The Art Law Report

Providing timely updates and commentary on legal issues in the museum and visual arts communities

Richard Prince, Social Media and the Public Domain: Reports of Copyright’s Demise are Premature

Posted in Copyright, Fair Use

Reactions to the Richard Prince Instagram story continue to filter in, and highlight the perpetual confusion between what is publicly available and what is in the public domain.  They are not the same thing, with important legal consequences.

The most prominent response to date has come from the “Suicide Girls,” who responded to word that Prince had used a photograph from their Instagram account by announcing that they would be selling their own versions (with the final word under comments) for $90 rather than $90,000.

suicide girls

The Suicide Girls describe themselves as “an alternative to the mainstream media’s obsession with the silicone enhanced Barbie dolls and the incredible shrinking starlets.”   Founder “Missy” told ArtNet:

While I understand the conversation that he’s trying to start, and that we’re all talking about copyright and art in the digital age, I feel like $90,000 is a crazy amount to spend. . . He’s starting this conversation while utilizing people that are from our sort of scene—girls that are beautiful and unique. They could benefit from $90,000 dollars. None of them could afford that. So we wanted to create something that they could afford.

Serve, returned.

This story touches a refrain that resurfaces every few years: how does new technology affect existing concepts of property and copyright law?  In fact, in many ways they represent an even greater risk because a single infringement can quickly be multiplied exponentially.  An image that can be captured can be copied if there is a defensible fair use, of which comment and criticism are the easiest to identify.  It is a bit tired to suggest that somehow emerging media have rendered copyright obsolete.  Yet the misunderstanding persists.  Partly it comes from the creative ethos of social media, in which sharing and appropriation are essential components.  That leads to overstatements like this one, from critic Jerry Saltz of New York magazine on the site vulture.com:

Never mind that all these images shadow us everywhere now and already exist in a public uncopyrighted digital realm. . . .As for him “stealing other people’s pictures,” my view of an artist using other people’s Instagram pics is no different than an artist using any other material. By now, we have to agree that images — even digital ones — are materials, and artists use materials to do what they do. Period. In my way of thinking, too many artists are too wed to woefully outmoded copyright notions – laws that go against them in almost every case.

These images are not uncopyrighted.  Instagram photos are not in the public domain.  The public domain applies to works over which no copyright exists.  The ease with which something can be copied has nothing to do with whether it is in the public domain.  If what Prince is doing is acceptable it is as a fair use under the statute, not because of a lack of copyright in the first instance.  The shadow of Prince v. Cariou is long indeed, but it hardly means that copyright is outmoded, and the suggestion that copyright goes against the source artists “in almost every case” is not true, and certainly premature.  Saltz makes an eloquent case for the artistic value of what Prince is doing, but it does not wash away the copyright law.

The point here is not that Prince will be found liable for infringement; in the grand scheme, he probably won’t.  But assuming that any image on the Internet is fair game for any other use because Prince can do what he does is to take a huge risk, and one that should not be done cavalierly.  Copyright may seem outdated, but it’s the law, and Richard Prince probably won’t be there to defend you when that time comes.

Fair Use Fool me Twice, Shame on Me—Richard Prince Goes Trolling on Instagram But May Have a More Pedestrian Problem

Posted in Copyright, Fair Use, Intellectual Property

Few art law cases have received as much attention as that of Richard Prince and his dispute with Patrick Cariou over the latter’s Yes, Rasta photographs that Prince altered, defaced, and otherwise rearranged for his Canal Zone series.  Prince has now garnered renewed attention for his appropriation of Instagram images in a set of works he has been selling at a Gagosian Gallery show called “New Portraits” (and in various other venues over the last few months).  He escaped liability for infringement of Cariou’s pictures (though the case settled after remand; several infringement claims were still in play when the parties settled).  Can he do so again?  If this recent effort is not infringement, it certainly begs the question of whether the fair use exception has swallowed the rule.  Lastly, Instagram itself may have prohibited the entire exercise in its terms of use, a possible avenue to short-circuit the entire copyright exercise.

In 2011, Cariou sued Prince and won a permanent injunction and an order that Prince’s works be impounded and destroyed.  In 2013 the Second Circuit reversed, focusing on the “purpose and character” factor of § 107 of the Copyright Act, or what has become known as the transformativeness test, particularly with respect to visual art.  The Second Circuit found as a matter of law that twenty five of the works by Prince were clearly transformative.  They contrast “crude and jarring” appearance with Cariou’s “serene” photographs of “natural beauty”, as well as palette, scale, and media differences.  I analyzed the 2013 opinion here, which I won’t repeat now.  But the takeaways were that Prince’s total disinterest in his own meaning, and the troubling reliance on Prince’s upper market clientele, threw the question wide open in a way that very few analysts and commentators find helpful.  Put another way (paraphrasing the Dread Pirate Roberts), anyone who tells you they know definitively what fair use is, is probably selling something.

