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Amidst the flurry of no good, very bad news regarding the once-mighty Salander-O’Reilly Galleries, I have something good to report. Shortly before the storm came ashore, Salander did return one of my non-exclusive license proposals. And they approved it! They forwarded my request on to the Gaston Lachaise Foundation and we now possess a general non-exclusive license to Lachaise’s Head of a Woman (The Egyptian Head), created in 1923. Whether we needed to get the license is perhaps debatable, but we nontheless possess it. The Harn has this information on Lachaise:

Lachaise’s figurative sculptures are characterized by their simplification of form and his unique ability to integrate physical description with an idealized approach to the human body. He is most renowned for his sculptures of women-standing, walking, seated or reclining-who are rendered as etherealized goddesses and images of exalted womanhood.

So the least I can do at this point is say thanks to Salander. From what I am reading, I don’t really view the episode as fraud borne of malicious intent or will. Salander, by most accounts, really did care about the art and his friends in the art community. It seems like his gamble just didn’t pay off, as many don’t for entrepreneurs. Alas, handling so much money requires great caution in today’s world. It looks like Salander found out the hard way. For better coverage of the whole ordeal, please check out the Art Law Blog.

Also, for a post challenging the assumption that government regulation would a) solve this problem or b) improve the art world, see this post by me on Awkward Utopia.

( image credit: )

Advertisements recently conducted an interview with Hilary Hahn, the noted 27 year old violinist. As Laurie Niles writes from the website:

She’s won a Grammy, and she’s recorded most of the major repertoire, between her current contract with Deutsche Grammophon and her previous one with Sony. A graduate of the Curtis Institute of Music, she began playing at the age of three and started concertizing at age 15. She has played with major orchestras the world over and recorded nine albums that include many of the major concertos of the violin repertoire.

Not bad. In my experience, violinists of this rank and stature usually have strong opinions about their craft. It turns out that Ms. Hahn is no exception. The interviewer knows of Schoenberg’s fondness for tone rows, and inquires of Ms. Hahn if the works she recorded were “built” on them. Ms. Hahn’s response in instructive for a general theory of aesthetics:

I don’t care. […] It doesn’t matter how a melody is constructed, it’s still a melody. It doesn’t matter whether a structural element is there because a composer woke up with it from a dream, or they sat down and mapped it out. It doesn’t really matter. That’s all in the music, and it’s all there to be interpreted. People draw their inspiration from different areas, and whatever helps them express what they want to express musically should not be the determining factor for how it’s interpreted. […]

If you take all emotional bias out, everything has equal musical importance.

Three cheers for Ms. Hahn’s take on her craft and its role in the broader scope of things. This is a delightful slap at those who believe that art possessing some kind of technical mechanism (be it a tone row or a parallel to something or a tongue-in-cheek reference) lends it some kind of quality or superiority. If you ask me, these contrivances take away from the authenticity of art. Kudos to Ms. Hahn for keeping it fresh.

(h/t Alex Ross: The Rest is Noise; graphic credit: Anonymous from the Hahn website)

As you may have noticed on Sundays, some NFL coaches are now wearing suits on the sidelines again. The League had previously rejected requests to wear suits because of its agreement with Reebok. However, the NFL coaches were granted permission to wear them last year. Reebok initially designed them, but it turns out they were not “suited” for the task. The athletic sportswear corporation soon outsourced the job to Joseph Abboud.

Mike Nolan of the San Francisco 49ers and Jack Del Rio of the Jacksonville Jaguars have been suiting up ever since. As reported at Defining Men’s Fashion:

After signing on to lead the team in 2005, Nolan asked the NFL if he could wear a suit during the games. That request was initially denied due to the league’s contract with Reebok, which stipulates that coaches wear the company’s team gear on the sidelines. But Reebok amended its policy last year, allowing Nolan to wear a company-issued suit to two games.

But Nolan persisted and in June the NFL announced a deal that allows the coach to wear a suit to all of the 49ers home games this season. But this time Reebok partnered with industry vets JA Apparel to dress him.

