Connecticut Town Takes Down Painting Including Image Of Mother Teresa Over Bogus Copyright Claim

from the paint-me-a-picture dept

Tue, Mar 3rd 2015 11:32am — Timothy Geigner

At this point, we probably don't need any more evidence that the emergence of publicity rights and its conflation with other forms of intellectual property, such as copyright, is a festering cancer in our culture that we'd do well to excise post-haste. Still, necessity isn't the mother of these stories that keep on a-coming anyway. The most recent example of how stupid this all has become is a small Connecticut town taking down a donated painting that includes an image of Mother Teresa over intellectual property concerns. More frustrating is how neutered the press covering the issue is in competently discussing the validity of the issues being raised.

Trumbull officials have temporarily removed artwork displayed at the public library over concerns that the use of Mother Teresa's image in the painting infringes on copyright. The painting, which Dr. Richard Resnick donated to the library, shows Mother Teresa and other women marching, holding signs that say messages including "Planned Parenthood," "Mission of Charity," "Feed the Poor," "Remember The Ladies," "Hospital Reform" and "Right to Vote," among others.

Let's get the easy stuff out of the way. Resnick had ownership of the painting when he donated it. There wouldn't be a valid copyright claim here even if the original artist was among those raising the issue, which doesn't appear to be the case. The library has every right to display the image. There aren't any copyright questions at all. All the reports this author has seen identify only "independent organizations" as claiming there is a copyright issue here at all. Should the actual claims center instead on publicity rights instead of copyright, that claim, too, would fail. First, there is no commercial use here. It is a painting rightfully owned and then donated to a municipality. Mother Teresa is a public and historical figure. And, again, there has been no indication that the estate of Anjeze Bojaxhiu, commonly known as Mother Teresa of Calcutta, is among those raising the issue. There is simply no applicable intellectual property concern here.

However, it seems that everyone involved (perhaps including the reporter) has no clue about any of this:

"Our initial research has shown that there is a doctorate of ‘Fair Use’ which allows a party to depict even someone of a public nature when it’s not designed for any commercial purpose," he explained.

It would be nice to be able to get a "doctorate" in "fair use" but it's likely the guy means (or even said) "doctrine." And while "commercial purpose" may have an impact on a fair use analysis it's not the only factor. But, more importantly, fair use isn't even an issue here because there's no copyright issue at all.

Which, of course, hasn't precluded Trumbull from pulling the painting proactively.

The town opted to remove the painting because the library lacks a written agreement with Resnick to protect the town against "any potential liability" from the copyright violation allegation, Herbst said.

“After learning that the Trumbull Library Board did not have the proper written indemnification for the display of privately-owned artwork in the Town’s library, and also being alerted to allegations of copyright infringement and unlawful use of Mother Teresa’s image, upon the advice of legal counsel, I can see no other respectful and responsible alternative than to temporarily suspend the display until the proper agreements and legal assurances are in place,” Herbst said in a written statement.

And, so, until such a time as the town and the donor can formalize a written agreement protecting themselves against all of this stupidity, stupidity prevails. It's hard to fault Trumbull officials too much for getting their protective documentation in place, I suppose. This is America, after all, the land of the lawsuit. Still, it's a tough pill to swallow to see a public entity bow even temporarily to the pressure of outside parties that have no standing, or apparent familiarity with the actual legal statutes they're pushing. Because, while none of the reports are naming the "independent organizations", everyone pretty much knows what's going on here. Resnick's attorney explains it nicely.

Elstein speculates that the controversy may have more to do with Catholic leaders' recent objections to Mother Teresa being depicted alongside a woman holding a "Planned Parenthood" sign.

Ah, so again intellectual property gets used to silence speech. Anyone still want to pretend that copyright and publicity rights aren't the favored tools of censors everywhere?

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Filed Under: connecticut, copyright, fair use, library, mother theresa, publicity rights, trumbull

40 Comments

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Vidiot (profile), 3 Mar 2015 @ 11:41am

I blame the Board
The Trustees of local libraries are, generally, ill-suited to serve; as politically-appointed volunteers, they're most likely to be chosen for being "nice", or seeming "cultured". Most professional members of the library's staff would do a far better job... their positions generally require a Master's degree in information science, and intellectual property law is a significant part of their training (and experience). I'm sure the Trumbull staff is near apoplexy (in their quiet, stereotypical sort of way) over the idiocy displayed by their Board.
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Michael, 3 Mar 2015 @ 11:58am

If only there were a place in which someone could walk in and borrow some books about copyright so they could learn a little about the subject before pulling a painting off of the wall.
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That One Guy (profile), 3 Mar 2015 @ 12:04pm

Re:
'Borrow'? As in for free? Without paying the author every single time someone reads it? For shame you filthy pirate, why with an attitude like that, it's only a matter of time until people stop writing books altogether and culture itself dies off.

