A recent injunction ruling that prohibited the destruction of the “Bicentennial Freedom Mural” in Corona, California had occasion to consider the rights asserted by the plaintiffs and artists under the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A. The order ultimately granted the injunction but on different grounds, holding that the plaintiffs were unlikely to prevail on their VARA claim.

Topics: work of recognized stature, Mural Conservancy of Los Angeles, 555 U.S. 7, Moral Rights, United States Army Corps of Engineers, Cal. Civ. Code §§ 987 and 989, Inc., Visual Artists Rights Act of 1990, California, Santa Ana River Mainstem Project, Pippa Loengard, 54 U.S.C. § 306108, VARA, Kernochan Center for Law Media and the Arts, Corona, Ronald Kammeyer, Columbia Law School, Phillips v. Pembroke Real Estate, Copyright, Prado Dam, NHPA, Administrative Procedure Act, National Historic Preservation Act, 17 U.S.C. § 106A(a)(3)(A)-(B), 459 F.3d 128, 5 U.S.C. §§ 701-706, Winter v. Natural Res. Def. Council, SARM

The fusion of street art, high fashion, and the law is hardly new, but the Italian designer Moschino’s latest foray into this genre has landed the company in court. Joseph Tierney, a well known graffiti artist who works under the pseudonym “Rime”, filed a complaint against Moschino and its creative director, Jeremy Scott, alleging copyright infringement, trademark violations under the Lanham Act, and unfair competition, and appropriation of name and likeness under California law. Moschino’s allegedly unauthorized use of his work has harmed the artist in numerous ways, Tierney alleges, not the least by opening him up to accusations of selling out. In the words of Tierney’s complaint: “nothing is more antithetical to the outsider ‘street cred’ that is essential to graffiti artists than association with European chic, luxury and glamour – of which Moschino is the epitome.” This theory of harm was something we talked about at the "Copyrights on the Street" panel at the Copyright Society of the USA meeting in Newport this year, and it is now being put to the test.

Topics: Joseph Tierney, copyright management information, Vandal Eyes, Digital Millennium Copyright Act, Rime, The Wall Street Journal, Graffiti Art, 17 U.S.C. § 1202, Gigi Hadid, Hollywood Reporter, Jeremy Scott, Copyright, Moschino, Lanham Act, The New York Times

Topics: Richard Prince, Campbell v. Acuff-Rose Music, Hildebrand Gurlitt, 510 U.S. 569, Teenage Mutant Ninja Turtle, Prince v. Cariou, Second Circuit, Canal Zone, Patrick Cariou, Toward a Fair Use Standard, Michelangelo, Suicide Girls, Inc., Google Books, The Legal Guide for Museum Professionals, Pierre Laval, Jim Bouton, Copyright, transformativeness, Fair Use, Nazi-Looted Art: Risks and Best Practices for Muse

Topics: Boston Bar Association, Events, Copyright, Art and the Digital Age

In a year that began with the vagaries of Left Shark, we have our most bizarre art law story of 2015—so far. Last year, the United States Copyright Office released a public draft of the Third Edition of the Compendium of U.S. Copyright Office Practices. Among the new items that leapt out at practitioners was the section of examples of non-copyrightable works, which included “A photograph taken by a monkey.” The Copyright Office was inspired to include this example because of a 2011 photograph taken by British nature photographer David Slater. A crested black macaque picked up Slater’s camera and pressed the shutter button, and the result became known as the “monkey selfie.” While as I said at the time, I thought the point was debatable to the extent that Slater could intentionally have left the camera within reach of the animal the same way that leaving something exposed to nature could still result in a copyrightable work, the question was obviously (I thought) limited to whether or not Slater could restrict reproduction of the work as the author.

