Art + Law + Blog

Copyright: A Primer

Coco Soodek — Tue, 19 Jan 2010 16:42:52 -0500

This exciting guide to IP entitled, Copyright: A Primer, was prepared by the Bryan Cave Intellectual Property Team. We hope it's helpful.

Troy Klyber

Coco Soodek — Fri, 18 Dec 2009 13:11:18 -0500

Troy Klyber, lawyer at the Art Institute of Chicago, has written a terrific blog post about an odd (and sad) impact on artists who put a copyright notice on their work in the olden days as the law required. I sat on a speakers' panel with Troy. He is one of the leading practical thinkers at the intersection of art and copyright.

Art Crime: The Fine Art of Deceit

Patricia L. Werner — Fri, 11 Dec 2009 16:18:28 -0500

Pablo Picasso once proclaimed, "we all know that art is not truth." When it comes to the world of fine art these days, truer words may have never be spoken.

Thanks to advances in global communication and technology, fine art forgeries have become big business. Currently, the FBI estimates that art theft, fraud, looting, and trafficking across state and international lines is a "looming criminal enterprise with estimated losses running as high as $6 billion annually." Indeed, crimes against art have become so popular that the FBI has a dedicated "Art Crime Team" comprised of 13 Special Agents responsible for investigating art crime and bringing criminals to justice.

Art counterfeiting scams can be sophisticated and global in nature. For example, in March 2008, federal criminal charges were filed against seven individuals who, between July 1999 and October 2007, caused counterfeit prints of works by Pablo Picasso, Marc Chagall, Andy Warhol and others, to be manufactured in Spain and Italy - complete with forged signatures and fabricated certificates of authenticity. The bogus works were then distributed to various art dealers in the U.S. who knew they were counterfeit yet sold them as "limited edition" prints to wholesale and retail customers. Many of the prints were sold through eBay. Together, the seven defendants allegedly reaped more than $5 million dollars in illegal proceeds.

The U.S. legal system provides several options for dealing with art forgeries. Defendants are susceptible to criminal prosecution under federal laws, including the Racketeer Influenced and Corrupt Organizations Act ("RICO") and federal wire fraud or mail fraud statutes, where applicable. Defendants may also be prosecuted under state criminal laws that prohibit fraud and forgeries. Art forgery may also be subject to civil sanctions, including liability under the Federal Trade Commission Act and state statutes concerning fraud, material misrepresentation, etc.

The impact of art forgery is not limited to artists and collectors, but rather may have a significant influence on the U.S. economy and security. According to the International AntiCounterfeiting Coalition (IACC), counterfeiting costs U.S. businesses $200 billion to $250 billion annually. In addition, counterfeit products are directly responsible for the loss of more than 750,000 American jobs and, since 1982, the global trade in illegitimate goods has increased from $5.5 billion to approximately $600 billion annually. Moreover, terrorist operations, including the 1993 attack on the World Trade Center and the 2004 Madrid train bombings, are funded through the sale of counterfeit goods.

So, it behooves as all to act with caution and skepticism when a deal looks too good to be true, because it probably is.

Jeanne-Claude

Coco Soodek — Fri, 20 Nov 2009 14:31:40 -0500

We mourn the passing of our client and friend Jeanne-Claude, co-artist of The Gates, Central Park, New York City, 1979-2005; Wrapped Reichstag Berlin, 1971-95; Surrounded Islands, Miami, Florida, 1980-83; and many other works of art and genius.

http://www.christojeanneclaude.net

Photography, Copyright, and "Derivative Works"

Michael Kahn — Fri, 13 Nov 2009 11:07:33 -0500

Mark Twain channeled the frustration of many artists when he wrote, “Only one thing is impossible for God: To find any sense in any copyright law on the planet.” One such frustration is the realm of derivative works. Artists understand that all art is ultimately derivative. For example, Ernest Hemingway wrote, “All modern American literature comes from one book by Mark Twain called Huckleberry Finn.”

But copyright law takes a narrower view, defining “derivative work” as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101.

Why is this definition important? Because one of the six exclusive rights given to a copyright owner is the right “to prepare derivative works based upon the copyrighted work.” 17 U.S.C. § 106. Thus the movie version and the videogame version of the novel Jurassic Park are “derivative works” that cannot be made without the permission of the owner of the copyright in the underlying work. Most of us understand that part—but not much else.

The recent 7th Circuit Court of Appeals decision in Schrock v. Learning Curve Int’l highlights how confusing the concept of a “derivative work” can get in real life—especially when the derivative work is a photograph of the underlying work. Is there even a copyright in that photo, and, if so, who owns it?

We begin with the “Thomas & Friends” toy train figures, which are themselves “derivative works” based on the popular “Thomas & Friends” train characters from the animated television show, which is itself a “derivative work” based upon The Railway Series, a set of story books dating back to the 1940s about a fictional railway system on an imaginary island.

The Thomas & Friends toys were each protected by copyright. The defendant hired Daniel Schrock, a freelance photographer, to take pictures of the toys for use in advertising and on product packaging. When the defendant continued to use his photos in ads and on packages beyond what he claimed was the term of the agreement, Schrock registered the copyrights in the photographs and sued for infringement. His case raised two important copyright questions that had not been settled by prior case law:

1. Is a photograph of a copyrighted work a “derivative work” that is entitled to its own copyright?

2. If so, who owns that copyright?

As for Question 1, the test for copyrightability is the standard one: originality. In finding that Strock’s photographs passed that test, the Court drew upon prior cases that applied a generous standard of originality in evaluating photographic works for copyright protection. Those cases focused on the photographer’s originality in “the rendition of the subject matter—that is, the effect created by the combination of his choices of perspective, angle, lighting, shading, focus, lens, and so on.”

The Court rejected the defendant’s contention that Schrock’s photos had to meet a higher standard of originality because they were undeniably “derivative works”—i.e., realistic photographs of copyrighted toys. Instead, the Court held that the standard of originality for a “derivative work” is the same as the standard for any work. It concluded that Schrock’s photos of the toys “possessed sufficient incremental original expression to qualify for copyright.” In particular, the Court cited Schrock’s testimony about his creative process in depicting the toys in his photographs.