If an author isn't paid every time someone reads their books, then what's the point of writing?
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Anonymous Coward, 3 Mar 2015 @ 12:06pm

looking for another example? try Cameron and the UK!
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Anonymous Coward, 3 Mar 2015 @ 12:10pm

This is somewhat understandable, since the problem is not so much about winning or losing in court, but about getting dragged into a lengthy and expensive legal battle over a meritless case.

The infamous Velvet Elvis painting might serve as an example of that.
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jupiterkansas (profile), 3 Mar 2015 @ 12:11pm

Re: Re:
It's time we shut down the government for facilitating copyright infringement on a massive, nationwide scale. They even provide a search index to make it easy to find and obtain copyrighted material.
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Anonymous Coward, 3 Mar 2015 @ 12:17pm

Perhaps the library board as well as the reporter should go to the library read some of the books in there in an attempt to better educate themselves about the issue.
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Anonymous Coward, 3 Mar 2015 @ 12:28pm

You only had ONE job...
Ok, it's way beyond ignorant board members and reporters that don't know what they are talking about...

"upon the advice of legal counsel"

What we have here is a lawyer that is giving advice to the city based on not having a clue about the law and apparently not willing to at least look it up first.
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Anonymous Coward, 3 Mar 2015 @ 12:38pm

By all means, do some reading....
I'm sure Hitchens "Hells Angel" is availiable within their library system. After reading that they won't want to hang a picture of the phony "saint" anyway.
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John Fenderson (profile), 3 Mar 2015 @ 12:45pm

Re:
The legal battle wouldn't be lengthy at all, since there is literally no copyright issue to be debated here. Any court -- even the most pro-copyright court you can imagine -- would just dismiss this right away.

The issue that they seem to be concerned about is more along the lines of publicity rights. I don't know if Connecticut has such a law, but assuming they do then the risk would be about a long, drawn-out lawsuit regarding that.
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Anonymous Coward, 3 Mar 2015 @ 12:52pm

Re: Re:
I've never heard of a legal battle that *wasn't* lengthy. Hiring any lawyer for long enough to actually bring a case to trial will cost a municipality six figures, minimum.
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Dark Helmet (profile), 3 Mar 2015 @ 1:09pm

Re: By all means, do some reading....
Couldn't agree with this more....
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Votre (profile), 3 Mar 2015 @ 1:22pm

The motivation however seems to be more because area Catholics objected to the subject matter and threw the IP argument in in order to allow the town's first selectman to "do the right thing" - without acknowledging the incident was motivated solely by religious considerations.

Fr. Brian Gannon, pastor of one of the town's Catholic churches - and the one who started the controversy - was quoted as saying:

"She (Mother Theresa) would have never picked up a banner and walked with these women at all."

Odd his knowing that considering the only person who could confirm that is deceased.

The comes the usual I'm not advocating for censorship...but argument.

Again from Fr. Gannon:

"I really feel very strongly that out of respect for who Mother Theresa is, the painting should not go back up. This has nothing to do with censorship, but with using someone's image in a true depiction of who they are."

Of interest, it was Fr. Gannon who contacted the Order of the Missionaries of Charity regarding the painting - and it was allegedly they who informed the Town of Trumbull that the use of Mother Theresa's image represented a copyright violation. Unfortunately, the local press has been unable to get a confirmation from the Order that such a notice was ever given - by them - to the town.

Sorry. But this is total bullshit. Especially in a state that has been relatively free of this 'religious' nonsense so far.
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Anonymous Coward, 3 Mar 2015 @ 1:40pm

Re:
I really feel very strongly that out of respect for who Mother Theresa is, the painting should not go back up. This has nothing to do with censorship, but with using someone's image in a true depiction of who they are."

Translation, I wish to make sure that people only see the person as I wish the the person to be seen. Which is the primary objective of censorship, control the information that people can see to match a predetermined viewpoint.
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Padpaw (profile), 3 Mar 2015 @ 1:46pm

It would have to be a devil worshipper making these claims of ownership over mother Theresa.

I can't imagine someone with faith in what she represents taking that picture down as that would be a blatant hypocrisy.

"oh that picture is promoting helping people and being kind to others, I must order that taken down to preserve helping others and being kind"
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Dark Helmet (profile), 3 Mar 2015 @ 1:49pm

Re:
Perhaps it would have been more apropos to incorporate her in a mural depicting all the money she took from the Duvalier family in Haiti or the money she refused to return that was given to her out of the savings and loan scandal?

