Picasso and Potato Chips

Le Tricorne (detail)

In the lobby of the Four Seasons Hotel on East 57th Street in New York, hangs a mural. Anyone who has visited the hotel has walked by it, and many may have stopped for a moment, at least, to look. It is known as “Le Tricorne,” and was painted by Picasso as a set decoration for a performance of Diaghilev’s Ballets Russes. It has adorned the lobby of the hotel since 1959.

Not everyone thinks that it’s a good Picasso. The current owner of the hotel, reportedly, has never liked it. As part of a renovation planned in the hotel at large, he now hopes to remove it. And, strangely enough, the proposed move has caused an outcry in New York City. The owner is dealing with his own property. Why would his rights to do so be limited?

In New York, two answers to this question seem to be emerging: first, that the public may have some interest in the Picasso as an artwork in a public locale, even if that locale is privately owned; and, secondly, that undertaking the risk of destroying an artwork, particularly one by a major artist, may violate that public interest. It is curious that both of these views seem to take precedence so readily, for at least some New Yorkers, over private property interests.

The problem is a practical one: the painting is mounted on a wall, and removing it is almost certain to cause damage. The work is so delicate that attempting to remove it could, apparently, make it “crack like a potato chip”. If the project goes ahead, we could witness a a potential replay on American soil of the scenario in the notorious Indian case of Amar Nath Sehgal v Union of India. In that instance, a mural painted by one of India’s most eminent artists, appreciated by then-Prime Minister Jawaharlal Nehru and considered a “national treasure of India,” was removed from the walls of a government building in Delhi. The mural was badly damaged in the process – even the part of the mural containing the artist’s signature was broken off the artwork – and Mr Sehgal spent the better part of three decades pursuing action against the Indian government. His claim was grounded in moral rights, strongly protected in the Indian Copyright Act of 1957, but the litigation raised a number of interesting questions about the interpretation of an Act closely based on Article 6bis of the Berne Convention in most relevant respects. Notably, given the scale of the damage to Sehgal’s work, and the potential for further damage, was outright destruction of an artwork prohibited under Indian law? In 2005 the Delhi High Court responded with a resounding “yes.” The Court’s reasoning was innovative, revolutionary: it said that a high standard of protection must be applied to artworks of national importance, confirmed, in this case, by India’s membership in international treaties for the protection of cultural heritage. Indeed, membership in these treaties constitutes the background to India’s section 57 provisions on moral rights, and the context in which they are (now) subject to judicial interpretation.

Where the destruction of artworks is concerned, American law, which generally does not recognize the moral rights of authors, is exceptionally strong. Many readers will be aware that the United States has no generalized protection for moral rights in its copyright law – and, arguably, after the Dastar case, no strong alternative doctrine for the protection of an author’s right to attribution and the integrity of his or her work, either. However, it does have a well-known statute for the protection of the moral rights of artists who create works of visual art, the Visual Artists Rights Act of 1990, known as VARA. The enactment of VARA followed closely on the heels of U.S. membership in the Berne Convention in 1989, and probably owes its pedigree, at least to some extent, to art protection statutes in U.S. states such as California’s Art Preservation Act (CAPA, 1979) and New York’s Artists Authorship Rights Act (1984). The provisions of VARA are controversial in some respects. For example, if a work is treated derogatorily, a possible solution is for the artist to request the removal of his or her name from public presentations of the work in the altered form (as in the earlier New York statute). In this regard, the provision offers protection to the artist’s reputation, but not to the integrity of the work per se, which may well be compromised in these circumstances. VARA also introduces the balancing concept of intention, superimposed on the requirement of showing damage to the artist’s honour or reputation as in Article 6bis of Berne, and effectively replacing it (1); where intention to harm is shown, the requirement of damage to reputation is waived.

This statute may be unique in the world in prohibiting the destruction of artworks. This applies particularly to “works of recognized stature.” William Landes, writing in 2002, commented that the idea of “recognized stature” had a “relatively well-settled meaning[...],” and case law at the time supported that view; but the recent incident of the destruction of the 5Pointz mural complex in New York City [discussed on the IPKat by Miri Frankel, here] brings out some potential difficulties. The 5Pointz muralists are now suing for damages, and may well be able to show that the court got things wrong – though nothing, of course, can now bring the works back (see here and here).