Not terribly surprisingly, this is not the last word from Prince.  He is currently putting on a show that consists of other people’s Instagram photos, blown up to large wall size, sometimes with Prince’s comments below.  An example is here:

DoeDeere

This user DoeDeere was apparently already found by reporters, and she disclaimed any interested in pursuing Prince for infringement.  But what if someone else were so inclined?

At a basic level, Prince’s Second Circuit victory clears away the need to ask why he did any of this.  What of the transformation itself?.  It’s not clear if Prince actually logged into Instagram and made the comment post, or if the newer work is itself an alteration of the existing Instagram post.  That could make a great deal of difference.  If Prince took an existing image, let’s say of kittens, then added some sexualized comment, he would be certainly in the neighborhood of the Cariou decision logic, such as it is, from the standpoint of transformation (kittens are to pornography as Roy Orbison is to 2LiveCrew, or something like that).  But if all he did was print out a comment thread of which he was a part (within Instagram), he would have to argue that the original online comment was the visually transformative element, or that merely making a larger printout suffices.  That would effectively abolish copyright on the Internet, which seems unlikely.

There is little question that Prince is the agent provocateur in all this, and playfulness is an important part of free expression, whatever you think of him.  And given the scale and publicity, there may well yet be litigation by one or more of the original photographers under copyright.  At the same time, photographers in particular feel under siege and unsure of how much they can protect their work.  But something almost no one thinks about because of their ubiquity, is the terms one agrees to even by venturing onto social media.  The Instagram Terms of Use state (bold added):
Rights

5.          The Service contains content owned or licensed by Instagram (“Instagram Content”). Instagram Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and Instagram, Instagram owns and retains all rights in the Instagram Content and the Service. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Instagram Content and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Instagram Content.

That is seemingly precisely what Prince has done.  So even if he could claim fair use against the original photographer successfully, he may not be able to escape an old-fashioned contract third-party beneficiary argument.  If Prince used Instagram (and a review of the site indicates that “@richardprince1234” is a real user), he agreed to its terms of use, and the other content providers could be the beneficiaries of that agreement (not to prepare derivative works).

Prince will clearly continue to push the envelope, so further twists and turns are all but certain.

REMINDER: Art Crime and Cultural Heritage: Fakes, Forgeries, and Looted and Stolen Art at NYU June 4-6

Posted in Events, Restitution

I am looking forward to next week’s Art Crime and Cultural Heritage symposium at NYU next month.  I will be on a panel discussing the Gurlitt case moderated by Mel Urbach, along with Chris Marinello and Wesley Fisher.  The program is as follows, and promises to be a fascinating event.

Thursday, June 4, 2015

9:00 a.m.−12:45 p.m.

Theft and Fraud

Opening Remarks

  • Jane C.H. Jacob, President, Jacob Fine Art, Inc.; Co-Founder, Art Crime Conference
  • Christopher A. Marinello, CEO & Founder, Art Recovery Group Ltd; Co-Founder, Art Crime Conference
  • Alice Farren-Bradley, Director of Claims & Recoveries, Art Recovery Group Ltd; Co-Founder, Art Crime Conference; Moderator, Museum Security Network

Keynote: The Theft and Return of Renoir’s On the Shore of the Seine

  • Doreen Bolger, Director, Baltimore Museum of Art; oversaw the return of the stolen Renoir painting Paysage bords de Seine to the museum’s collection in 2014
  • Marla Diaz, General Counsel, Baltimore Museum of Art; lead attorney in the negotiation for the return of Paysage bords de Seine to the Baltimore Museum of Art

Discussion: Networks and Freeports: How Stolen Property Can Circulate

  • Sandra Cobden, Senior Vice President and General Counsel, Christie’s Inc.
  • Daniel Brazier, Special Agent, U.S. Department of Homeland Security, Homeland Security Investigations (HSI)
  • Simon Hornby, President, Art Services, Crozier Fine Arts Inc.
  • James McAndrew, Grundfeld Desiderio Lebowitz Silverman & Klestadt LLP

Panel: Non-Fine Art Issues: How Rigorously Are Works Checked Before Sale?

