For your reference, a roundup of recent legal commentary on the protection of intellectual property rights in the art world. [Related: jump to the bottom of a Bloomberg Law podcast on a related issue…]:

On Appropriation Art:

Rastaman Vibration (Sheppard Mullin Richter & Hampton LLP)

“The appeal in the case of Cariou v. Prince is shaping up to be the biggest visual arts copyright case in many years. It will likely result in guidance on what qualifies as a transformative use for appropriation art under the doctrine of fair use. Appropriation art ‘borrows’ pre-existing works or images of the creative work of another artist in order to create something new and original. While this alone may seem packed with copyright issues, it is generally not an appropriation artist’s intent to ‘rip off’ another artist’s work.” Read more>>

Appropriate Testing and Resolution: How to Determine if Appropriation Art is Transformative “Fair Use” or Merely an Unauthorized Derivative? (Eric Gorman)

“’Art … is the desire of a man to express himself, to record the reactions of his personality to the world he lives in.’ But what if this original expression was taken away from the artist for all the wrong reasons? What if the work was wrongfully sold for money or portrayed as an appropriation artist’s own work? Art cannot be taken away from its creator unless there is fair use of that product. At the same time, appropriation art creates new works of art by utilizing common images found in society, thereby aiming to change the way we think about these images.” Read more>>

On Copyright Infringement:

Fashion Designers: Legally Naked? (Sheppard Mullin Richter & Hampton LLP)

“Fashion designs do not fit neatly into a traditional intellectual property realm. Copyrights generally are not granted to apparel because articles of clothing are considered functional ‘useful articles,’ as opposed to non-utilitarian works of art. Design patents are intended to protect ornamental designs, but clothing rarely meets the demanding requirements of ‘novelty’ and ‘non-obviousness’ for patentability… This lack of copyright protection for fashion designers has in part created the phenomenon of ‘red carpet copycats’: companies that hurriedly create and sell copies of the glamorous or bold garments worn by celebrities at red-carpet events.” Read more>>

Am I in Trouble if I’m Optioning a Book That Includes a Character That Has Already Been Optioned? (Greenberg Glusker Fields Claman & Machtinger LLP)

“Generally, when a studio or producer acquires ‘movie’ rights to a book, it acquires ‘character’ rights. In other words, in your case, the author likely granted to the studio, among other things, the exclusive right to make movies containing the characters in that book. Therefore, you may infringe upon the studio’s rights if you make a movie based on the book you’re optioning, because it will contain the character the studio already exclusively ‘owns.’” Read more>>

Oh What a Tangled Web: Does Julie Taymor Have a Valid Copyright in Spider-Man? (Foley Hoag LLP)

“The backstage drama, from the classic 1950 film All About Eve to the new television hit Smash, is an oft employed narrative convention filled with juicy melodrama between show business colleagues set to the backdrop of a spectacular stage production. The copyright infringement lawsuit filed in late 2011 by internationally acclaimed theater and film director Julie Taymor against her former co-collaborators of the hit Broadway musical Spider-Man: Turn Off the Dark proves that the cliché has strong roots in reality.” Read more>>

Potted Potter and the Possibility of Parody (Heenan Blaikie LLP)

“The news that the stage play Potted Potter has come to Toronto should be something which causes the ears of copyright lawyers (and others interested in copyright law) to perk up. The show is described as ‘present[ing] all seven of J.K. Rowling’s iconic books in 70 minutes’ - which certainly seems like something that should be within the exclusive purview of the owner of copyright in the Harry Potter books… But Potted Potter, which has evidently enjoyed ‘years of success all around Great Britain, Australia and New Zealand’ bills itself as ‘unauthorized’ - so what gives? ” Read more>>

You’ll Be Saww-wwwy: The Unauthorized Use of Photos (Erin McClarty)

“Very few people realize that photos actually fall under copyright. So the rights to use, alter, or reproduce that photo may belong to someone else. And if that is the case, your unauthorized use could surmount to infringement of their copyright rights… As if that wasn’t enough, international privacy/copyright law may apply as well. With regard to copyright, there are international treaties, one being the Berne Convention, that govern when international copyright laws may come into play…” Read more>>

On Trademark Infringement:

The Hangover II Has More Legal Woes (Winthrop & Weinstine, P.A.)

“Louis Vuitton sought to have Warner Bros. remove references to a counterfeit bag and the line ‘Careful, that’s a Louis Vuitton,’ from [The Hangover II]. The bag at issue is manufactured by a Chinese American company Diophy. Louis Vuitton has also sued Diophy for trademark infringement in another lawsuit. It asserts that the movie is misleading the public that Louis Vuitton is the source of the bag. The scene also undermines the company’s efforts against counterfeiting and trademark enforcement.” Read more>>

Girls Gone Wild: Trademark Infringement or Publicity Stunt? (Sands Anderson PC)

“Girls Gone Wild is a video series where young women (usually at Spring Break or Mardi Gras parties) agree to be filmed stripping or flashing. Madonna … has a song on her latest (unreleased) album entitled ‘Girls Gone Wild.’ The owner of the Girls Gone Wild trademark for adult videos and related products sent a cease and desist letter this week warning Madonna not to sing this song at the Super Bowl. Is this trademark infringement?” Read more>>

On “Droit de Suite:”

Law Art with Intellectual Property Lawyer Tom O'Leary (Ropers, Majeski, Kohn & Bentley)

“Los Angeles abstract artist Mark Grotjahn and representatives of late painter and printmaker Sam Francis filed suit seeking resale royalties from California galleries and collectors who have resold their work for dramatically escalated prices. Signed into law in 1976 by Governor Jerry Brown, the [The California Fine Art Resale Royalty Act] was modeled after the French law, droit de suite, which was enacted to benefit painters and sculptors. The law is intended to ensure that artists share in the appreciation of the value of their work when it is resold by galleries and collectors for amounts greater than the original purchase price.” Read more>>

Droit de suite: Forgotten Corner of the Copyright Canvas (Heenan Blaikie LLP)

“In an age when the challenges of digital technology dominate copyright reform discussions, the world of auctioneers and brushstrokes may seem quaint. But there is an issue among Canadian visual artists that is just as crucial as digital downloads: The lack of a droit de suite, entitling artists to a share of revenues when their art is sold, leaves Canada out of step with many peer countries.” Read more>>

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