Copyright/Intellectual Property

The Economics of Mid Tier Touring From Someone Who Has Done it For 34 Years

16 July 2018

PG thought this was an interesting look at how musicians make money from the songs they write, record and/or perform.

From The Trichordist:

This is directed at young musicians.  I already made my money.  Further I have recurrent rock radio hits that generate revenue if I just sit at home and do nothing. Seriously.  In many ways I don’t really have a dog in the fight so to speak. . I just want to let all those young bands out there touring what the economics of streaming really mean.

There will be no middle class or niche ensemble music unless streaming revenues increase.  Flat price per stream revenue is a net transfer of wealth to top artists and streaming platforms.

. . . .

IMHO eventually the only albums that will be made at a profit,  are albums one or two people record on a computer and are oriented towards pop markets.  More interesting ensemble albums will be made but they will be made at a loss. Or not at all

But many argue that records are loss leaders for touring profits.  Interesting thought. Unless you do the math. For 95% of even successful artists there really isn’t much profit.  And never mind touring doesn’t compensate songwriters.

. . . .

It amuses me to no end when people suggest that artists can make up for recorded music revenues with live music revenues. These are people who obviously know little about the live music business. I’m sure the top 1% of touring artists can.  But for most middle tier bands this is not a reality.  The main reason lower level artists tour is that it is the most reliable way to stimulate sales of recordings!  That’s what actually supports the middle class artist.

But there are other issues to be considered before comparing live revenues and recorded music revenues.

First of all: recorded music revenues are largely “net” while live music revenues are “gross.”  You can’t equate revenues before expenses  with revenues after expenses. Apples and oranges (*ahem* NY Times Magazine).  D’oh!

Sure most midlevel artists (like my bands)  will have about two dozen  top markets where they play for 500-1000 people a night. And we strategically place those on a weekends.  And yes you can make $500-$800 per band member on shows like these. Ultimately you have to consider that these are just a small percentage of the shows that a mid level artist plays each year.

The other 80-90% of shows occur in lower population secondary and tertiary markets Sunday through Thursday. These shows naturally have much lower attendance and challenging cost structures  So even a band like my own with multiple radio hits that  does 600 paid  in Boston, 800 paid  Washington DC and 1000 in San Francisco has totally different economics on the other 80-90% of shows that make us a full time band.  No offense but places like Wichita KS and Syracuse NY?  200 on a Monday night in a rock club is actually pretty respectable.  Don’t believe me?  Just look at pollstar.com. Check data for club capacities for your favorite midlevel band.  Or pay for an account and you can see the actual ticket sales.

Sure we could skip these lesser markets and keep going back to our top 25 markets, but eventually you saturate and kill the golden goose.   Play in NY four times a year and suddenly you’re drawing 1/3 attendance. Playing in NY  Every 12-18 months maximizes attendance.   So really bands like mine have two choices.  Play only part time (like Camper Van Beethoven and have other jobs)  or play secondary, tertiary and break even foreign markets where you eek out minimum wage the other 80-90% of the year.  Why?  To sell albums, generate airplay and sometimes a sync licenses. Cause those artist royalties, mechanical royalties, public performance royalties are what is really supporting the band.

. . . .