Moderator

  • Jane Levine, Worldwide Director of Compliance, Sotheby’s

Speakers

  • W. Graham Arader, III, Founder & Owner, Arader Galleries; specializes in antique works on paper, paintings, and rare books
  • Patricia J. Graham, Founder, Asian Art Research & Appraisals; Research Associate, Center for East Asian Studies, University of Kansas; author, Japanese Design: Art, Aesthetics, & Culture
  • Jonathan Illari, Vice President and General Counsel, Auctionata; former Counsel, Bonhams

2:00−5:30 p.m.

Theft and Fraud

Panel: Due Diligence and Professional Ethics in the Art Market

Moderator

  • Christopher A. Marinello, CEO & Founder, Art Recovery Group Ltd; Co-Founder, Art Crime Conference

Speakers

  • Megan Fontanella, Associate Curator, Collections and Provenance, Guggenheim Museum
  • Megan Noh, Assistant General Counsel, Bonhams; supports all U.S. specialist and business departments, with a particular emphasis on the day-to-day needs of the New York office, including claims, transactional and compliance work

Panel: Consignment Fraud: The New Theft?

Moderator

  • Kevin Ray, Counsel, Art and Cultural Heritage Law, Business Reorganization & Financial Restructuring, Greenberg Traurig LLP

Speaker

  • David Goldstein, Attorney, Rabinowitz, Boudin, Standard, Krinsky & Lieberman PC; litigator in disputes over artworks, trade secret misappropriation, and copyright infringement; co-author of Creating an Equitable Balance Between the Rights of Former Owners and Good Faith Purchasers of Stolen Art

Closing Discussions and Possible Solutions

Moderator

  • Christopher Robinson, Partner, Davis Wright Tremaine LLP; practices intellectual property and art law

Speakers

  • Amy Adler, Emily Kempin Professor of Law, NYU School of Law
  • Judith Pearson, President and Director, ARIS Title Insurance Corporation (ARIS)
  • Jordan Arnold, Managing Director and Head of Art Risk Advisory at K2 Intelligence; former art crime prosecutor at the Manhattan District Attorney’s Office

6:30−8:30 p.m.

Reception

Sponsored by Arader Galleries

Friday, June 5, 2015

9:00 a.m.−12:45 p.m.

Looted Cultural Property

Opening Remarks

  • Jane C.H. Jacob, President, Jacob Fine Art, Inc.; Co-Founder, Art Crime Conference
  • Alice Farren-Bradley, Director of Claims & Recoveries, Art Recovery Group Ltd; Co-Founder, Art Crime Conference; Moderator, Museum Security Network

Keynote: The Monuments Men

  • T/4 Sgt. Harry Ettlinger, served in the Monuments, Fine Arts, and Archives (MFAA) program in World War II, better known as the Monuments Men; author of Ein Amerikaner: Anecdotes from the Life of Harry Ettlinger

Discussion: The Gurlitt Collection: Law vs. Ethics

Moderator

  • Mel Urbach, Esq., Klein & Solomon, LLP, New York, NY; represents the heirs of Alfred Flechtheim and is a pioneer in art restitution; negotiated return of Kokoschka painting and other work

Speakers

  • Christopher A. Marinello, CEO & Founder, Art Recovery Group Ltd; Co-Founder, Art Crime Conference
  • Wesley Fisher, Director of Research, Conference on Jewish Material Claims Against Germany; Executive Director, Victim List Project of the Swiss Banks Settlement
  • Nicholas O’Donnell, Litigation Partner, Sullivan & Worcester LLP; Editor, Art Law Report

Panel: The Plunder and Protection of Native American Culture

Moderator

  • Tim Carpenter, Special Agent, Federal Bureau of Investigation (FBI); involved in the largest restitution case of Native American artifacts in the United States, recovering 5,000 objects to date

Speakers

  • Pierre Ciric, Founder, Ciric Law Firm PLLC; Co-Founder, Holocaust Art Restitution Project (HARP)
  • Colleen Medicine, Cultural Repatriation Assistant, Sault Ste. Marie Tribe of Chippewa Indians, MI

2:00−5:30 p.m.