Helping people. PPPFFFFFTTTT!
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Anonymous Coward, 3 Mar 2015 @ 2:09pm

Re: Re: Re:
Don't forget about shutting the courts down.
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rex herrington, 3 Mar 2015 @ 2:24pm

copyright mother theresa
I know that Tech Dirt is all about tech isuues, legal and otherwise, but my guess is for the complaintants it is not really about copyright but about the signs in the painting ...shows Mother Teresa and other women marching, holding signs that say messages including "Planned Parenthood," "Mission of Charity," "Feed the Poor," "Remember The Ladies," "Hospital Reform" and "Right to Vote,". One would think a northern state like this wouldn't be ramrodded into such stupidity. Ah well, we have similar unenlightened folks up here in Canada. They are a drag on us all.
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Votre (profile), 3 Mar 2015 @ 2:32pm

It's not the library board...
For the record, it wasn't the library board that ordered the removal. It was ordered by Tim Herbst, the town's First Selectman exercising some questionable judgement and even more questionable authority in the matter.
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John Fenderson (profile), 3 Mar 2015 @ 3:02pm

Re: Re: Re:
You don't hear of them because they don't become battles. Try it: sue someone for something that is completely unsupported. The judge will dismiss it on the first try.
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Rekrul, 3 Mar 2015 @ 4:48pm

And yet right down the road from me, there's a Simpsons mural on the side of a building. I really doubt that they got permission to paint Simpsons characters on their store.

(I tried to find a photo of it, but the Street View photos are a couple years out of date)
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Anonymous Coward, 3 Mar 2015 @ 5:17pm

Pushman v. New York Graphic Society
Pushman v. New York Graphic Society, 287 N.Y. 302 (1942), was a case decided by the New York Court of Appeals that held that, while the copyright in a work of authorship is distinct from the tangible embodiment of the work, if the only tangible embodiment of the work is transferred the copyright is also presumptively transferred.

Pushman gave the painting to Grand Central Art Galleries to arrange a sale of the work, who sold the painting to a University, who sold reproduction rights to the defendant, New York Graphic Society. Pushman sued for an injunction against reproduction of the painting. The court held that Pushman's sale was unconditional because he did not expressly reserve any rights at the time of the transfer.

The holding in Pushman created what was subsequently termed the Pushman presumption, which required an author to expressly reserve rights when transferring the chattel that embodied a work or risk transferring the rights as well.

Pushman was abrogated by § 202 of the Copyright Act of 1976, which establishes that the transfer of a tangible embodiment of a copyrighted work does not of itself transfer the copyright.

17 U.S. Code § 202 - Ownership of copyright as distinct from ownership of material object

Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.

Copyright Registration
for Pictorial, Graphic,
and Sculptural Works

Copyright protects original “pictorial, graphic, and sculptural works,” which include two- and three-dimensional works of fine, graphic, and applied art.

Copyright Office - Pre-72 Study Reply Comments
April 12, 2011

Pushman doctrine was itself preempted by Section 202 of
the Copyright Act of 1976, although it remains in effect for transfers completed before the provision's effective date of January 1, 1978.
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M. Alan Thomas II (profile), 3 Mar 2015 @ 8:59pm

The publicity rights bit is an eye-roller—if this is even nominally illegal, that just proves it's a bad law—but there's definitely no copyright issue here. And as far as copyright's concerned, as long as the painting itself was legally made, § 109(c) provides the library the right to display it.
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PaulT (profile), 4 Mar 2015 @ 12:34am

Re:
Leave religion out of it. You're looking in the wrong direction. It's almost certainly about money - someone wanting a payoff from the library to avoid the court battle (one that probably wouldn't have happened with such an obvious false claim, but the library clearly didn't know that). They just forgot that there were options other than "pay us" and "go to court".
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Pragmatic, 4 Mar 2015 @ 5:00am

Re: Re:
I'm not getting paid every time I post here. Oh, Miiiiike...! Check, please. /sarc
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cpenkoff (profile), 4 Mar 2015 @ 5:38am

Re: It's not the library board...
Herbst also led the charge to ban the production of RENT by Trumbull High School. He said at the time that the kids couldn't handle the subject matter. The protest made national headlines and the play was reinstated.