As for the final question—who owns the copyright in a “derivative work”?—the Court first had to deal with precedents that suggested that because the creator of a derivative work requires permission of the owner of the copyright in the underlying work to create the derivative work, he also needs permission of the owner to register the copyright of the derivative work. The Court rejected those prior cases. Instead, it held that the right to claim a copyright in a non-infringing derivative work arises by operation of law and not through authority from the copyright owner of the underlying work. Under operation of law—in this case, copyright law—the creator of a work of art is the owner of the copyright in that creation.

That final question, however, did not receive a final answer. The trial record was unclear as to the terms of the freelance photographer’s contract, especially whether there was any provision limiting his ability to copyright the derivative works in his own name. Accordingly, the Court remanded the case for further proceedings.

Despite the remand, the Schrock decision stands as an important affirmation of the rights of photographers in their works, including derivative works, and the artistic merits of those works. The case also stands as a reminder to all parties to address the issue of copyright ownership in writing and at the outset of the relationship.

WHY SHOULD I INSURE MY ART?

Guest Blogger — Mon, 26 Oct 2009 17:42:36 -0500

By Hope Wolman of Insurance Office of Central Ohio

There are many reasons, and these apply not just to art, but to silver, jewelry, musical instruments, wine and many fine things. We like to think about caring for your art and fine things, just like caring for your home. These things have significant value, and need a bit of attention. For our purposes today Coco, I will just address art.

1. Most policies have limits on what you can recover for certain classes of property. Any many policies have exclusions for the breakage of fragile articles. So if you spend money on buying art, you want it protected; you don’t want to have a loss that is unrecoverable. Moreover, insuring certain art often costs less than insuring general contents.

2. Even if you personally didn’t buy the art, if you ever go to sell the family heirloom through auction or public channels, it will be reported. The IRS is alert to this. And the seller is liable for past taxes, as far back as the acquisition date. So in the meantime, if you perceive it has value, like any other asset, you should take measures to preserve that value. That said, you should definitely confirm all this with a lawyer.

3. In the event of damage to your art, some policies cover restoration and repair. These costs can be considerable. Additionally, one can pursue a claim for diminution in value.

HOW DIFFICULT IS IT TO INSURE MY ART?

It’s quite simple. But first, and this is important, you need to make sure you are dealing with an agent that really knows about insuring art. This is critical as there are differences in the valuation basis, and the amount and scope of coverage. The coverage amount is addressed either with blanket protection for smaller value items or by itemizing individual pieces with higher values. Conveniently, appraisals aren’t required by most carriers until you get beyond $25,000 in value. Periodic appraisals, as well as tracking art auctions and gallery sales, are a good way to track the appreciation in your collection.

Savvy buyers will discover that even if their initial coverage allows for some upside protection, the appreciation will soon outpace that cushion, and there will be a need to adjust coverage. As problems go, this is a nice one to have.

WHAT STORIES CAN YOU SHARE?

Two come to mind.

Earlier this month, we did an event at the Columbus Museum of Art about the financial and physical protection of collections. The very next day, the Art Loss Register announced a theft of a multi-million dollar collection of Warhols from a Los Angeles residence. These things do happen!

That said, you don’t need a wall of Warhols to be risking the security of your fine things. One of our clients had some very large format modern works that were damaged in transit. Anxious about future damage, our client wanted the works restored in the residence, and not transported for conservation. We did some research and located an excellent conservator who was willing to set up camp in the insured’s residence. We moved the furniture and converted the dining room into a studio, complete with cameras, heat lamps, paint, saw horses, dryers, etc. When completed, we had a delighted client and successfully preserved the art. And the insurance carrier paid for it.

After the work was repaired, we pursued a claim for the diminution in value. The client was completely surprised by how large the decrease in value was, and the client, though would have preferred not to have gone through this, is even more convinced that insuring a collection is smart and worthwhile.

Hope Wolman is an Agent at Insurance Office of Central Ohio, where she specializes in demystifiying insurance for high net worth individuals with market insights in protecting fine arts, jewelry and other collectibles. She is focused on making insurance as user-friendly and transparent as other financial services. She has a Bachelor of Arts from Harvard College and an MBA from the Kellogg School at Northwestern.

Hope can be reached at hope@ioco-columbus.com.

Proof that a Collector's Eye is Still the Best Tool for Finding Hidden Treasure

Tobias Butler — Thu, 15 Oct 2009 10:31:32 -0500

Beyond the obvious artistic coup of obtaining another classic work, the recent discovery of a portrait which may be a lost Da Vinci painting raises an interesting point. When analyzing the painting before deciding to buy it, Peter Silverman, the art collector who purchased the painting, found the work to be exquisite and something beyond the norm. It doesn't take a skilled art lab technician to recognize talent (especially considering it took no less than four types of technology to uncover elements that pointed to Leonardo's hand). It just takes an enjoyment and appreciation of great artistic works. Of course, purchasing a renaissance painting does not guarantee a windfall of discovering a potential Da Vinci, but art collectors should remember to trust their guts.

And, if nothing else, this certainly shows that every now and then a $19,000 investment in a beautiful painting can get you 15 minutes of fame... and about $149,978,150 in added value.

The Delicate Issue of Provenance

Guest Blogger — Fri, 25 Sep 2009 10:34:17 -0500

Guest Blogger: Rebecca Korach Woan

"Just because you bought it doesn't mean you own it."
-Lawrence Shindall, CEO, ARIS Corporation

The heightened sensitivity surrounding the provenance, or ownership history, of valuable works of art is a relatively recent phenomenon. While provenance and the related but distinct issue of legitimate title have always been factors in the assembling of art collections it was only in 1998 that the Association of Museum Directors issued guidelines for museums to first determine the provenance of their works to the best of their ability, and then to disclose it.

This was followed a year later by a similar directive from the American Association of Museums. These directives made particular reference to art that had changed hands during the World War II era (1933- 45), a time when looting and theft of artworks by regimes and individuals reached unprecedented levels of scale and value. Also highlighting this relatively recent attention to provenance was the formation in 1998 of the Presidential Advisory Commission on Holocaust Assets, which published its final report in 2000. Provenance alone does not tell the whole story. Good title is spoiled by theft, which includes the "forced sales" that occurred during the Second World War.

