In New 5Pointz Decision, Second Circuit Concludes That VARA Trumps The Constitution

from the immoral-rights dept

A few weeks ago there was news that a developer in New York City was being forced to dismantle twenty already-built floors in the building he built too high. If only he had thought to let some graffiti artists paint the walls of these excess floors, because then he could never take them down…

I say that, of course, in response to other recent news from New York: the Second Circuit has upheld the awful decision by EDNY to sanction a building owner millions of dollars for daring to paint the walls of his own building. And, in doing so, the Second Circuit has illuminated, in stark relief, what an unconstitutional disaster the Visual Artists Rights Act of 1990 (VARA) is.

But before explaining why, first here's some background. This decision, in Castillo v. GM Realty L.P., is the latest in the litigation over "5Pointz." In brief, a developer owned a building in Brooklyn that he wasn't doing anything with, so he let some graffiti artists paint its walls. Eventually he decided that he wanted to do something else with his building, and in response the graffiti artists sued him under VARA, because his plans would cause those paintings that hadn't already been destroyed by the artists [see p. 4] to now be destroyed by him. The district court refused to enjoin the building owner, however, so he went ahead and painted over them. Upon learning of the painting over, the district court then immediately had non-enjoiner's remorse and got so angry at the building owner for doing what it had let him do that it threw the book at him. In fact, it was $6.7 million dollars worth of book it threw in punitive statutory damages, because how dare that building owner paint the building he owned after the court said he could.

The appeals court decision doubles-down on all the problems with the original district court decision we flagged before, including how catastrophic it is for the future availability of public art to subject those who allow it on their property to such expensive consequences. It makes true the saying "no good deed goes unpunished" and will ensure that few will ever be inclined to offer such favors ever again.

We also highlighted the manifest unfairness of punishing the building owner for doing something that the court had cleared the way for. This unfairness itself presents a constitutional infirmity, particularly in light of the enormous statutory damages award granted, and then upheld, to punish the building owner.

Ultimately, the district court concluded that it could not reliably fix the market value of the destroyed paintings and, for that reason, declined to award actual damages. […] Nonetheless, the court did award statutory damages. It determined that statutory damages would serve to sanction Wolkoff’s conduct and to vindicate the policies behind VARA. [p. 8-9]

Statutory damages are already constitutionally suspect, especially when they are so severely inflated above any actual measure of harm, as was the case here, and especially when they appear to be punitive in nature, as was also the case here, because they function as quasi-criminal sanction without all the due process protections a finding of criminal liability is supposed to require.

But that's not the only constitutional problem with VARA that the decision highlighted. The decision made clear that it also fails on equal protection and First Amendment grounds.

The major issue that the appeals court considered was whether the district court was right in upholding the VARA claim. The crux of that analysis hinged on whether the destroyed paintings qualified as a work of "recognized stature." If they did, then they were protected from destruction by VARA, whereas if they did not qualify, then they would get no extra protection. [p. 13]

But think about the implications of the law. It means that the right to special protection for one's expression is only available for some expression, and whether it gets that protection pivots on the content of that expression. Laws are not supposed to be able to favor or disfavor expression. Yet, as this decision carefully – if perhaps inadvertently – explains, that's exactly what VARA does.

Whether a work is of recognized stature, and thus entitled to additional protection, hinges on its "high quality, status, or caliber." [p.14]. Contrast this special protection with regular copyright protection, which applies to any original work of authorship of any statutorily-enumerated type (literary work, musical work, etc.) fixed in any tangible medium, regardless of that particular work's quality. In other words, bad paintings are just as eligible for basic copyright protection as good paintings. But in the case of VARA, the moral rights provision inserted into the copyright statute, it is only the good paintings that get this extra protection, because the bad ones will never be able to achieve that stature. ("The most important component of stature will generally be artistic quality." [p. 14])

Of course, whether a work is of good quality or not is a matter of opinion. So who gets to decide? The court recognized that the "personal judgment of the court shouldn't be the determinative factor." [p. 14]. Instead it deferred to "the artistic community, comprising art historians, art critics, museum curators, gallerists, prominent artists, and other experts." [p. 14].