Looted Cultural Property

Discussion: Legal Obligations of Museums

Moderator

  • Karl Geercken, Partner, Alston & Bird LLP; counsel for Leopold Museum, Vienna, in the Schiele Portrait of Walley case

Speakers

  • MaryKate Cleary, Collections Specialist, Painting and Sculpture, Museum of Modern Art
  • Holly Keris, Chief Curator, Cummer Museum of Art & Gardens

Panel: Cultural Heritage Destruction and the Illicit Trade

Moderator

  • Peter Herdrich, Founding Partner, The Heritas Group; formerly CEO, Archaeological Institute of America (AIA)

Speakers

  • Amr Al Azm, Associate Professor, Middle East History and Anthropology, Shawnee State University; former Director, Scientific and Conservation Laboratories, General Department of Antiquities and Museums, Syria
  • Edouard Planche, Programme Specialist, Cultural Heritage Protection Treaties Section, UNESCO

Closing Discussions and Possible Solutions

Moderator

  • Alice Farren-Bradley, Director of Claims & Recoveries, Art Recovery Group Ltd; Co-Founder, Art Crime Conference; Moderator, Museum Security Network

Speakers

  • Laurie Rush, Army Archaeologist, Fort Drum, NY; Board Member, U.S. Committee of the Blue Shield
  • Michael Danti, Assistant Professor of Archaeology, Boston University; Co-Director, ASOR Syrian Heritage Initiative
  • Mari-Claudia Jiménez, Partner, Herrick Feinstein LLP; partner in the Art Law practice group

6:30−8:30 p.m.

Reception

Sponsored by Bonhams

Saturday, June 6, 2015

9:00 a.m.−12:45 p.m.

Fakes and Forgeries

Opening Remarks

  • Jane C.H. Jacob, President, Jacob Fine Art, Inc.; Co-Founder, Art Crime Conference
  • Christopher A. Marinello, CEO & Founder, Art Recovery Group Ltd; Co-Founder, Art Crime Conference

Keynote: Problems in the Russian Art Market

  • James Butterwick, Founder & Owner, Butterwick Gallery LLC; specializes in Russian avant-garde

Keynote: Art Crime Scene: Forger Talks about Forgery

  • Ken Perenyi, Renowned art forger whose works have passed through major auction houses and galleries in New York and London as original works; author of Caveat Emptor

Panel: Expert Immunity

Moderator

  • John Cahill, Attorney, Cahill Partners LLP; formerly General Counsel, Phillips de Pury & Co.; Chair, New York City Bar Association, Art Law Committee

Speakers

  • Sharon Flescher, Executive Director, International Foundation for Art Research (IFAR); Editor-in-Chief, IFAR Journal
  • Betty Little, New York State Senator, 45th District; sponsor of amendment to the New York Arts & Cultural Affairs Law enhancing protections for art authenticators
  • Steven R. Schindler, Founder and Partner, Schindler Cohen & Hochman LLP; Art Business faculty, Sotheby’s Institute of Art, New York

2:00−5:30 p.m.

Fakes and Forgeries

Discussion: Challenges to Cases in which Experts Present False Testimony

Speakers

  • James Martin, Principal, Orion Analytical LLC, a materials analysis and consulting firm specializing in art, cultural property, and collectables
  • Bonnie Magness-Gardiner, Program Manager, Art Theft Program (National Stolen Art File and Art Crime Team), Federal Bureau of Investigation (FBI)

Panel: Protecting Jackson Pollock

Moderator

  • Judd Grossman, Founder and Managing Partner, Grossman LLP

Speakers

  • Francis O’Connor, Jackson Pollock scholar and lead author of Jackson Pollock’s catalogue raisonné
  • Meridith Savona, Special Agent, Art Theft Program (National Stolen Art File and Art Crime Team), Federal Bureau of Investigation (FBI)

Closing Discussions and Possible Solutions

Moderator

  • Jane C.H. Jacob, President, Jacob Fine Art, Inc.; Co-Founder, Art Crime Conference

Speakers

  • Eleonora Nagy, Conservator, Modern and Contemporary Sculpture; Director, Modern Sculpture Conservation LLC, New York; Conservator, three-dimensional works of art, Whitney Museum of American Art; Advisory Committee for Conservation and Restoration (ACCR) and Judd Foundation
  • Spencer Tomkins, President, Spencer Tomkins Fine Art Inc.; art consultant with over 25 years of experience in the international art market working with private and corporate collectors; specializes in American and European post-war and contemporary art
  • William L Charron, Partner and Co-Chair of Art Law Practice, Pryor Cashman LLP; Counsel, ARIS Title Insurance Corporation (ARIS)

“Copyrights on the Street” at Copyright Society Annual Meeting June 9, 2015

Posted in Copyright, Events, VARA

I am pleased to be participating in a panel discussion in two weeks at the Copyright Society of the U.S.A.’s annual meeting in Newport, Rhode Island.  The panel, entitled “Copyrights on the Street: Creating and Preserving Graffiti and Other Art in Public Spaces,” will explore:

Artists who choose the streets as their canvas or gallery— whether to present socially relevant expression, provoke mass action, or simply to “mark” territory—face risky uncertainties at the intersection of their art and the Copyright Act, including the Visual Artists Rights Act (17 U.S.C. § 106A).  Come hear a distinguished group of panelists educate and entertain us with their views on the current legal writing on the wall—from academic, practitioner, and artist perspectives.