In the relatively fair North American market ( assume it’s worse everywhere else especially in UK).
ON AVERAGE
Buy ticket: $22-$30+taxes Ticket face value $20
Ticket Charge $2-$10 bucks 50% to venue/ 50% to ticketing agency 0% to artist.
$20 Face Value
$8 (40%) goes to venue (rent/security/staff/pa/lighting/promoter profit)
$12 (60%) to artist. But this is artist gross!
Then artist pays.
$1.20 (10% of 60%) to agent
$1.80 (15%of 60%) to manager
$1.20 (non-resident state withholding tax average 10%)(Grrrrrrr… total government rent-seeking activity).
$7.80 (39%) adjusted gross to artist on every ticket.
Then the artist pays crew, transportation, hotels, fuel, meals, insurance etc
Let’s look and see how that works.
Take moderately popular middle class touring band. Bare bones. 4 band members and two crew. 200 paid on a monday night in Tulsa OK. $20 face value on the ticket.
Artist adjusted gross $1560
Typical daily expenses.
$300 2 crew salaries (low ball!)
$150 van/trailer rental or depreciation (300 miles a day) + insurance
$90 fuel
$450 hotels (two star or lower)
$150 meals or per diems
$100 amortize misc/overhead (supplies, accounting costs, tax filings in 40-50 states, repairs, storage, rehearsal space etc etc).
$210 amortize day off /travel days (6 days on 1 day off)
$1,450 approximate daily expense.
Each band member (4) makes $27.50 before tax. or 0.7% of face value of each ticket.
Sure the band members might make $500-$800 bucks a show in their best markets on a friday or saturday night. But if you are very lucky that’s 25 shows a year.
The other hundred shows a year look like this.

Link to the rest at The Trichordist

Controversial Fair Use Copyright Ruling Faces Appeal

13 July 2018

From PDN Pulse:

Following a controversial ruling in a copyright infringement case in Virginia, attorney (and former photographer) David Deal says he is appealing the decision on behalf of photographer Russell Brammer.

Brammer sued Violent Hues Productions in 2017 for unauthorized use of a time-lapse photograph of the Adams Morgan neighborhood of Washington, DC. Violent Hues, which organizes the annual Northern Virginia Film Festival, used Brammer’s photo on a website intended to provide festival attendees with information about lodging, transportation, and things to do in the northern Virginia/Washington D.C. area.

According to court documents, Violent Hues owner Fernando Mico used a cropped version of the photo after finding it online. Mico “saw no indication that the photo was copyrighted and believed he was making use of a publicly available photograph,” U.S. District Court Judge Claude M. Hilton noted in his ruling.

Judge Hilton went on to dismiss Brammer’s infringement claim on the grounds that “Violent Hues’ use of the photo was a fair use, and therefore did not constitute infringement.”

Judge Hilton based the decision on a four-pronged test for fair use, but his most controversial finding concerned the first prong: the purpose and character of the use. According to Judge Hilton’s decision, the use of Brammer’s image was “transformative”—and therefore favored a finding of fair use—because Brammer made the image for “promotional and expressive” purposes, while “Violent Hues’ purpose in using the photograph was informational.”

“Judge Hilton introduced aspects of fair use that had never been used before,” Deal said of the decision in a phone interview with PDN. He added, “The court is opening the door that any use, other than my client’s use, is a fair use…that’s not close to the scope of fair use.” Deal explains that to be considered transformative, the use of a copyrighted work must be “completely different,” such as “satire, commentary, or something that doesn’t resemble the [original] work.”

Deal says it is important to appeal the decision not only to protect Brammer’s copyrights, but to prevent the decision from being cited to fend off photographers’ copyright claims on fair use grounds in courts all over the country.

Link to the rest at PDN Pulse

Chihuly and his Art: Who is the True Creator?

10 July 2018

From Hugh Stephens Blog:

I am not sure how I managed to go through my entire life without being aware of Dale Chihuly and his work, at least until recently, but somehow I managed it.

. . . .

His work is exhibited in over 250 museums world-wide, and he heads a factory-like production team, being unable—owing to injuries—to blow glass himself. As his publicity material makes clear, “He transitioned to directing a team of artists in his studio, and has commented, ‘Once I stepped back, I liked the view’.” Like the students of Raphael and Rubens, acolytes would be honoured to work with the master. Or would they?

Well, not all it seems. As reported by the New York Times, Mr. Chihuly is being sued by a former associate, Michael Moi who, according to Chihuly, was hired as a contract handyman. According to Moi, his duties went well beyond being a handyman, and involved participating in the creation of many of Chihuly’s works. As noted above, Chihuly has never claimed that he personally produces every aspect of his work, any more than Andy Warhol produced everything that came out of The Factory, as he called his studio. Moi wants recognition as a co-author, in effect accusing Chihuly of violating his copyright.