But ratifying the subjective opinion of others as the basis upon which to dole out special legal protections is no better than the court making the determination on its own initiative. First, the decision of what opinions to credit is at best arbitrary, as was the case here, where the court deferred to an opinion of a presumed expert who had not even seen the works:

Nor do we see merit in Wolkoff’s criticism of the court’s decision to credit the artists’ experts. As is almost always the case where competing expert testimony is adduced, the trier of fact accepts one side’s experts over the other’s. Judge Block did so here and gave sound reasons for his choice. Renee Vara, the artists’ expert, testified to the high artistic merit of the 5Pointz art but also testified that she had not seen the works before their destruction and had assessed them on the basis of images. We see nothing wrong and certainly nothing clearly erroneous with this approach, one well within a district court’s broad discretion to accept or reject evidence. [p. 22]

But even to the extent that the opinion the court adopts reflects a true consensus, it still means that popular expression gets more statutory protection than less popular expression, which is not something the First Amendment permits.

Worse, it means that certain people end up with more rights than others. As the court expressly noted, "[A] 'poor' work by an otherwise highly regarded artist nonetheless merits protection from destruction under VARA." [p. 14] In other words, some artists of poor works will get this bonus protection, yet some will be denied it, which puts VARA in conflict with the equal protection clause, which forbids this sort of legal favoritism.

The facts of this case illustrate the problem. The aerosol paintings at 5Pointz were "curated" by Jonathan Cohen. Cohen chose which artists could paint, what they could paint, where they could paint, and how long the paintings could remain. Yet despite his outsized role in the creation of the paintings in question – or, indeed, because of this role ("When the curator is distinguished, his selection of the work is especially probative." [p. 25]) – the court deferred to him as someone whose opinion on the worth of a work could be dispositive in determining whether it deserved these extra legal protections.

Next, Appellants object to the district court’s reliance on Jonathan Cohen’s testimony about his curation of the artwork. The district court reasoned that Cohen’s selection process, which involved review of a portfolio of an artist’s work and a plan for his or her 5Pointz project, screened for works of stature. Appellants, however, contend that this determination was irrelevant because Cohen made his evaluation before the artists painted their 5Pointz works. Nonetheless, the district court cogently reasoned that a respected aerosol artist’s determination that another aerosol artist’s work is worthy of display is appropriate evidence of stature. An artist whose merit has been recognized by another prominent artist, museum curator, or art critic is more likely to create work of recognized stature than an artist who has not been screened. This inference is even stronger where, as here, Cohen reviewed a plan for the subject work before allowing it to be painted. Accepting and crediting such testimony easily falls within a district court’s trial management responsibilities and in this instance involved no abuse of discretion or clear error. [p. 23-24]

There is no constitutional problem with the fact that Cohen played kingmaker with respect to what artists he allowed to exhibit at 5Pointz and which works could attain any sort of visibility. As an individual he is entitled to make these content-based decisions. What is not okay is for the courts to allow his personal opinion to acquire the imprimatur of the state to create extra rights for his favorites. As the Second Circuit set forth, this power appears to be what VARA allows. But it's not what the Constitution permits.

Filed Under: 2nd circuit, 5pointz, art installations, artwork, graffiti, moral rights, property rights, statutory damages, vara

Royal Canadian Mint Claims Copyright On One Cent Piece, Threatens Indie Musician Over Album Art

from the penny-for-your-thoughts dept

Recently, we learned that Canadian musician Dave Gunning ran into some copyright troubles regarding his latest album, No More Pennies. No, he did not use music or lyrics from any other artist without permission. What he did was something far worse, at least in the eyes of one organization. What he had the audacity to do was include images of the soon-to-be-retired Canadian penny. When the Royal Canadian Mint caught wind of Dave's tribute album and the timely use of the penny in its artwork, it sent a legal threat to Dave stating that he was infringing the copyright of the Mint and that he must pay a royalty on each album sold. Of course, the Mint did decide to give him a break on this royalty by waving the fees on the first 2000 albums sold, but said he had to pay after that. That was quite generous, or so the Mint was quick to claim.

“We have helped this guy out by giving him a break,” Alex Reeves, communications manager for the Royal Canadian Mint, said Tuesday.

“Now that we have explained the rules and the policy, it’s very clear what the implications are for using the penny’s image. And we’re certainly being consistent in the applications of our policy for any for-profit use,” he said.

Dave, however, saw things a bit differently.

