Jeff Koons, Richard Prince and Copyright Infringement

A good article in the Wall Street Journal here, with good images for comparison, on the claim of photographer Patrick Cariou that artist Richard Prince had ripped him off. It's not the first time that a photographer has been upset over Prince's actions. Someone sent me a NY Times article on the original photographer who did the Marlboro Man campaigns that Prince copied.

Now I know Cariou's name - Prince has made him and his work more famous, and the two will probably make more money in their respective careers following the tiff than before, no matter what the end result.

The WSJ article discusses cases involving Jeff Koons, the puppies case and the more recent Niagara case (image here). I met Jeff Koons last night for the first time at the National Arts Club where he was being presented with a medal.

We discussed his litigations, and he said that they have really changed his work.

In a visual online world where "free speech" for a visual artist may include defacing the work of another, we are going to see a lot of boundaries changing. What's fair today may not be fair tomorrow.

International Copyright CLE Program Online

I recently participated in a continuing legal education program at the New York County Lawyers' Association called International Copyright: What the U.S. Practitioner Needs To Know.

The CLE session is available on DVD from NYCLA or online at Lawline here. We had a great panel, moderated by Jay Kogan of D.C. Comics that included Axel Nordemann and Christian Czychowski from Boehmert & Boehmert in Germany, Johnny Chen of Divx, and Mario Sorensen Garcia from Brazil. Faculty bios here.

The program covered not only the legal concepts of international copyright and interpreting the treaties, but had a number of "real life" stories about how businesses working internationally protect and enforce copyrights.

My topic was "Foreign Copyrights in U.S. Courts".

The course description below:

Since United States copyrights are a major export, many practitioners are called upon to protect clients’ interests worldwide and negotiate licensing agreements requiring a knowledge of copyright regimes around the world. In-house counsel and outside counsel are also often called upon to assist U.S. clients in solving copyright problems worldwide.
This program identified the problems that arise for U.S. clients and provided drafting tips, together with a survey of the analytical tools and resources necessary for a U.S. practitioner to effectively craft practical solutions.

ICANN Copyright Registration? Yes We Can!

Professional photographer Dan Heller has written a very thoughtful and constructive piece about how the Copyright Office might incorporate ICANN-type concepts into the copyright registration process found here. I am a big fan of the Copyright Office in many ways. Unlike many, I usually see attempts to "privatize" government functions as a way to steal from taxpayers and undermine the professional civil service. For example, I think HMO's are simply criminal in structure, and I think that private prisons should be abolished immediately.

Heller makes powerful arguments that today's copyright system prices most photographers and certain content producers out of the market and is inefficient. At $35 or $45 a pop, and high recording fees for transfers, certain content creators simply opt out of the system. Photographers may register multiple images for one fee, but there are restrictions. With the phenomenon of user-generated content exploding, Heller points out another copyright constituency that is priced out, is opting out, and that the system was not built for.

As a litigator it has pained me to inform clients over and over that they can't get statutory damages. It is clear to me that approaches embracing new technology, recognizing the new scope of copyright itself, and harnessing the power of the internet need to be adopted to the commercial and consumer reality of the online experience. Heller is right about there being no reasonably effective remedies for the little guy out there.

If you could protect all of your creative output for, say, a reasonable monthly fee and make it easy to digitally track and monitor, wouldn't that be a great option?

Heller has sketched, in a provocative and powerful essay the outline of a new type of automated copyright registration system that certainly bears study. His selected model is the ICANN system, which I am not sure satisfies my desire to have one, central entity to be searched and act as a reputable register (if you have ever chased domain name hijackers who have taken your client's domain offshore you will understand my reluctance to endorse domain name registration as a flawless model).

There is also something attractive in the deposit system: you can deposit works and still have them unpublished and secret for practical purposes, but you have a secure government record that it is what you've claimed as yours, even if unpublished. I am not sure that an ICANN-type system could provide the type of physical custody and certainty that the US government provides.