Many collectors may assume that any works of art created after the Second World War are largely immune from provenance and title problems, but that would be a wrong assumption. The Art Loss Register, the most comprehensive international database of stolen, missing and looted artworks, adds around 14,500 art works each year. Of the more than 250,000 items in their database over 15 percent were created after 1945. In addition to maintaining records, the Register actively searches the exhibits at all major art fairs and scrutinizes the inventories of upcoming auctions. Insurance companies and art dealers routinely subscribe to the Register to check for items that have been stolen. Discoveries can be surprising: an $80,000 painting was recovered in 2007 at the Palm Beach Fine Arts fair that had been stolen in 1995 from the Buffalo Club in New York State.

Even living artists may have a claim to improperly sold works; New York has gone further than any other state in protecting the rights of artists to recover works sold by dealers who did not properly compensate the artist. Relying on the advice of a trusted art advisor, a reputable dealer or buying through a respected auction house are important first steps but may not be enough to avoid a claim of defective title against art that has been innocently purchased.

Provenance, Title and the Private Collector
It should be axiomatic that no prudent collector would buy an expensive work of art without establishing credible and lawful title, yet in the hushed and clubby world of art dealing such persistent inquiry can sometimes seem rather impolite. However, a work of art made before 1946 will always have a question mark hovering over its provenance, and buyers of such pieces should be especially diligent before parting with their money.

Happily, there are resources available to help private collectors with their investigations:

UCC Filings:
Overall, sales of art are governed by the Uniform Commercial Code (UCC) which most states have enacted as their law. A UCC filing provides notice of a security interest (e.g. lien) that someone or an entity holds in a specific item. Not all stolen works of art have UCC filings and the filing search must be done state-by-state because there is not a national UCC database. UCC filings will identify most security interests but they are not a means of detecting historic theft.

Database Searches: Art Loss Register and Interpol
The Art Loss Register (www.artloss.com) enables owners to register lost or stolen items and list possession of items in the pre-loss database. Potential buyers may search to see if an item has been entered as lost or stolen. Fees are generally $75 each and $760 for 25 searches. The Art Loss Register's services include negotiation and mediation of art title disputes to insure that stolen artwork is returned to the proper title holder. There are also additional services offered such as World War II registrations and provenance research. Interpol (www.interpol.int) the world's largest international police organization maintains a database of 34,000 stolen art works. There is no charge for searches but users must submit an application for approval to receive a password. Art Loss Register searches include a check of Interpol, FBI, and other worldwide law enforcement databases.

Art Title Advisors
Research is also offered by Art Title Advisers (www. arttitleadvisors.com), who for a fee will produce an Ownership Rights Protection Report that describes the results of their investigations into title. Art Title Advisors checks both public and private databases as well as an extensive network of dealers and museums. Their reports provide collectors with a documented record of due diligence structured to help defeat competing ownership claims. Fees for artwork under $250,000 are usually between $750 and $1,000. For art valued between $250,000 and $10 million the fees range from $2,500 to $3,500.

ARIS -- Art Title Insurance
Another company, ARIS Corporation (www.aris-corporation.com), offers art title insurance, a form of title insurance similar to that used in real estate transactions. For a premium that can range from 1.75% to 7% of the item’s value, ARIS provides title insurance that typically covers loss due to defective title from past provenance risks and also "classic" title risks such as liens and security interests.

When Ownership is Challenged
For a collector who has acquired a work of art, having the right to ownership disputed can come as both an emotional and financial shock. Courts in the U.S. will generally "balance the equities," meaning that the due diligence the collector made to avoid possession of stolen art will be measured against the steps the former owner made to recover the art. Nonetheless, the burden of discovery will usually weigh more heavily on the purchaser, who is assumed to have the sophistication and the resources to authenticate the history of a purchase. Chubb has responded with coverage which reimburses legal fees up to $100,000 incurred in a title dispute for scheduled works of art (except in New York). Unfortunately this benefit does not extend to the value of the work if the owner is required by the courts to forfeit the piece.

Jonathan Ziss, a partner at Margolis Edelstein and a founder of Art Title Advisors points out that there is in addition to the problem of defective title the ever-present concern with authenticity -- wrongly attributed work or a forgery -- which is fundamentally more challenging to address. In some cases, the title research may reveal an authenticity problem. In general, works of art that have clear and traceable provenance will more likely be authentic.

Notwithstanding the array of resources available to the collector for establishing lawful provenance, Christopher Marinello, General Counsel to the Art Loss Register believes that purchasing art title insurance is not enough. Marinello points out that "there remains an underlying moral obligation to avoid the purchase of art which does not have good title and to see that the work is ultimately restituted to the theft victim." In their understandable enthusiasm to acquire beautiful works of art, collectors should not lose sight of this fundamental imperative.

Rebecca Korach Woan is a principal and founder of Chartwell Insurance Services in Chicago. She regularly comments on insurance matters for national and local publications, including the Wall Street Journal, Art and Antiques, AP Newswire, the Chicago Tribune, the Chicago Sun Times, and North Shore Magazine. Woan currently serves on the governing committee of the Illinois Fair Plan and is a member of the Professional Independent Insurance Agents of Illinois (PIIAI). She is a contributor to "Life is Short, Art is Long -- Maximizing Estate Planning Strategies for Collectors Of Art, Antiques and Collectibles," published by Wealth Management Press.

Chartwell Bulletins are produced by Chartwell Insurance Services, Inc., an independent insurance broker specializing in the personal asset protection of high net worth individuals. Chartwell Bulletins address issues of general interest and since coverages vary by company and by state should not be taken as an interpretation of a particular policy or advice on any individual situation. Chartwell Insurance Services, Inc. provides art title insurance through ARIS.