The men look dapper on the sidelines at a time when the trend had been most strongly heading in the opposite direction. Steve Spurrier, for instance, can toss a visor or clipboard pretty far. He also typically wears a visor, khakis, and a t-shirt. How does Nolan deal with the heat of the game? And what does the suit say about the game? The answers are in this month’s issue of Men’s Vogue:

Four hours of pacing, yelling, and Gatorade–dunking can take their toll, so the suits have been vented and lined with an absorbent, elastic material in team colors. Despite this last point, Nolan believes he has accomplished his goal: “I feel the suit shows respect for the position,” he says. With Michael Vick running a dogfighting ring and coach Bill Belichick accused of cheating, respect for the game has been scarce. Maybe a change of uniform can force these wayward men of war back into formation.

( Also reported in USA Today, from where the photo was taken. Graphics credit: Jack Del Rio from Getty Images, Mike Nolan from Presswire )

Today my Art Law Professor arranged a discussion with Arnold Mesches, who really needs no introduction. More importantly, I couldn’t give one if I tried. It will suffice to say that he has had a long career in the arts, has known and knows many artists of all stripes — actors, painters, and so on. Also, that his most resonant work has been the FBI FILES. Everyone should know about this work and what it means about the power of corrupt government — and why we need to limit its size and power! In any case, every student got to ask questions.

Mesches began with his views on “reactionaries” (a word that says more than it means). He wore a STOP BUSH pin. I had my Law School Republicans shirt on, so there was some balance. But as he moved into strong polemic against the administration and commerce, as well as the “absurd” world we live in alongside extraordinary invasions of privacy, more and more eyes turned to me, expecting me to challenge him.

Ah, my friends — it is important to know how to pick one’s fights!

Mesches has seen it all and he’s not in the mood to care too much for anyone else’s opinion. He is, after all, an artist who proclaims that he’s long hardened in his views and they have only become stronger in the passing years. Good for him. I found him a pleasant, if bombastic, personality. And his views on art may have helped shape my own.

As he is a successful artist, I wanted to know his artistic philosophy. He said he frowns upon thinking too hard about expressing some social message, though he prizes social art. I asked if there is such a thing as good art and bad art, and that if all art could just be an end in itself. He said there is certainly such a thing as good art and bad art, and that you know the difference after a while, studying the field as the best dealers do. [I am more and more coming to this view.] Yet, he also gave tremendous importance both to artists having a place in the historical art landscape, like a building looking like it belongs to a community, as well as intuition. He paints by intuition now.

I mentioned that our class had struggled with a definition of art, but that one interesting definition called art “scenario-building.” I asked him what he thought of that definition, and if he agreed with it, then are politicians artists?

Initially he reacted with skepticism that it was a question worthy of consideration. But he started to think about it and he reasoned his answer as he spoke. He recalled a friend who was a ditch digger in San Francisco — no doubt one of the proletariat! — who possessed a keen pride in his work because he did not see it as merely ditch digging, but as an indispensable, time-honored part of the whole. The work had its own essence.

All in all, a good discussion.

since feeling is first
who pays any attention
to the syntax of things
will never wholly kiss you;

wholly to be a fool
while Spring is in the world

my blood approves,
and kisses are a far better fate
than wisdom
lady i swear by all flowers. Don’t cry
–the best gesture of my brain is less than
your eyelids’ flutter which says

we are for each other: then
laugh, leaning back in my arms
for life’s not a paragraph

And death i think is no parenthesis

~ ee cummings

[PS – Bittergrace has great taste in poetry, but I have to call Doctor Who into question. Straying far from Star Trek and Battlestar Galactica will get you somewhere you have never been, but in a bad way.]

I’m guessing that most of you are as ignorant of technology as I feel nowadays. Back in the DOS era, I was on the cutting edge. I could edit an autoexec.bat, config.sys, or file with the best of them. Windows 3.1 kept me in the game, but later Windows operating systems reduced DOS to some kind of little screwdriver, whereas before it had been an all-purpose tool for doing things. To this day, DOS remains in my view far more efficient and fun than Windows (hence DOS-like operating systems flourishing amongst tech gurus I suppose). But that’s a discussion for another day.

