Art Law Archives - Page 2 of 6 - Castaybert Law, NYC

The basic tenet of copyright law is that protection is available for “original works of authorship fixed in any tangible medium of expression.” The most common example of a work that is eligible for copyright protection is a painting or sculpture. Once the work is fixed it is afforded protection and others cannot reproduce, make derivatives, publicly display, or distribute the work. But, copyright does not last forever. Once the copyright on a work has expired, it enters the public domain. While Congress has amended the time for copyright protection over the years, it is generally understood that any work created before 1924 has entered the public domain. As such, there is no doubt that the works of the Old Masters displayed in museums are part of the public domain.

Despite this understanding museums, like the Metropolitan Museum of Art, sell reproductions of these works as posters in their gift store and these posters include a copyright notice. So how is it possible that the museum can own the copyright in the poster when the original work is in the public domain?

It is commonly understood that merely reproducing artwork that is in the public domain cannot extend copyright protect or else the expiration of copyright would cease to exist. Therefore, the poster cannot be seen as merely a reproduction of the original work, but rather a completely new work eligible for its own copyright protection. For a work that incorporates material from the public domain or other copyrighted works to garner copyright protection, the creator must disclaim the preexisting material and the material remaining that has not been disclaimed must have some creativity.

Using this framework, the posters produced by museums of their masterworks can only be copyrightable based on the design and creative choices in the poster itself and the underlying work would be disclaimed. Note this does not give museum goers free reign to commercially exploit the photographs they take of the master works displayed. Most museums have a terms of service that patrons agree to when they purchase a ticket to enter which stipulates they are not allowed to use their photos for commercial gain.

Please click here for more information on how Castaybert PLLC can help register, enforce, or protect your copyright.

The ADA mandates that public accommodations must be accessible to everyone, including websites. With internet commerce on the rise, advocates for the blind and hearing impaired argue that websites must be just as accessible as their brick-and-mortar counterparts. There is no formal government standard for private businesses to ensure their websites are ADA compliant. A group of web innovators have created the Web Content Accessibility Guidelines for businesses to implement to make their websites more accessible to the disabled. Further, the Trump Administration decided to stop drafting rules for website ADA compliance and it is widely cited as the reason for an increase in compliance suits.

For example, in just the first 6 months of 2018, there were nearly 5,000 ADA website lawsuits filed in federal court in the United States – a near 30% increase from the previous year. While advocates for the disabled find this uptick in lawsuits to be vital in achieving the necessary compliance with the ADA, critics have found these suits to be a ploy by lawyers and plaintiffs to pocket damages or hefty settlement agreements.

The suits have targeted businesses in nearly every sector from supermarkets to restaurants to fitness boutiques to universities. The most recent target of these suits is Art Galleries. In January, artnet reported more than 75 New York galleries have been sued claiming their websites are in violation of the ADA. As New York is a hub for the origination of these suits, it is likely this will continue throughout the art world and beyond and thus even more important to safeguard your website against such claims.

For information on how Castaybert PLLC can help make your website more compliant or defend against an ADA compliance suit, please click here.

February 13, 2019 — Artificial Intelligence (“AI”) has officially infiltrated the art world. With the rise of AI, it is becoming common for artists to collaborate with AI to create new works and to supplement AI art systems with their catalogs. Such endeavors have raised compelling questions about authorship for the purposes of copyright ownership and protection.

In response to the increasing application of AI in the art world, Harvard Cyberlaw Clinic Instructors Jessica Fjeld and Mason Kortz, in collaboration with Sarah Schwettmann and SJ Klein of MIT, took it upon themselves to create license templates to outline the scope of these projects, guarantee recognitions for their contributions, and ensure the continued progression of AI art systems for future use and development.

Read the full article and view the license agreements here.

For Information on how CASTAYBERT PLLC can assist you with your Art Law matter, visit our Art Law practice page here.

November 1, 2018 — On October 11, 2018, Donald Trump, with Kid Rock at his side, signed the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (“MMA” or “the Act”) in an effort to modernize copyright law in an era where digital streaming is king. Possibly most notably, the MMA creates a Mechanical Licensing Collective that is responsible for offering and administering blanket licenses to qualified personas and entities, collect and distribute royalties from digital music providers, and locate copyright holders whose works are used in other sound recordings among other functions. The Act is comprised of three bills concerned with royalties and licensing: 1) the CLASSICS Act, 2) the AMP Act, and 3) the Fair Play Fair Pay Act of 2017. Taking them in turn…

The CLASSICS Act

The CLASSICS Act (or Compensating Legacy Artists for the Songs, Service, and Important Contributions to Society Act) finally brings pre-1972 sound recordings into the federal copyright regime. By doing so, it ensures that artists who recorded music before February 15, 1972 will receive royalties and licensing fees when their songs or streamed or played on the radio. It also grants pre-1972 sound recording copyright holders the same exclusive rights (found in 17 U.S.C. § 106) and remedies (found in 17 U.S.C. §§ 502-505, 1203) as post-1972 sound recording copyright holders have enjoyed for years. As such, we have finally reached the long-awaited end to the confusing web of common law and state statutory rights governing pre-1972 sound recordings.

