Saturday, December 3, 2016

Fair Use Defense Does Not Get Past First Base

In December 2015, SDNY decided the case TCA TV Corp. v. McCollum. At issue was Defendants’ use of dialogue from the iconic comedy routine “Who’s on First?” for a Broadway comedy, “Hand to God.” The Plaintiffs, heirs of Abbott and Costello, asserted copyright ownership of the “Who’s on First?” routine and alleged Defendants infringed on their copyright.

Defendants filed a motion to dismiss for failure to state a claim, arguing the Plaintiffs failed to allege a continuous chain of title in the routine, that the routine had passed into public domain, and that their use was protected under the defense- fair use.

The Defendants’ motion to dismiss was granted as SDNY found Plaintiff did not sufficiently allege a claim for copyright infringement. For the motion’s sake, the court accepted the copyright assertion as true, but dismissed the case on the grounds that the use was protected under the fair use defense.

However, the Plaintiffs appealed this decision to the Second Circuit, but on October 11, lost the appeal. Although both courts ultimately came to the same decision, siding with the Defendant, the analysis in the Second Circuit appeal is in opposition to SDNY.

The Second Circuit found that Plaintiffs did not hold valid copyright to the routine, but that if they did, fair use would not be a defense. Specifically, the court stated the four factors of fair use weighed in Plaintiffs’ favor, and thus SDNY erred in their determination that fair use would be a complete defense in the matter. Where SDNY finds the use transformative, the Second Circuit argues the Defendant did not alter the original work at all.

Who got it right? and how will this change the precedent for fair use defenses?


Metropolitan Museum of Art Sued for Recovery of Picasso’s “The Actor”

A complaint has been filed by the estate of Alice Leffmann against the Metropolitan Museum of Art claiming ownership of a Pablo Picasso work, “The Actor,” in the museum’s collection.

The complaint asserts the painting was owned by Paul Friedrich Leffman, a German Jew, from 1912-1938. It goes on to allege that in the late 1930s, Mr. Leffman was chased into hiding and forced to sell his art collection, including Picasso’s “The Actor,” for well below its value. The work came into the Met’s possession in 1952 and has since remained in the collection. The Leffmann estate is demanding replevin, conversion and declaratory judgment.





Colección Patricia Phelps de Cisneros Gives Transformative Gift to The Museum of Modern Art, NY

Today, The Museum of Modern Art announced a major two-part gift from the Colección Patricia Phelps de Cisneros (CPPC). Comprising almost 150 works of modern Latin American art as well as the establishment of a research institute at MoMA, the gift will deepen understanding of the integral role played by Latin America in the history of modern and contemporary art.

Read more about this wonderful and generous gift over at the Cisneros Foundation website.


Michael Heizer’s Monument

We’re not huge fans of The (Bourgeois) New Yorker, but every now and then they do pen an article worth reading, such as this one on the work of Michael Heizer. In the article Heizer explains “what New York is turning him into: ‘A decaffeinated, used-up, once-was quick-draw cowboy, a sissy boy who eats at Balthazar for lunch.’”

We couldn’t agree more.


How to Recover Stolen Artwork?

When less than 10% of stolen works are found, what can owners do when they are robbed of artworks?

When artworks are stolen, they generally end up on the black market and sold to an individual buyer for a diminished price. The way to combat this is to notify the FBI and Art Recovery Group of the theft.  This will allow reputable buyers access to the theft information, alerting them that the work was stolen.

The risk of going public with the theft is that thieves will often abandon or destroy the work when the case becomes high-profile. Because the chance of being caught selling the work raises, thieves may consider the diminished value of the work worth the risk. The decision to report a theft or not proves to be a great challenge and contributes to the minute percent of successful recoveries.


New California Law Requires Certificate of Authenticity with Sale of Autographed Works

In California this past September, AB1570 Collectables: Sale of Autographed Memorabilia, was signed into law.

The law now requires autographed material sold for more than $5 to be accompanied by a certificate of authenticity. Specifically, the law stipulates:

“Whenever a dealer, in selling or offering to sell to a consumer a collectible in or from this state, provides a description of that collectible as being autographed, the dealer shall furnish a certificate of authenticity to the consumer at the time of sale. The certificate of authenticity shall be in writing, shall be signed by the dealer or his or her authorized agent, and shall specify the date of sale.” The law goes on to give specific points the certificate must include.

While it may seem like a simple crackdown on forged autograph sales, it may overly complicate the sale of smaller arts and antiques such as books.


Copyright Workshop at MoMA


Join us on Saturday, October 22nd, for Wikipedia Edit-a-thon: Arte y Cultura Latinoamericana (“WikiArte”), a communal day of creating, updating, improving, and translating Wikipedia articles about Latin American art and culture.

This year’s edit-a-thon kicks off at 10:00 a.m. with an hour-long conversation exploring the ways in which Latin American/Latina women artists are experimenting with and employing digital tools to engage with communities, share ideas, and make new work. The panel will feature artists Sol Aramendi, Sharon Lee De La Cruz, and Marisa Morán Jahn, and will be moderated by Rocío Aranda-Alvarado, curator at El Museo del Barrio.

Afternoon breakout groups will engage in focused discussions about translation, copyright, and what constitutes “notability” on Wikipedia. Sergio Muñoz Sarmiento will be leading the workshop on copyright and use of content at 4pm.

Don’t forget to rsvp, which you can do here.

There will be childcare available for the event, but please note: Childcare requires advance registration by October 18. Email with the number of children requiring care, their first names and ages, and what time you plan to arrive.

The day’s schedule is as follows:

10-11am: Public panel

11:30am: First training session

12:30pm: Lunch

1pm: First breakout session

1:30pm: Second training session

2:30pm: Second breakout session

3:30pm: Third training session

4pm: Final breakout session on copyright with Sergio Muñoz Sarmiento

5-6pm: Reception with cake and wine


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