A representative of Chartwell Insurance Services will be pleased to discuss all aspects of your personal insurance Contact: Rebecca Korach Woan 312-645-1200 or rwoan@chartwellins.com

Friday Photo From Charles "Teenie" Harris

Coco Soodek — Fri, 18 Sep 2009 16:45:56 -0500

Charles ("Teenie") Harris was a photographer in mid- 20th Century Pittsburgh, who chronicled life, big and small. His work was exceptional. Carnegie Museum owns the rights to all of Mr. Harris’ works. You can see their extraordinary collection here. We post a photo from the collection of Charles Harris here on our art law blog every Friday. We provide these with the permission of Carnegie Museum of Art, Pittsburgh. Let us know what you think.

A portrait of jazz singer/actress Lena Horne seated in an armchair, and surrounded by roses. Possibly taken in one of the back room of the Stanley Theatre.

Lena Horne at the Stanley Theatre, c. 1944

Copyright Myths Debunked

Jonathan Pink — Wed, 09 Sep 2009 13:23:42 -0500

Over lunch the other day, a coworker asked whether it was true that there was no need to register work with the Copyright Office as long as you put it into an envelope and mail it to yourself. Gazing past the rigatoni stuck in his teeth and focusing on the question, I realized that I had heard it before. Many times before. "So what's the deal?" he asked, "Is it true or not?"

The answer is ... buried in the following multiple-choice test.

Myth 1:

Copyright protection comes from placing a "©" on your work.

a. Absolutely true. Why else would that little c be in the circle?

b. Sometimes true, depending on things I'm not really sure about.

c. Not true.

The answer is c. For works created after March 1, 1989, copyright protection attaches immediately and automatically at the moment of creation. You can even try it at home: take a pen, draw a quick sketch. Done? Great. Copyright protection has already attached. And it does not require you to pen in that familiar © symbol. 17 USC §401(a); 17 USC §102(a).

For works created before March 1989, the © was required for protection-although in the labyrinth of copyright laws, some allowance was made for works published after December 31, 1977 if the would-be copyright owner took certain measures to cure the error of omitting the mark.

Myth 2:

Copyright protection requires registering your work with the Copyright Office in Washington, D.C.

a. This is a trick question. It's true that copyright protection requires registering your work, but you don't have to do it at the Washington office. You can do it at one of the many affiliated offices through-out the country. In fact, I think I saw one just the other day.

b. Not true. I created it, it's mine, and there's nothing more I have to do.

c. Of course. Why else would your tax dollars go to support a federal copyright office?

The answer is b. Again, copyright protection attaches immediately. If you need more proof, look at that sketch you made and remember that it has copyright protection already. All that is required is an original work of authorship-be it literary, artistic, musical, or even a computer program-affixed in any tangible medium of expression. 17 USC §102(a).

"Tangible medium of expression" means that your work is readable or perceivable either by use of a machine or with the naked eye. 17 USC §102(a). Again, look at your sketch. If it's on a scrap of paper or in the corner of this article, it's affixed to a tangible medium of expression because it's still there. If it isn't where you drew it, then it probably wasn't affixed to a tangible medium of expression.

This brings up another question. Why would anyone bother registering a work at all? Registration is often a good idea because it is usually a prerequisite to bringing an action for copyright infringement. 17 USC §411(a). It also helps to establish the work's date of creation and is required if you want to recover statutory damages or attorneys fees. 17 USC §412. Oh, and it assures that your work will end up in the Library of Congress, which is cool.

Myth 3:

Placing the work in an envelope and mailing it to yourself has the same effect as registering it with the Copyright Office.

a. No. If it did, why waste the ink to print this article?

b. Of course it does. If it didn't, why waste the ink to print this article?

c. Yes. And if enough authors send in their tasteless dreck, the postal service may not have to raise rates again anytime soon.

The answer is a. Though it's always nice to receive mail, sending the work to yourself does nothing more than establish the date that the envelope-and not necessarily its contents-was mailed. If you think it's important to register your work, pay the $30 and register it with the Copyright Office. If you simply want to receive mail, send yourself a postcard. Or lie on your Form 1040.

Myth 4:

If it's on the Web, it's free for the taking.

a. No. Stealing is stealing.

b. Sure, why not?

c. This is true, but only if I use a 28KB modem, and the copyright expires before I finish downloading it.

The answer is a. Unless the work falls under a generally recognized exception to the copyright law, if it's on the Web, copyright protection attaches, and you can get hit with an infringement lawsuit for misappropriating it. See 17 USC §501(a). Nothing about the Web strips otherwise protectable work of its copyright protection.

Myth 5:

Copying just a little bit does not constitute copyright infringement.

a. Maybe.

b. Maybe.

c. Maybe.

The answer is all of the above. Though the "fair use" doctrine allows for some limited copying of a small portion of some works-for example, quotes for use in educational or scholarly works, criticism, parody, and news reporting-there is no bright-line rule as to how much is too much.

The law weighs into the mix the purpose of the use, the nature of the work, the amount used as it relates to the whole, and the effect of the use on the value of the copyrighted work. 17 USC §107. But, generally, taking any part of a copyrighted work is subject to a claim for copyright infringement. And under this same rule, a person also cannot escape liability for copyright infringement simply by making a few minor changes to copyrighted material. 17 USC §501(a).

That means that if you take your kid's Darth Vader action figure, give it Barbie-like hair, and dress it in platform shoes, you're going to get hit with an infringement action when you try selling it at Toys-R-Us as Ella Vader. You also risk getting hit with a morals charge.

Myth 6:

Company names and slogans, such as Microsoft, Coppertone, "Just Do It," and "Things Go Better With Coke" are protectable under the copyright law.

a. Sure, they all originated from companies that are crawling with copyright lawyers.

b. No, or it wouldn't be a copyright myth.

c. What things go better with Coke?

The answer is b. Although slogans, titles, names, and short words and phrases may be protectable under trademark law, they are not entitled to copyright protection. 37 CFR §202.1. Also not protected by copyright are ideas -- other than the written expression of those ideas -- such as recipes or formulas, absent their incorporation into some larger work or written expression. 37 CFR §202.1; 17 USC §102(b). That means that if someone stole your recipe for chocolate chip cookies, or if you had the idea for The Firm before John Grisham did, you're out of luck. But hey, you've still got your sketch.

Myth 7:

Once I have copyright protection, it lasts forever.

a. Nothing lasts forever.

b. Define "forever."

c. Yes, this much I know.

