Art Law Report

Supreme Court Declines Review of California Resale Royalty Case

Posted by Nicholas O'Donnell on January 12, 2016 at 1:27 PM

The U.S. Supreme Court has declined to hear an appeal of last year’s Ninth Circuit decision striking down part of the California Resale Royalty Act. The law provided royalties to artists on sales after the work leaves the artists’ ownership, on the grounds that artists often fail to enjoy the benefit of an increase in value in their works. Such royalties are more common in Europe, but they are controversial there, too. Opponents argue that it is a deterrent to art trade, and in any event while there is a patchwork of laws, encourages sellers to forum shop to avoid the royalties.

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Topics: Legislation, Resale Royalties, Copyright, intellectual property

Graffiti on the Runway: Street Artist Rime Pursues Lawsuit Against Moschino for Damaging His Street Cred

Posted by Nicholas O'Donnell on November 4, 2015 at 9:02 AM

The fusion of street art, high fashion, and the law is hardly new, but the Italian designer Moschino’s latest foray into this genre has landed the company in court. Joseph Tierney, a well known graffiti artist who works under the pseudonym “Rime”, filed a complaint against Moschino and its creative director, Jeremy Scott, alleging copyright infringement, trademark violations under the Lanham Act, and unfair competition, and appropriation of name and likeness under California law. Moschino’s allegedly unauthorized use of his work has harmed the artist in numerous ways, Tierney alleges, not the least by opening him up to accusations of selling out. In the words of Tierney’s complaint: “nothing is more antithetical to the outsider ‘street cred’ that is essential to graffiti artists than association with European chic, luxury and glamour – of which Moschino is the epitome.” This theory of harm was something we talked about at the "Copyrights on the Street" panel at the Copyright Society of the USA meeting in Newport this year, and it is now being put to the test.

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Topics: Joseph Tierney, copyright management information, Vandal Eyes, Digital Millennium Copyright Act, Rime, The Wall Street Journal, Graffiti Art, 17 U.S.C. § 1202, Gigi Hadid, Trademark, Hollywood Reporter, Jeremy Scott, Copyright, Moschino, Lanham Act, The New York Times, intellectual property

Fair Use Fool me Twice, Shame on Me—Richard Prince Goes Trolling on Instagram But May Have a More Pedestrian Problem

Posted by Nicholas O'Donnell on May 27, 2015 at 10:35 AM

Few art law cases have received as much attention as that of Richard Prince and his dispute with Patrick Cariou over the latter’s Yes, Rasta photographs that Prince altered, defaced, and otherwise rearranged for his Canal Zone series. Prince has now garnered renewed attention for his appropriation of Instagram images in a set of works he has been selling at a Gagosian Gallery show called “New Portraits" (and in various other venues over the last few months). He escaped liability for infringement of Cariou’s pictures (though the case settled after remand; several infringement claims were still in play when the parties settled). Can he do so again? If this recent effort is not infringement, it certainly begs the question of whether the fair use exception has swallowed the rule. Lastly, Instagram itself may have prohibited the entire exercise in its terms of use, a possible avenue to short-circuit the entire copyright exercise.

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Topics: “New Portraits", Richard Prince, Copyright Act, DoeDeere, 2LiveCrew, Prince v. Cariou, Roy Orbison, Canal Zone, Patrick Cariou, Internet, Yes Rasta, 17 U.S.C. § 107, Instagram, Copyright, Gagosian Gallery, transformativeness, intellectual property, Fair Use, § 107

UPDATE: Left Shark Not Free to Roam the Oceans of Intellectual Property Just Yet

Posted by Nicholas O'Donnell on April 30, 2015 at 11:15 AM

UPDATE: The battle over Left Shark is not over yet! Upon closer examination, last week’s trademark-related denial involved only one of six classes (Class 41 for “live musical and dance performances”) covered in Katy Perry’s application to register a front view of the Left Shark. The Patent and Trademark Office rejected the specimen she submitted to prove use of the image as a service mark. The specimen in question was a photograph taken from the Super Bowl performance. Despite this initial rejection all of Perry's applications are still very much in play.

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Topics: Left Shark, trade dress, USPTO, Halftime Show, Katy Perry, Trademark, Super Bowl, Copyright, Patent and Trademark Office, intellectual property

Left Shark Podcast with Massachusetts Lawyers Weekly

Posted by Nicholas O'Donnell on April 27, 2015 at 5:01 AM

I participated in a podcast on Friday about the denial of a portion of an application for trademark recognition to Katy Perry for the "Left Shark" phenomenon. You can listen to it here.