Normally under US copyright law someone working as an artist’s assistant would not have a claim to copyright as that person would be producing a “work for hire”. There are a number of tests required to meet the definition of a work for hire, but among them is an employer-employee relationship as well as the author/artist retaining final authority over the work. That is probably why in his lawsuit Moi claims that for 15 years he “worked for” Chihuly without being an employee or having an employment contract. Rather he states he was promised future compensation.

. . . .

Moreover, according to the NYT report, sometimes Mr. Chihuly’s only role was “adding dots, drip and lines and, finally, his signature.” Surely that is a key point. Adding that signature made it a Chihuly work. Without the signature it was just another piece of colourful glass. He would not have put his name to substandard work, or work that he would not have been proud to be identified with.

There is such a thing as joint copyright (for example a paper authored by more than one researcher) and there is provision for co-ownership of copyright, but as David Newhoff has pointed out in his blog (when discussing ownership of copyright by a developer of an AI program), “there must be an initial intent to create a jointly made work in order for all collaborators to claim ownership.” This certainly appears not to be the case in the Chihuly affair—but as I said, the courts will decide.

This does raise the interesting question, however, as to how much control an artist has to have over his or her work to claim authorship.

. . . .

Whether it is Raphael’s Cartoons, created by him and his assistants, or the works of Dale Chihuly, Andy Warhol or Ai Weiwei, the element of creation is in the inspiration, design, choice of colour, and so on including what we would call today “quality control”. There are many talented journeymen painters and artists, but the “secret sauce” of originality and creativity is what separates the creative genius from the practitioner.

Link to the rest at Hugh Stephens Blog

Here is a link to an article with photos about Chihuly’s studio, The Boathouse.

PG suggests that a simple (less than one page) employment contract is a good idea when an artist or author hires someone to provide assistance in the creation of works that may be subject to copyright (and that includes a very wide range of creative works).

Here is what the U.S. Copyright Office says about what copyright protects in its FAQ’s:

What does copyright protect?
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section “What Works Are Protected.”

Can I copyright my website?
The original authorship appearing on a website may be protected by copyright. This includes writings, artwork, photographs, and other forms of authorship protected by copyright. Procedures for registering the contents of a website may be found in Circular 66Copyright Registration of Websites and Website Content.

Can I copyright my domain name?
Copyright law does not protect domain names. The Internet Corporation for Assigned Names and Numbers (ICANN), a nonprofit organization that has assumed the responsibility for domain name system management, administers the assigning of domain names through accredited registers.

How do I protect my recipe?
A mere listing of ingredients is not protected under copyright law. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection. Note that if you have secret ingredients to a recipe that you do not wish to be revealed, you should not submit your recipe for registration, because applications and deposit copies are public records. See FL 122Recipes.

Can I copyright the name of my band?
No. Names are not protected by copyright law. Some names may be protected under trademark law. Contact the U.S. Patent & Trademark Office, TrademarkAssistanceCenter@uspto.gov or see Circular 34 “Copyright Protection Not Available for Names, Titles, or Short Phrases“.

How do I copyright a name, title, slogan, or logo?
Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks. Contact the U.S. Patent & Trademark Office, TrademarkAssistanceCenter@uspto.gov or see Circular 33, for further information. However, copyright protection may be available for logo artwork that contains sufficient authorship. In some circumstances, an artistic logo may also be protected as a trademark.

How do I protect my idea?
Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work.

Does my work have to be published to be protected?
Publication is not necessary for copyright protection.

Can I register a diary I found in my grandmother’s attic?
You can register copyright in the diary within a certain duration only if you own the rights to the work, for example, by will or by inheritance. Copyright is the right of the author of the work or the author’s heirs or assignees, not of the one who only owns or possesses the physical work itself. See Circular 1, Copyright Basics, section “Who Can Claim Copyright.”