The answer is a. Copyright protection does not last forever-although it might as well, given that it will outlast you. Under the current law, a copyright lasts for the life of the creator, plus an additional 70 years if the work was created after January 1, 1978, and 95 years from the date the copyright was secured for works created and published before 1978. 17 USC §§302(a) and 304(a).

There is, however, an exception to this rule. The copyright for anonymous works, pseudonymous works, and works made for hire is 95 years from the date of first publication, or 120 years from the date of creation, whichever comes first. 17 USC §302. The U.S. Supreme Court recently ruled that Congress may extend the copyright term, as it has done from time to time since the act's inception. See Eldred v. Ashcroft (2002) 122 S. Ct. 1062.

Eldred involved several companies that made money by exploiting material that, generally because of its age, had lost its copyright protection. The plaintiffs contended that Congress exceeded its authority by expanding copyright protection of existing works by about 20 years. Specifically, plaintiffs argued that article 1, section 8, clause 8 of the U.S. Constitution provided for a limited duration of copyright protection and that Congress had avoided that mandate by repeatedly extending that duration.

The Supreme Court upheld the 1998 Copyright Term Extension Act, authored by the late singer/comedian/congressman Sonny Bono, reasoning that the extension, even as to existing works, was still of a "limited" duration. The Court further reasoned that Congress was well within its right to determine the need for such an extension based on new technologies that gave existing material a greater shelf life. It also supported getting U.S. copyright law in sync with the copyright laws of the European Union. It is rumored that upon learning of this ruling Michael Eisner turned to Mickey Mouse, kissed the rodent on the lips, and said: "I got you, babe."

Myth 8:

When I acquire a copyrighted work, I also acquire the copyright to it.

a. How else would museum shops stay in business?

b. Uh, isn't this why Napster got in trouble?

c. This better be true; otherwise, I just severely overpaid for "A Bug's Life."

The answer is b. Acquiring a copyrighted work does not mean that you've acquired the copyright as well. 17 USC §202. It is possible to acquire the copyright to your favorite works -- provided they are entitled to copyright protection-but this requires a transfer from the copyright holder (17 USC §201) and must be done in writing (17 USC §204). Specifically, part or all of the exclusive bundle of rights held by a copyright owner-importantly, to reproduce, perform, or prepare derivative works-may be transferred during life or at death. 17 USC §106; 17 USC §§201 (d)(1),(2). This brings the more astute back to Napster -- the free, online, song-swapping service that got hit with an infringement action when it failed to prevent its users from illegally swapping MP3 files.

Practically speaking, this means that just because you own every collection of Calvin & Hobbs ever published, that does not mean that you can create window decals of those characters and sell them to motorists across the nation. You may even own the "Essential Calvin & Hobbs," but you don't own the right to reproduce the images it contains. It also means that if you bought one of those decals and slapped it onto your SUV, you should go outside right now -- yes, now -- and scrape it off with a butter knife. Don't worry; we'll wait.

Myth 9:

Sure, you can copyright a book, a movie, or a song, but there is no way you can copyright a house.

a. This must be true. Just drive through Orange County.

b. Not so fast. I'm from Orange County, and the houses are not all alike; those shades of beige are distinctly different.

c. This is false; you can copyright a building, but only if it was built less than a dozen years ago.

The answer is c. Architectural works are entitled to copyright protection if they were created after December 1, 1990, or embodied in unpublished plans or drawings created before that time, even though they were not actually constructed. See 17 USC §102.

This is good to know if you represent architects or developers. If you represent the developer, advise your client to acquire the copyright in any architectural plans he or she commissions. If you represent the architect, advise negotiating hard when it comes to determining the price of that copyright. Remember, working together, we can rid this state of unsightly farmland, pristine hillsides, and bucolic open spaces.

Myth 10:

Once a copyrighted work goes into the public domain, I can reproduce it and claim the copyright for myself.

a. Uh -- no.

b. Sure, but you need permission from the former owner first.

c. Yes, as long as the copyright had been held by the federal government.

The answer is a. Once a copyright expires and the work goes into the public domain, it's free for the taking. Public domain is legalese for not copyrighted. This typically refers to works that never acquired copyright protection in the first place- because they failed to include the (c) during the years it was required or because the original copyright has simply expired, for example, any work that was created before 1923. To the extent you build on work that is in the public domain to create a derivative work, the material you add -- as distinguished from the pre-existing material -- is protected. That does not, however, affect the ability to copyright that portion of the work that entered the public domain; that remains available for anyone else to use. 17 USC §103(b).

By the way, works created by the U.S. government are not entitled to copyright protection, although nothing prohibits the federal government from holding copyrights transferred to it by assignment, bequest, or otherwise. 17 USC §105.

Myth 11:

The concept of "moral rights" does not exist under U.S. copyright law.

a. Oh, please. Is this going to get preachy?

b. No. Like snobby maître d's, stinky cheese, and sautéed garden invertebrates, it's a French thing.

c. Well, maybe it's not called "moral rights," but the same basic idea exists.

The answer is c. U.S. copyright law grants certain visual artists the right to, among other things, prevent the "intentional distortion, mutilation, or other modification of the work which would be prejudicial to" the artist's honor or reputation. 17 USC §106A[(a)(3)(A)]. For purposes of this rule, the artistic work must be a painting, drawing, print, sculpture, or photograph in an edition of 200 or fewer signed, consecutively numbered copies. 17 USC §101. In other words, no one can mess with your sketch.

New Bill Attempting to Re-Invigorate Art Gifting

John-Paul Benitez — Wed, 09 Sep 2009 10:13:16 -0500

The Wall Street Journal has an update on a proposed bill in the Senate (Schumer - NY) to revive tax incentives for fractional gifting of art to museums. Read the article here. Senator Schumer's proposed bill can be read here.

Stay tuned.

A related note: Earlier in the year, Senator Schumer introduced a bill to permit deductions for works of art donated to charities - if (among other requirements) you can get an appraisal. This bill was introduced in February and sent to committee. Until (or if) it's heard from again, you can read this bill here.

