Saturday, November 1, 2014

‘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.


NPR on the Notorious Art Forger, Mark Landis


For nearly 30 years, art forger Mark Landis duped dozens of museums into accepting fakes into their collections. His stunts made headlines around the world. But Mark Landis never asked for money so he never went to jail. Now his paintings and drawings are in a touring exhibition called Intent to Deceive, and he’s the subject of a new documentary called Art & Craft.



Deep In…

Art or porn?


What’s More Important, Privacy or Free Speech?

In Europe it’s privacy; in the U.S. it’s free speech. But should the U.S. follow the European legal model and force online giants like Google to remove content from search outcomes? Jeffrey Toobin pens some interesting thoughts in his usual fluid and concise manner regarding this very same question. You may read it here via The New Yorker. Highly recommend it.


What happens when National Geographic steals your art?

Barrett Lyon. (Image courtesy of

Barrett Lyon. (Image courtesy of

UPDATED: September 26, 2014 2:53pm

Apparently, and like many corporate behemoths, they throw crumbs at the artist and insist that they were not aware and had no reason to believe that the image it stole was yours (the artist) and not an image by another individual. I mean, why call them liars in this day and age of the internet, social media, and Google! In the eyes of most appropriators, like National Geographic, finding an image online is tantamount to finding a dollar bill on prostitute row.

National Geographic used artist Barrett Lyon’s Internet image ( on the cover of its bookazine, 100 Scientific Discoveries that Changed the World, and in the book, The Big Idea, without Lyon’s permission or respecting the Creative Commons license that allows it to be used free of charge for non-commercial purposes.

I have to wonder why instead of paying their lawyers to answer cease-and-desist letters with aggressive and false allegations that they will win the mother-of-all copyright battles they don’t instead pay their lawyers to do a bit of due diligence work? Is it a cost-benefit-analysis question? Perhaps. I mean, why not take the risk that the artist will never find out, and hell, if the artist does find out, what’s the likelihood that they will have registered their copyrighted artwork with the US Copyright Office? What’s the likelihood that the aggrieved artist will have access to a blog such as this one, to the NY Times, or the Huffington Post?

From the looks of it the artist, Barrett Lyon, is not backing off and is instead looking forward to fighting the magazine that brought us nudie pictures of Amazon women and “Oriental” landscapes.


At this point, I think I am going to push my legal options… Not just for me, but for the rights of all the people they have ripped off.



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