How do I protect my sighting of Elvis?
Copyright law does not protect sightings. However, copyright law will protect your photo (or other depiction) of your sighting of Elvis. File your claim to copyright online by means of the electronic Copyright Office (eCO). Pay the fee online and attach a copy of your photo. For more information on registering a copyright, see SL-35. No one can lawfully use your photo of your sighting, although someone else may file his own photo of his sighting. Copyright law protects the original photograph, not the subject of the photograph.

Does copyright protect architecture?
Yes. Architectural works became subject to copyright protection on December 1, 1990. The copyright law defines “architectural work” as “the design of a building embodied in any tangible medium of expression, including a building, architectural plans, or drawings.” Copyright protection extends to any architectural work created on or after December 1, 1990. Also, any architectural works that were unconstructed and embodied in unpublished plans or drawings on that date and were constructed by December 31, 2002, are eligible for protection. Architectural designs embodied in buildings constructed prior to December 1, 1990, are not eligible for copyright protection. See Circular 41Copyright Claims in Architectural Works

Can I get a star named after me and claim copyright to it?
No. There is a lot of misunderstanding about this. Names are not protected by copyright. Publishers of works such as a star registry may register a claim to copyright in the text of the volume [or book] containing the names the registry has assigned to stars, and perhaps the compilation of data; but such a registration would not extend protection to any of the individual star names appearing therein. Copyright registration of such a volume of star names does not confer any official or governmental status on any of the star names included in the volume. For further information on copyright protection and names, see Circular 33Works Not Protected by Copyright 

Here is a link to a U.S. Copyright Office circular on Works Made for Hire.

Appeals Court Deals Loss to Chuck Close and Other Artists Seeking Resale Royalties

8 July 2018

From The Hollywood Reporter:

Artists who sold major paintings or sculptures in 1977 are in luck. Other artists who sold work before or after that year not so much thanks to a ruling on Friday from the 9th Circuit Court of Appeals that essentially dooms their hopes of collecting royalties from resales.

Chuck Close and Laddie John Dill led class action lawsuits against Sotheby’s and Christie’s for violating the California Resale Royalties Act, which entitles artists to five percent of resale royalties under specified circumstances. California’s law became effective in 1977 and echoed how many other countries recognize a droit de suite.

As 9th Circuit Judge Jay Bybee succinctly explains in today’s opinion . . . “The droit de suite protects visual artists, who face particular difficulty in capitalizing on their work. Literary and recording artists can generally profit from their efforts by controlling the reproduction of books or music. For visual artists such as painters and sculptors, however, the right to control reproduction is often not their principal source of income. Rather, it is often the sale of their original work that allows them to make a profit. The droit de suite gives these artists an economic interest in subsequent sales of their original work, thereby allowing them to capture some of its appreciation in value after the first sale.”

. . . .

Around the time that California was passing a law giving artists the right to collect resale royalties, the U.S. Congress was amending copyright law. Of relevance here was the retainment of the first sale doctrine, which Congress had first codified in 1909.

The first sale doctrine allows those who purchase copies of copyrighted work the right to sell that particular copy notwithstanding the interests of the copyright holder.

Bybee compares distribution rights under the Copyright Act with the California Resale Royalties Act.

“The two rights differ in that one grants artists the right to receive a percentage payment on all sales of artwork after the first, while the other grants artists the right to receive full payment on the first (and only the first) sale,” he writes. “But, at root, both concern the distribution of copies of artwork and define artists’ right (or lack thereof) to payment on downstream sales of those copies.”

Link to the rest at The Hollywood Reporter

The U.S. Postal Service Gets the Wrong Address on Copyright

6 July 2018

The beginning of the story from Forbes:

Sculptor Robert Davidson has filed suit for copyright infringement against the U.S. Postal Service in U.S. Federal Court. The artist contends that the Postal Service utilized his version of the Statue of Liberty for a popular stamp that it released in 2011.  Though the original statue design is now in the public domain because its creator Frédéric Auguste Bartholdi died in 1904, Davidson is seeking unspecified damages for the infringement.

. . . .

