Student note on the blue wave experimental protest

The Spring issue of the Northwestern Journal of Technology and Intellectual Property has published an interesting student note by Jaya Bajaj titled “Art, Copyright, and Activism: Could the Intersection of Environmental Art and Copyright Law Provide a New Avenue for Activists to protest Various Forms of Exploitation?” The piece works best as a thought experiment, and may be an argument used by the many detractors of moral rights for artists to further restrict the expansion of the still-developing series of rights for artists. But I find the article, and the experimental protest to be thoughtful and well-reasoned. Here’s the abstract:

In 2015, a group of activists led by Aviva Rahmani began an artistic venture known as “Blued Trees.” They painted blue sine waves onto trees along a proposed pipeline pathway, and subsequently filed for federal copyright registration. They hoped to use copyright law and the Visual Artists Rights Act as a sword against fossil fuel companies. Although the piece was destroyed later that year as part of the pipeline construction, the “Blued Trees” movement continues. This note will discuss Rahmani’s legal theory and consider this theory’s strengths and weaknesses. This experimental protest brings forth a number of unanswered questions about the nature of copyright law. It is no secret that contemporary art forms, and the mediums involved, are becoming increasingly diverse. Therefore, this note also seeks to address the merits and limitations of current copyright law in terms of environmental and installation art.

Jaya Bajaj, Art, Copyright, and Activism: Could the Intersection of Environmental Art and Copyright Law Provide a New Avenue for Activists to Protest Various Forms of Exploitation?, 15 Nw. J. Tech. & Intell. Prop. 53 (2017).

The Sad State of Moral Rights in the United States

Did Peter Doig paint this in 1976?
Did Peter Doig paint this in 1976?

Many nations assign to artists moral rights over their creations. One of the core moral rights is the right to claim or exclude works of art in your body of work. But not in the United States. NPR reports on the bizarre case involving Peter Doig and the art he’s trying to disclaim.

Federal Judge To Rule On Whether Peter Doig Painted Desert Landscape, NPR.org, http://www.npr.org/2016/08/23/491024818/federal-judge-to-rule-on-whether-peter-doig-painted-desert-landscape.

Muddling Artist’s Moral Rights

A now-faded and defaced bicentennial mural painted on the Prado Dam spillway in Corona, California
A now-faded and defaced bicentennial mural painted on the Prado Dam spillway in Corona, California.

The National Historic Preservation Act has come to the rescue of this mural from 1976, which is badly in need of conservation. But in the process a federal court has muddled the Moral Rights of Artists moving forward. The mural on the Prado Dam near Corona, California was painted by High School students from Corona High School. The Army Corps of Engineers, which manages the dam and spillway planned to remove the mural over concerns of lead paint, tagged graffiti artists who replaced the 1776 with “TOPS”. Carolina Miranda reported for the L.A. Times in June that the image “has become one of the region’s more iconic, unofficial freeway landmarks”. Two groups sought protection in Federal Court for the mural, both the Mural Conservancy of Los Angeles, and one of the original artists and designers of the mural, Ronald Kammeyer.

Nicholas O’Donnell summarizes a recent lawsuit in California which sought to protect this mural. He comes to the conclusion that the Court managed to misunderstand some of the key provisions of the act:

First, the Court accepted (and perhaps the government failed even to understand to challenge) that the plaintiffs have any VARA rights at all.  They almost certainly do not.  VARA rights exist from the date of creation and for the life of the author.  They cannot be assigned or inherited.  That standard applies, as with most laws, to anything created after the effective date of the statute.  But what about earlier works?  The Supreme Court has long held that statutes do not have retroactive effect unless they say so explicitly.  VARA does, but in an usual way:

‘With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.’

The mural predates the effective date of VARA, obviously.  So the plaintiffs—if they are the “Author”—could only assert VARA rights if they had not transferred title to the physical work (not the copyright, which one or more of them undoubtedly still holds).  But none of the plaintiffs claimed to own the mural, either when it was painted or now.  Someone, possibly Kammeyer alone, possibly Kammeyer jointly with the volunteers who helped him, owns the copyright.  That will endure either alone or as joint work, under the term of copyright.  But could any of them claim to have owned title to the physical work in 1976?  On a federally-owned flood management dam?  It seems a stretch.

The opinion misses this threshold question entirely.  Second, VARA is absolutely a “lifelong” veto when it applies.  That is exactly what it is supposed to endow on the artist.

Good writing matters, both in drafting judicial opinions and also in drafting legislation. The Court and attorneys could be given at least a little reprieve from us as the act it self is terribly arcane. Congress did us no favors when drafting this piece of legislation. I have to agree with O’Donnell—when there are so few judicial opinions in the United States which take up the moral rights of artists, to miss so badly on some key provisions is a missed opportunity.

