Seems like it. And now a custom car maker who goes by the name of Gotham Garage will have to prove that it did not infringe DC Comics’ copyright to the Batmobile. You see, Gotham Garage decided to build and sell replica Batmobiles — without DC Comics’ permission. DC Comics flew out of their bat cave (lower case “b” so as to not run the possibility of infringing DC Comics’ trademark) and sued Gotham Garage claiming copyright infringement, trademark infringement, trademark counterfeiting, unfair competition under the Lanham Act, and common law unfair competition.  Yikes!

Anyhow, Judge Ronald Lew, of the Central District of California, found that Gotham Garage’s claim that the Batmobile was not protected by copyright to be, let’s just say, pure bat guano, meaning it had no teeth. Gotham Garage will now have to answer DC’s allegations that the full-size, drivable Batmobile replicas infringe DC’s rights to the car’s design.

For those of a legal persuasion, the case is DC Comics v. Mark Towle et al (2:11-cv-03934).

Via the Hollywood Reporter and Mr. Pink.

The Art & Law Residency Exhibition, Notice of Public Hearing, will take place at SculptureCenter in Long Island City, New York. The Residency Exhibition will highlight projects created during the 2011 Art & Law Residency Program. The projects engage issues of law in relation to property, land use, intellectual property, commodities, language, national security, risk, privacy, and criminality. The Art & Law Residency and Exhibition are programs of Volunteer Lawyers for the Arts.

Exhibition
December 8 – December 19, 2011

Artists
Michael Cataldi
Blane De St. Croix
Molly Dilworth
Carolyn Lambert
Graham Parker
Risa Puno
Lian Amaris
Woody Sullender
Alex Villar

Opening Reception
Thursday, December 8, 2011
7 – 8:30pm

SculptureCenter
4419 Purves Street
Long Island City, NY 11101

2 Subway stops from Manhattan:
E or M to Court Square

Gallery Hours
Thursday – Monday, 11am – 6pm
Closed Tuesdays and Wednesdays

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.

The plans also include an archaeological investigation of the Central Police Station and will be carried out before some of the less important structures are razed to make room for Herzog & de Meuron’s cube-styled museum. It was evident during the tour that many of the original furnishings of the jail complex had already been removed, though the bare bunks were still standing in gloomy formation in the cell block, complete with peeling yellow paint and cautionary signs still warning inmates to roll up their bedding before exercising in the delightfully tree-shaded prison yard.

Via Artinfo.

My dear and close friend, Donn Zaretsky, over at his blog, mentions Joerg Colberg’s “challenge” to the artworld (where Colberg asks the “artworld” whether stealing a wallet is the same as appropriation), and writes,

Without taking a position on any particular example of appropriation, let me answer his question with a question: What if, after I took your wallet, you still had your wallet? Would it change your view at all?  Would you still call it theft?

Well, as long as the wallet isn’t owned by a biker. But I digress.

I love this hypothetical, straight out of the fictional world that is a law school classroom, seeking to manipulate the reader by proposing an impossibility. Assuming we live in the real world and not a Star Trek episode, there is (currently) no humanly possible way that I can take someone’s Aston Martin and simultaneously leave the Aston Martin’s owner with her car. Absolutely impossible. So, why use this analytical aphrodisiac?

The rabbit in the hat to this argument is this. If I photocopy or rephotograph a copyrighted image exactly as it is, or with little to no transformative change, and use it to make paintings, t-shirts, mugs, postcards, or heck, even three-dimensional sculptures, then what harm is there to the copyright holder of that image? Presumably, none. The original copyright holder still has the image. True, but not so fast. Maybe there is a similarity.

You see, although the original image owner still has her same and “original” image, she has lost some use and rights over her property. How can that be?

Well, we don’t use property law to dissect the above scenario; we use intellectual property law (with the term intellectual being key, meaning that it is, unlike real property, intangible), and thus, we apply copyright’s “fair use” schema and its four non-exclusive factors. The key factor, for me, under this hypothetical analysis, is factor #4 of fair use, market harm (the effect of the use upon the potential market for, or value of, the copyrighted work).

Simply put, the secondary user has taken (to revert back to real property) at least one of the following rights — granted under copyright law — from the original copyright holder: the right to grant permission, the right to potentially gift it (and thus gain the accolades as explained by Marcel Mauss), the right to potentially license the image to the secondary user, the right to potentially sell the image to the secondary user, the right to potentially never publicly display or publish the image ever again, and/or the right of the original copyright holder to potentially make a similar work to that of the secondary user (a derivative right). So maybe there is a similarity between tangible and intangible property: we’re still denying the original rights holder one property right.

