I've been called a lot of things (including, "lawyer"), but one thing I can be proud of is never having been called a liar. I've been saying that appropriation-for-appropriation's sake is nothing but pure formalist laziness, pretty much since I was born (evidenced here), and others, like this law review article, have also opined on how the Cariou v. Prince case makes no distinction between the right of copyright holder to "transform" her copyrighted work and a secondary user's fair use right, upheld by a "transformative" judicial standard. Leave it to a Illinois-based judge to pen identical thoughts. The case concerns the use ...
After nearly a year of negotiations, the Texas Department of Transportation has reached an agreement with Ballroom Marfa that will save the Prada Marfa art installation by Elmgreen & Dragset by classifying it as a museum. The nine-year old installation came under scrutiny when the Texas DoT at first determined that it was a sign, and therefore in need of a permit. Glad they resolved this dispute. Now if they could only get rid of the annoying hipsters and baby-strollers. A big thanks to our dear friend, Gabe Aguirre, for the heads-up on this one. UPDATE: 8:10pm EST Ballroom Marfa comments.
Having two entities using the same word to identify similar services (books and reading) is likely a problem. I was confused. It doesn’t matter that both entities are nonprofits. Here's my latest ink on a trademark battle between two Brooklyn nonprofits.
I gave a couple of talks yesterday at SUNY Oswego. My first was on contracts, IP and business entities for artists. The other talk was an artist talk on my projects. For the latter I focused on my 2000- present work and got great responses and questions. The question that I liked the most, and that still has me thinking ("What is the role of the artist now?"), is one that I posed as an application question for the 2015 Art & Law Program: "What is the role of the artist in the 21st Century?" I'm still working on formulating my ...
Applications for the 2015 Art & Law Program are now being accepted. [caption id="attachment_7103" align="alignnone" width="300"] Art & Law Program seminar on contemporary art, copyright and moral rights.[/caption] Going on its 6th year, The Program seeks qualified candidates interested in the philosophical and practical relationship between art and law. For more information on The Program, please view the Program description. The 2014 Program focused on tangible and intangible property and contemporary art. For the 2015 term, The Program will focus on property, government and violence, with a particular emphasis on contemporary art and artistic production. Although the 2015 Program outline is still under ...
Sharing two pics of the Diego Rivera mural at the Detroit Institute of Art. If you’re ever in Motown, don’t miss it!
Another example of the ongoing employment battles, and one that studio artists and any art professional employing people to assist with their art work, research, or installations, should keep an eye on, especially those that like to classify workers as independent contractors rather than employees.
The 9th Circuit Court of Appeals has ruled that certain workers Federal Express had classified as independent contractors are actually employees. Once again, the Court emphasized “control of the work” as the main factor. From the LA Times:
While corporations claim the contractor system gives drivers flexibility and strong incentives as “small businesses,” critics say it’s simply a way to shift the costs of employment onto workers and avoid payroll taxes and workers’-compensation costs.
The basic question in lawsuits involving the independent contractor model is whether or not a company like FedEx still maintains control over the work itself. In Wednesday’s ruling, the judges asserted that it does.
FedEx has petitioned for an en banc hearing (where the entire 9th Circuit Court of Appeals rehears FedEx’s argument).
Prosecutors said James Meyer, 52, who worked with Johns for more than 25 years, collected $3.4 million between September 2006 and February 2012 from 22 works he stole from Johns’ studio and asked the gallery to sell. The gallery was not named in the indictment and was not accused of wrongdoing.
Via the LA Times.
Earlier this month I wrote in Hyperallergic that it would be very difficult to argue that a monkey could create a copyrightable work. Seems I was right.
The U.S. Copyright Office just released a draft of its compendium of office practices. Although not official until this December, The Compendium of U.S. Copyright Office Practices, Third Edition, (“Compendium”) now clearly states that the U.S. Copyright office will register an original work of authorship (e.g.- a photograph) “provided that the work was created by a human being.” The Compendium goes on to add, “copyright law only protects ‘the fruits of intellectual labor’ that ‘are founded in the creative powers of the mind.’” (Apparently the Copyright Office hasn’t watched Planet of the Apes.)
“Because copyright law is limited to ‘original intellectual conceptions of the author,’ the [Copyright] Office will refuse to register a claim if it determines that a human being did not create the work.” The Copyright Office “will not register works produced by nature, animals, or plants,” nor purportedly created by a divine or supernatural being. As one example of an unauthored and thus unregistrable work, the Compendium lists “a photograph taken by a monkey.”
So not only is the U.S. Copyright office saying that an animal cannot author a copyrightable work, they are also saying that that particular work, no matter how cute or creative it may seem, cannot be registered with the U.S. Copyright Office. And under U.S. law, without that copyright registration a copyright lawsuit is untenable.
One last thing to note. Although the Compendium is an administrative manual meant to provide instruction and guidance to its staff, attorneys, scholars, and the courts, it does not have the force and effect of law. However, it does have persuasive power, and the Supreme Court has said that as such, it is perfectly acceptable in a court of law.
In Park City, Utah, “Third District Court Judge Todd Shaughnessy this week issued a warrant for David William Noll after he failed to appear for a court hearing. Mr. Noll was charged with one count of criminal mischief after he allegedly vandalized two Banksy murals along the city’s main street on New Year’s Eve. Police say they have plenty of evidence: videos posted on YouTube of Mr. Noll painting over Banksy’s work.”
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