Cultural Protection without Intellectual Property Protection

Mike Madison has posted a short paper on SSRN titled Intellectual Property and Americana, or Why IP Gets the Blues, Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 18, pp. 677, 2008:

This essay, prepared as part of a Symposium on intellectual property law and business models, suggests the re-examination of the role of intellectual property law in the persistence of cultural forms of all sorts, including (but not limited to) business models. Some argue that the absence of intellectual property law inhibits the emergence of durable or persistent cultural forms; copyright and patent regimes are justified precisely because they supply foundations for durability. The essay tests that proposition via brief reviews of three persistent but very different cultural models, each of which represents a distinct form of American culture: The Rocky Horror Picture Show; the town band of Chatham, Massachusetts; and the musical form known as the blues. It concludes that that the relationship between cultural persistence and law is more complex than is generally understood. The essay applies some of that more complex understanding to contemporary problems involving business models, notably the copyright dispute involving Google’s Book Search program.

This article is highly recommended, as any piece which attempts to tie the Rocky Horror Picture Show and the Blues in with a criticism of over-restrictive IP regulations would be.

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St. Ninian’s Isle Treasure

Shetlandtoday is reporting that the MSP for the Highlands and Islands and member of the Scottish National Party Dave Thompson has welcomed Alex Salmond’s calls for the return of the Lewis Chessmen as a positive indication that the St. Ninian’s Isle treasure will be returned to St. Ninian’s Isle. Thompson wrote in a letter to the Scottish culture minister and the diirector of the National Museums of Scotland:

I am pleased the First Minister has decided to raise the matter of the Lewis Chessmen. I think it opens up an interesting debate on how we support our local museums.

“For the past two months I have been acting on behalf of the people of Shetland to try and secure the St Ninian’s Isle Treasure back to its rightful home.

“I firmly believe that artefacts of local significance should be kept locally. It undoubtedly boosts local tourism and is beneficial to the community as a whole, both historically and culturally.

As I argued last week, I’m not sure what ethical basis Salmond can make the claim to the Lewis Chessmen. They were acquired legally and rightfully, and they were in fact almost certainly created in Norway. Norway would seem to have a better ethical and cultural claim to the objects than would Scotland. If Salmond does want the Chessmen returned, that precedent could be used to repatriate a great deal of objects currently on display at the National Museum of Scotland and elsewhere.

The St. Ninian’s Isle treasure was discovered by a University of Aberdeen archaeologist in 1958. The treasure is comprised of 28 silver objects and a porpoise bone. The resulting dispute Lord Advocate v. University of Aberdeen and another, 1963 S.C. 533. saw the University unsuccessfully challenge the notion that the found objects should fall to the Crown.

St. Ninian’s Isle is a small body of land a short distance from Shetland. In 1955 a University of Aberdeen team of researchers began excavation work aimed at finding the ruins of a medieval church. In July of 1958 the 8th century Celtic hoard was discovered. The Lord Advocate then brought an action seeking a declaration that the find belonged to the Crown, while the University and the landowner contested the claim.

In the ensuing legal dispute two arguments were advanced by the University. First, it was argued the feudal common law rule had no application in Shetland and Orkney where land was “udal”, and not subject to the feudal rules, as a result of their acquisition in the 15th century from Denmark and Norway. However the trial judge Lord Hunter held

[A]lthough treasures found in the ground are inter regalia, in the sense of things which the law appropriates to princes and states, and exempts from private use, the right to treasure is a right belonging to the sovereign by virtue of his royal prerogative and as head of the national community rather than by virtue of his position as universal landlord.

This argument was supported on appeal. The second argument urged the court to recognize rights in udal lands as superior to those of the crown. In advancing the argument the University compared treasure trove to undiscovered minerals. However this reasoning proved unsuccessful as well, as “plenary ownership of land carries with it everything a caelo usque ad centrum, including even all moveable articles in or on the land.” As such the ordinary laws of Scotland would apply and objects qualifying as treasure under Scots law “must be precious; they must be hidden in the ground; and there must be no proof of their property or reasonable presumption of their former ownership.”

The case presented interesting legal questions for Scots property law, but from a cultural property policy perspective, the excavation, study and display was a complete success. The site was professionally excavated, the archaeological context was recorded, and the treasure is now on public display in Scotland.

Know What you Want Before you Lawyer Up

I’m just catching up with this story, but I think its a fascinating dispute. The Massachusetts Museum of Contemporary Art (MASS MoCA) has won its suit against artist Christoph Buchel, and is free to display a massive unfinished work “Training Ground for Democracy”. Federal District court judge Ponser ruled Friday the Visual Artists Rights Act (VARA) does not prevent the display of the unfinished work. The Boston Globe has a good overview of the case.

VARA gives artists the right, in some circumstances, to prevent unauthorized distortion or mutilation of the work. The judge ruled the work hasn’t been distorted, because it’s not finished. It seems there was some kind of falling out between Mass MoCA and Buchel. The museum then brought suit to gain the right to display the unfinished work.

What strikes me about this case, is the tendency to see litigation as a cure-all. You can win a lawsuit and still come out a loser. A good lawyer encourages a client to think about what the end result will be, even if they earn a court victory. I don’t know what the museum sought to gain by initiating a suit against Buchel, but they have certainly damaged their reputation among artists. What are they gaining by displaying a work the artist himself wants nothing to do with?

There is a lot of great commentary which tries to answer that question.

  • Donn Zaretsky, Buchel’s counsel, has been posting his thoughts at the excellent Art Law blog. He expresses disappointment at the result, as “if you can’t read VARA to prevent [what NY Times reporter Roberta Smith calls an opening which has ‘broken faith with the artist, the public and art itself’], you’re not trying hard enough. So needless to say, we were very disappointed by the result of Friday’s hearing in Springfield.”
  • Mike Madison argues the judge probably made the right decision, as a “work of visual art” only exists when a work is fully realized and finished. In essence it can’t be distorted because it’s not a work yet. He also points out the claim may have more to do with trademark, and that’s essentially the remedy the judge provided: the work can be displayed but only with a disclaimer.
  • Lee Rosenbaum notes Judge Ponser was “extremely moved” by the installation, and found it “very powerful”. She argues MASS MoCA should show the installation for a week, recoup the $300,000 it invested and move on.
  • Ed Winkelman argues the result was the product of two unfortunate decisions. First was the decision by the museum to take the issue to court, “what’s the core message here? Money invested trumps artistic vision?” And second, the legal decision was “a hair-splitting technocratic decision that ignores the spirit of the law”.
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Hire This JD/PhD!

Please forgive the self-promotion, but I am approaching the end of my time as a PhD candidate here at the University of Aberdeen, and my wife is quite understandably tired of supporting my education habit. Two 3-year postgraduate programs really are about the limit, so I’ve reluctantly concluded that I should get myself employed.

I will be submitting my thesis tentatively titled “The US and UK Response to the Illicit Trade in Cultural Property” in November of this year. If you think I would be a good addition to your law faculty, arts institution, law firm (or anything really) please visit my web page where I’ve listed my qualifications, publications, teaching experience, and research interests. Location is no obstacle, we would be excited to move anywhere in North America or Europe especially.

I have submitted my information to the AALS, so any law professors who may enjoy my writing, I would appreciate a kind word to your hiring chairs. I’m cautiously optimistic about the process, but I would also be interested in some teaching fellowships as well.

If you have further questions you can email me at derek.fincham “at”

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