Topics: Left Shark, People for the Ethical Treatment of Animals, Blurb, Compendium of U.S. Copyright Office Practices, Wildlife Personalities., PETA, David Slater, Copyright, United States Copyright Office, Litigation

Topics: Donn Zaretsky, Xinjiang, Infringement, Pressure, SuicideGirls, Foreign Sovereign Immunities Act, Freddie Mercury, Rahm Emmanuel, Ma Jun, Chicago Sun Times, Ice Ice Baby, David Bowie, FSIA, Karamay, Copyright, Cloud Gate, Millennium Park, The Art Law Blog, Anish Kapoor, Plagiarism, Fair Use

Somewhat tongue in cheek, we looked on Wednesday at the potential copyright implications from a back and forth between Governor Charlie Baker and Barstool Sports, which sells “Free Brady” T shirts (playing on Shepard Fairey’ famous Hope image) challenging the New England Patriots’ quarterback’s suspension by the National Football League (“DeflateGate” or “Ballghazi,” depending on who you ask). Gov. Baker recently wore a competing vendor’s “Free Brady” T shirt when doing the Ice Bucket Challenge. Given the sales potential arising out of one of the biggest stories in the country right now (insert decline-of-society comment here), however, the financial stakes are no laughing matter. The response to Wednesday's post has been overwhelming; we had more visitors in a three-hour window than we typically get in a month.

Topics: National Football League, Copyright Act, David Portnoy, Free Brady, Barstool Sports, DeflateGate, I Love Boston Sports, Ice Bucket Challenge, Shepard Fairey, Copyright, Senator Obama, NFL, Hope, Tom Brady, Ballghazi, Charlie Baker

Tom Brady will be in New York today at a hearing in the litigation over his 4-game suspension by Roger Goodell for allegedly being “generally aware” of the deflation of footballs in the AFC Championship thrashing of the Indianapolis Colts last winter. For good legal analysis of the absolute fiasco that is the NFL’s attempt at a middle-school science project (instigated by the condition of a football introduced from the opposing team—but congratulations on another AFC Finalist banner) and the resulting adjudicatory process, I suggest John Dowd’s blog (“The NFL's investigation of and rules against Tom Brady are a travesty, and they've resulted in uncalled-for penalties. And it's all based on a report that lacks basic integrity, fairness and credibility.”). Dowd is an experienced federal prosecutor and led the investigation, among others, into Pete Rose and gambling for Major League Baseball. Most notably, he was sufficiently offended by the whole exercise to take the issue up with no relationship to the parties. Mike Florio at ProFootballTalk and Steph Stradley have also covered the story well.

Topics: Left Shark, ProFootballTalk, ALS. Metro, Copyright Act, Pete Frates, David Portnoy, Indianapolis Colts, AFC Championship, Free Brady, Mike Florio, Barstool Sports, Jacqueline Kennedy, John Dowd, Ice Bucket Challenge, Shepard Fairey, Major League Baseball, Copyright, Roger Goodell, Senator Obama, Hope, AFC Finalist, Andy Warhol, Tom Brady, Charlie Baker, Massachusetts Governor, Fair Use

Topics: Richard Prince, Jeff Koons, Patrick Cariou, Moral Rights, Andre the Giant, Graffiti Art, Visual Artists Rights Act of 1990, Barack Obama, One Campus Martius, Banksy Does New York, VARA, Banksy, Shepard Fairey, appropriation copyright, Copyright, 5Pointz, Hope, Detroit Free Press, Associated Press, Fair Use

Several street artists have sued the property owners of the building in Queens that became known as “5Pointz”—a “Mecca” of graffiti and street art. This is the second such lawsuit, after another group of artists failed to obtain a preliminary injunction in November, 2013, and the owners whitewashed nearly all of the painting on the buildings. The new lawsuit seeks damages related to the whitewashing itself, alleging that it was done hastily and secretly without giving the artists sufficient time either to remove or document their work. It relies on the Visual Artists Rights Act of 1990 (VARA), the lone moral rights provision of the Copyright Act.

Topics: HBO, Copyright Act, Ishmael, Moral Rights, Richard Miller, Cady Nolan, Rodney Rodriguez, FCEE, Christoph Büchel’s, Graffiti Art, Visual Artists Rights Act, Patch Whiskey, Kai Niederhausen Semor, Kenji Takabayashi, recognized stature, Banksy Does New York, Jimmy C, VARA, Jerry Wolkoff, Bienbenido Guerra, Luis Gomez, MassMoCA, Banksy, TOOFLY, 17 U.S.C. § 106A, Carlo Nieva, Copyright, 5Pointz, PANIC, James Cochran, Sotheby's, Maria Castillo