But be careful. This tricky little hypothetical is sometimes used by the free culture party when talking about the death of creativity and culture. Their argument is this. That if third-world children, dying of AIDS, could be saved by unlawfully “appropriating” medical patents from Pfizer, then surely that means that appropriationists (or secondary users) are also morally and legally exculpated when taking copyrighted images without consent, or without having to apply current fair use standards under US Copyright law. Let me spell this out for you: the wallet hypothetical and the death/creativity hypothetical are very, very different. In other words, although the tangible-intangible property argument is plausible, the death/creativity one is not. The death/creativity hypothetical provides for two very different factual scenarios (death vs. cultural creation), with different legal doctrines (patents vs. copyrights), and with very different mediums of appropriation and expression (narcotics vs. images).

Regardless, the “what ifs” are fun to play. Heck, I often wonder, “what if I, 5′ 9″, 165lbs, and a 5 seconds flat in the 40-yard dash, could play middle linebacker for the NY Jets?” That’s fun to ponder, but not gonna happen. What does happen is that my friends and I play football at the local park, and we call ourselves the Williamsburg Copyrights — and best of all — I play both middle linebacker (we play a 4-3) and quarterback. Take that free culturists!

Ingrid Homberg, the 59-yr old woman who alleges she was dragged by a NYC cop inside of the Gagosian Gallery on December 18, 2010, filed suit against NYC, Gagosian Gallery, and some Gagosian employees, seeking unspecified damages for actions Homberg alleges include “debasement, fright, fear, humiliation, embarrassment, psychological and emotional trauma, [and] physical and mental injury.” According to Artinfo, Homberg’s lawyer is “optimistic that Gagosian would settle before the case went to court.”

Some background on this story here and here.

Via The New York Post. Artinfo has a bit more on this story here.

David Frey has the latest on Christo’s controversial project over Colorado’s Arkansas River.

At the MCA Denver, the sketches and photos of a secret life-size model erected near the Utah elicited audible wows. It’s far from a sure thing, though. Because almost all of the project would be on public land, Over the River is subject to an intense environmental review by the Bureau of Land Management. A draft environmental impact statement released in July resulted in more than 4,500 public comments, many voicing concerns over the project’s possible impact on wildlife and the environment, and on the region’s fishing guides, a mainstay of the economy.

Background on this Christo project here.

Come hear VLA Art & Law seminar leader Sonia Katyal talk about disobedience and social change.

Do squatters, pirates, and protesters improve the law? Professor Sonia Katyal, of Fordham Law School, says that they do in her new book, Property Outlaws (Yale University Press, 2010). She and coauthor Eduardo Peñalver, a professor at Cornell Law, contend in the case of both tangible and intellectual property law, particularly copyright law, some forms of disobedience can often lead to an improvement in legal regulation.  An important conclusion of the book is that a dynamic between the activities of “property outlaws” and legal innovation should be cultivated in order to maintain this avenue of legal reform.

Where: Eyebeam, 540 W 21st St. New York, NY 10011

When: Oct 28, 2010, 6:30PM-8:30PM

How much: $10 donation (at the door)

LMCC has just released a two-sided poster I designed for their LentSpace Late Edition project, What is Pan-Americanism? Here’s a description of the Late Edition project:

Punning “late editions,” when newspapers used to release evening editions of breaking news, with “late addition,” as in an afterthought or correction, this print-media series aims to put the current exhibition and its subject up for review by artists. Instead of following the conventions of newspaper publishing, these responses take the form of a new artwork “edition” that will serve as a compliment, retort, or possibly, as a humorous non-sequitur.

Once formatted, these prints are nested into LentSpace’s own program guide as inserts and distributed on-site in newspaper distribution boxes for free, while supplies last. By appropriating the newspaper distribution boxes in LentSpace as a gallery in-itself, each edition will become both part of the larger exhibition, yet will also serve as a take-home gift — often found by surprise — for any visitor.

Keeping in mind that these works will be publicly circulated, hoarding or other “appropriations” beyond the typically intended reception of the art object, such as using these papers as material for packing glass, are to be expected and also encouraged. In order to center this current set on the same themes of the Avenue of the Americas exhibition and to create a small volume of thematically joined works, each of the participating artists were posed a simple yet provocative charge, namely: What is Pan-Americanism?

The LentSpace program was curated by Adam Kleinman and Deborah Sprzeuzkouski, and included three other Late Editions by Wilfredo Prieto, Sebastian Errazuriz, and Erick Beltran. You can get your copy at Lent Space in Manhattan. If you can’t make it and would like one, e-mail me your name and address at sergio_sarmiento@clancco.com and I will get one out to you.

The Demetra Mavis, president and founder of Front Page News Entertainment Group Worldwide, takes a strong stance against copyright infringers and asks,

Where are our referees for creative justice? Who wins the prize money for original expressions, games, jewelry designs, music, novels, cartoons or even bumper stickers? Whatever happened to the idea of a gracious request for permission to use or reproduce the original owner’s creative content? Have we become a society driven by aimless conduct, frolicking in an environment driven by unfair competition?

Mavis’ answer? Get permission or, better yet, have congress take a stronger stand against infringement: