"Girls" Parody or Just Infringement?

Some of our readers may be familiar with this video by San Francisco start up toymaker, GoldieBlox, which recently went viral.  The company develops science and engineering-related toys for girls.  In the video several young girls build a Rube Goldberg machine to turn off a television.  The soundtrack is a version of the Beastie Boys song "Girls," but with new, female-positive lyrics.  The Beastie Boys were not pleased about the use of their song.  When the band attempted to confront GoldieBlox about use of the song, GoldieBlox rapidly filed a lawsuit in U.S. District Court for the Northern District of California seeking declaratory judgment that their use of the Beastie Boys song was parody, and accordingly fair use, not copyright infringement.

In an open letter to GoldieBlox, which the Beastie Boys shared with the New York Times on Monday, the group maintains that they support the work and the message of the start up, but are committed to keeping their music out of advertisements. The band argues that the video was designed to advertise and sell GoldieBlox toys and that using the new version of the song is copyright infringement.

GoldieBlox maintains that their version of the song is not just devised for selling toys, but intended to comment on the original while empowering young girls.  As the complaint states:

In the lyrics of the Beastie Boys’ original song, girls are limited (at best) to household chores, and are presented as useful only to the extent they fulfill the wishes of the male singers. The girls are objects. The GoldieBlox Girls Parody Video takes direct aim at the song both visually and with a revised set of lyrics celebrating the many capabilities of girls. Set to the tune of Girls by the Beastie Boys but with a new recording of the music and new lyrics, girls are heard singing an anthem celebrating their broad set of capabilities—exactly the opposite of the message of the original. GoldieBlox Girls are the subjects; they are the actors taking charge of their environment.

Under U.S. copyright law, fair use of a copyright-protected work is determined by examining the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market for or value of the copyrighted work.  In the case of parody, the threshold question is whether a parodic character may reasonably be perceived.  In examining parody one must consider the critical bearing on the substance or style of the original.  Undoubtedly, the original version of the song, recorded in 1986, is degrading to women, referencing the desire for "girls" to do the dishes and the laundry.  The song featured in the GoldieBlox video substitutes new lyrics about girls building spaceships, writing code, and engineering that would seem to bear rather directly on the demeaning character of the original.  

The complaint was filed late last week, and attorneys for the Beastie Boys have yet to appear.  As the band has become far more socially and politically conscious over its long existence these would seem particularly difficult public relations to navigate, and it will be interesting to see how this lawsuit unfolds, if at all.

Another Big Win for Photographers: Jury Awards Maximum Damages in AFP v. Morel

Following on the heels of my entry regarding Leonard v. Stemtech, another American photographer has received another major jury award for copyright infringement.  Earlier this year I wrote about AFP v. Morel, a case in which Getty and Associated French Presse (AFP) were found to have used photographer Daniel Morel's photographs of the aftermath of the Haiti earthquakes without permission.  Morel originally shared the photos on Twitter, where another photographer found them and attempted to pass them off as his own.  Eventually the photos ended up in the hands of Getty and AFP, and the agencies used and licensed the images without Morel's permission.  One of AFP's more creative defenses in this case was that Morel's sharing of the images on Twitter had resulted in a broad license allowing AFP to use the images based on Twitter's terms of service.  The court rejected that argument at the summary judgment phase.

Although Morel already prevailed on summary judgment as to direct copyright infringement, because he sought elevated statutory damages for willful infringement, a jury was left to resolve the intent of Getty and AFP in using Morel's images.

On November 22, 2013, the jury's verdict was announced.  Holding that the infringement was willful, the jury awarded Morel the maximum in statutory damages allowed for the eight infringed images, $150,000 per image, for a total damages award of $1.2 million.

Extensive coverage of the trial is available on EPUK.

