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 firm of Kirkland & Ellis LLP.

Patrick Cariou’s lawyers filed their appellate brief on Wednesday, January 25, 2012. The case, the Roe v. Wade of the artworld, is Cariou v. Prince.

The brief is available here, via pdf format on Scribd.

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.

Artists, tell the U.S. Copyright Office how you would benefit from a court system where you could protect your copyrights and file small copyright claims. Because January 16 is a federal holiday (commemoration of the birthday of Martin Luther King), the deadline for submission of comments has been extended to January 17, 2012.

The Copyright Act protects a wide variety of works of authorship, from individual articles or photographs that may not have a high commercial value to motion pictures worth hundreds of millions of dollars in the marketplace. The copyright owners of all of these works can use copyright law to pursue certain unauthorized uses. Not all of these copyright owners, however, have the same resources to bring a federal lawsuit, which can require substantial time, money, and effort. Moreover, while a copyright owner may want to stop an infringement that caused a relatively small amount of economic damage, that owner may be dissuaded from filing a lawsuit because a potentially small award may not justify the potentially large expense of litigation. While the Act offers the possibility of statutory damages and attorney fees, these benefits are not available in all cases and parties cannot recover them until after the copyright owner has engaged in a potentially long court battle that requires up front costs.

The Copyright Office has been asked by Congress to study the obstacles facing small copyright claims disputes, as well as possible alternatives. Specifically, the Office is to undertake a study to: (1) assess the extent to which authors and other copyright owners are effectively prevented from seeking relief from infringements due to constraints in the current system; and (2) furnish specific recommendations, as appropriate, for changes in administrative, regulatory and statutory authority that will improve the adjudication of small copyright claims and thereby enable all copyright owners to more fully realize the promise of exclusive rights enshrined in our Constitution. The initial notice of inquiry seeks comment on how copyright owners have handled small copyright claims and the obstacles they have encountered, as well as potential alternatives to the current legal system that could better accommodate such claims.

You can submit your comments here.

Artinfo has more thoughts here.

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.

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!

Last week, the U.S. Copyright Office announced its priorities and thoughts for the coming year. The priorities range from the possible establishment of a new small claims circuit to group registrations to a new way that websites and blogs can register continually changing material for copyright protection. Both thoughts seem like sound changes, but let’s keep an eye out for the small-claims circuit idea and structure; we wouldn’t want it to short-change low-income or struggling artists and further benefit those with the power to litigate.

Based on this circular, the small-claims circuit idea seems promising:

Specifically, the Office is to undertake a study to: (1) assess the extent to which authors and other copyright owners are effectively prevented from seeking relief from infringements due to constraints in the current system; and (2) furnish specific recommendations, as appropriate, for changes in administrative, regulatory and statutory authority that will improve the adjudication of small copyright claims and thereby enable all copyright owners to more fully realize the promise of exclusive rights enshrined in our Constitution. [bold added]

If you have any thoughts on the small-claims circuit, be sure to let the Copyright Office know by filling out this online form. Deadline is 5pm, January 16, 2012.

The Copyright Office website will also be revamped and updated in 2012.

Here’s a link to the Copyright Office’s Circular detailing the considered changes.

Nutshell version via the Hollywood Reporter.

Or copy, or license other people’s images? The paper of record poses this interesting question regarding the original sources for Dylan’s paintings at Gagosian Gallery. Here’s an interesting and compelling example of copyright infringement.

I’m sure this is not the last we’ll hear about this.

UPDATE: September 27, 2011

Artinfo agrees.

UPDATE: September 29, 2011

The Independent weighs in.

Artinfo’s Tyler Green is in a tizzy. Green,

Every once and a while an art museum (or two or three) does something so jaw-droppingly clever that in hindsight it seems like an obvious thing to do.  So it is with the decision by the Los Angeles County Museum of Art, the Walters Art Museum and various entities at Yale University to make high-resolution images of art from their collections available for anyone to use, for any purpose, copyright-free.

Don’t get too excited. Most, if not all of the works, are already in the public domain, and unless I missed it, you’re not going to find any Mike Kelley or Gerhard Richter in there. Here’s a list of what LACMA makes available.

Courtesy of Brain Pickings.

This is an interesting example of idea vs. expression. Did the Polish journal, Przekrój, infringe Israeli illustrator Noma Bar’s design? Przekrój’s version was designed by Daniel Horowitz, who allegedly did not obtain permission from Bar. We can certainly see a strong argument that Horowitz’s version is a derivative of Bar’s, and thus not fair use (at least under U.S. Copyright law). What do you think?

Via Brain Pickings.