“It is pennies to them but is pretty substantial for me,” said Gunning, who won two East Coast Music Awards in 2011, adding “we really had no idea” the ode to the penny was going to land him in hot water.

I had to scratch my head for a bit on this little dispute. Here in the US, works of the government are automatically in the public domain and can be freely used by the public. In regards to currency, while it is illegal to create counterfeit currency, it is legal to duplicate the images of currency as long as it is clearly a fake. Things are not quite so clear cut in Canada. 

For the Canadian government, works it produces are covered by a Crown Copyright in which the government retains some control over the use. However, even this explanation might not be quite so cut and dry. As Canadian lawyer Howard Knopf explains:

To be clear, the album cover shown above does not infringe any so-called intellectual property rights of the mint because:

• If there ever was copyright in the Canadian penny, which is doubtful, it has long since expired and the above album cover would not be infringing copyright in any event
• The above album cover does not "use" or "adopt" the Canadian penny in any technical sense covered by the Trade-marks Act.

Someone over at the Mint should learn some basic facts about intellectual property law, This kind of thing makes people lose respect for IP law and for the credibility of government institutions. There’s nothing funny about that.

Knopf points out that the Mint has even attempted similar actions before, when the city of Toronto created an ad campaign which featured an image of the penny. Just as it was then, it is now: the penny, if it was ever covered by copyright, has long since entered the public domain. This is because Crown Copyright only lasts 50 years. This fact, and plenty of negative publicity, lead the Mint to drop its action against Toronto. 

Now, we learn that the Mint has turned tail and dropped its action against Dave too:

The mint did not only waive the fee for Mr. Gunning, but said it would also review its intellectual property policy to ensure that it’s fair.

“We recognize our policy as it is today may not consider the individual needs and circumstances of those who request the use of our images,” spokeswoman Christine Aquino said from Ottawa.

“We’re allowing [Gunning] to do this and we truly wish him well in his career.”

Perhaps this change of heart came about because those running the legal offices of the Mint were reminded that they don't have a solid claim on the copyright of the penny. Even if they did, as Knopf clearly pointed out, Dave's use of the penny in his album work is transformative and as such covered by fair dealing. Either way, Dave is happy to have this saga ended.

“Everything’s gonna taste better now. I’m gonna sleep better,” laughed Mr. Gunning, who said he was overwhelmed by the attention his story had generated across Canada and the United States.

“This all started very simply from the fact that I’ve got a wife and three kids and just want to be able to make a living, and felt that I had to stand up for that.”

All of this raises the question of why a government has any claim of copyright on its currency to begin with. In reality, to claim such a copyright makes no sense. If the concern is that people would attempt to print their own currency, that is what counterfeit laws are for. Otherwise, it seems to be an unneeded burden on the freedom of Canadians. 

Filed Under: artwork, canada, crown copyright, dave gunning, musician, pennies
Companies: royal canadian mint

Cultural Insanity: You Can't Show A Painting In A Movie Without Paying The Copyright Holder

from the this-makes-no-sense dept

The NY Times has an article about yet another ridiculous bit of copyright law, the fact that moviemakers have to license artwork, even if they own the physical piece to show it in a movie. And it gets even worse, when you find out that the ridiculous position of the Artists Rights Society (think the RIAA/MPAA for artists) is that the newly released 3D version of Titanic needs a new license, because its use of artwork is somehow not covered by the original license:

It is there in the new 3-D version of “Titanic,” as it was in James Cameron’s original film: a modified version of Picasso’s painting “Les Demoiselles d’Avignon” aboard the ship as it sinks.

Of course that 1907 masterpiece was never lost to the North Atlantic. It has been at the Museum of Modern Art for decades — which is precisely the reason the Picasso estate, which owns the copyright to the image, refused Mr. Cameron’s original request to include it in his 1997 movie.

But Mr. Cameron used it anyway.

After Artists Rights Society, a company that guards intellectual property rights for more than 50,000 visual artists or their estates, including Picasso’s, complained, however, Mr. Cameron agreed to pay a fee for the right to use the image.

With the rerelease of “Titanic,” the society wants Mr. Cameron to pay again, asserting that the 3-D version is a new work, not covered under the previous agreement.

Of course, I recognize that ownership of the image is different than holding the copyright in the image -- though I'm a bit surprised that most art purchases don't include a copyright assignment or at least a permissive license as well. But it strikes me as ridiculous that the use of such images in a movie -- especially in passing -- isn't a clear case of fair use. This highlights the ridiculousness of the "permission-based society" we live in, where even if you own something, you don't really own it.

Why do we let this kind of craziness happen? Why don't we, as a society, stand up and point out that it makes no sense. If you have possession of the painting, why shouldn't you be allowed to use it in a movie? Even if you don't have the painting. How is having that painting in the movie, in any way, harming the economic value of the painting? The answer is that it is not. If anything, it's increasing the prestige and value of the painting... and it's doing all of that for free.

Think of it in a slightly different context. These days, when other products are seen in movies -- like a can of Coke, for example -- it's often there because of product placement. That is, the provider paid for it to be in the movie. Couldn't you make an argument that artwork that shows up in movies gets the same sort of benefit of the attention of the moviegoers? Why is it, then, that filmmakers are expected to pay a license to have the artwork, but get paid to have the Coke can?

Filed Under: 3d, artwork, fair use, licensing, moma, picasso, titanic

Lawmakers Propose Resale Right For US Artwork To Harm Young Artist & Help Already Successful Ones

from the droit-de-suite-should-be-dumped-tout-de-suite dept

Over the summer, we wrote about a ridiculous new lobbying effort, led by the author of the DMCA, Bruce Lehman, to create an artist resale right in the US. We've discussed similar plans found elsewhere, and there's no way to describe them other than as a ridiculously bad idea. It's basically an attempt to have artists get paid multiple times for the same piece of work, without anyone planning these things by talking to an economist about how badly that will backfire. Either way, it looks like the lobbying effort has succeeded so far, as Rep. Jerrold Nadler and Senator Herb Kohl, have introduced bills to create such a right across the US in both the House and the Senate.

Basically, the idea is that after an artist sells a work, if the work is later resold, the artist gets a piece of the proceeds. The economically clueless thinking behind this is that artists sell works off when they're unknown and starving for little money... but then when they become famous, it seems only "fair" that the artist should get a cut of the multi-million dollar sale of their artwork. Except that ignores common sense and reality (is it any wonder that it was easy to find two politicians to support such a plan?). First of all, artist resale rights harm artists. That's because it now makes it more expensive for anyone to invest in art, knowing that they get less on every resale, because some has to go back to the artist. Any time you make it more expensive for people to invest in young artists, you harm those artists.

More importantly, this only helps already super successful artists, because they're the only ones who make money off of this. The Nadler and Kohl bills only apply to sales of artwork over $10,000. If an artist has works that are selling for that much they're already super successful and can make a lot more money by simply making new art and selling it themselves. In other words, once you've reached the stage where your old art is selling for $10,000, you shouldn't be relying on an artist resale right anyway. You should be making new art and selling it for a lot of money directly and cashing in.

So, to recap: this kind of right harms new artists by making it more expensive for anyone to invest in their art, and it only helps super successful artists who can already make a ton of money from their art. It seems like the exact and total opposite of what would be smart policy on a copyright issue.

What's amazing is that these bills keep popping up. The UK and Australia recently passed these laws, and California already has one -- though it's widely ignored. You would think that politicians would be concerned about introducing legislation that hurts young up-and-coming artists and only helps the superstar artists, but apparently that wasn't a concern for these particular politicians or for Bruce Lehman, who was lobbying on behalf of... the Artists Rights Society, whose main goal here is to be the middleman to collect these fees (not exactly an altruistic position).

Filed Under: artwork, bruce lehman, droit de suite, herb kohl, jerrold nadler, resale right, us

Artist Sues Photographer For Transformative Photo Of Public Artwork, Even Though Photographer Took Down The Photo

from the step-on-this dept

A whole bunch of you sent over yet another story of copyright law gone wrong. An artist named Jack Mackie, who created a piece of artwork made up of bronze shoeprints buried in a sidewalk in Seattle (I'd post a picture, but we'd probably get sued) apparently got upset that a photographer took some photos of it. Remember, it's on a sidewalk. In a public place. And it's a piece of artwork, so people are going to take photos. In this case, the photographer, Mike Hipple, took a photo that was a clear transformative work, rather than a straight copy. The photo, which you can see here, featured someone's feet standing on the art installation -- something you would imagine makes a lot of sense as a commentary on the artwork (since the work itself is of of shoeprints). Cool, right? Not according to Mackie. Hipple posted the photo to a stock photo website -- which does no damage whatsoever to Mackie's work -- and should only call more attention to it. No matter, Mackie sent a legal nastygram. But here's the thing: Hipple complied. He took down the photo and erased it. He no longer has a copy of it. So he complied with the nastygram.