Peter Caruso of Prince, Lobel & Tye LLP will moderate the panel, which will also include Deirdre A. Fox, of Scharf Banks Marmor LLC; Phillippa Loengard, Deputy Director, Kernochan Center for Law, Media and the Arts, Columbia Law School; and Christopher J. Robinson, Davis Wright & Tremaine LLP.

Hope to see you there.

First Painting Restituted from Gurlitt Trove to be Sold; Appellate Court in Munich Breathes New Life Into Will Contest

Posted in Gurlitt Collection, Museums, Restitution, World War II

After the restitution of the first two works of Nazi-looted art from the trove of works found in the apartment of Cornelius Gurlitt, David Toren has announced his intention to auction his work, Two Riders on the Beach by Max Liebermann. Toren, now more than 90 years old, remembers the theft of the painting from his uncle David Friedmann in Breslau (now Wrocław). Toren is the only claimant to date to have filed litigation over the Gurlitt case. Sotheby’s will auction the work on June 24. Toren explained his motivation for the sale as follows:

I am 90 years old and blind, so while the return of the painting after so many years is of huge personal significance, I can no longer appreciate the painting as I did all those years ago in my great uncle’s home… I am one of a number of heirs and we have decided to sell.

This is an important point.  I was recently discussing this very issue, that is, that restitution returns property to its rightful owner, and that criticism of what that owner does with it thereafter is really not for public criticism.  The Holocaust Art Restitution Project put it eloquently over the weekend:

The point of restitution–the physical act of returning a stolen object to its rightful owner–is to mend the broken chain of ownership, a chain that was ruptured and torn asunder by anti-Jewish policies promulgated and enforced by the National Socialist government of Adolf Hitler between 1933 and 1945. . . .

Once the claimant recovers the restituted item, it is none of our business what he or she does with it. It has become a private matter. We have no say in other people’s private lives, an assertion contradicted by the ever present intrusion of smartphones, social media, recording and eavesdropping devices, search engines, and what nots of the digital, electronic age which permeate our daily lives and give us the wrong idea that we are entitled to pry into other people’s lives and to judge what a claimant should do with his/her recovered assets. Once more, it’s none of our business what Mr. Toren does with his painting.

Amen to that.  Meanwhile, after the court of first instance dismissed the will contest by Uta Werner over the will than named the Kunstmuseum Bern heir to the remaining works, the story is not quite over yet. The Berner Zeitung reported this weekend (my translation) reports that the high court (Oberlandesgericht) wants more information about Gurlitt’s ability to make the will in the last days of his life:

The worst-case scenario, however, now seems more realistic than before. After Gurlitt’s cousin was rebuffed by the Munich District Court, the case is now in the Court of Appeal. The high court announced to the parties that it “expected an expert opinion on the question of testamentary capacity of the testator,” which deputy spokesperson Petra Willner confirmed. The message has been received joyfully in the camp of Gurlitt’s cousin.

This is notable for two reasons. First, of course, it puts back in question the bequest in the first instance. If the will fails (which I’ve always considered a reasonable possibility given the circumstances), then the whole situation goes back to square one, last year’s staged triumph notwithstanding. Second, the lede of the article (and others) actually concerns the financial burden that the case has put on the museum. The Kunstmuseum has apparently spent more than 830,000 CHF (roughly $880,000) in legal and investigative fees, and in the preparations for its intended expansion to house the collection. If the bequest does come, that is certainly a capital investment, even if it has put the museum in the red by more than half a million so far. But if it doesn’t?

Lastly, the Green Party is making noise in Bavaria about the pace of the Task Force’s work. Verena Osgyan was quoted in the Mittelbayerische Zeitung as saying (again my translation):

There is anger over the task force launched by the state government that is looking at the collection Nazi-looted art heir Cornelius Gurlitt, who died in 2014. This is due to the slow pace of research. “We are extremely dissatisfied with the work of the Task Force,” said Green deputy Osgyan. Two works of art have been returned to their rightful heirs. “There are more than 500 works of art remain unclarified.”