Where does this leave things with Picasso’s mural? Given its authorship, the ease of establishing that the Picasso is a work of “recognized stature” seems fairly straightforward. Accordingly, VARA could be invoked by the New York Landmarks Conservancy, which owned the Picasso after it was donated to the group in 2005, to prevent its possible destruction by removing it from its place in the Four Seasons Hotel. Such a ruling can be predicted with reasonable assurance in only a few jurisdictions in the world – including India, strongly pro-moral rights, and the United States, strongly ambivalent, which both agree on the principle that destruction of a work should be prevented, in so far as possible, by artists’ moral rights.

Above all, the case fascinates because of Picasso’s absence from the debate. Moral rights are often said to serve the aggrandizement of individual artists or (gasp) their heirs. In this case, however, the dispute would seem to have little impact on Picasso’s reputation or the wealth of his heirs. On the other hand, the painting has aptly been called “Picasso’s most readily accessible painting” (Terry Teachout in the Wall St J, cited here), and it presents the alluring image of art interwoven with the fabric of life in ways that are not usually possible in Western cities. In this case, at least, moral rights are widely perceived as a public interest issue. Mr. Rosen finds himself in the eye of an unusually powerful storm.

(1)  (3) subject to the limitations set forth in section 113 (d), shall have the right—(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

This blogpost, composed by Professor Mira T. Sundara Rajan, was posted for her by Jeremy.

Golden Eye and similar episodes: any further news?

Both this weblog (here) and the IPKat (here and here) have previously posted items on the Golden Eye saga, where an attempt was made to recover not insubstantial amounts of money from the recipients of letters which informed them that they had been indulging in unauthorised peer-to-peer file-sharing of pornographic films; details of the recipients of these letters were obtained from their internet service providers, but that information did not establish that it was they who had been using their computers for that purpose.

This case, and rather larger-scale efforts to do likewise in Germany, got a mention in yesterday's proceedings at the MAPPING Extraordinary General Assembly (on which click here for background).

Do any readers of this weblog know whether the Golden Eye demands are still being issued and whether any proceedings for copyright infringement have issued?  And can anyone supply information about attempts that have been made to do things in jurisdictions outside the United Kingdom?

Authors Alliance Launch

If there are any 1709 readers in the San Francisco Bay Area today, I highly recommend attending the launch of the Authors Alliance.

Authors Alliance Logo

A fundamental reason for becoming an author is the desire that other people consume and enjoy your work. Unfortunately, increasingly authors face legal and practical barriers that reduce their ability to reach a large audience. Authors may find their works are out of print, are un-digitized, and subject to copyrights that were signed away many years ago. Likewise, some authors may feel conflicted about whether to publish in outlets that maximize public access to their works or outlets that maximize peer-review and prestige.

The Authors Alliance is a non-profit organization that hopes to reduce these barriers and ensure that works of authorship are disseminated broadly. Hence the organization’s slogan is: “Promoting authorship for the public good by supporting authors who write to be read”. To do this, the organization will provide “information and tools designed to help authors manage key legal, technological and institutional aspects of the dissemination of works of authorship in the digital age”. In particular, the Alliance’s efforts will focus on ensuring the digitization of works; advising authors who wish to make their works publicly available and reusable; supporting journals, libraries, and archives that help readers discover authors; and advocating that authors are properly credited and attributed for their works. Full details can be found at the organization’s website.

Inside the beautiful former Christian Science Church 

that now homes the Internet Archive. 

The Alliance is also not to be confused with the Authors Guild. Authors Guild board member, T.J. Stiles, has already criticized the Alliance’s mission for trying to reduce copyright protections and limit remedies for copyright infringement.

The official launch is taking place at the Internet Archive in San Francisco on Wednesday May 21 from 6.30pm to 9pm. It is expected that a host of copyright reform proposals will be announced. For those who can attend in person, reservations can be made here. For everyone else, the launch will be broadcast live here from 7.15pm PT.

CopyCamp calls for speakers

The International CopyCamp Conference 2014, subtitled "Understanding the Social Impacts of Copyright", is being hosted by the Modern Poland Foundation, which has launched an Open Call for speakers. The event takes place from 23 to 24 October this year in Warsaw, Poland, and the deadline for responding to the Open Call is 15 June 2014. By way of explanation the organisers state:

The International CopyCamp Conference is the first Central-and-Eastern European annual event to undertake a multi-sided, balanced and unrestrained discussion on the social and economic impacts of copyright. The third edition of the conference will be again an occasion to conduct a international debate characterized by high standards of communication and openness to the input from all interested parties - representatives of cultural institutions and the media, creative sectors, academic, legal, political and business circles, administration and non-governmental organisations - and the general public from all over the world with special attention to the perspective of the Visegrad Group countries.