Photographer Wins Big for Copyright Infringement

After nearly five years of litigation in U.S. District Court in Delaware, last month photographer Andrew Paul Leonard received a jury award of $1.6 million dollars in actual damages for infringement of his copyright-protected photographs.  Leonard specializes in microscopic photography and in 1995 created images of human bone marrow.  The jury found that the Defendant, StemTech Health Services, a company that markets and sells nutritional supplements, engaged in direct infringement for displaying Leonard's images in publications, websites, and videos, and also contributory infringement for the use of Leonard's images on the websites of Stemtech's distributors.

This case is exceptional, and few photographers would be likely to make a similar recovery on a showing of actual damages.  The case highlights a few important aspects of U.S. copyright law that can have a major impact on artists and photographers who find their works infringed.  While a work receives copyright protection when it is created, obtaining a copyright registration and the timing of that registration are key to pursuing unlawful infringement of the work.  Leonard was entitled to actual damages instead of statutory damages because he did not register the copyright in the image until after the infringement occurred.  A timely copyright registration will entitle the author of a work to statutory damages of up to $30,000 per work infringed (up to $150,000 per work infringed if the infringement is deemed to be willful), or actual damages, whichever is higher.  Additionally, a copyright registration is required to pursue an infringer in a federal lawsuit (and the federal courts have exclusive jurisdiction over copyright claims).

While many reforms to copyright law are being considered, such as copyright small claims courts, until those reforms are put into action, those who wish to enforce their copyrights must obtain timely copyright registrations to obtain maximum protection of their rights.

Dia challenge, a summary

Readers of this blog may have heard mutterings about the recent controversy surrounding the auction by Sotheby's of a number of artworks owned by the Dia Art Foundation. In brief, this is what happened.

Earlier this month, two of the founders of the Dia Art Foundation filed suit in the Manhattan state court to prevent the organisation from selling a number of artworks from its collection.

The Foundation, a nonprofit organisation, which was established in 1974 to initiate, support, present and preserve art projects, had decided to sell some of its works at Sotheby’s to raise money. Founders Heiner Friedrich and Fariha de Menil Friedrich, sought an injunction against the Foundation and Sotheby’s to prevent the sale of the artworks. At the time, it was reported:

Many of the works named in the lawsuit were donated by Mr. and Ms. Friedrich when they created the foundation with the art historian Helen Winkler. The lawsuit claims that selling the works to private collectors would remove them “from public access and viewing in direct contravention of Dia’s entire intent and purpose.” The auction would be a breach of an “implied covenant of good faith and fair dealing” with the Friedrichs and the artists who made the works, the suit states.

The case was, however, dropped. The New York Times reported:

The founders, Heiner Friedrich and Fariha de Menil Friedrich, said in a written statement through their lawyers on Tuesday morning that while they consider the sale “utterly wrong” and “against Dia’s mission,” the foundation is “our precious child, and we do not wish to continue to oppose it through legal action.”

Accordingly, the sale of the works went ahead. It appears, from Sotheby's catalogue that the foundation raised a significant amount of money. Indeed Cy Twombly's Poems to the Sea (below) raised almost $22 million alone. Let's hope the foundation puts the money to good use.

Source:   The New York Times, 7 November 2013 & 12 November 2013

Fight over 5 Pointz ends with dirty tactics - whitewash

For artists battling to save 5 Pointz - reported here - it must have been heartbreaking to wake up to these scenes:



After the Federal Court ruling last week, refusing to grant an injunction to stop the demolition of 5 Pointz, the building owners appear to have taken matters into their own hands. They hired a crew of painters who worked through last night to whitewash the walls of 5 Pointz - covering up years of stunning street art, paintings and murals.

So much for the rights of the artists. No moral rights, just outrage.


 Photos by Tiernan Morgan

Jean-Michel Basquiat's family sue the IRS

The late Jean-Michel Basquiat’s paintings don’t come cheap. But are they quite as expensive as the US Internal Revenue Service (IRS) thinks they are?