Given that the story is approaching its second anniversay, and the seizure from Gurlitt has passed its third, this remains negligible progress.

Order Restored—Copyright Claim to Individual Performance in “Innocence of Muslims” Fails

Posted in Copyright

The full en banc panel of the Ninth Circuit Court of Appeals has reversed the earlier three-judge panel decision concerning a claimed copyright in the notorious Innocence of Muslims film.  The full panel rebuked—wisely—the earlier panel’s holding that Cindy Lee Garcia had an independent and enforceable copyright in her acting performance that would allow her to enjoin reproduction of the video (on YouTube, in particular).  Garcia’s case failed both for threshold reasons of fixation, and larger issues of copyright and the First Amendment.  The case is a sympathetic one, but the ruling that has now been overruled was an unworkable one that needed to be corrected.  Many of the problems and ramifications of the earlier opinion that we have noted were echoed in the decision.

The movie gained immediate and worldwide notoriety.  The video first shows what are apparently Christians being attacked, while a presumably Muslim mob destroys a medical clinic, all while the police do nothing. The movies then abruptly purports to retell the life of the prophet Muhammad. People could not even agree if it was a movie, a trailer, or something else. The tragic upshot was that protestors soon converged on American embassies and contemporaneous with the now-infamous and deadly attack on the U.S. Embassy in Benghazi, Libya. As observers noted at the time, the dubbing and lip-synching was so bad, “It is quite possible that the actors had no idea what they were doing.”

Garcia, one of the actresses in the video, stated publicly that she had no idea what the movie was to turn out to be at the time she participated, and that the Islamophobic audio had been dubbed over whatever she actually said when filming. She also sued, arguing that her performance was an independently copyrightable work, such that the producers needed her permission to distribute and reproduce it. Notably, she sued Google as YouTube’s parent, for failing to take down the video when she asked under the Digital Millennium Copyright Act (DMCA).  The District Court denied her injunction request.

In March of last year, the three-judge panel ruled that Garcia was likely to prevail on her claim that she had an independently copyrightable performance distinct from the movie itself.  Despite being widely derided by copyright experts when she filed it, Garcia successfully appealed the District Court’s denial of a mandatory injunction, meaning that Google and YouTube had to remove the video affirmatively from public availability.  The director was also sued, but Google was targeted primarily because of the film’s availability on YouTube.

The majority issue put the issue this way in its opinion yesterday:

In this case, a heartfelt plea for personal protection is juxtaposed with the limits of copyright law and fundamental principles of free speech.  The appeal teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship.

And, as we noted when the opinion first came out, the stakes were high:

Garcia’s theory can be likened to “copyright cherry picking,” which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act. 

The opinion rested on several bases.  First, it was an appeal concerning a mandatory injunction: an order to compel Google to do something.  That requires not merely showing that the movant is likely to succeed (the standard for restraining further action), but that its position is clearly correct.  The District Court, not the panel, held the Ninth Circuit, got that balance right when it denied the injunction in the first instance.

As to the merits of Garcia’s copyright claim, the Ninth Circuit took aim at the threshold requirement of fixation.  A work is copyrightable only if it is “fixed in a tangible medium.”  Garcia did not fix anything (she performed)—the movie’s director and producers did.  If I perform an interpretive dance in Central Park I can’t claim copyright; if I videotape myself doing it, I can.

The Ninth Circuit also noted that movies are considered single, integrated works.  This is for practical reasons and under prior interpretations of copyright law.  The opinion held that the asserted performance also failed to establish the minimum creativity required: (something that the Copyright Office had already concluded in denying Garcia’s registration request:

Garcia’s theory of copyright law would result in the legal morass we warned against in Aalmuhammed—splintering a movie into many different “works,” even in the absence of an independent fixation.  Simply put, as Google claimed, it “make[s] Swiss cheese of copyrights.”

Take, for example, films with a large cast—the proverbial “cast of thousands”10—such as Ben-Hur or Lord of the Rings.11  The silent epic Ben-Hur advertised a cast of 125,000 people.  In the Lord of the Rings trilogy, 20,000 extras tramped around Middle-Earth alongside Frodo Baggins (played by Elijah Wood).  Treating every acting performance as an independent work would not only be a logistical and financial nightmare, it would turn cast of thousands into a new mantra: copyright of thousands.

Even if Garcia’s performance was not a work for hire (meaning any copyrightable performance), it at least constituted an implied license.

