The American Society of Media Photographers and Picture Archive Council of America have filed a joint amicus brief in support of Patrick Cariou. The brief was written by the law firm of Kirkland & Ellis LLP.

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Cheers!

It’s back, like a double-edged dagger — an éperon — Nietzsche style.  Back by popular demand, and now going on its third year, Volunteer Lawyers for the Arts‘ legendary, ground-breaking, and no-holds-barred educational series for visual artists.

“Informative, thought-provoking, enlightening, sensical. These things should be taught in art school, but I’m glad I learned them here!” notes one artist. “Pure deliciousness. Challenging, spicy, enlightening,” notes another. Read (and see) what other past participants have said here.

Although fees are now attached, artists can register for individual classes or the entire series. Course starts March 20, 2012

Law School for Visual Artists

Topics that will be covered during the 5-week course:

Tuesday March 20, 2012
Introduction:
• Legal Hypothetical: Analyzing legal issues in your art projects

Tuesday March 27, 2012
• Basic business models (non-profit and for-profit corporations, LLC’s)
• Fiscal Sponsorships
• Employment issues
A. Studio and gallery assistants
B. Working as a preparator for art galleries

Tuesday April 3, 2012
• Free Speech
• Right of Privacy

Tuesday April 10, 2012
Contracts
• Consignment Agreements
• Licensing Agreements
• Commissioning Agreements

Tuesday April 17, 2012
• Intellectual Property (copyright and trademarks)

Click here to register for this course (or just one or two classes).

I don’t think so, but see what you think. My good friend, and fellow artist-lawyer, Alfred Steiner, has taken it upon himself to dabble in some potential legal trouble. You see, Steiner

…bought a glob-erific clown painting by Allison Schulnik at Canada gallery on the Lower East Side. He then proceeded to have a replica of the work fabricated on a ZPrinter 650 3D printer. The result is a quite good monochromatic reproduction of the painting that is full of the brushstrokes and textures that until recently we thought we couldn’t so easily reproduce.

Steiner, having quite a bit of experience in copyright law, contacted Schulnik and alerted her to his alleged infringement. But is what Steiner did actually copyright infringement? At this late hour (11:00pm EST), I would have to say, not at all.

You see, one great aspect of painting is the use/non-use of color paint. In this case, to make a monochrome painting copy of an impastoed/expressionistic painting is synonymous to making a black version of a Robert Ryman or a pink version of a gray Gerhard Richter. At that point, one can easily concede that the copy is based more on inspiration than on infringement, regardless of the clown face on Schulnik’s painting. Schulnik’s clown face, one can certainly argue, is a generic representation of a clown face. To say that Steiner’s white version is a derivative work, and therefore infringing on Schulnik’s painting, would be tantamount to saying that no other artist could paint a clown face impasto-style, white or in color. Silly indeed.

But, and as my fourth-grade teacher, Mrs. Cabbines, used to remark, “and this is a big but,” the real question is whether the mechanical reproduction of Schulnik’s painting is in fact infringement, where the copyright protection rests also on the sculptural aspects of Schulnik’s work. In this case, now we’re talking. And, I might add, the legal question gets more interesting (and juicier) if we ask how exactly Steiner went about copying Schulnik’s work. Why? Because if there is any, and by this I mean any, detrimental physical impact on Schulnik’s work, Steiner may just have triggered the Visual Artists Rights Act of 1990, which protects an artist’s painting (among a few other types of fine art) from distortion, modification, or destruction.

Until we know the exact process Steiner used to copy Schulnik’s work, we won’t know whether or not Schulnik’s moral rights to her painting were violated.

A great art project indeed!

More on this via Hyperallergic.

Add another article to the list.

The Huffington Post’s Daniel Grant wonders if the Cariou v. Prince case will decide the “fate” of appropriation art. His article basically hammers in what we already know: that copyright law is a murky area, where the outcome of a fair use analysis is anyone’s guess.

Michael G Bennett, Associate Professor of Law at Northeastern University, has a unique analysis on that relationship, in what he calls, The Most Explosive Copyright Case Never To Be Seen.