When the artist himself died at just 27 in 1988, his estate went in equal parts to his parents. Twenty years later when Basquiat’s mother died, she still held a huge collection of his artwork. The family had it valued and paid up US$8.5m in taxes on her estate – a sum not to be sneezed at – but the US tax authorities claim it’s considerably less than they ought to have paid. The IRS has determined that the family undervalued the collection by US$66m, and accordingly still has an outstanding tax liability of nearly US$10m (including penalties for late tax returns and undervaluing assets).

Now the artist’s family are taking the tax authority to court, arguing that the new valuation is far too high. The IRS has been known to exercise what some might describe as poetic licence when valuing art (such as the case of the legally unsaleable Rauschenberg valued at US$65m). But how did a difference of opinion on this scale come about?

The key to the huge discrepancy is explained by the fact that the IRS’s valuation does not take account of the “blockage discount” claimed by the Basquiat family. In the art world, this term refers to a discount which may be claimed by an art-rich estate on the basis of the devaluation which could occur if that estate sold all its art holdings at once. If the market is flooded with a particular artist’s works, the likelihood is the estate won’t get the same value as it would have done had the works been sold one by one.

Probably, any discount allowed will be lower than that claimed by the family, but the outcome of the case remains to be seen. In the meantime, anyone looking for a cheap Basquiat may want to keep an eye on the market.

Source: www.dnainfo.com

A Nazi-looted art trove of 1,500 masterpieces was discovered in Munich

A treasure trove worth around 1 million dollars has been recently found in an apartment in Munich.

The trove includes masterpieces of Picasso, Henri Matisse, Auguste Renoir and Marc Chagall. Other works among the 1,500 discovered were by Otto Dix, Franc Marc, Emil Nolde, Oskar Kokoshka and Ernst Ludwig Kirchner.

The trove was found by German tax authorities while they were investigating on the possible tax evasion of Cornelius Gurlitt, the son of the art dealer Hildebrandt Gurlitt. The tax authorities went into Gurlitt's apartment, where they expected to find few undeclared euros, but they discovered piles and piles of old food in every room of the house and behind these walls of food the trove was incredibly hidden.

Hildebrant Gurlitt was a well-known art historian during the Nazi era, who was tasked by the SS official Goebbels to sell the so-called “degenerate” artworks seized by the Hitler's government. Nazi regime seized around 20,000 works before the Second World War and many of them were shown during the "Degenerate Art" exhibition, which took place in Munich in 1937.

Indeed, many masterpieces were found "ungerman" by the Nazi regime: Hitler loved only classical art. Therefore, these masterpieces were seized, stolen from collectors - many of them Jewish. Jewish collectors were also forced to sell “degenerate” works of art at a very low price to art dealers, in order to purchase expensive visas to flee from Germany.

The recovered works are currently stocked by the Bavarian customs in Garching near Munich and a team of art experts is trying to find the rightful owners' heirs. One painting is said to be a Matisse's portrait of a woman previously belonging to the famous jewish collector Paul Rosenberg.

Source: The Guardian, 3 November 2013

Should the National Gallery seize a Klimt portrait?

Gustav Klimt's unfinshed portrait of Amalie Zuckerkandl (1917-1918)

After our post on the famous claim on a looted Klimt's work, the "Beethoven frieze", the National Gallery is now called on seizing another Klimt's looted painting.

Klimt's unfinished portrait of Amalie Zuckerkandl is now the centrepiece of the exhibition "Facing the Modern: The portrait in Vienna in 1900" which runs until January at the National Gallery. Recently, a leading expert in looted art, the lawyer E Randol Schoenberg, outlined its concerns on the painting, which apparently seems to had been looted by the Nazis during the Second World War from the jewish collector, the baron Ferdinand Bloch-Bauer.