If the painting was removed to protect the town from litigation, why weren't all the paintings in the collection removed?
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Anonymous Coward, 4 Mar 2015 @ 9:33am

Re: Pushman v. New York Graphic Society
All of that is still completely beside the point. Copyright starts with the creator. If it was transferred with the sale or not does not matter as those who are complaining are not the artist and never owned the painting. There is no copyright issue here - at all.
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Mary Anne Sprague, 4 Mar 2015 @ 10:33am

Stopp Plannede Parenthood of Southern New England Representative
Mother Teresa would object herself if still alive of a sign promoting Planned Parenthood Federation of America being nonshellontly held in any march beside her as she is for the protection, rights and dignity of all preborn human life.
PPFA is the largest abortion provider in the nation paid for by your taxpayer dollars.
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Sheogorath (profile), 4 Mar 2015 @ 2:16pm

Why not bring the picture over here to the UK since we don't believe in 'publicity rights'? The only offence is false endorsement because it amounts to passing off akin to trademark law, so as long as Mother Teresa isn't holding a can of Pepsi or a Snickers bar in the image, no problem.
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Zonker, 4 Mar 2015 @ 4:55pm

Re: Stopp Plannede Parenthood of Southern New England Representative
Of course she would object. Here's what she would have said on that subject:
...Mother Teresa travelled throughout the world and received numerous awards, including the Nobel Peace Prize. In her acceptance speech, on the subject of Bosnian women who were raped by Serbs and now sought abortion, she said: "I feel the greatest destroyer of peace today is abortion, because it is a direct war, a direct killing--direct murder by the mother herself." *
So Agnes Gonxha was openly in support of forcing women to bear children against their will and deny women the right to have control over their own bodies.

Not only that, but she would have objected to every other sign on the list. On the "Mission of Charity" sign:
Mother Teresa was generous with her prayers but rather miserly with her foundation's millions when it came to humanity's suffering. During numerous floods in India or following the explosion of a pesticide plant in Bhopal, she offered numerous prayers and medallions of the Virgin Mary but no direct or monetary aid. On the other hand, she had no qualms about accepting the Legion of Honour and a grant from the Duvalier dictatorship in Haiti. Millions of dollars were transferred to the MCO's various bank accounts, but most of the accounts were kept secret, Larivée says. "Given the parsimonious management of Mother Theresa's works, one may ask where the millions of dollars for the poorest of the poor have gone?" *
So Agnes Gonxha was very much against the idea of charity work, preferring to pocket millions with no accountability.

On the "Feed the Poor" and "Hospital Reform" signs:
At the time of her death, Mother Teresa had opened 517 missions welcoming the poor and sick in more than 100 countries. The missions have been described as "homes for the dying" by doctors visiting several of these establishments in Calcutta. Two-thirds of the people coming to these missions hoped to a find a doctor to treat them, while the other third lay dying without receiving appropriate care. The doctors observed a significant lack of hygiene, even unfit conditions, as well as a shortage of actual care, inadequate food, and no painkillers. The problem is not a lack of money--the Foundation created by Mother Teresa has raised hundreds of millions of dollars--but rather a particular conception of suffering and death: "There is something beautiful in seeing the poor accept their lot, to suffer it like Christ's Passion. The world gains much from their suffering," was her reply to criticism, cites the journalist Christopher Hitchens. Nevertheless, when Mother Teresa required palliative care, she received it in a modern American hospital. *
So Agnes Gonxha expected the poor to accept starvation and lack of medical care to accept their station and suffer and be thankful for it.

On the "Remember the Ladies" and "Right to Vote", in her own words:
Time: Feminist Catholic nuns sometimes say that you should pour your energy into getting the Vatican to ordain women.

Mother Teresa: That does not touch me.

Time: What do you think of the feminist movement among nuns in the West?

Mother Teresa: I think we should be more busy with our Lord than with all that, more busy with Jesus and proclaiming His Word. What a woman can give, no man can give. That is why God has created them separately. Nuns, women, any woman. Woman is created to be the heart of the family, the heart of love. If we miss that, we miss everything. They give that love in the family or they give it in service, that is what their creation is for. **
So Agnes Gonxha was clear that women were to be treated differently from men and should not be afforded the same rights, only meant to raise families and serve men.

[Quote sources:
* Press release summarizing University of Montreal study of 502 documents on the life and work of Mother Teresa "Mother Teresa: Anything but a saint..."
** Interview with Mother Teresa conducted by Edward W. Desmond in 1989 for Time magazine]
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Anonymous Coward, 5 Mar 2015 @ 5:45am

Looks like not everyone is an IP attorney
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Jay Wolman (profile), 5 Mar 2015 @ 11:38am

I have taken only a cursory look at this, but I think you've neglected a second level copyright issue.
Unless the artist saw Mother Teresa live, he copied her image from some other fixed medium, be it a photograph or video. This is thus akin to the Shepard Fairey "Hope" issue, where Mr. Fairey's work may have infringed on the copyright of an AP photo (http://artsbeat.blogs.nytimes.com/2012/09/07/shephard-fairey-is-fined-and-sentenced-to-probation-in -hope-poster-case/?_r=0) .
Here, the artist's depiction is likely a derivative work; the only questions are whether the original work was protected by copyright (and whether those asserting it are the copyright holders) or whether the derivative work is permissible through fair use or another defense.