We are glad to announce having two esteemed keynote speakers: Cory Doctorow, a London-based journalist and science fiction author, winner of the Prometheus and Campbell Awards, co-editor of Boing Boing and author of Little Brother and Birgitta Jónsdóttir, an Icelandic poet and member of the Icelandic parliament, internet activist, freedom of information and freedom of speech defender.

The programme is of the multi-track variety, details of which you can find here.  The organisers explain:

Presentation proposals must be submitted in the form of an abstract of no more than 1,800 characters under one of the enlisted thematic tracks that characterize this year’s conference. Each track explores a different aspect of the influence of copyright on our life. Submit your proposal at: http://copycamp.pl/en/contact/register. Please note: your presentation should not exceed 10 minutes.

The event's strategic partners are the Association of Authors ZAiKS and Google. The Coalition for Open Education is also backing it.

This blogger notes the commitment to discussion which is "multi-sided, balanced and unrestrained" and wonders how easily these criteria will be fulfilled -- especially if the pro-copyright side in the great debate is unrepresented or under-represented.

The CopyKat - net neutral, not neutered - that's what we want

The Wall Street Journal reports that the chairman of the US Federal Communications Commission (FCC) plans to revise rules proposed last month that would have controversially let broadband providers accept payments from content companies to deliver their websites faster. Tom Wheeler is expected to issue new language making it clear the FCC will scrutinize all deals to assure that companies not participating in the so-called “paid prioritization” aren’t put at a competitive disadvantage. The Journal reported that the new draft also will seek comment on whether the arrangements should be banned altogether to preserve net neutrality and prevent 'slow and fast' lanes developing in traffic on the internet. A number of high profile 
musicians including REM's frontman Michael Stipe, Roger Waters and Pearl Jam's Eddie Vedder have put their names to an open letter written by the Future Of Music Coalition to Tom Wheeler, chairman at the FCC. The Future Of Music Coalition argues that the new proposals favour big corporations and "telecom giants", leaving "individual artists and creators" in the cold saying : "Your proposed path would open the door to widespread discrimination online. It would give internet service providers the green light to implement pay-for-priority schemes that would be disastrous for start-ups, non-profits and everyday internet users who cannot afford these unnecessary tolls. We urge you to scrap these proposed rules and instead restore the principle of online non-discrimination by reclassifying broadband as a telecommunications service".

Toy maker GoldieBlox's has settled it's dispute with the Beastie Boys, which came to public attention when the toy company used one of the band's songs, Girls, for an advert. The company have agreed to make a $1 million charitable donation according to legal documents. Whilst the two remaining band members said they respected the toymaker's mission to make toys for young girls that break down gender stereotypes, they and the late Adam Yauch had long held a resolve never to licence their music for advertising. GoldieBlox will donate 1% of it's gross annual revenues to a charity of the band's choice until the amount paid reaches $1 million. The charity chosen would focus on supporting "science, technology, engineering and/or mathematics education for girls".

Lawyers acting for MegaUpload have asked the U.S. federal court in Virginia to freeze two civil lawsuits filed against the former digital firm last month by the movie and music industries respectively, arguing that civil action should not occur before any criminal hearings which are planned (although these have been delayed).

And more litigation news: a copyright infringement case involving more than 1,000 videos allegedly found on popular Japanese video-hosting site FC2.com gets under way before a jury next week at federal court in Los Angeles. FC2, one of the top ten website in Japan, is being sued by Japanese-language porn company Dreamroom Productions, who initially alleged that FC2 had encouraged illegal uploading and downloading of its copyrighted works by compensating uploading members. Last week, Dreamroom's counsel withdrew the claim for inducement of copyright infringement, leaving only claims of direct copyright infringement, contributory copyright infringement and vicarious copyright infringement. More on porn litigation here - the story of how Malibu Media - owners of the X.art.com erotic website  - has filed thirteen hundred lawsuits in the US i the last year - accounting for a third of all U.S. copyright litigation during that time, according to the federal-litigation database Pacer. Trolling you might say (and their name has cropped up before on this blog), but one federal judge disagrees: : “Malibu [Media] is not what has been referred to … as a ‘copyright troll,’ ” Michael Baylson, a U.S. district judge, wrote. “Rather, Malibu is an actual producer of adult films and owns valid copyrights.”

