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.
Nicholas O'Donnell
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Topics: Richard Prince, Missy, Copyright Act, Prince v. Cariou, Canal Zone, Patrick Cariou, Suicide Girls, vulture.com, Yes Rasta, 17 U.S.C. § 107, Jerry Saltz, Instagram, Copyright, transformativeness, Fair Use, ArtNet, New York Magazine, § 107
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.
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Topics: Richard Prince, Copyright Act, DoeDeere, 2LiveCrew, Prince v. Cariou, Roy Orbison, Canal Zone, Patrick Cariou, Internet, Yes Rasta, 17 U.S.C. § 107, Instagram, Copyright, Gagosian Gallery, transformativeness, Fair Use, § 107
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.
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Topics: University of Kansas, Megan Fontanella, Jordan Arnold, Klein & Solomon LLP, International Foundation for Art Research, Jo Backer Laird, Amy Adler, Sandra Cobden, Alfred Flechtheim, Betty Little, NYU School of Law, Shawnee State University, Guggenheim Museum, Davis Wright Tremaine LLP, Amr Al Azm, Christopher Robinson, Marla Diaz, ARIS Title Insurance Corporation, Judd Grossman, John Cahill, Alice Farren-Bradley, Inc., Boston University, Art Recovery Group, David Goldstein, Eleonora Nagy, Schiele, Jane C. H. Jacob, James Martin, Pryor Cashman LLP, Karl Geercken, Judith Pearson, Doreen Bolger, Kevin Ray, Museum of Modern Art, Peter Herdrich, Mel Urbach, ARIS, Chris Marinello, III, Pierre Ciric, Arader Galleries, the U.S. Department of Homeland Security, William L Charron, Christie's Inc., On the Shore of the Seine, Spencer Tomkins, W. Graham Arader, K2 Intelligence, MaryKate Cleary, Laurie Rush, Modern Sculpture Conservation LLC, Ciric Law Firm PLLC; Holocaust Art Restitution Pro, lston & Bird LLP, James Butterwick, Auctionata, Restitution, Colleen St Onge, Jonathan Illari, President’s Cultural Property Advisory Committee, Asian Art Research & Appraisals, Sullivan & Worcester LLP, Events, Simon Hornby, Senior Vice President and General Counsel, Bonnie Magness-Gardiner, Art Dealers Association of America Jane Levine, Jacob Fine Art, Wesley Fisher, Harry Ettlinger, Herrick Feinstein LLP, Baltimore Museum of Art, Portrait of Wally, Cummer Museum of Art & Gardens, Nicholas O'Donnell, National Stolen Art File and Art Crime Team, Conference on Jewish Material Claims Against Germa, Francis O'Connor, IFAR, Sotheby's, Bonhams, The Heritas Group, Ken Perenyi, Patricia J. Graham, Emily Kempin Professor of Law, Whitney Museum of American Art, Meridith Savona, Tim Carpenter, Vienna, Megan Noh, Butterwick Gallery LLC, Paysage Bords de Seine, Museum Security Network, Leopold Museum, Crozier Fine Arts Inc., Art Law Report, Mari-Claudia Jiménez, Sharon Flescher, Michael Danti, Holly Keris
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:
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Topics: Copyrights on the Street Creating and Preserving G, Newport, Rhode Island, Graffiti Art, Visual Artists Rights Act, Deirdre A. Fox, Copyright Society of the U.S.A., Peter Caruso, VARA, Kernochan Center for Law Media and the Arts, Phillippa Loengard, Events, 17 U.S.C. § 106A, Columbia Law School, Copyright, Christopher J. Robinson
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:
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Topics: Petra Willner, Cornelius Gurlitt, Breslau, Wrocław, Zwei Reiter am Strand, Uta Werner, Max Liebermann, Gurlitt Collection, Two Riders on the Beach, Verena Osgyan, Oberlandesgericht, Gurlitt, Restitution, David Toren, World War II, Mittelbayerische Zeitung, Kunstmuseum Bern, Museums, Berner Zeitung, David Friedmann
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.
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Topics: Copyright Act, Libya, Digital Millennium Copyright Act, DMCA, Youssef, YouTube, Innocence of Muslims, prior restraint, 17 U.S.C. § 106, Cindy Garcia, Copyright, First Amendment, Google, Benghazi, work for hire
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:
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Topics: Deaccession, Graham W. J. Beal, Laura Berman, Pamela Marcil, Van Gogh, Detroit Institute of Arts, Museums, Detroit Bankruptcy
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.
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Topics: Gurlitt Task Force, Nazi-looted art, Gurlitt Collection, Two Riders on the Beach, August Mattheis and Christopher Marinello, Munich, Rosenbergs, Gurlitt, Restitution, David Toren, World War II, W Wall Street Journal, Ritter am Strand
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).
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Topics: Fred Jones, University of Oklahoma, La bergère rentrent des moutons, Restitution, World War II, Leone Meyer, Camille Pissarro, Paul Wesselhöft, Museums, Jr. Museum, The Oklahoman
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.
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Topics: Donn Zaretsky, Deaccession, Detroit bank, Graham W. J. Beal, Randy Kennedy, Deaccessioning, Van Gogh, Detroit Institute of Arts, DIA, Museums, New York Times, Chagall, Detroit Bankruptcy, Art Law Report