Robert Davidson’s work, which now stands outside the New York-New York Hotel & Casino in Las Vegas, is a work of art in its own right.  Davidson says his statue is a unique piece of art, for which the intellectual property and rights belong exclusively to its creator.  The lawsuit focuses on clearly different features on Davidson’s version, such as its softer silhouette and fuller chin that distinguish it from the true Lady Liberty. Many will find discomfort from Davidson’s description of “his” statue as “more fresh-faced and sultry” than the original.

. . . .

Firstly, and most widely covered, is the fact that the USPS made a mistake when it originally selected this image for its stamp in 2009. It sourced the picture from an online photography resource without realizing that it wasn’t the original.  One of the many risks of stock photography is knowing exactly what you are buying.  The fact that a spokesperson for the Postal Service is on record as stating that the organization preferred this version and “would have selected this photograph anyway” does not sound like a particularly clever defense.

Remember that a source photograph is itself a separate work again from the statue that it depicts. Popular photo repository Getty Images served up this two-dimensional representation of Davidson’s three-dimensional sculpture, which could add another layer to this litigation.  The limitations of the license to Getty may also factor into the debate, as could the intended use of the photograph for commercial purposes.

. . . .

One final word on the Postal Service, which should probably take a look at those it employs to review the legalities of images it proposes to use: We only need track back to September for another federal court case that went against the organization, after it was successfully sued by the artist behind the Korean War Memorial in Washington D.C. That oversight cost them $685,000, which even without considering this new lawsuit would seem reason enough to beef up its checking process.

Link to the rest at Forbes

The end of the story from The New York Times:

In a 2010 stamp design, the United States Postal Service mistook a Las Vegas-based replica for the real Statue of Liberty. Now a federal court has ruled that the post office must pay the replica’s sculptor $3.5 million for violating his copyright.

The statue by the artist Robert Davidson sits at the New York-New York casino in Las Vegas, thousands of miles away from the mint-green figure in New York Harbor.

Yet an image of his sculpture made a surprise appearance on the post office’s Lady Liberty “forever” stamp in 2010. Mr. Davidson filed a copyright infringement lawsuit against the post office in 2013, claiming it illegally used the image of his piece, and on Friday a federal court agreed, awarding him damages after he established that his piece was different enough from the original to be protected. Mr. Davidson argued in the case that his version is “sexier” and more “fresh-faced” than the French gift to America.

. . . .

Made of plaster mud, acrylic-based coating and foam, the replica is half the size of the real Statue of Liberty and sports more defined eyes and lips. Mr. Davidson argued in court that his mother-in-law’s face inspired the Las Vegas sculpture’s design. He said he made the statue’s appearance “a little more modern, a little more feminine” than the original’s “masculine” features.

. . . .

The post office discontinued the design in 2014 — but only after bringing in $2.1 billion from the sale of 4.9 billion stamps. Originally, Mr. Davidson earned $233,000 from the creation of the casino-based statue after manufacturing costs.

Link to the rest at The New York Times

You can see lots of photos of the sexier and fresh-faced version of the Statue of Liberty here and a video comparison here.

The court’s opinion follows:

 


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National Party argue costs for Eminem ‘Lose Yourself’ copyright breach

6 July 2018

From The New Zealand Herald:

The National Party is battling a ruling over how much it must pay for breaching copyright in a 2014 election ad, which played a song similar to Eminem’s Lose Yourself.

Lawyers for the party are in the Court of Appeal in Wellington this morning, arguing the total damages of about $600,000 ordered by the High Court last year were too high, and that the judge took a “licensor-centric” approach.

The then-Government fought its case in May last year, accused of knowingly trying to sidestep licensing fees by using the track Eminem Esque.

The High Court ruled the similarities between Lose Yourself and Eminem Esque were so strong and it breached copyright.

It noted publisher Eight Mile Style had exclusive control of the song’s licensing, and rarely granted permission for the song to be used in ads.