Friday Photo From Charles "Teenie" Harris

Coco Soodek — Fri, 21 Aug 2009 16:52:40 -0500

Members of the Nimrod Hunting Club with strung up deer.

Friday Photo From Charles "Teenie" Harris

Coco Soodek — Fri, 14 Aug 2009 14:28:11 -0500

Charles ("Teenie") Harris was a photographer in mid- 20th Century Pittsburgh, who chronicled life, big and small. His work was exceptional. Carnegie Museum owns the rights to all of Mr. Harris’ works. You can see their extraordinary collection here. For as long as we can, we will provide a Friday photo from the collection of Charles Harris here on our art law blog. We provide these with the permission of Carnegie Museum of Art, Pittsburgh. Let us know what you think.

@2006 Carnegie Museum of Art, Pittsburgh. Woman powdering her face before a mirror.

@Carnegie Museum of Art, Pittsburgh. Visitors to the Sinclair Oil Company dinosaur exhibit at the 1933-34 Chicago World’s Fair.

If You Post Your Works on Social Networking Sites, Pay Close Attention to Your Privacy Settings Options

Tobias Butler — Thu, 06 Aug 2009 16:57:15 -0500

Recently, a Nevada photographer found that social networking privacy settings may not seem so cool. She found a photograph of hers she had posted to her profile used in an ad by a sunglasses company she had never heard of. Although this may seem like blatant infringement (as she thought), whether it is may depend on permissions you give to third parties without even knowing it.

The web has been abuzz recently about this issue (a popular example being a husband whose wife’s picture popped up for a dating site ad), and the sites and advertisers have been pointing the fingers at each other. Regardless, artists should be particularly mindful of the risks and benefits posting pictures may create—and that means clicking on and actually reading those links at the top or the bottom of home page entitled "Privacy" or "Settings" or "Terms of Use."

How this can happen.
The issue is not about posting pictures online; it’s about access. Our artist thought she was protected. She, like many artists, uploaded many of her photographs into an account she had with one of the many picture hosting websites, and she had a creative commons license for pictures on that website. The problem arose when she set up her account so pictures she posted would also automatically post to her profile on a social networking site. Although the creative commons license covered the pictures on the first site, her privacy settings allowed advertisers access to the photos when they posted on her profile.

Tailored Advertising.
In order to make advertisements more tailored to an individual user, social networking sites are utilizing user’s photos to help promote sites, companies, etc. to that user’s friends. In addition, third party advertisers are also gaining access through applications and using photos for their ads (an activity social networking sites claim violates their policies).

Should I run to a computer and change my settings?
Maybe, but not necessarily. The catch is that the default settings can be different sites can be different, even within the same site. For example, social networking sites may require that you affirmatively give a third party access to your profile when you download an application. That same site, though, may have a default setting which gives it open access to your photos (search "social media privacy settings" to find a lot of information on the difference between the two). Therefore, you should understand the privacy options and defaults for any site on which you post your works.

But, whether you want your pictures used depends on your circumstances. On one hand, you may risk giving up control of your work. What right you give an advertiser depends on how the privacy settings are worded. This is especially true for applications which often grant access and possible use of your entire profile. Often, you have no say in what companies may use your works or in what way, and you may not even know who the companies are (especially for access through applications). As our photographer found, she had never heard of the company that was using her photograph. If you have an established portfolio, these uses may also dilute your works’ reputation and could lead to a reduction in the price people are willing to pay for your works.

On the other hand, this may give your works greater exposure. After all, any publicity is good publicity, especially for an up and coming artist. Our photographer found out about the use because a friend was impressed how a company had picked up her photograph. Plus, some companies are willing to negotiate usage rights if the photograph is a good fit for their ads.

Art Theft is Organized Crime with Flair and Texture

Coco Soodek — Wed, 05 Aug 2009 17:39:36 -0500

You probably read that you can get a Masters in art crime (if not, you can read it here) Law school instructor and fellow art law blogger Derek Fincham wrote an excellent letter in response, estimating that:

If we were to collect all of the stolen works of art into one museum, that museum of art theft would easily eclipse the Met or the Louvre or any of the World’s great museums.

Alas, he NY Times didn’t publish it, but you can read his response and letter here.

Copyright Pitfall No. 2: When Nature Inspires Your Art, Make Sure You Copy Only Mother Nature

Tobias Butler — Tue, 21 Jul 2009 14:11:34 -0500

As we discussed in Pitfall No. 1, copyright protection for nature-based works is a different animal (so to speak). While judicial opinions may seem intimidating to most artists (and people generally), it’s important to understand how courts handle copyrighted works since court is where you go to have your protections enforced.

Copyright Can Be Big or Small.
You can get a copyright for your original work of authorship. But, your copyright (i.e. just what it covers) can be bigger or smaller depending on how much of your work is original to you.

What Exactly Is Infringement?
The "right" in copyright entitles you to keep someone from infringing your copyright. I infringe your copyright when I copy your work, plain and simple.

But, as we already covered, your copyright only covers the list of original elements you add. So, you can stop me only from taking those elements. Putting it all together, your copyright prevents me (or anyone) from copying the original elements you add to something.

Don’t forget, though, when you are creating a work, you infringe if you use original elements someone else created (assuming they have a copyright).

Your Day in Court
If you sue me for copying your work, the court will probably follow this same idea. It will make a list of your original elements and see how many of those elements appear in the supposedly copied work. Although this is full of case-by-case issues, the basic idea is: the higher the percent of shared elements, the better your case against me.

Infringing a Nature-Based Work
When it comes to enforcing your copyright in a court, nature-based works are a double-edged sword. As we discussed before in Pitfall No. 1, your original elements list will be shorter because many aspects of the work come from mother nature herself. Her work cannot be original to you. This is good because, the shorter list, the fewer the things you have to show appear in the copied work. On the other hand, you can only claim protection over that same small list, so, if those elements aren’t clearly in the second work, you will have a tougher time proving infringement.

Protecting for Nature-Based Works
An artist whose work is based on nature is often left with a neutered protection, but not always.