The AMP Act

The AMP Act (or Allocation for Music Producers Act) codifies the “Letter of Direction” practice, somewhat streamlining the ability for music producers, mixers, and sound engineers who took part in the creation of a sound recording to obtain royalties. AMP requires the Copyright Royalty Board to “reasonably implement a policy that provides . . . for acceptance of instructions from a [copyright holder] . . . to distribute to a producer, mixer, or sound engineer who was part of the creative process that created a sound recording.” Sec. 302(a)(5)(A), H.R. 1551-115 (2018). AMP also provides producers, mixers, or sound engineers (among others) to file for, and receive so long as the copyright holder does not object, royalties in the event that they are unable to obtain a Letter of Direction from the copyright holder. Codification of this longtime practice will help streamline the letter of direction process and provide oft-forgotten creatives behind the marquee artists a statutory means of securing royalties payments for their works.

The Fair Play Fair Pay Act of 2017

The Fair Play Fair Pay Act (“FPFP”) incorporates aspects of the CLASSICS Act and the AMP Act, while adding new wrinkles as well. In addition to requiring payment for pre-1972 sound recordings by closing a loophole exploited by digital streaming services and codifying the Letters of Direction practice, the FPFP creates a performance right for sound recordings on AM/FM radio and establishes a “willing buyer/willing seller” regime that ensures copyright holders receive fair market value for their recordings across all platforms and ensures songwriter royalties are undisturbed. The “willing buyer/willing seller” regime updates old law which required the Copyright Royalty Board to consider free-market conditions to determine fair rates. The

Conclusion

The Music Modernization Act is a much-needed revamp to an outdated copyright system.While it’s passing may not address all of the areas necessary to bring copyright law into the 21st century, bringing pre-1972 sound recordings into the federal regime, providing an updated royalties system that should provide fair pay to artists, and creating a clearer path for members of the creative process behind copyrighted works to obtain royalties is a step in the right direction.On the other hand, it will be interesting to see if the mechanical licensing regime leads to greater efficiency and whether the new scheme to distribute unclaimed royalties could lead to windfalls for the traditional licensing powers.

You can read the full text of the music modernization act here.

For more information on how Castaybert PLLC can assist you with copyright matters, visit here.

Last week, we saw some movement in the high-profile lawsuit between the Andy Warhol Foundation and photographer, Lynn Goldsmith, regarding Warhol’s iconic Prince portrait series produced in 1984. Both parties have made their pleas and filed cross-motions for summary judgment which could lead to a decision from the court clarifying the boundaries of fair use in copyright law.

In 1984, Goldsmith gave Vanity Fair a license for a one time use of her photo of the musical artist, Prince, as source material for an illustration by Warhol. Warhol created the illustration as well as 15 other portraits of Prince. In 2016, shortly after Prince’s death, the foundation licensed one of those portraits to Conde Nast for the cover of a magazine. It was around this time that Goldsmith learned of the Warhol series after seeing the images posted online.

Last year, the Andy Warhol foundation filed a pre-emptive lawsuit against Goldsmith in order to squash her claims that Warhol’s Prince portrait series is a violation of her exclusive rights under copyright law. The Foundation claims that there is no evidence of copying as it is unclear which photo Warhol was inspired by; but more importantly they claim that the series is an exercise of the fair use doctrine due to the work’s transformative nature and the fact it does not usurp Goldsmith’s market. Goldsmith, on the other hand, claims that the essence of her photograph is still present in the portrait series and that there is an overlap in the markets for the work.

The decision from the court as to whether Warhol’s portraits constitute fair use will help clarify the boundaries of the doctrine as it relates to appropriation art. This is especially important after a controversial 2013 decision from the 2nd Circuit which was widely seen as expanding the doctrine and led other circuits to question whether the test for transformative use was too broad.

For more details about the Warhol case, please click here.
A copy of the complaint filed by the Warhol Foundation can be found here.

Click here for more information on how Castaybert PLLC can assist you in either enforcing or defending your artistic rights.

October 4, 2018.