I think that the Copyright Office would do well to give Heller's proposal some serious consideration and launch a pilot program, particular for groups like photographers. By providing careful oversight of an outsourced operation like the one Heller envisions, I think that the Copyright Office might find that more people could receive fair legal protections at a reduced cost and that more creators and users would be encouraged to be good copyright citizens.

Scholarly Access To Images

The Max Planck Institute for the History of Science has put out a sheet called "Best Practices for Access to Images: Recommendations for Scholarly Use and Publishing." The practices identify restrictions that have been put on access to public domain works for researchers in the humanities and talks about how scholars should be restricted in how they use images of public domain works.

In recently researching a case of Nazi looted art, I have been frustrated by non-profit institutions blocking access to copies of documents necessary to trace Nazi-art looting practices in Switzerland. One institution was the Getty blocking access to an official government report, another a German museum claiming that I had to get copyright permission from a deceased Swiss art dealer to make copies of his correspondence with the Nazi regime. Each institution was informed that the documents were for use in an impending court case.

My feeling is that any restrictions on scholarly use of public domain materials by an entity that enjoys tax-free status is presumptively a violation of the public trust, and a restriction of the public domain that conflicts with the complete preemption of copyright law. Only in certain limited cases should museum and library archives be banned from public view, and certainly not unclassified Nazi-era documents. I am sensitive to the fact that libraries and institutions cannot exist on thin air and that some financial support is necessary. If endowments and other funds do permit subsidized access, charging scholars for access should be the last resort.

In the Dastar case the court worried about mutant species of copyright laws making public domain materials unavailable forever, and was explicit that public domain meant the right to use without attribution. Didn't Bridgeman Art Library v. Corel Corp., which held that exact copies of public domain images are not protected by copyright resolve these issues?

Charging fair access fees on an equitable basis (akin to charging for photocopies) seems reasonable. But museums, now all too often acting as a multibillion-dollar theme park industry focused on building new wings and expanding their parking lots, have a tendency to want to cash in to the max on every aspect of merchandising the cultural property in their grasp. If they want to do that, they are violating their core missions and should be taxed like everyone else.

I am grateful to many amazing librarians I have known over the years. I am supportive of this type of research in the humanities. And I don't mind mentioning that the image appearing above, which is a link to the Max Plaenck website, is an image created by Rembrandt of Aristotle with the Head of Homer and that it is to be found at the Metropolitan Museum of Art. But should I be required to do so? And what if it turns out not to be a Rembrandt?

Illegal Downloading of Software: Czech Cracker Leeches Warez Gets 30

In U.S. v. Klimecek, 2009 WL 102128 (7th Cir. January 15, 2009), the Seventh Circuit upheld a 30-month sentence for a member of a warez group who downloaded Czech movies and music. The decision does not state that any of these works were registered with the Copyright Office. Italics below are from the decision:

He was indicted under 17 U.S.C. § 506(a)(2) and 18 U.S.C. § 2319(c)(1) for willfully infringing copyrights by reproducing or distributing during a 180-day period at least ten copies of one or more copyrighted works with a retail value of more than $2500. He was further charged under 17 U.S.C. § 506(a)(1) and 18 U.S.C. § 2319(b)(1) because the purpose of his infringement was for private financial gain.

Klimecek pleaded guilty. [Rec. Tab 9.] During the plea colloquy, he declared that he bought and installed hardware and software to set up a computer server and paid half of the monthly service charges to connect the server to the Internet. [Rec. Tabs 3-4.] In exchange, Klimecek was to obtain access to Czech movies and music. [Rec. Tab 6.] He admitted that he knew that Internet users from around the world were accessing the server to upload and download copyrighted works. [Rec. Tab 4.] The defendant also stated that during a 180-day period he caused at least ten or more copies of one or more copyrighted items to be uploaded to the server and thus made available for unauthorized download by Internet users. [Rec. Tab 5.] Klimecek admitted that the retail value of these copyrighted materials exceeded $2500. [Rec. Tabs 6-8.]

Even with the guilty plea, Klimecek got thirty months of prison under the Sentencing Guidelines. The court was not sympathetic to his arguments that he was a minor player and found that under the guidelines his conduct did not warrant a further downward departure.