Having reversed the earlier opinion on the strength of Garcia’s claim (without which there could be no injunction and Google would win), the court did not have to proceed to any further analysis, and the remainder of the opinion is arguably dicta—the court’s opinion but since not essential to the holding, and thus not necessarily binding law.  The Ninth Circuit clearly wanted to send a message however, when it proceeded to the irreparable harm element of the injunction.  While sympathetic to the plight that Garcia faced, the court noted that copyright is not the vehicle for the privacy protection that Garcia was actually seeking.  The Ninth Circuit also took pains to address the injunction in the context of the First Amendment.

To be sure, this is not a case of garden-variety copyright infringement, such as seeking to restrain the use of copyrighted computer code.  The panel’s takedown order of a film of substantial interest to the public is a classic prior restraint of speech.  Alexander v. United States, 509 U.S. 544, 550 (1993) (“Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints.”).  Prior restraints pose the “most serious and the least tolerable infringement on First Amendment rights,” Hunt v. NBC, 872 F.2d 289, 293 (9th Cir. 1989) (citation omitted), and Garcia cannot overcome the historical and heavy presumption against such restraints with a thin copyright claim in a five-second performance.

This case reminds me in many ways of the Jenack case (concerning disclosure of the seller in an auction under New York law), in that it created an interregnum that no one expected and which threatened to upend he status quo.  Those expectations have now been restored.

Interestingly, while the result certainly telegraphs the probable outcome of the case, the appeal concerned only the injunction.  I would certainly expect the defendants to move to dismiss relying on this opinion, but the case is not actually over (yet).

…or maybe not. Detroit Institute of Arts Backs Off Van Gogh Deaccessioning

Posted in Deaccession, Detroit Bankruptcy, Museums

The Detroit News ran a story today (in which I’m quoted) about the proposed deaccession of an early Van Gogh from the Detroit Institute of Arts, a topic we’ve covered recently.  Somewhat surprisingly, after the museum made its case for the sale of the painting, those plans have apparently changed.  From today’s article by Laura Berman concerning director Graham W.J. Beal’s statements about the museum’s plans:

Beal made the situation more confusing in a telephone interview with The Detroit News on Wednesday. He said he had decided not to sell the Van Gogh, but to leave the resumption of sales to his successor. Beal is retiring from the museum June 30.

“Were I not leaving, we would be getting back into gear with deaccessioning,” Beal said. Why was the plan to sell the Van Gogh being reported? “I had been talking to Sotheby’s and I think word leaked out,” Beal said. “When the bankruptcy was over, I talked to Sotheby’s and decided that now isn’t the time to do it.”

But Beal had not publicly denied readying the Van Gogh for sale. And DIA spokeswoman Pamela Marcil acknowledged the possibility of offering it earlier Wednesday. Would Beal sell the painting if someone made him an offer? “It would have to be above the auction house estimated sale value,” he said.

So much for all that, apparently.

Two Works Found With Gurlitt Cleared for Immediate Restitution, Hundreds More Still in Limbo

Posted in Gurlitt Collection, Restitution, World War II

After months of start/stop and hurry up and wait, the Munich court with jurisdiction over the Gurlitt collection has cleared two paintings for restitution to the heirs of their original owners.  David Toren and the Rosenberg family will receive Two Riders on the Beach (Ritter am Strand) by Max Liebermann and Seated Woman by Henri Matisse, respectively.  This will also result in the resolution of the only lawsuit to date filed over the Gurlitt case (pending in Washington, DC).  Toren and the Rosenbergs are to be congratulated for their perseverance, as should their representatives (again, respectively) August Matteis and Christopher Marinello—particularly after some eleventh-hour victim-blaming.

Lest anyone be tempted to rest on their laurels, however, there is still much to be done.  There are two other works that have been publicly identified as Nazi-looted art by the Gurlitt Task Force.  There is no reason that their immediate restitution should not follow.  And, of course, even these four together are a drop in the bucket of the more than 900 works still being evaluated.  There has been, literally, no update whatsoever about what the status of that examination (which Germany and Bavaria agreed to complete within a year of April, 2014, or nearly two months ago).  Progress is long overdue.  The German Cultural Property Center (Zentrum Deutsches Kulturgutverluste) has been technically open for five months, but its visible output is hard to discern–and is available only in German.  The still-pending will contest should not be an obstacle, either.  There is still much work to be done.