And whilst we are on the topic of alleged trolling ..... users of the Popcorn Time app and derivatives like  Cuevana Storm, which brought easy downloading to the masses earlier this year, "hiding its mechanics away under a sleek interface" that led some users to believe "that regular and 'safe' streaming technology was under the hood" have had their illusion shattered - as app users have begun to receive letters "from copyright trolls" - here in the guise of the the Waldorf Frommer law firm in Germany according to Torrent Freak. Recipients of the letters claim they have never installed a BitTorrent client on their machines. Instead they had used only streaming services. TF explain that this "illustrates why it is extremely important for people to have at least a cursory understanding of how software on their machine operates. Streaming video server-to-client or server-to-web browser is either legal or at the least non-detectable in most Western countries. Uploading content to others without permission is generally illegal."

China is moving towards setting up a specialised Chinese IP court. According to the South China Morning Post, the Court’s first setting is likely to be set up in Guangdong Province, but the precise location has not been decided.  The cities of Guangzhou, Shenzhen and Zhuhai have all indicated that they interested in hosting the Court and Guangdong has many courts which are qualified to hear IP matters, and these courts already hear a significant proportion of Chinese IP civil lawsuits. With the number of intellectual property cases being heard in China increasing year on year, it seems the proposals for the new Court are being welcomed. And  a Beijing court has jailed seven executives of the Chinese movie downloading website Siluhd.com.hou Zhiquan, CEO of the movie downloading website, was sentenced five years imprisonment for copyright infringement, and a fine of 1 million yuan (US$160,000). Zhou's other six co-workers were received sentenced of one to three years custody. Siluhd.com had infringed a total 22,296 works, including 18,772 films and television dramas, 3,316 musical albums and 208 game software.  Up to 10,000 subscribing members made illegal downloads every day.

Creative Commons has appointed a new chief executive. Ryan Merkley, 36, who was recently the chief operating officer at the Mozilla Foundation, the organization that supports the open-source Firefox browser, and has also worked with the governments of Toronto and Vancouver. He succeeds Catherine Casserly, who stepped down last year after becoming the organisation’s first full-time chief executive in 2011.

An fascinating case between two music publishers, Cayman Music and Blue Mountain Music has begun in London. At the heart of the case is the ownership of 13 songs, widely believed to have been written by Bob Marley in the early 1970s, but which at the time were credited to a number of his friends. In the case of the iconic ‘No Woman, No Cry’ the credit went to Vincent Ford - and now Cayman Music is attempting to retrieve the rights to the songs. Marley was exclusively signed to Caymen as a songwriter - and allegedly denied ownership and being the songwriter - to avoid transferring ownership to Caymen.  

ISPs and content industries close to voluntary three strike scheme in the UK

Four of the UK’s leading internet service providers are in talks with the content industries about establishing a “Voluntary Copyright Alert Programme”, which would introduce stage one of a three strikes (graduated response) system to combat online piracy. These schemes usually start with a warning – followed by second warning to stop infringing activities  - and then finally a sanction such as the suspension or ‘throttling’ of the alleged infringer's broadband connection.

The 2010 Digital Economy Act put in place a framework for a three strikes system in the UK but this has yet to be activated (and the ‘third strike’ was never defined) – in part because of resistance from ISPs and the technology sector, and a perceived reluctance of politicians to grasp this thorny 'consumer facing' issue. In the US, the ISPs have voluntarily introduced an voluntary ‘six strikes’ scheme called the Copyright Alert System.

What is now being discussed between the recorded music and and film industries in the UK and Virgin Media, BT, Sky and TalkTalk is seemingly more similar to the US system  - one or more warnings or ‘educational’ communication(s) – but no actual punitive sanctions will be applied. In a move the ISPs must hope will avoid the statutory system set out in the DEA being put in place.  Initial reports that VCAP was a done deal and ready to go had been denied by the record industry's trade body the BPI, though it confirmed that talks are ongoing, and industry insiders say they are hopeful the initiative could launch later this year. 

According to the BBC, the current draft framework would see the content industries provide 75% the funding to each of the four ISPs to run the scheme (capped at £750,000 each ISP) , and that there would be cap on how many individuals the labels and studios could file complaints about each year. A spokesperson for the BPI said: "Content creators and ISPs have, with the support of government, been working in partnership to develop a joint awareness programme that would support the growth of legal digital entertainment services, reduce illegal downloading and create the best possible customer experience online. Discussions are ongoing and no agreement has been reached - reports that an announcement is imminent are wide of the mark. We will comment further if and when any agreement is in place". 