Consider this. Once upon a time there were two plush toy manufacturers (Coquico v. Identiko, Case No. 07-2786, issued April 6, 2009, First Circuit Court of Appeals). The first, named Coquico, made a stuffed animal that looked like a coqui, a small brown frog popular in Puerto Rico. An artist who worked with Coquico, though, grew unhappy with his job and left. Shortly thereafter, that artist’s new company, Identiko, began to make a stuffed animal that looked like a coqui. Both Coquico and Identiko prided themselves on the anatomical and natural correctness of their dolls, but each added unique elements. Coquico added a recreation of the Puerto Rican flag on the frog’s belly and a brass ring. Coincidentally, when Identiko began selling their frogs, they also had a Puerto Rican flag on their bellies and a brass ring.

So, how would a court view these dolls? To the naked eye, the frogs appear similar because they both look like actual coqui frogs. But, through the copyright lens, the frogs are similar because they have the same elements that show "artistic and original decision" (i.e. original elements). Coquico can’t protect elements it took from nature, so its original elements are the flag and the ring. So, as the court said in its opinion, since Coquico added these elements first and both frog dolls had them, the ex-employee artist infringed Coquico’s copyright.

Putting This into Practice
While it’s good to know the extent of what you can protect (see Pitfall No. 1), there are steps you can take:

Carefully think about what could be considered your original elements.
If you find a similar work that was made before yours, make sure you have additional original elements and think about removing their original elements.
Keep an eye on people who had access to your works and development processes.

These tips may help you protect your work and avoid infringing someone else’s copyright.

5 Ways To Protect Against Crooked Art Dealers

Coco Soodek — Thu, 16 Jul 2009 13:08:46 -0500

Did you see this article about a prominent art dealer accused of stealing his clients art and money? According to the article and to this one, this art dealer hung his clients’ art in his gallery, sold it (sometimes more than once) and kept the money. A giant Ponzi scheme. Allegedly, Robert De Niro and John McEnroe were victims. I don’t know if these allegations are true. And, most dealers I know are terrific and honest and good. But, I do hear stories about crooked dealers more than I would like from a variety of people (and, in fact, just today).

Can we avoid this breach of trust? No, not completely. Think of all the smart and worldly people who lost everything down Madoff’s drain. Getting swindled is a risk of doing business.

But, there are things people can do to narrow the risk.

1. Get A Contract. When people give possession of art to anyone – even their mothers – they often write a contract. In the contract, people often identity (a) the work; (b) the reason to give possession of the art; (c) the conditions of selling the work - for instance, a minimum sale price or a minimum amount paid to the owner; (d) who is responsible for safekeeping and insuring the work; and (e) a grant of a security interest.

2. Pick the Right Dealer. People often do a little research on the art dealer before they sign the contract, looking for a pattern of lawsuits or complaints.

3. Get Own Art Insurance. Art collectors often get their own insurance, even if their art dealers are also covered. This allows collectors a second recourse if they get swindled or the work gets damaged and the dealer’s insurance proves to be inadequate.

4. Get a Right to Status Reports. Some people demand that the art dealer keep the art owner informed on the whereabouts of the art.

5. Check Up. Nothing beats continuing vigilance. Periodically check up on an art dealer, visiting their works and asking for reports of sales activity. Just showing energy and attention could make the difference in how an art dealer does business.

Most art dealers are honest, ethical, professional and dedicated business people who will take good care of you and your art – only a small minority are not. The value of art, and the presence of bad apples mixed in with the good, means we often need to take precautions. This is not always easy. A gallery owner may identify a request for a contract and protections as an inaccurate accusation of dishonesty. A gallery owner may also claim that contracts are time consuming, expensive and rarely needed. Both claims are correct.

Most of the time, the dealer can be trusted, the contract is too expensive and too long and the parties never pull it out of the file once signed. But, we take these precautions for the moments when the gallery owner is a fraud, the contract had just what you needed and it acts as your sword in the fight with the gallery.

Doing business on a handshake is essentially a bet in favor of the gallery owner’s integrity. When you bet wrong, you lose, not just money, but an irreplaceable work of art and piece of mind. How you proceed is up to you.

Interview with Claire Marmion, Art Curator, Insurance Expert/Adjustor, Art Connector

Coco Soodek — Wed, 24 Jun 2009 15:22:26 -0500

We are lucky to have Claire Marmion, one of the great experts on the art market and art values, join us today for an interview. Claire manages art collections, helps people avoid art loss and provides art insurance adjustment.

Coco: Hi, Claire

Claire: Hello.

Coco: Thank you so much for joining us today.

Claire: Happy to be here.

Coco: Can you describe your profession?

Claire: Well, I have just started my own business called the Haven Art Group. We adjust art claims and also provide art management services to see if we can help people avoid having loss or damage to their art collection in the first place. You could call us curators for hire.

Coco: And why do you focus your career around art?

Claire: When I was struggling to decide what to read at University, I went to my mother for advice. I asked her why she had chosen to read Spanish, and I told her that I had no idea what I wanted to do for a living. Her answer was very simple. She said, "forget careers. Your job at University is to learn how to think. Just that. So you better study your favorite subject because if you don't, not only will you not learn how to think well, but you will be absolutely sick of whatever it is after three years." And I have not been able to stop thinking about art ever since.

Coco: What past jobs taught you the most and what did they teach you?

Claire: That is a tough question Coco. It is a very long time since my first job at Sotheby's in London, but I would say that the most important thing I got out of that experience was developing a good eye. That, and learning how to let people down gently - so many grizzly portraits found in English attics that, frankly, should have stayed buried because they will never be bought by anyone who is not directly related to the sitter. I am fiercely proud of being British, but we are not a beautiful people I'm afraid. And since then? I would say that I probably learnt the most in my most recent job as head of art services for the US and Europe for a large insurance company. We had to evacuate pictures as wildfires descended or save them in the aftermath of hurricane devastation. It was a terrifically steep learning curve for the first couple of years and tremendously rewarding to help people save entire collections for their families and for the future.

Coco: What 5 things can I do to protect my art?

Claire: Ok, one of the things my firm does is to map out the exposures surrounding a collection, and then suggest ways to close down the gaps in the protection program. And the first exposures we always rate are the top five causes of art loss - fire, water, theft, transit and bad curatorial management.