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Topics: Left Shark, Massachusetts Lawyers Weekly, Katy Perry, Podcast, Trademark, Copyright, intellectual property

Professional Artist Series at Danforth Art

Posted by Nicholas O'Donnell on April 1, 2015 at 2:26 PM

I'm pleased to be participating next month in the Professional Artist Series at Danforth Art in Framingham, Massachusetts. The Danforth is a wonderful museum and school that engages both the creation and exhibition of art across a broad community. It is a real treasure.

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Topics: Massachusetts, Danforth Museum School, Jessica Burko, The Boston Globe, Cate McQuaid, Professional Artist Series, Events, Copyright, Nicholas O'Donnell, Museums, Sullivan and Worcester LLP, intellectual property, Fair Use, Art Law Report, Framingham

Full Ninth Circuit To Rehear “Innocence of Muslims” Copyright Appeal, Could Right Earlier Panel's Error

Posted by Nicholas O'Donnell on November 13, 2014 at 11:08 AM

Fresh on the heels of accepting en banc review of the appeal over the constitutionality of the California Resale Royalties Act, the Ninth Circuit Court of Appeals has decided to rehear Google’s appeal of the injunction against it after actress Cindy Lee Garcia claimed a protectable copyright in her performance of “Innocence of Muslims.” While, as before, one should hesitate to read too much into the mere fact of en banc review, the three-judge panel under review now stands a good chance of being overturned (as it should).

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Topics: Copyright Act, en banc, Libya, Youssef, YouTube, Innocence of Muslims, prior restraint, 17 U.S.C. § 106, Copyright, First Amendment, intellectual property, Cindy Lee Garcia, Fair Use, Google, Benghazi, work for hire

VARA Likely to Apply Retroactively to Victor Henderson “Brooks Avenue Painting Claim”

Posted by Nicholas O'Donnell on May 12, 2014 at 5:31 AM

We reported recently on a new lawsuit in California invoking the Visual Artists Rights Act (VARA) in the context of a mural by Victor Henderson, of the Los Angeles Fine Arts Squad. Henderson alleges that property owner Ralph Ziman had his “Brooks Avenue Painting” water blasted in 2013, thus destroying the integrity of his work and infringing on Henderson’s rights under VARA.

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Topics: Brooks Avenue Painting, Anschlus, Foreign Sovereign Immunities Act, Victor Henderson, Copyright Act § 113(d), Los Angeles Fine Arts Squad, Visual Artists Rights Act, VARA, World War II, Copyright, Austria, intellectual property, Ralph Ziman, ex post facto

"Dumb Starbucks" Indeed a Prank, Health Department is Not Amused

Posted by Nicholas O'Donnell on February 11, 2014 at 3:55 AM

As we suspected, the "Dumb Starbucks" store in Los Angeles claiming a right to copy Starbucks's logo and store design by relying on fair use turned out to be a prank after all (bolstered, as I did not realize yesterday by the fact that despite what the store said about selling coffee, they were actually just giving it away). It turns out that Nathan Fielder of Comedy Central was behind the whole thing, for use on his show "Nathan for You." Less funny for him was that yesterday the Los Angeles Board of Health closed the store for distributing food products without the proper licence.

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Topics: Nathan for You, Trademark, art gallery, Nathan Fielder, Dumb Starbucks, Copyright, Starbucks, intellectual property, Fair Use

Is "Dumb Starbucks" an Art Gallery in the Eyes of the Law?

Posted by Nicholas O'Donnell on February 10, 2014 at 12:24 PM

News that a coffee shop had opened in Los Angeles entitled "Dumb Starbucks" has again raised the proper interpretation of fair use under U.S. intellectual property law into the realm of popular culture and commerce. Whereas last year’s Beastie Boys/GoldieBlox dustup (still ongoing) revolved primarily around copyright law, here the potential issue is one of trademark infringement. To stave off accusations of liability, the new enterprise has preemptively labeled itself an "art gallery." Will this hold up? Even Starbucks seems puzzled.

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Topics: 505 U.S. 763, parody, Landham Act, Weird Al Yankovic, @dumbstarbucks, Green Day, Bad Starbucks, Trademark, 17 U.S.C. § 107, 15 U.S.C. § 1115(b)(4), GoldieBlox, Copyright, Dr. Evil, Starbucks, Number Two, Twitter, intellectual property, Two Pesos Inc. v. Taco Cabana Inc., Beastie Boys, Fair Use, Merriam-Webster, Austin Powers

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