And Mackie sued anyway. He actually waited a year, and then sued, even though the photo had been gone since just a few days after the nastygram was sent. It seems like this should be a clear transformative use. It wasn't just a photo of the artwork, but added a different element that acted as a bit of commentary on the work itself. It's hard to see how this would have even the slightest negative impact on the actual work or the artist. This is just the sort of ridiculous situation that arises when people are told that they "own" something that cannot be owned.

Filed Under: artwork, copyright, jack mackie, mike hipple, photography, transformative

Andy Warhol Estate Accused Of Defacing Authentic Warhol Artwork To Limit The Market

from the who-has-the-right-to-what-now? dept

I recently enjoyed the first World Fair Use Day in Washington DC, put on by Public Knowledge. It was nice to see that one of the main sponsors of the event was The Andy Warhol Foundation for the Visual Arts. After all, if there's a famous artist who epitomizes the value of fair use and not artificially limiting the ability of people to make and sell art, it's Andy Warhol. Given that, it's disappointing to hear (via Justin Levine) that the very same Andy Warhol Foundation for the Visual Arts is being sued by a woman claiming that the Foundation's Andy Warhol Art Authentication Board deface Warhol artwork owned by others by stamping them with a red "DENIED" stamp.

Now, the article linked above only gives one side of the story, so perhaps there's more to it, but the woman claims that the Foundation purposely defaces the artwork and greatly lowers the value of it in order to create additional scarcity for the artwork which the Foundation itself owns (and sometimes sells for significant sums). Of course, that's a pretty extraordinary claim that probably requires additional proof. The woman suing says that the Foundation requires people to sign a form with an indemnity clause which would stop those who own the works from suing the Foundation.

The article also notes that "the board's stamp of approval is necessary for anyone in the world to sell a Warhol work," but that's the part that confuses me. Why? I know that, in the art world, it is important to be able to prove that a particular work is an original, so I'm guessing that's a part of it. But I don't see how the Foundation could totally bar a sale without the "stamp of approval" (or disapproval, as the case may be). But if it's true that the Foundation is purposely defacing (and disparaging) legitimate works owned by others, that seems like a particularly obnoxious way to represent Warhol -- though, given Warhol's oddities and history of putting his name on the paintings of others, perhaps it's just a modern version of a Warhol art project to insist that legitimate works are fakes.

Filed Under: andy warhol, artwork, authenticity, defacing

Copyright Sillyness: Can't Take Photos Of Artwork That Was Built On The Works Of Others

from the can-only-copy-once? dept

Clive Thompson has a blog post about how he took a photo at a Canadian art gallery of his son staring at a painting, after noticing how similar some paintings from a hundred years ago were to some modern paintings done by a friend -- and recognizing that both were actually inspired by a third school of art. He notes that he was able to appreciate the old paintings much more (despite having seen them years ago) because of his understanding of his friend's more recent paintings. And immediately after snapping the photo, he got in trouble for it, as the museum said it had to block photographs for copyright reasons. As Thompson explains:

It reminded me of a point often made by folks who fight overly-aggressive copyright laws: All new art is based on art that came before, so copyright law ought not to be too rigid. If you can't remix and resample and re-use art -- after a reasonable term of exclusivity for the original creators, who in this case are long dead -- then culture dies. More subtly yet, our appreciation for earlier art dies if our contemporary artists cannot easily plunder the styles and content of their forebears.

The irony here is that the instant after I snapped this picture, the security guards of the Art Gallery of Ontario raced over to (politely) warn me that I wasn't allowed to take pictures. Why? Well, some art galleries disallow photos because flashes can damage paintings, a prohibition that makes total sense. But my iPhone doesn't have a flash. No, the Art Gallery of Ontario prohibits photographs of artwork because of copyright restrictions.... It's even more daft when you consider that I'm basically doing free promotion here.You want people to visit galleries? Well, surely one good way is to let visitors take and post photos of their little kids spellbound by major works of art.