The Court ultimately upheld the injunction on the basis of the National Historic Preservation Act as the Army Corps of Engineers failed to comply with that act’s “stop, look, and listen provision” which requires federal agencies to “make a reasonable and good faith effort to identify historic properties”. But not before muddling the slowly diminishing respect for the moral rights of artists under VARA.

  1. Kammeyer v. Oneida Total Integrated Enterprises, No. EDCV15869JGBKKX, 2015 WL 5031959 (C.D. Cal. Aug. 24, 2015).
  2. Nicholas O’Donnell, New VARA Ruling Muddies Analysis on Moral Rights and Significance of “Site Specific” Art Art Law Report (2015), http://www.artlawreport.com/2015/11/12/new-vara-ruling-muddies-analysis-on-moral-rights-and-significance-of-site-specific-art/.
  3. Carolina A. Miranda, Court order halts destruction of Prado Dam bicentennial mural in Corona latimes.com (2015), http://www.latimes.com/entertainment/arts/miranda/la-et-cam-restraining-order-temporarily-halts-destruction-of-40-year-old-mural-on-prado-dam-20150609-column.html .

Buccafusco on Copyright authorship

Christopher Buccafusco, a Professor at Cardozo Law School has posted on SSRN a draft of his work forthcoming in the Virginia Law Review titled “Copyright Authorship”. From the abstract:

The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright attaches to the original, fixed, and minimally creative form or manner in which an author creates mental effects.

After setting out the theory, this article applies it to a series of current copyright disputes. My authorship theory both expands and contracts the scope of potentially copyrightable works. Some media that have previously been excluded from copyright law, such as gardens, cuisine, and tactile works, now fall within the constitutional grant of rights. By contrast, aspects of copyrightable works, including photographs, taxonomies, and computer programs, may not constitute copyrightable authorship. This theory resolves a number of current and recent copyright cases, and it offers a new approach to the emerging challenges associated with artificial intelligence, the Internet of things, and, ultimately, the impending revision of the Copyright Act.

Buccafusco, Christopher, A Theory of Copyright Authorship (September 23, 2015). Virginia Law Review, 2016, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2664891

5Pointz Suit Continues

5Pointz before it was whitewashed
5Pointz before it was whitewashed

The legal battle over 5Pointz has entered a new phase this week, as a complaint by some of the artists whose works were destroyed when the building was whitewashed has been filed in Federal Court. Though this may seem to be a new suit or new proceeding, it really should be viewed as a continuation of the dispute that has been ongoing since 2013 and earlier. Only instead of asking a court to prevent the destruction of the works at issue, now the artists are seeking compensation for the actual destruction of the works when they were whitewashed. Nicholas O’Donnell has kindly posted this new complaint on his blog, and he argues that one interesting thing to watch in the dispute, is the measure of damages: Continue reading “5Pointz Suit Continues”

Good Luck to the Cultural Heritage Law Teams in Chicago

Alexander Calder's 'Flamingo'
Alexander Calder’s ‘Flamingo’

Good luck to all the teams fighting over the Blue Pineapple in Chicago at the National Cultural Heritage Law Moot Court competition this weekend! This competition is put together by DePaul College of Law with the help of the Lawyers’ Committee for Cultural Heritage Preservation. It’s a great showcase for these soon-to-be-lawyers and this field. A bit about this year’s problem:

The 2015 Competition will focus on constitutional challenges to the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A, which protects visual artists’ moral rights of attribution and integrity. The problem will address both a First Amendment and a Fifth Amendment challenge to VARA.

Cultural heritage law deals with our most prized possessions and often spans beyond national borders, and, inevitably, has become the subject of often contentious legal debates and policies. This dynamic and growing legal field deals with the issues that arise as our society comes to appreciate the important symbolic, historical and emotional role that cultural heritage plays in our lives. It encompasses several disparate areas: protection of archaeological sites; preservation of historic structures and the built environment; preservation of and respect for both tangible and intangible indigenous cultural heritage; the international market in art works and antiquities; and recovery of stolen art works.

And Chicago must be the place to be for art and cultural heritage law this weekend, as the University of Chicago’s Neubauer Collegium will also be hosting a two-day conference titled: ‘Archaeological Looting: Realities and Possibilities for New Policy Approaches’.

Ninth Circuit to hear Artist’s Resale Rights Appeal

In 2001 a number of artists including Chuck Close, Laddie John Dill, and the estates of Robert Graham and Sam Francis brought suit against auction houses and eBay to receive royalties they had been owed under California’s Resale Royalty Act. That Moral Rights legislation provided that visual artists should receive 5% of the resale price when their work was resold by a California resident, or resold in the state of California for more than $1,000. The District Court struck down the law as unconstitutional on the grounds that commerce like this must be regulated at the federal level under the Commerce Clause to the Constitution. Continue reading “Ninth Circuit to hear Artist’s Resale Rights Appeal”