So, you own a piece of art that you want to sell. Can you take and use pictures of the artwork to promote its sale without running afoul of copyright laws? Yes, you can according to a recent decision from the Southern District of New York in Stern v. Lavender (“Stern”).

Overview

In Stern, long-time studio assistants of noted photographer Bert Stern alleged that Stern gave them original copies of his famous photos from Marilyn Monroe’s last photoshoot before her death. The defendants, seeking to sell the photos, captured images of the photos which they posted on eBay, Amazon, and other digital retail websites to promote the sale. In response, Stern’s widow brought suit against the former studio assistants, alleging the promotional photographs violated 17 U.S.C. § 106 of the Copyright Act, which grants copyright holders the exclusive right to create derivative works.

Fair Use

The defendants argued that their promotional photographs constituted Fair Use pursuant to Section 107 of the Copyright Act. The Fair Use doctrine permits non-copyright holders to use copyrighted works without permission depending on a balancing of four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The Southern District Court stopped short of resolving the case in favor of the defendants due to a factual dispute surrounding ownership of the photographs in question that could not be resolved at the summary judgment phase. In spite of this, the Court considered the above factors in finding that photographs of copyrighted works made to promote the sale of a copyrighted work constitute Fair Use under the Copyright Act.

First Sale Doctrine

It is worth noting that the Court also found that the defendants, if they are indeed the rightful owners of the original copies of the photographs at issue, were undoubtedly permitted to sell the works pursuant to 17 U.S.C. § 109(a), known as the First Sale Doctrine.

Conclusion

Final pre-trial conference for this case is scheduled for November 8, 2018, when the Court will decide whether the defendants are indeed the lawful owners of the photographs at issue. If the Court finds that the defendants are the lawful owners, they will prevail on a fair use defense. Otherwise, the Court’s fair use finding will simply serve as favorable precedent for art collectors and dealers looking to sell copyrighted works.

Find the full decision on Justia here.

To learn how CASTAYBERT PLLC can assist you with an art law issue, click here.

Recent news that Christie’s will auction off a piece of artificial intelligence art raises important questions about the legal implications of artificial intelligence art (“AI art”). The artwork to be sold was created at the direction of Paris-based collective, Obvious, consisting of Hugo Caselles-Dupré, Pierre Fautrel and Gauthier Vernier, and is titled “Edmond De Belamy.” Among the concerns raised by the algorithm-signed painting include authorship, authenticity, automation and ethics. Each issue could have widespread ramifications on the art market, and therefore demand the attention of artists and art collectors who collect, create, and sell artwork.

Creating AI Artworks

Artists generally create artificial intelligence art using generative adversarial networks (GANs). These networks permit computers to study a library of images or sounds to create original content. The computer then creates an expressive work and judges the success of that work against the library images. Finally, the computer makes incremental improvements based on the results. Although artists generally curate the media library used to create the works, that is where their control of the artificial intelligence’s artistic output ends. This lack of artistic control over the final product raises compelling questions about authorship and copyright ownership of artificial intelligence art.

AI Art and the Law

Jessica Fjeld, assistant director of the Cyberlaw Clinic at Harvard Law School, insists that regardless of the artist’s control over the final output, the artist—not the AI—is the author of the finished product. Under this view, artificial intelligence is merely another tool for artists to employ in creating expressive works. The more interesting question to Ms. Fjeld arises when different individuals create or direct the inputs, learning algorithms, trained algorithms, and outputs. If different individuals create or direct the GAN, media library, learning algorithm, trained algorithm, and final output, who should own the copyright? The answer is unclear, and the inquiry is further muddied when artists include copyrighted imagery in the media libraries used to create artificial intelligence art.

Conclusion

The emergence of artificial intelligence art could have transformative effects on the art market, so collectors and artists should stay abreast of the developments in this area. For a deeper discussion of these issues, read Sam Gaskin’s Artsy article here.

Learn more about how Castaybert PLLC can assist you with Art Law matters here.

We have heard the story countless times: an unknown artists sells her work for pennies on the dollar only to see it’s value escalate to astronomical heights, as auction houses and gallerists catch the windfall. The California Resales Royalties Act (“CRRA”), and a class-action by a coalition of artists, intended to end this timeless tale once and for all, but the Ninth Circuit Court of Appeals found that it was almost entirely preempted by the federal Copyright Act.

In an 8-3 decision, the Ninth Circuit neutered a provision of the 1976 state law that required California art purchasers to pay a five percent royalty to the artist if the sale occurred in California or if the owner was a California resident who sold the work out of state. While the state law remains in effect with respect to works resold from January 1, 1977 to January 1, 1978, artists of works sold before or after those dates cannot recoup past royalties or collect royalties on sales in the future.