as well as an op-ed. There’s also this well-penned argument by Peter Cappelli, professor of Management at the Wharton School.
Dr. Mashael said the Islamic Fiqh Academy (IFA) of the Organisation of Islamic Conference (OIC) has already issued a fatwa in the matter which says “owners of trademarks, brands, authorship and inventions have copyright over them.”
Dr. Mashael also said the IFA has confirmed that copyrights and patents are protected according to Shariah laws, their owners have the right to protect them and infringement by others is forbidden.
For all my free-culture friends, colleagues and readers that think U.S. Copyright laws are too strict (and fair use practically non-existent), I challenge you to appropriate willy-nilly a la Richard Prince in a Shariah law-ruled country. Heck, it appears that under Shariah law there is no fair use, or any secondary use…at all! Take that for copyright maximalism.
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