Friday, August 28, 2015

"The complaint filed by Simchowitz in Central California Federal Court is eye-opening for its combination of candor, hubris, and delusion."

Greg Allen on the Stefan Simchowitz lawsuit I mentioned a couple days ago.  The complaint is here.  Some thoughts from Simchowitz on how he operates here.

"When is imitation in art flattery, and when is it theft?"

Interesting piece in The Economist on the Kapoor-China story.

Thursday, August 27, 2015

"I have been sacked."

The NYT:   "A significant trove of modern Russian art, preserved not least by its obscure location, was engulfed in controversy on Wednesday after its longstanding director was summarily dismissed on accusations of forgery and theft."

Tuesday, August 25, 2015

Partly Cloudy

My friend Alfred Steiner -- who was an IP lawyer at Morrison & Foerster and is now a full-time artist -- writes in with his take on Cloud Gate-gate:

"I'd like to propose a potential solution to Donn's query whether what appears to be a copy of Anish Kapoor's famous Cloud Gate should be regarded as actionable piracy or permissible appropriation. In an article I wrote for Landslide, the American Bar Association's intellectual property publication, I argued that '[a]nyone should be able to use preexisting material to make anything, so long as he or she makes only one copy and is not engaging in blatant piracy.' I translated that proposition into more precise copyright language as follows:

"Reproducing and preparing derivative works based upon a copyrighted work for the purpose of creating, distributing, publicly displaying, or publicly performing a unique work constitutes fair use unless it would be reasonable to expect that someone would buy the unique work (or pay to see it displayed or performed) instead of buying an authorized copy of the corresponding copyrighted work or an authorized derivative work based upon such work (or paying to see it displayed or performed), assuming there is a well- established market for such derivative works (e.g., a movie adaptation of a novel).

"How does this apply to the allegedly infringing sculpture (the 'Oil Drop')?

"Assuming that there is only one Oil Drop and that it is a copy of Cloud Gate (more on that below), the pertinent question here is whether it would be reasonable to expect that someone would buy the Oil Drop instead of buying an authorized copy of Cloud Gate. And it seems pretty clear to me that many people in the position of buying a large, elaborately produced public sculpture might opt to purchase the Oil Drop instead of an authorized copy of Cloud Gate. Developers and park planners want something that viewers will come to see, and they know that most viewers will care less about who made the sculpture than how huge and shiny it is.

"So I would find infringement here. Or would I? Well, I would assuming, as I did above, that the Oil Drop is a copy of Cloud Gate. But frankly I can't be sure based on the photographs I've seen online. As Ma Jun, the section chief of the local tourism bureau suggests, Kapoor cannot expect to prevent the production of all round, shiny sculptures. So it is essential that we know how similar the two sculptures are. In other words, if the blob of Oil Drop is shaped somewhat differently than the Cloud Gate blob, I might not find infringement. While I believe Kapoor's work warrants copyright, I think the copyright is relatively narrow, and should not extend to all round, shiny blob sculptures.

"If we ask the same question of Richard Prince's appropriation of the Suicide Girl's Instagram posts, I think we get a different result. I don't think someone who wants to buy a photograph from the Suicide Girls would be likely to want a canvas print in Instagram format, with the associated comments including those of Prince himself. Prince's added comments, while visually negligible, change the meaning of the work significantly. Among other things, the Suicide Girls represent the idea that women should be able to control the way their sexuality is depicted. A male artist appropriating the images with his own added commentary is anathema. Of course, one could argue that someone who just wants a naked picture of a punk rock girl could reasonably be expected to buy a Prince instead (if we ignore the exorbitant price differential), and that argument is not without merit. But in my mind the balance weighs in favor of Prince."

Monday, August 24, 2015

"If there's a moral to this legal incident, it's this: know the terms of your licensing before you agree to use it."

Via Techdirt, an unsuccessful lawsuit by a photographer who posted a photo under a Creative Commons license ... and then regretted it.  Story here.  Decision here.

"Her return caps a fraught eight months with Bruguera held in virtual detention in Cuba "

Tania Bruguera is back in the U.S.

Thursday, August 20, 2015

What if they called it appropriation art? (UPDATED)

So there's a new public artwork in China that seems to be a blatant ripoff of Anish Kapoor's famous "Cloud Gate" sculpture in Chicago.  It raises lots of interesting art law questions, one of which is captured in the title of this post:  what if we think of this as a work of appropriation art?  Remember the open letter Patrick Cariou wrote regarding Richard Prince's use of his work:

"I urge you to stand by my side and fight plagiarism. I feel compelled to ask what other businesses and innovators ... have had their copyrighted material stolen in a similar way? ... Creativity in all walks of life is hard won. It is incorrect to accept that we should allow for it to be undermined or stolen and therefore give it little or no value. ... We cannot let this happen."

Wait, that wasn't Cariou at all.  That was Kapoor, in a letter to Chicago Mayor Rahm Emanuel, who had responded to the news thusly:  "Imitation is the greatest form of flattery is what I would say. And if you want to see original artwork ... like the Bean, you come to Chicago."

So the first question about the case (and I hope to have more) is:  how do we distinguish this from other cases of appropriation, where the conventional wisdom seems to run in the other direction? Do the SuicideGirls count as other innovators who have had their copyrighted material stolen in a similar way?  Is it correct to accept that we should allow their creativity to be stolen?  Can we let that happen?

I'm not suggesting the two cases are the same.  I'm asking how we account for the difference. What is the theory, the principle, that makes the one case okay and the other not?

UPDATE:  Here's one attempt at an answer, from Nicholas O'Donnell.

"Rising auction prices for paintings in recent years have reinforced the widespread belief that art markets are irrational and arbitrary."

"This column discusses new evidence that decisively rejects this belief."

Marion True ... (UPDATED)

... is back.

UPDATE:  Some thoughts from Derek Fincham at the Illicit Cultural Property Blog.

"The robbers removed the bust from its pedestal, slipped it into a paper bag, and walked off."

artnet news:  $300,000 Rodin Bust Stolen From Danish Museum in Broad Daylight.