People use copyright to restrict undesired content regularly (e.g. DMCA takedown requests for revenge porn posting of nude selfies). This might be an extension of that use.
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enness, 6 Mar 2015 @ 7:39am

Re: Re: It's not the library board...
For the record, no he did not. It was the principal who (weakly) questioned it. Herbst tried to broker a compromise, but nobody was interested.

Let's keep the facts straight here.
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enness, 6 Mar 2015 @ 7:57am

Re: Re: Stopp Plannede Parenthood of Southern New England Representative
I'm sorry but what an idiotic comment.

"In their article, Serge Larivée and his colleagues also cite a number of problems not take into account by the Vatican in Mother Teresa's beatification process, such as "her rather dubious way of caring for the sick, her questionable political contacts, her suspicious management of the enormous sums of money she received, and her overly dogmatic views regarding, in particular, abortion, contraception, and divorce."

The last line there gives you the clue how credible this 'study' is. The Church declares "every procured abortion" mortally sinful. Likewise artificial contraception. Civil divorce permissible in some circumstances, but a valid sacramental marriage is considered indissoluble. Whether you agree with that or not, the Vatican can hardly be blamed for being consistent with itself. Christopher Hitchens an unbiased source? Pfft. Please.

If you can explain to me how dismembering or poisoning a baby in utero un-rapes a woman, I've got a cool million with your name on it.

As far as "serving," you added the word "men." You don't get to attack people with words they didn't say.

Debunking nonsense about Mother Teresa is not the primary reason I came here, so I won't be revisiting this.
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enness, 6 Mar 2015 @ 8:16am

Re: copyright mother theresa
There's no need to guess. I can tell you straight up what's offensive about it. It's not the suffragists or the hospital reformers, that's for sure.

Margaret Sanger wasn't about "helping people and being kind to others" as one commenter above put it. She aimed to create a "race of thoroughbreds," b***hed a lot about the money being spent caring for poor and intellectually disabled people, and suggested coercive sterilization. (This is easily found in her writings.) Any protestations aside, her views would have sat comfortably in the Third Reich. It is exactly as offensive to many people as putting Goebbels in one of those "Great Minds" pieces.

I would not have pursued having it taken down like they did, I do not believe that is the solution, but think about that before you mock them.
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enness, 6 Mar 2015 @ 8:29am

Re:
This...this exactly. I don't have a photographic memory, I could not paint a public figure accurately without a reference. Some people don't need that. We will probably never know what the case was here. Also I wonder about the words "Mission of Charity."

Anybody remember when Tom Petty ordered Michele Bachmann to stop using 'American Girl'? I never saw anyone offer proof that her campaign had not gotten the requisite license. The entire substance of the allegation seemed to be that Tom Petty just did not like her. Bachmann haters (I didn't really care about her one way or the other) could not eat that up fast enough.

Copyright is complicated. I know enough to know I don't know everything, and I do not try to pretend otherwise. Non-expert opinions are just that...non-expert opinions, but suddenly everybody and their grandma has one. It's so ridiculous I can't even.
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cpenkoff (profile), 6 Mar 2015 @ 12:26pm

Re: Re: Re: It's not the library board...
The tea party faction of the TRTC (same people who wanted this painting removed)wanted that play cancelled and had Herbst (through his mother, the BoE chair) put pressure on the principal.

The fact is he has lied throughout this entire episode by saying first it was a copyright issue, then a liability issue and when email come out showing he lied, blames the librarian for the fiasco!
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John85851 (profile), 6 Mar 2015 @ 1:48pm

Copyright or liability issue?
This sounds more of a case of someone trying to duck liability and using the copyright issue as a cover. The library owners should know enough about copyright to know they can display artwork like this, but I'm sure someone stepped in and said "There might be a lawsuit from someone at some time, so let's take it down just to be safe."

We all know a lawsuit would fall apart before it got very far, but I'm sure someone figured out that they library would still have to pay a lot of money just to get the case thrown out... and this is money the library probably doesn't have.
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Tom Gallagher, 9 Mar 2015 @ 7:44am

Painting ©
© protects the right to "make copies"

Displaying a painting is not "making a copy", is it?
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ella tim, 25 Mar 2015 @ 1:04am

wonderful
cheap logo design services
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