So here are five basic checks everyone can make for these five exposures:

1. Early fire detection is the key to avoiding a total, rather than a partial art loss. Do you have heat detectors in your kitchen, in your roof space, in your mechanical rooms and in your garage? These are the most common areas for a fire to start.

2. No art or fine furniture in the basement please. Not until Illinois and New York replace all of their Victorian drains.

3. Following any sort of major renovation or build out to your home, have the locks changed. It is unlikely your contractor will have had time to do background checks on every sub contractor he used.

4. If you are using an art shuttle to transport works you have recently purchased, check that there is no cross docking on route and ask for last on first off priority for your crate.

5. Check the traffic flows in your home. Are there fragile pieces in the same corridor that your deliveries come into or where your children play? Can you swap out three dimensional for two dimensional pieces, unframed contemporary canvases for those with a small slip frame protection? This will reduce surface scratching and gradual erosion at corners.

Coco: What 2 things must I do to protect my art?

Claire: First, put a transit protocol in place because most shipping losses are entirely preventable. A good transit protocol should have one person overseeing the shipment from nail to nail and testing arrangements for every step where a piece changes hands or they think a loss could occur. We have failed as custodians if a work is damaged in transit because it was cheaper to send it by UPS. They are not expecting you to use them for your fine and fragile works of art. Second, without proper documentation, pieces go missing over time; you can't secure insurance to the full value and provenance and authentication issues go unnoticed until the time of sale. Ask an art professional to assess your current papers and give you advice on getting an inventory because regardless of the physical protection in place it is critical to get independent, objective advice on the financial protection of your assets, and good documentation is the first step.

Coco: Who are your favorite artists?

Claire: Poussin, Ben Nicholson, Durer, Ken Price, and the fabulous Steffen Dam.

Coco: Your Website?

Claire: Is currently under construction. Great things come to those who wait.

Coco: Your contact info?

Claire: Keen bloggers are welcome to email questions to my Hotmail account at clairemarmion@hotmail.com. All other enquiries can be directed to the Haven Art Group at 312 375 3807.

Copyright Pitfall No. 1: When Nature Inspires Your Art, Watch Out

Tobias Butler — Thu, 18 Jun 2009 10:48:37 -0500

By Tobias Butler, Attorney at Law

Copyright law is prejudiced against art that depicts nature. Faithful recreations of nature by themselves are simply not copyrightable. And, regardless of the beauty and innovation of a work of art, it can miss copyright protection if the artist fails to incorporate anything beyond exact elements from the natural world. So, in order to secure copyright protection, an artist needs to add his original touch to the work of art.

The Focus on Originality
You can only copyright something that is an original work of authorship. In understanding this, two issues are simple:

A "work" is a single expression of an idea (and not an idea itself).
"Authorship" means you thought up the work.

So, the crux is "originality", requiring that the artist added something from his or her own mind (which, then cannot be copied).

Originality in Nature-Based Works
Most of the time, depictions of nature can’t be copyrighted. That is because the law (i.e. society) says that nature is not artistically your own. Only the part of the artistic work that sets nature apart from the way you found it is copyrightable (for instance, your arrangement, positioning, shading, unique coloring, etc.).

Some examples:

A candle company places cinnamon sticks on the front of a box of cinnamon-scented gifts (Yankee Candle v. Bridgewater Candle, 259 F.3d 25 (1st Cir. 2001)). The company can’t gain protection over putting cinnamon sticks on a gift box because cinnamon sticks are a natural thing. But, the company can get protection over the placement of the cinnamon sticks in a specific pattern and the shading, light source and placement on the box because those were arrangement-based and, thus, original elements.
A photographer takes a shot of a ballerina’s legs in fifth position (Edwards v. Ruffner, 623 F.Supp. 511 (D.N.Y. 1985)). The photographer can’t get protection over a photograph of a dancer’s legs in fifth position (even if another photographer admits to seeing the photo and using it as inspiration for a similar photo) because even the idea of dancers legs in fifth position is not an original element. But, the photographer may get protection over the angle of the shot, amount of the legs showing, clothing style and background, particularly if there is some unique element to them (like intentionally ripped leg warmers or oddly colored ballet slippers).

Putting This into Practice
Drawing from nature is a wonderful start many artists have used to initiate the beginnings of great work. While protections are available, they will likely extend only over those additions. You cannot "corner the market" in making true-to-nature depictions of an idea. So, the trick for the artist, in life and in law, is to add something new.

Good Faith Gifting?

John-Paul Benitez — Wed, 10 Jun 2009 10:05:53 -0500

Would you accept a stolen Van Gogh as a gift? Of course not.

What if the work wasn't so much "stolen," as it was "nationalized" for the good of the homeland? To help fund stimulus grants, say the work was sold twenty years later to an old college friend of yours, and thirty years after that your college friend gave it to your son or daughter as a graduation gift. Should your child accept?

What if your child is the President of Yale University at the time?

The story behind this re-fashioned hypothetical can be found here.

In March of 2009, Yale attempted to pre-empt a lawsuit by a decedant of Ivan Morozov, who is referred to here by TIME critic Richard Lacayo as "one of the two outstanding Russian collectors and patrons of modern art early in the 20th century," claiming Yale wrongfully acquired Van Gogh's "The Night Cafe" in the 1930's. The crux of the argument suggests that the nationalization of property after the Russian Civil War was unlawful, and Yale's claim to title after the work was purchased by the eventual donor from the Russian government amounts to "art laundering." Morozov's decendant, Pierre Kanowaloff, in late May filed a counterclaim in the suit alleging Yale's acquisition of the painting lacked good faith.

Yale takes the approach that the donor's purchase from the Russian government was legal, and Yale's acceptance of the gift equally so. Moreover, Yale argues museums across the globe hold works of art previously nationalized by the Russian government in the early 1900's, and that sales by the Russian government of such works are generally considered valid.

And the money quote: Yale feels it is not the place for American courts to "undo the entire program of property reform" which took place in early twentieth century Russia.

The result of this case may have reaching effects for many collections. Stay tuned.

Yale University v. Konowaloff, 3:2009cv00466, U.S. District Court, District of Connecticut (New Haven).