One of the biggest developments in the Web 2.0, if you will, has been the massive amounts of information now made available to anyone who wants them. A good way to store information is a Wiki, named after Wikipedia, which runs off MediaWiki files. Nowadays, some hosts have their own Wiki products, like SocialText. You can sign up with SocialText and they will give you an easy to use Wiki right away! Anyone can edit it! That’s pretty cool. Unfortunately, I found it a bit unwieldy for the purposes of the Artist Rights and Reproductions Database. After two months of testing and prodding, I decided to move in a different direction. However, I want to emphasize that Wikis are tremendous tools for improving information flow and work design in the work place. They can save on all kinds of costs, such as printing, paper, and ink. I’d think time and energy as well.

Anyway, I went back to the basics, which turned out to be far from basic: MediaWiki. You’d think it would be easier to install but it depends on all kinds of things (mySQL, PHP settings…). That’s probably why I am still trouble-shooting trying to figure it out, which is a real mental grind for those of us who were long ago left behind by technology. Stay tuned for results.

And if you want to have your VERY OWN WIKI, follow these instructions. They’re pretty good. But if a problem springs up, you’re on your own. My recommendation: install the latest version MediaWiki with a MySQL 5.0 database and PHP 5. Period. I installed an older Wiki (1.6.10) on a MySQL 5.0 with PHP 4.

Here’s a change of pace: ceramics! Xing Liangkun, whose ceramics may be found in permanent collections across the land, has patented his own technique on making ceramics. I encountered Liangkun’s work while researching rights-holders and am impressed. It seems that he is well-respected in China and throughout the world. For more:

As a child, he grew up in his sister’s home in Dalian. After leaving school early, Xing worked as a farmer, carpenter, welder and gardener. It was as a cultivator of a new breed of Lily, that Xing became financially independent.

With this new found wealth, he soon turned his attention to collecting pottery, particularly Japanese pottery, and within 10 years had put together one of China’s largest private collections of Japanese ceramics. In 1989, a Japanese collector offered him US$13 million for the collection, but Xing refused and instead donated it to a local museum. He then decided that he wanted not only to collect, but also to make pottery. He doggedly set out to learn what he could about throwing, glazing and firing, in the process giving up all his belongings, selling his house and even losing his wife, who divorced him.

Eventually, Xing mastered a technique where the glaze exhibits sunken cracks. Xing refers to this technique as the “deep-base vein hacking ceramic glaze”. Experimenting further with this technique, Xing also developed a method whereby the cracks protrude.

He supposedly only sells so that charities might make money off his work. Not bad priorities. Still, I wish he was a little bit more famous here so that I could get a mailing address to send him a good old fashioned non-exclusive copyright license proposal.

Copyright Law is something that all design firms must take into account. When one is involved in a creative endeavor such as articulating a vision for buildings, houses, kitchens, lounges, or marketing, it only makes sense, given the law’s opportunity to do so through copyright or trademark, to try and protect the fruits of one’s labor. The same goes for fashion design.

Professors Kal Raustiala of UCLA Law and Christopher Sprigman of UVA Law write an interesting article (also linked here) on the subject at The New Republic. They begin by describing movement by our noble Democratic legislature to give copyright “protection” to fashion design beyond what is already granted:

Just before the congressional recess this month, Schumer introduced a bill that he claims would help the U.S. fashion industry by extending copyright law to cover fashion designs. Copyright law currently protects certain embellishments, and trademark law protects labels as well as logos, such as distinctive pocket stitching on jeans. But design–the cut, shape, or overall appearance of a dress or shirt–is not currently protected. A similar bill, titled the Design Piracy Prohibition Act, is under consideration in the House. Like Schumer’s legislation, it would outlaw designs that are “substantially similar” to registered designs.

While this may no doubt please some design firms, it ought to distress most others. With only a minimum of government intervention so far, and copyright is certainly a government intervention, fashion has almost reached that point of equilibrium where consumers and producers most benefit. With the advent of unnecessary copyright restrictions, deadweight losses loom.