Justice Helen Cull said the $600,000 would be the “hypothetical licence fee” that would have reasonably been charged for permission to use Lose Yourself in National Party advertising, including interest from June 2014.

In court this morning, lawyer Greg Arthur said an expert the judge relied on when setting a figure for damages had no relevant New Zealand experience, and her base fee was a “significant percentage higher” than it should have been.

Link to the rest at The New Zealand Herald

Rapper pays $18.5m for work at auction but the artist gets nothing—is the system in need of reform?

2 July 2018

From The Art Newspaper:

There was much fanfare last month when the US artist Kerry James Marshall “obliterated the glass ceiling of prejudicial art pricing”, as the dealer and art commentator Kenny Schachter put it, with the record sale of his painting Past Times (1997) in a contemporary art sale at Sotheby’s New York.

The work, depicting a pastoral scene that features black suburbanites instead of white aristocrats, was bought by the rapper Sean “P. Diddy” Combs for $18.5m ($21.1m with fees), making Marshall the highest-paid living African-American artist at auction. But Marshall didn’t receive a cent from the sale.

Under European legislation, Marshall could have earned $14,700 (royalties are capped at this comparatively paltry sum), but in the US, artists are not entitled to a cut on works sold on the secondary market. The state of California recently suspended the collection of royalty payments due to ongoing litigation.

. . . .

Although records continue to tumble in the contemporary art market, reports suggest that artists are getting poorer; the majority of artists in the UK earn less than £5,000 a year after tax, and less than $10,000 in the US, according to the online marketplace Artfinder. In such a polarised climate, should auction houses and dealers not pay their dues to the artists from whom they profit?

The strict enforcement of global resale rights, or an entertainment industry-style model of residuals, would be one way to ensure that artists are afforded a basic income. Another option is to introduce a system whereby artists retain a stake in their own work.

If Robert Rauschenberg had kept a 10% share in Rebus (1955), he would have made $575,000 from its sale at Sotheby’s New York in 1988, according to a paper published in February by the scholars Amy Whitaker and Roman Kräussl, titled Democratising Art Markets: Fractional Ownership and the Securitisation of Art. It is a hypothetical situation befitting of the artist who famously accused the art collector Robert Scull of ripping him off after a 1973 auction that earned Scull $2.2m off the back of cheaply acquired works. “I’ve been working my ass off for you to make that profit,” Rauschenberg berated the taxi tycoon.

Link to the rest at The Art Newspaper

PG can think of some interesting ways for an artist to try to attach a security interest to personal property such as a piece of art to support a continuing contractual obligation attaching to the art for each owner to pay the artist a royalty consisting of a portion of the owner’s profits upon the sale of the art.

He suspects the typical young starving artist would not have the bargaining power with an art auction house or wealthy purchaser to obtain such a royalties arrangement, however. Presumably if an artist’s works are generating large purchase prices on the secondary market, that artist’s new works would sell for a lot of money as well so it’s arguable that the benefits of an ongoing royalties arrangement would mostly go to financially successful artists.

However, PG suspects what amounts to an ongoing artist’s royalty payable upon each sale of an artist’s work would have the effect of reducing the amount a buyer purchasing art as an investment would be willing to pay for a work, thus reducing the amount of money the artist receives upon the initial sale of the art. That might not be what a young artist is really looking for.

Additionally, if an art-loving purchaser wanted to acquire the artist’s work because the purchaser really wanted to have the work in their home or business for their own viewing pleasure (instead of treating it as a speculative investment) and had no intention of ever reselling it, the artist would be unlikely to receive any future income from the piece. Similarly, if the purchaser donated the artwork to a non-profit public museum, presumably, the artist would not be entitled to an additional payment for such charitable transfer.