Recent Copyright Articles

Guy A. Rub, Rebalancing Copyright Exhaustion, Emory Law Journal (forthcoming, 2015)

In 2013, in Kirtsaeng v. John Wiley & Sons, the Supreme Court wrote another chapter in the ongoing story of copyright exhaustion. This important decision is part of a series of recent decisions in high-profile cases and a vibrant discourse, domestically and internationally, regarding the scope of copyright exhaustion, and, more broadly, the ability of copyright owners to control the distribution of their work along the chain of commerce. Unfortunately, this discussion rarely explores the modern justifications for copyright exhaustion, which makes it notoriously incoherent, inconsistent, and confusing. This Article suggests that copyright exhaustion should be primarily perceived as a tool to reduce information costs. Without it, buyers will need to inefficiently waste resources inquiring whether they will be able to resell copyrighted work. Because resale rights are typically socially desirable, especially as they eliminate waste, the law should usually provide those rights to buyers. Copyright exhaustion also has costs. The main cost is the reduction in the incentives to create that is the result of the limitation that copyright exhaustion places on certain price discrimination practices. The balance between the reduction in information costs and the harm to incentives should dictate the scope of the copyright exhaustion. This Article applies this balanced approach and explores the desired scope of copyright exhaustion. It concludes, inter alia, that it should not prevent copyright owners from exercising control over importation of copyrighted goods or over distribution of digital work. However, contracting around copyright exhaustion should be restricted and copyright owners should not be allowed to circumvent it just by including “magic words” in their standard-form agreements. 

Kate Darling, Occupy Copyright - A Law & Economic Analysis of U.S.Author Termination Rights, Buffalo Law Review (forthcoming)

U.S. law grants authors a contract termination right thirty-five years after the license or transfer of their copyrights. This Article contributes to the ongoing debate over this law by providing economic perspective. Because of price changes, risk allocation, hold-up problems, and other effects on author and publisher incentives, it predicts that the economic costs of introducing termination rights will outweigh the benefits. This work concludes that the current structure of author termination rights in the United States is at odds with its political justification, as well as the utilitarian purpose of copyright law. 

Ye Jiang, Changing Tides of Collective Licensing in China, 21 Michigan State International Law Review (2013)

The article examines the reform of collective copyright licensing in China. An overview of the copyright reform in the country in which the employment of an extended collective license system was affirmed by Chinese legislature. Also discussed are the transparent governance and dispute resolution mechanisms of collective rights management organizations (CMOs) in the country, and the copyright enforcement infrastructure in the digital era. 

Qiang Yu, Software Interoperability Information Disclosure and Competition Law, 35 European Competition Law Review 235-252 (2014)

Software interoperability information is indispensable in establishing connections among the parts of a program and to applications and users. According to the concepts of copyright and expression dichotomy and to the prevailing consideration that the function of software interoperability information has a bottleneck effect in restricting competition, the conceptual portions of software interoperability information are not protected under copyright, and software interoperability interfaces are subject to reverse engineering. This scope of copyright protection and the actual restriction on competition due to the refusal to disclose software interoperability information have convinced authorities and courts to grant a duty to disclose. However, in examining the compulsory disclosure of interoperability information and the competition situation in the software market, this study perceived that although the compulsory disclosure of software interoperability information is alleged to have certain benefits, it harms the copyright holder and, as a competition remedy, helps secondary market players at the expense of primary market players. This remedy in effect protects competitors, not competition throughout the entire market. Further, this study observes that when enlarging the scope of the compulsory disclosure of software interoperability information acts to create competition, it exceeds the function of competition law as an ex post remedy. 

Tobias Kretschmer & Christian Peukert, Video Killed the Radio Star? Online Music Videos and Digital Music Sales, (working paper series)

Sampling poses an interesting problem in markets with experience goods. Free samples reveal product quality and help consumers to make informed purchase decisions (promotional effect). However, sampling may also induce consumers to substitute purchases with free consumption (displacement effect). We study this trade-off in the market for digital music where consumers can sample the quality of songs by watching free music videos online. Identification comes from a natural experiment in Germany, where virtually all videos that contain music are blocked on a popular video platform due to a legal dispute with representatives of the rights-holders. We show that promotional and displacement effects cancel out in the sales performance of individual songs, whereas online music videos trigger sales of albums.

UPDATE: New French Report on Tools to Combat Commercial Online Piracy

Here is a link to the full report (in French):

Link to Report