By allowing the copying of attractive designs, current law fits well with the industry’s basic mission–to set new fashion trends and then convince us to chase them. And the trend-driven copying of attractive designs ensures that those designs diffuse rapidly in the marketplace. This, in turn, makes the early adopters want a new style, because nothing is less attractive than seeing your carefully chosen clothes on the backs of the hoi polloi. In short, copying is the engine that drives the fashion cycle. […]

If Schumer’s bill passes, we will see cease-and-desist letters flying about, and even a flurry of expensive, time-consuming lawsuits with designers arguing over who was the originator of every new trend–and more frighteningly, judges and juries deciding who is right. That’s not good for creativity; it’s just a distraction. And it’s an especially silly distraction in the fashion industry, where every new fashion draws inspiration from fashions that came before. The entire industry engages in recycling, recontextualizing, and reinvigorating the past.

The article goes on to say that by all accounts, the $350 billion/yr industry is thriving. I buy this statement intuitively. We see a bounty of different fashions coming to the fore, coming from all directions! Sure, the elites have their havens and can impose fashion from the top — but that’s not what many fashion shows are ultimately about. Fashion shows are a whole other kind of art form. They try to generate new ways of looking at fashion, clothing, and being by sparking our brains through sometimes free association or themes. I don’t even know how to describe the photo on the right. Taken from, it is from Balenciaga and offers this caption:

Another master class in extreme cutting and exaggerated silhouettes, pronounced shoulders, tiny waists, abbreviated hems—from Nicolas Ghesquière, this time in lush, gorgeous florals. Wearable? Yes, for the brave. Others have only to wait a season or two until the designer’s ideas trickle down, as they inevitably do

And no one can get a copyright to an idea. Still, it would be a shame if the law prevented fashion from working as it does so well. There are losses sustained from copying, and there are many law students I know who purport to be experts at identifying Burberry fakes, but this is far outweighed by the benefits of constant innovation and trends.

One might more daringly argue that the same could be said for music, painting, or any other art form — that we protect too much of this, that artists would still thrive without copyright in this world where goodwill accounts for most everything. They might well be right. But that is a battle for another time.

What can you expect from a world where copyright protects more fashion design firms? Higher costs to entry, meaning fewer competitors, higher prices, and far less change.

( Image credit:; h/t i am fashion )

There’s some kind of a series of posts going on about Ralph Waldo Emerson on So Many Books by Stefanie. It’s always a pleasure to read essays or treatises on ideas. Most blogs seem to be mere re-hashing of news with pithy commentary. Yes, guilty as charged on that count. The outstanding blogs of the internet (Registan, Coming Anarchy, Becker-Posner, Awkward Utopia) are about ideas. In that spirit, then, I’d like to re-hash this post from So Many Books:

After Emerson builds his moral foundation, we can then understand what he means when he says

Character is the habit of action from the permanent vision of truth. It carries a superiority to all the accidents of life. It compels right relation to every other man, – domesticates itself with strangers and enemies….it confers perpetual insight. It sees that a man’s friends and his foes are of his own house-hold, of his own person. What would it avail me, if I could destroy my enemies? There would be as many to-morrow. That which I hate and fear is really in myself, and no knife is long enough to reach to its heart.

I love that last line. It gives me shivers.

Would it surprise you to know that Emerson believes that people with the character which he names here are rare, that he thinks that only one appears in any given generation and sometimes not at all? Just because we are not likely to reach the heights of character does not let us off the hook. We must still choose to be moral and even then we will waver, make mistakes and wrong choices. But, if we can live our lives overall with the moral sentiment as out guide, we will be better off and so will everyone else.

What would it mean for our education to make us ask these questions earlier in school and more in depth? What would it mean for our museums to engage us in this way, beyond skeletal organization at exhibitions consisting of a quaint brochure, tombstone tags for the works denoting artist/title/year, and to do so with flexibility? In the end, it will be discussion borne of passion that brings us together, not lecturing.

My suspicion is that Emerson may seem too preachy to the art world of today, in a way too out of touch with the tropes, texts, and discourses so in vogue. For that, we are all a little poorer.