The court also rejected the argument that the sentence was unreasonable. He had no criminal background, made next to no money on the scheme, and claimed he was not particularly sophisticated and thought he was just playing around with some friends.

Be very careful out there. Under the statute, a good chunk of the high-school and college population of the United States would probably qualify for some very hard time. Until the grandchildren of federal judges start getting hit with these sentences, they will continue to appear "reasonable" to the federal judiciary. Housing, feeding and guarding Klimecek for thirty months is an egregious waste of tax dollars and entirely disproportionate to the offense, which could largely be remedied (and give the copyright owners greater financial benefits) through painful but effective civil remedies or restitutionary penalties. Now that Klimecek will spend probably a couple of years in prison, there is little chance he'll be able to pay the level of restitution to the copyright owners that he would have been able to pay if he'd been permitted to work.

A suspended sentence conditioned on restitution would have been the economically prudent and just solution. Just because there is a stupid law on the books does not mean the prosecutor has to ask for a stupid sentence. Cf. Hugo, Victor, Les Miserables. And just because a law is on the books does not mean that the federal judiciary should abandon reason in favor of the Sentencing Guidelines.

Attacks on Owners of Stolen Art

In the Guardian here, Jonathan Jones picks up on a call for a statute of limitations by Sir Norman Rosenthal from the last issue of the Art Newspaper reprinted here, in a post called "Should All Looted Art Be Returned".

The Art Newspaper queries whether Italy really needs another krater like the one pictured.

I suppose the question to be answered if someone steals my second car is whether or not I really needed a second one. If I could do with one, Rosenthal's bonehead argument is that the thief should keep my second one.

The comments to the debate have a healthy edge of antisemitism: the subtext is that people who want to recover their stolen property are greedy Jews, just trying to cash in. And how many museum directors and trustees are private collectors with similar stashes of stolen loot?

I reprint my comment below in italics:

Museums make claimants spent hundreds of thousands, if not millions in fees to researchers, lawyers, and by their refusal to return stolen property force claimants to enter into contingent fee arrangements with lawyers and researchers who, in turn, must force successful claimants to sell off their family heirlooms to cover their own costs.

Jones blames this vicious cycle on the victims. The public has no interest in showing their children warehouses of stolen property.

Change the laws to award attorneys fees and expenses to successful claimants and you will see Jewish families be able to afford to keep the property that is rightfully theirs. You will also see museums start to be a little more truthful about where they obtained their loot.
What Jonathan Jones and Norman Rosenthal advocate is looting the victims once again and proudly displaying the result. Shame.

De Minimus Copying in Copyright and Trademark Law

In Gottlieb Development LLC v. Paramount Pictures Corp., 2008 WL 5396360 (S.D.N.Y. December 29, 2008), Judge Denny Chin tossed out a copyright and trademark infringement claim brought by a manufacturer of pinball games against a film production company on a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The claim was that Paramount put a Gottlieb pinball machine in the background of a scene featuring Mel Gibson in the film "What Women Want".

The defendant attached a copy of the DVD to its motion to dismiss. The court looked at the offending footage and found that the fleeting glimpse of the pinball machine was so trivial that he could throw out the copyright infringement claim and the trademark infringement (false endorsement) claim, even though the complaint had adequately pleaded the unauthorized copying claim.

Significantly, in determining the motion to dismiss, Judge Chin applied the U.S. Supreme Court's "plausibility" standard to the set of facts alleged in the complaint. See Bell Atlantic Corp. v. Twombly, 125 S. Ct. 1955, 1969 (2007), stating "...the Silver Slugger was filmed in such a manner and appears so fleetingly that I conclude there is no plausible claim for copyright infringement here" and "Because Gottlieb does not amplify its trademark claim with factual allegations to rise 'above the speculative level' [ ] its trademark infringement claim is hereby dismissed.

Two cases to compare are Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 75 (2d Cir. 1997) and Sandoval v. New Line Cinema Corp., 147 F.3d 215, 217 (2d Cir. 1998).