Artist Files Completely Frivolous Copyright Lawsuit Against The NRA For Briefly Showing Public Sculpture In Stupid Video

30 June 2018

From TechDirt:

I apologize in advance, but this story is full of frivolous annoying things. Unfortunately, they are frivolous annoying things that hit at the very core intersection of stuff we talk about here on Techdirt: copyright and free expression. Last year, the NRA pushed out a truly ridiculous advertising video, referred to as “The Clenched Fist of Truth” or “The Violence of Lies.” It was a stupid video from a stupid organization which served no purpose other than to upset people who hate the NRA. Trolling as advertising. It generated some level of pointless outrage and people went on with their lives. I’m not linking to the video because I don’t need to give it any more attention and if you really want to see it, you know how to use the internet.

Now, let’s move on to Anish Kapoor, a British sculptor who is also annoying. In the early 2000s, he made a silly sculpture for Chicago’s Millenium Park that people from Chicago (and elsewhere) tend to love to mock. It’s called The Bean. I mean, officially, it’s called “Cloud Gate,” but no one calls it that. Even Kapoor now now calls it the Bean.

However, copyright disputes over the Bean go way back. Back in 2005 there was an article about security guards evicting photographers for taking pictures of the popular tourist selfie photo opp, because the city said it had to enforce the copyright of the artist. No, really. They said that. There’s been a long, and somewhat ridiculous, debate about the copyright on public sculptures. Many of us believe — with pretty damn good justification, I’d say — that if you agree to a commission from a public entity, in which you are creating a sculpture for the government, you should also give up your copyright with it. Barring that, any and all photography of that sculpture in a public place should simply be declared fair use. Unfortunately, courts have disagreed with this — which is unfortunate.

. . . .

However, this week, [Anish Kapoor] took it a step further and filed a really, really dumb copyright lawsuit against the NRA

. . . .

The filing itself screams out how frivolous it is in repeatedly complaining about the political message of the NRA’s video, rather than anything related to the actual copyright related rights at issue.

On June 29, 2017, NRA broadcast on television and the internet a video recruiting advertisement entitled variously “The Clenched Fist of Truth” or “The Violence of Lies”, denouncing the media and the “liberal agenda.” It warns of civil unrest and violence, and states that the only way to save “our” country from the “lies” of the liberal media and the “liberal agenda” is with the “clenched fist of truth,” i.e., with guns (obviously referencing NRA’s previous slogan by Charlton Heston that “I’ll give you my gun when you pry it from my cold, dead hands.”) It is a clear call to armed violence against liberals and the media.

I mean, yeah. But what does that have to do with copyright? Absolutely nothing.

The actual copyright claim is incredibly, laughably weak:

As a result of Defendant’s copyright infringement, Plaintiff has suffered and continues to suffer actual damages in an amount according to proof at trial.

Oh come on. There is no one who is watching that video and thinking that Kapoor somehow supports the message and therefore won’t work with him. Also this:

As a further result of Defendant’s copyright infringement, Defendant has obtained direct and indirect profits it would not have otherwise realized but for its infringement of Plaintiff’s copyrighted Work, including but not limited to increased membership dues following the publication of the Infringing Video. Plaintiff is entitled to disgorgement of such profits,

Nah. That’s not how it works. First of all, if the NRA is profiting from the video, it’s not because the Bean is in it. Take out the Bean, replace it with some other stupid statue and nothing changes at all. There is nothing about the Bean that makes the video. There is no profit because of the use of the Bean imagery.

But the larger point: this is so obviously fair use that it’s not even worth going through the full four factor analysis. This is less than a second in a political video showing a public sculpture in a public location. It’s not key to the video. It’s used as part of commentary.

The nature of Kapoor’s lawsuit, however, is quite obviously to stifle free speech he disagrees with.

. . . .

We’ve talked at length over the years about how copyright often conflicts with free speech. People often respond with some version of “but piracy isn’t free speech.” That’s a silly claim, but there are still cases like this one where the intent obviously has absolutely nothing to do with the purposes of copyright law, but solely as a method to silence speech. The courts shouldn’t allow it and seem unlikely to do so. Kapoor had every opportunity to exercise his First Amendment rights to speak out against the NRA. Filing a frivolous copyright lawsuit attempting to stifle speech, however, goes way too far.

Link to the rest at TechDirt

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