The reason many museums create Rights and Reproductions policies is because there are significant potential costs involved with not having a policy that arise from the damages for copyright infringement. A museum should use such a policy so long as B < P*L, where B = burden of legal precautions, P = probability of copyright infringement without the policies, and L = the amount of damages resulting from infringement. This is called the Learned Hand Formula or Hand Formula. For more information on its formulation, see United States v. Carroll Towing, 159 F.2d 169 (2d. Cir. 1947). Today, the formula remains influential amongst noted appellate judges such as Richard Posner.

The burden of maintaining this policy is very small in terms of the time and effort needed for compliance, whereas the probability of infringement is very great. The amount of actual damages is one of the lesser concerns in this scenario. A judge may award either the profits (17 U.S.C. § 504(a)(1)), likely minimal because not-for-profit activities on behalf of a museum will not raise that much money, or statutory damages (17 U.S.C. § 504(a)(2)). However, the statute for copyright infringement provides that statutory damages shall be remitted if the entity that infringed worked at a not-for-profit institution and reasonably believed their infringement to be permitted under Fair Use (17 U.S.C. § 504(c)(2)(i)).

Rather, the harm resulting from negative publicity could set the museum back for a period of years, thereby creating significant harm because of the destruction of goodwill. There is also the possibility that a judge would simply apply “statutory damages” as the remedy to copyright infringement which, depending on the degree of willfulness in the infringement, may range from $30,000 to $150,000 (17 U.S.C. § 504(a)(2)). Unfortunately, copyright infringement is a term of art defined very liberally (17 U.S.C. § 501), which works to the advantage of the artist.

Therefore, the necessity of a Rights and Reproductions policy is clear.

Still, some will say that a museum’s reproductions and derivative works, if for non-commercial purposes, ought to be protected by the Fair Use doctrine, codified in US Copyright Law. According to Fair Use doctrine, copyright will not be infringed if the reproduction or derivative work is used “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” (17 U.S.C. § 107). Courts must employ a balancing test, involving the intended use of the work, the nature of the work, the substantiality of the borrowing, and the effect on the market of the use (17 U.S.C. § 107(1)-(4)). For a seminal Fair Use analysis, see: Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).

Although many museum uses would no doubt be protected under Fair Use, such as for exhibition brochures or transparencies or CDs for a Summer Teacher Institute, as the US Copyright Office says, “The safest course is always to get permission from the copyright owner before using copyrighted material.”

That’s the end of the treatise part. Personally, I prefer not to scare all museums into thinking that they are in danger of copyright infringement if they do not receive a copyright license for every single potential use of a work, whether in a non-commercial exhibition brochure or a commercial exhibition catalog. There are very strong disincentives for some artists to pursue copyright infringement suits, such as the potentially significant cost of hiring counsel and the limited damages (if a judge awards the “profits” damages of 504(a)(1), they get very little money, and if a judge awards statutory damages of 504(a)(2), the penalty is likely remitted because it’s a not-for-profit museum!).

But artist rights collection societies (ARS, VAGA) or artist defense groups (VLA) may not be similarly inhibited because of substantially lower costs. Still, the artist must apply the B < P*L formula as a form of cost-benefit analysis as well. In other words, artists should only pursue legal action if the projected cost of litigating (B) is less than the damages (P) times the likelihood of receiving them (L). In this case, it seems as though only very rich artists or unwieldy estates would have the power to pursue these suits, and only then when the reward is very great since the potential cost is so large.

The real bottom line is that Fair Use will protect museums most of the time. One of the white knights of Fair Use is William Patry, whose treatises on copyright should always be preferred to over Nimmer (no, I don’t care how many times and places Nimmer has been cited — read the Patry blog and you will understand). I am still reading through Patry’s ridiculous corpus of work and will report more as I find it. I am also fortunate to know Professor Jeffrey Harrison, who was recently cited by my favorite justice, Justice Thomas, twice on the subject of copyright. He’s a “class” act, but, alas, I wouldn’t want to embarrass myself by asking too many dumb questions.

Importantly, while Fair Use will insulate museums from trivial or de minimis claims (based on economics, not law), it will not do so from abject refusal to respect the rights of the artist. Attempts to make money off using images on postcards, umbrellas, and notepads should be expressly forbidden no matter how permissible your Rights & Reproductions policy may be. Of course, works in the public domain are a different story.

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