The highly anticipated jury verdict in the Hermès litigation over MetaBirkins NFTs has some important takeaways for both artists and sellers of NFTs as well as brand owners.
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Don’t Cry Over Spilled Paint — Sue! VARA Claim Filed Against Detroit Real Estate Company
News of up-and-coming Detroit-based artist, Katherine Craig, splattered across headlines in the art world when she recently filed a lawsuit under Visual Artists Rights Act (VARA). The complaint requests injunctive relief against the new owner of the building on which her mural is displayed, asserting that the building owner’s plans for renovation and/or sale threaten to “deface, modify, mutilate, or destroy” the art in violation of Ms. Craig’s rights granted under VARA.
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Ninth Circuit Hearing on California Resale Royalties
Readers will recall that in 2012 the U.S. District Court struck down the California Resale Royalties Act, holding that the 1970s-era law violated the Commerce Clause of the U.S. Constitution.
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Ain’t Nothing Like the Real Thing: Despite Forgery Scandals, the Fine Art Market is Booming
On January 23rd, in a rare public appearance, Jasper Johns testified against a New York foundry owner, Brian Ramnarine, who was charged with creating unauthorized sculptures, including a fraudulent Johns “Flag” sculpture which Ramnarine allegedly made from the original mold and attempted to sell for $11 million. Johns testified that the sculpture was not authorized, the signature was forged and the certificate of authenticity was a fake. Ramnarine pled guilty to three counts of wire fraud in Manhattan federal court, admitting that he had tried to sell unauthorized sculptures of Johns and other artists.
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The Architecture of Copyright
This summer, Pacific Standard Time’s world-class exhibits highlight the architecture that gives Southern California its unique reputation for modern but relaxed style. This series of exhibits, a Getty initiative, titled “Modern Architecture in LA,” maps the aspect of Los Angeles architecture that is often overwhelmed by residential structures, instead focusing on infrastructure and urban planning, commercial and civic buildings, and housing experiments, among others. Architecture is an art form, and it is also a distinct practice in and of itself. When considering the relationship between art and architecture, it is interesting to see how these practices are at once similarly and differently protected by the law. The Copyright Act of 1976 and the Berne Convention have all resolved to give architects the protection they deserve. But is this protection enough?
My Fellow Californians – Our Long National Nightmare is Over
In the same era Gerald Ford advised his fellow Americans that “our long national nightmare is over,” as he succeeded Richard Nixon as president, the California Legislation enacted the sloppily-drafted California Resale Royalty Act, Civil Code Section 986. The act was not exactly a nightmare, in truth it slumbered for most of its thirty-plus lifetime. It seemed more honored in the breach than the observance. Recent awareness of the resale royalty obligation, though, has caused confusion and consternation for California sellers, for California artists and for the art trade nationwide. Some have, in fact, described it as a nightmare. As of late last week, the nightmare may be over.
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Life After Death – Right of Publicity Law
By Kathryn Hines and Christine Steiner
Society is consumed with celebrity. We can survey Hollywood marriages and divorces, analyze Golden Globe wardrobe choices and comment upon the latest Lindsey Lohan foible. It is not surprising that many artists have channeled this societal obsession, featuring celebrities in paintings, collages and video installations. Moreover, as we approach the anniversaries of the death dates of Elizabeth Taylor, Michael Jackson and Amy Winehouse, commemorative portraits are likely to be in high demand. But when does using a celebrity image in art infringe that celebrity’s right of publicity? It depends. While an artistic rendering of a recognizable person may be protected under the First Amendment, there are limits to this protection.
Rastaman Vibration
By Sarah Pavlock and Christine Steiner
The appeal in the case of Cariou v. Prince is shaping up to be the biggest visual arts copyright case in many years. It will likely result in guidance on what qualifies as a transformative use for appropriation art under the doctrine of fair use. Appropriation art "borrows" pre-existing works or images of the creative work of another artist in order to create something new and original. While this alone may seemed packed with copyright issues, it is generally not an appropriation artist’s intent to "rip off" another artist’s work. Usually, the success of the new work depends on the viewer’s recognition of the underlying work; the "aha" moment is the connection between the old and the new as the viewer recognizes the original work or that another work has been taken, and differentiates the creative changes that have been made in the new work.
The Year In Review
By Lano Williams and Christine Steiner
The past year was packed with litigation that ranged from broad constitutional questions to the ever present scourge of forgeries. Art Law Gallery presents highlights of some of the most important cases:
Artist Resale Royalties–New Cases under California Law
By Tyler Baker and Christine Steiner
On October 17, a proposed class of artists filed three federal lawsuits against auction houses Christie’s, Inc., and Sotheby’s, Inc., and internet auctioneer eBay, Inc., alleging that the defendants sold their artwork at California auctions and on behalf of California sellers, but failed to withhold royalties due. The complaints seek class-action status to represent many other artists and allege that the auctioneers engaged in a ongoing pattern of concealing the identities and residencies of sellers who live in California, thereby avoiding the five percent royalty due as agents for the sellers. All three complaints, filed in the U.S. District Court for the Central District of California, allege violations of California’s Resale Royalties Act as well as California’s Unfair Competition Law.
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“I-Arts” Viva La Revolución Digital
Whether iPhone, blackberry, or droid, the smartphone has become the modern day Swiss Army knife. Now, with the help of these ubiquitous gadgets, artists, collectors and institutions are modernizing the ways in which to interact with art. With a swipe of a finger, one can bid on a work at auction; finger paint with the “brushes” app; or even quelle horreur view Mona Lisa on the Louvre’s app! While the smartphone will never (nor should it) take the place of pencils, brushes and paints entirely, digital media can be used thoughtfully to give useful shape to the art of the present. Moving forward with digitization, it is important for creative organizations to consider the key intellectual property concerns at issue when developing an iPhone app. By considering each of these issues in concert with skilled legal counsel as necessary, the art community will be well on its way to avoiding the most common and costly legal mistakes.