It is an uncontested fact of the trial that, sometime in 2006, Mehanna translated Muhammad bin Ahmad as-Salim’s book, 39 Ways to Serve and Participate in Jihad, from the original Arabic to English. Though a shadowy figure, various sources strongly suggest that as-Salim is a Saudi citizen. If this is true, then Saudi copyright law and, by virtue of the Berne Conventional, U.S. copyright law could apply to Mehanna’s translation of as-Salim’s book.

Check it out.

Photograph courtesy of AZRainman, via everystockphoto.

Yes, I was on vacation. I take a break and my e-mail box fills with folks sending me notices, updates, reminders, salutations, and grievances concerning one art/copyright article from the newspaper of record.

It seems ol’ Randy Kennedy (more on him later) has taken sides once again, this time with artists and lawyers who believe that artists are now suffering from North Korean-type cultural censorship. What I’m talking about is of course the imagined stringent U.S. Copyright laws.

I’m just now trying to recover from the ol’ holiday buzz, and this little fairy tale is not making things any easier. But, since I have been thinking about this alleged tyrannical censorship, I promise I will post my thoughts next week on this article and the Cariou v. Prince copyright case, a case I call the Roe v. Wade of the bourgeois art contingency. Stay tuned!

Machu Pichu. Photo courtesy of egroj, via everystockphoto.

All’s well that ends well.

The dispute was resolved through two separate agreements. The first, between Yale and the Peruvian government, established that the university would return all of the objects by the end of 2012. The second established a partnership between Yale and the San Antonio Abad University in Cuzco to share stewardship of the collection. The schools will also collaborate on academic research.

Via NPR. Some background here and here.

Photographer, laffy4k. Via everystockphoto.

According to the Eleventh Circuit Court of Appeals, the answer is “yes.” Although the case, Vergara Hermosilla v. The Coca-Cola Co., concerns written material and not visual art, it’s still pertinent to visual artists producing work for others and working in any media.

The Coca-Cola case concerns the commissioning of lyrics, where the lyricist alleged that he had maintained his copyright. Coca-Cola disagreed. We’re giving a recap here, but basically the trial court determined that an email exchange between the parties was a fully formed assignment of the copyright from Vergara to Coca-Cola.

[B]ecause the record establishes without dispute that Vergara assigned his copyright interest to Universal…. Vergara stated in his email on March 4, 2009, that his “only demand” to assign his copyright interest was that he receive credit as the adapter and producer. Puig [A representative for Coca-Cola] “unconditionally accepted” that condition in his email on March 5, 2009, in which he told Vergara to “count on the credits on the track.” Puig’s acceptance on behalf of Universal was effective to create a contract with Vergara because it “match[ed] the terms of [his] offer.”  The two emails were “so connected with each other that they may be fairly said to constitute a complete contract.”

Pamela Chestek gives a great recap of this case over at Property, intangible.

Starts right here.

We posted last week on the two “right of resale” lawsuits, where a group of artists, including Chuck Close, filed two lawsuits on  October 18, 2011 with the U.S. District Court for the Central District of California asserting their rights under the California Resale Royalty Act of 1976 that would force sellers of their work to a share a percentage of the revenue when the artists’ works were resold. The lawsuits are, Estate of Robert Graham v. Sotheby’s Inc. (C.D. Cal.No. 2:11-cv-08604-JHN-FFM), and Sam Francis Foundation v. Christie’s Inc. (C.D. Cal.No. 2:11-cv-08605-SVW-PJW).

The Bureau of National Affairs has an interesting take, arguing that the California statute may implicate the Fifth Amendment’s Takings Clause:

Should these claims be substantively addressed, the court would have to reconcile them with the [Copyright Act's] first sale doctrine, 17 U.S.C. §109(a), which gives a creator no rights to control the subsequent disposition of copies of works once they have been sold off. It might also implicate the Takings Clause of the Fifth Amendment of the U.S. Constitution, which prohibits the government from taking private property for public use without compensation.

Here’s the part of the Fifth Amendment that may apply here:

No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

Not sure what’s going on, or what the California statute is about? Check out Andrew Russeth’s overview over at GalleristNY. For a helpful outline of the Takings Clause, take a look at this chart.