Fair use ruling for Richard Prince stands, Supreme Court declines to hear Patrick Cariou’s appeal

richard-prince-ile-de-france-canal-zoneThe US Supreme Court has declined to hear Patrick Cariou’s appeal requesting a rehearing of his case against Richard Prince. The decision came one week after district court Judge Deborah Batts* accepted amicus briefs from the Andy Warhol Foundation for the Visual Arts and the Rauschenberg Foundation encouraging consideration of the opinions of art historians and the broader art community when deciding whether Prince’s “Canal Zone” series infringed on Cariou’s copyright.

It’s not over until it’s over. (more…)

Dear Friends: Copy and paste Facebook Privacy Notices are SPAM. Kindly stop reposting!

Or perhaps the notices are a hoax virus– spread by friends bullying friends to spam others to show respect for the poster’s privacy and copyrights. Posting and re posting the Facebook Privacy Notice will not change Facebook’s policies.  If privacy is a concern, adjust privacy settings or avoid using Facebook for private communications. If controlling content is a concern, avoid posting images or register copyright in important materials before posting. To use Facebook, users give it a limited right to “share” their user content. This right does not place user content in the public domain. (more…)

No “Happy Birthday” for Trolls? Filmmaker seeks public domain judgement on song’s copyright

“Happy Birthday to You” is protected by copyright? The song is based on the tune from “Good Morning to All,” written in the late 1800’s. Over the years families adapted the tune for singing birthday greetings. Vexed with paying synch fees for use of the song in a film, producer Jennifer Nelson of Good Morning Productions asked a court to determine that “Happy Birthday to You” is in the public domain. Read her story at the NY Times. The case is great news! The “Happy Birthday to You” copyright claim begs several important public domain questions. (more…)

Cariou v. Prince: A victory for appropriation art

The United States Court of Appeals for the Second Circuit reversed a lower court opinion today in the case of Cariou v. Prince and handed another victory to the perhaps surprisingly robust world of contemporary collage artistry and appropriation art generally. 

Left: Patrick Cariou, Photo from Yes Rasta, p. 118; Right: Richard Prince, Graduation

Left: Patrick Cariou, Photo from Yes Rasta, p. 118; Right: Richard Prince, Graduation

The story of the case is relatively straight forward.  In 2000, Patrick Cariou published a book titled Yes Rasta of classical portraits and landscape photographs of Rastafarians that he took over the course of six years while living in Jamaica.  Despite its limited print run, well-known appropriation artist Richard Prince happened across a copy in a bookstore on St. Barth’s in 2005 (more…)

You Bought It, Now Dispose Of It How You Please

The Supreme Court recently ruled in the case of Kirtsaeng v. John Wiley & Sons, Inc. (Docket No. 11-697) that the copyright “first-sale” doctrine trumps a copyright holder’s right to control distribution of products embodying copyright protected material. The decision has received a fair amount of attention in the legal sphere but less so in the broader media, which is unfortunate considering how much copyright law impacts the every day lives of everyday people.  The impact of copyright law on our content driven, 24/7 media culture is fairly obvious in many ways, but most people don’t realize that copyright law can be and is used to control the flow of physical goods that don’t fit the traditional copyright paradigm. Recall that the Kirtsaeng decision resolves a question the Supreme Court first considered (but did not definitively decide) in the case Omega S.A. v. Costco Wholesale Corp. in which Omega sought to exclude wristwatches lawfully purchased in Europe from resale in the U.S. by asserting a copyright claim in a design on the back of each watch. Copyright protection is available for (among other things) literary, pictorial and graphical works such as the instruction and training manuals and packaging materials that accompany physical goods. Excluding the copyrighted packaging  has the effect of excluding the packaged product as well.

So how does the Kirtsaeng decision change this? Some background first: Wiley, is of course a publisher of global reach and a more than 200 year history which includes the works of Baltimore favorite Edgar Allan Poe but which more recently focuses on academic, technical and professional publishing including many textbooks.  Wiley publishes considerably less expensive but very similar editions of its textbooks in overseas markets. (more…)

Supreme Court: “first sale doctrine” permits sales of used foreign books in US without infringing US copyright owners’ rights

Under the doctrine of “first sale,” owners of objects are permitted to resell them without violating the exclusive right of distribution accorded copyright owners under US copyright law. Last week, the US Supreme Court, the court in Kirtsaeng v. John Wiley found that the doctrine of first sale was not limited to US copyrighted works but serves as a defense from infringement for any previously sold materials, domestic or imported.

In Kirtsaeng, a student realized that he could purchase his US textbooks in foreign countries for less money. So he bought and sold imported but authentic textbooks. The publisher John Wiley & Sons sued the student book seller, who defended by claiming sales were permitted by the doctrine of “first sale.”  The 2nd Circuit Court of Appeals ruled in 2011 against the student book seller, holding that the first sale doctrine applied only to materials produced in the US. The student book seller appealed this decision in the US Supreme Court.

An earlier Supreme Court case Quality King v.  L’anza Research, sought to end the line of protectionist “gray market cases”  that protected US copyright owners from competition from cheaper but authentic (non-counterfeit) goods imported from foreign markets. A decision in the 9th Circuit, Costco v. Omega (affrmed by SCOTUS), found that the doctrine of first sale is unavailable as a defense to infringement claims on unauthorized sales of authenticate imported watches bearing a copyrighted design in the US unless the copyright owner previously sold or authorized sales of gray market watches in the US.