Many copyright defenders continue to insist that nothing is "lost" by stricter copyright rules, but you can't always quantify what never happens -- and Thompson does a good job showing how overly restrictive rules can, in fact, limit how we learn or appreciate art, by flat out limiting new ways that people can get exposed to works.

Filed Under: artwork, copyright, inspiration, painting, understanding

Vancouver Olympics Unhappy With 'Cool Sporting Event That Takes Place in British Columbia Between 2009 and 2011 Edition' Slogan

from the oh-really? dept

We've been covering how the Olympics has been able to get various governments around the world to grant it extra special intellectual property protection on certain words and phrases, with the upcoming Vancouver Olympics being no exception. In that case, you have to be careful of the use of "Vancouver," "Olympics," and even "2010." So, clothing maker Lululemon decided to come up with a line that mocks these restrictions, with a brand new line of clothing called:

"Cool Sporting Event That Takes Place in British Columbia Between 2009 and 2011 Edition."

Note how careful the company is to avoid any of the restricted words. Nicely done.

Of course, guess who isn't happy? Reader Joe McEnaney alerts us to the news that, even though the Vancouver Olympics can't officially do anything to Lululemon, it has decided to try shaming the company instead, expressing disappointment that the company has "has broken the spirit of Olympic trademark regulations." Of course, even so, the Olympic officials seem to misunderstand what's going on here. They claim:

"We expected better sportsmanship from a local Canadian company than to produce a clothing line that attempts to profit from the Games but doesn't support the Games or the success of the Canadian Olympic team."

But, of course, that's not what's going on here at all. They're not trying to profit off of the Olympic Games. They're trying to profit off of the ridiculous free speech restrictions put in place by the Olympics for no good reason.

Filed Under: artwork, olympics, slogan, vancouver
Companies: lululemon

Vancouver Art Gallery Ordered To Remove Anti-Olympics Mural

from the free-speech?-not-with-the-olympics-in-town dept

Yet again, we're learning how when the Olympics come to town, your free speech rights apparently disappear. Rob Hyndman sends over the news that a Vancouver art gallery was ordered to remove a mural, because it was viewed as being anti-Olympics. The Olympics, of course, comes to Vancouver in a few months. The mural in question showed five rings, in the usual Olympic pattern, with four of the rings showing a frown face, and the fifth showing a smiley. The mural was hanging outside of the gallery, so the city claims the order to take it down came due to local graffiti laws -- though the gallery says in 10 years, this is the first mural it had to take down. In fact, when the landlord was told to remove the graffiti, he called the city back to ask what graffiti since he didn't see any and assumed the mural was fine, given the history of murals hung there. And, of course, there's already concern over a special law -- passed just for the Olympics -- that gives law enforcement the right to remove signage that they don't like.

Filed Under: artwork, censorship, mural, olympics, vancouver

Artists Infringing Copyright To Protest Damien Hirst Bullying A Teen Over Copyright

from the solidarity dept

Damien Hirst, a rather well-known British artist, recently threatened to sue a 16-year-old designer (who goes by the name Cartrain) for creating a collage he was selling, which used (in part) an image of a diamond encrusted skull that Hirst made (which apparently sold for £50 million). Rather than fight Hirst, the kid gave up, and even forked over £200 to Hirst. This seemed pretty ridiculous to a number of well-known artists including Jamie Reed, who designed the Sex Pistols' sleeve for the single God Save the Queen, and former KLF band member Jimmy Cauty, among others. So they're striking back purposely creating a bunch of artwork using images of the skull which you can see on a site they specifically set up for this, called Red Rag To A Bull. The artists are selling the artwork, and they claim that if they can make (ha ha) £20 million, they'll make an identical diamond encrusted skull, and sell it for another £50 million... out of which they'll pay back Cartrain the £200 he had to pay to Hirst. They're also asking for others to create collages using the skull and to send them in to the collection. As for copyright? Cauty, for one, points out that copyright should be "abolished," and it doesn't sound like the folks behind the site plan on backing down if Hirst decides to bully them.

Filed Under: artwork, copyright, damien hirst, jamie reed, jimmy cauty, skull