Oklahoma Legislators Propose Resolution on Disputed Pissarro

Posted in Museums, Restitution, World War II

When the U.S. District Court in New York recently transferred Leone Meyer’s case seeking restitution of the Camille Pissarro painting La bergère rentrent des moutons (which it had earlier dismissed), we wondered whether the move closer to the painting might prove useful for Meyer.  That is to say, would renewed attention prompt non-judicial activity?  The Oklahoman has taken notice too, with an in-depth article recently (I am quoted in the print article).

We didn’t have to wait long.  After last year’s expression of interest by certain legislators, twenty-six Oklahoma legislators have proposed a resolution.  It calls for the Fred Jones, Jr. Museum at the University of Oklahoma to restitute the painting to Meyer (the museum received it as a bequest from Aaron and Clara Weitzenhofer in 2000), and to research its remaining collection for any other provenance issues.  The resolution’s sponsor Paul Wesselhöft said: “These 26 authors who filed this resolution want to be on the right side of history.”

The museum responded to the resolution with a statement of its own:

There has been no evidence — or even suggestion — that the family or the university were somehow involved in or complicit with any inappropriate activity.  [O]ur goal continues to be to seek a mutually acceptable resolution to Plaintiff’s claim or, if she prefers, to continue with the legal process and abide by the results.

The resolution is not a law, or even a bill, so for the moment it is symbolic.  Coverage in Oklahoma discusses settlement talks, but the sides still seem far apart.

Detroit and Deaccessioning—the Museum Responds

Posted in Deaccession, Detroit Bankruptcy, Museums

We mused recently about (and tried to clarify) the possible tension between the Detroit Institute of Arts’ successful scuttling of any plans to consider selling its collection to satisfy the city’s debts in the Detroit Bankruptcy.  The purpose of the post was not guileful: it seemed likely that many readers might be confused about how Detroit could propose to sell artwork when so much coverage had been addressed to the idea of not selling artwork.  In fact, the two ideas are entirely consistent with the consensus of museum governance ethics, but we thought it was an occasion to prompt discussion about the policy behind those ethical guidelines.  After all, apart from New York, the rules of deaccessioning are not actually law, they are enforced essentially through collective opprobrium.  To facilate that discussion, I quoted Donn Zaretsky, a prominent critic of the status quo, for readers to consider on the one hand, against the guidelines themselves on the other hand.

This effort prompted a response to the Art Law Report from DIA itself.  Director Graham W.J. Beal wrote to me:

I have just read your piece commenting on our intention to deaccession an early Van Gogh and asserting that I had categorically stated that we should  not deaccession for any reason.  I am as certain as I can be of anything that I have never made such a statement.  In fact, I was careful throughout to say that we could not deaccession for any other reason than to by art.  We stopped deaccessioning art for sale because we knew that this would send a confusing message to some of our public and possibly give the emergency manager’s team material that could be used to muddy the water.  If you have a source for “my” assertion that deaccessioning should never be done for any reason, please let me know because I would like to set the record straight.  Also, if you read the AG’s opinion carefully, he states that art cannot be sold to satisfy debt and nowhere equates public trust with a total ban on deaccessioning. 

It’s now clear that this confusion stems from a paraphrase (but not a quote) in Randy Kennedy’s December 4, 2013 New York Times article, which stated, “The museum’s director, Graham W. J. Beal, has said that any sale of art will most likely lead to the museum’s dissolution; donors would stop giving, and the museum will lose a crucial tax stream established last year by surrounding counties to provide the museum with badly needed operating revenue.”  The article makes no qualification about sales of art, but Mr. Beal is quite clear that he drew that line.  As for the Michigan Attorney General’s opinion, I understand perfectly well its sentiments about whether the art could be sold, but at the end of the day it was no more than the AG’s opinion; it was never tested or incorporated into a holding or judgment of the Bankruptcy Court.

Director Beal continued:

One added factor: the van Gogh in question has never been accessioned into the museum’s collection.  A notation in the donor’s file states that the works of art she gave were to be sold and the proceeds used to buy “Classic Modern art.”  This happened with a Chagall piece in 1990/1 in the bequest but the van Gogh became unsaleable when an expert questioned its authenticity.  We – and others – are now convinced that particular expert was wrong and we have traced back its provenance to a private collection at a time when no one was forging early Paris period van Goghs.

This makes another important distinction (and one available under New York law as well).  To de-accession something, the museum has to have accessioned it in the first place.  The conditions of the gift, it appears, essentially make possession of the painting conditional and only for the purpose of sale to buy more art.  In that respect, the Van Gogh is not a deaccessioning at all.

The balance between museums’ mission, their relationship to the public, and their very survival prompts strong feelings.  We hope the discussion continues to help strike that balance well.