The Baron Bloch-Bauer was a friend of Amalie Zuckerkandl, herself a Nazi victim. He was forced to flee Austria to go to Zurich. In his will, he explained that all his property in Vienna had been confiscated by the Nazy. Indeed, the painting would had been at Bloch-Bauer's home, after the baron's escape, and it was listed in a Nazi inventory in 1939 by Dr Erich Führer, a lawyer and high-ranking SS officer. According to Mr Schoenberg, Dr Führer kept for himself 12 of Bloch-Bauer's paintings, including the Klimt's portrait.

Apparently, Amalie's son-in-law came into possession of the portrait during the war and sold it to the art dealer Vita Künstler, who owned it till she donated it to the Belvedere Gallery in Vienna, when she died in 2001. But the Baron's heirs asked the restitution of the portrait and in 2006 an arbitration panel rejected it, granting ownership of the Zuckerkandl's portrait to the Austrian State but a dispute on this decision is currently pending.

By the way, in 2006 Mr Schoenberg successfully represented 90-year-old Maria Altmann in her effort to win back five stolen Klimt paintings from the state of Austria that had been seized by the Nazis, including his famous gold portrait of Bloch-Bauer's wife and Maria's aunt, Adele.

Mr Schoenber told the National Gallery should request a new determination by the Austrian art restitution advisory board, thus according to  the new Austrian law the painting would have been restituted to the Ferdinand's heirs.

Anyhow, a spokeswoman for the National Gallery said  the Klimt's Portrait of Amalie Zuckerkandl is among those paintings in the exhibition for which the Government offers immunity from seizure. Therefore, the National Gallery had been obliged to duly investigate the history of this painting from the beginning of 1933 to the end of the year 1945.

This looks like it is going to be another significant case of looted art in Austria.

Source: The Guardian, 21 October 2013

Red Bus Recap

For those of you who were unable to attend our Red Bus event last week, William Corbett, an associate at Simmons & Simmons, has kindly prepared this guest posting to recap the event.

The evening began with Michael Edenborough QC recapping the facts of the dispute.  Michael (who acted for the claimant) started by noting that there had been more than one judgment involving the same parties.  The defendants accepted liability in relation to the claimant's initial claim for copyright infringement; but the Court was required to resolve the issue of damages.  The main case concerned an attempt by the defendants to create a work that did not infringe the claimant's copyright in a photograph showing a red bus crossing Westminster Bridge (claimant’s photo on top; defendants’ photo below):

Michael highlighted that the claimant had taken a photo in real life (i.e. the photographer had waited for the bus to cross the bridge).  The idea of a red subject against a greyscale background had come from the film Schindler's List.  The claimant had also manipulated the photo in ways beyond the obvious colour changes, e.g. the sky had been cut out and elements such as people and parts of the foreground removed. 

In contrast to the claimant's photo the defendants' photo was not taken in real life.  By the time the defendants’ photo was produced the old Routemaster bus had been withdrawn from routes crossing Westminster bridge, hence the defendants had to use a photograph of the bus on the Strand.  The defendants needed to combine two photos of the bus and three photos of Westminster bridge in order to create the final image shown above.

Michael listed similarities between the photos and argued that the defendants had taken the essence of the claimant's photo. 

Three issues will be relevant to every copyright case: (i) originality (ii) derivation (iii) substantial part.  The first issue was not really disputed: the claimant’s photo attracted copyright protection.  The claimant had discretion in several respects: (a) technical issues such as exposure etc (b) composition i.e. choosing the scene to be photographed (c) the precise details deriving from being in the right place at the right time (d) digital manipulation of the photograph.  While the subject matter of the defendants’ photo was not unusual (the Routemaster bus and Houses of Parliament being iconic symbols of London), the Court found that the defendants’ photo was derived from the claimant’s photo.  In relation to the third issue, HHJ Birss QC (as he was then) admitted that he had not found this to be an easy question, but ultimately held for the claimant. 

After the judgment was handed down in draft the parties disputed whether a portrait version of the defendants’ photo infringed.  The Court held that the portrait version still reproduced a substantial part of the claimant’s photo and hence it too infringed.

David Stone of Simmons & Simmons then commented on the case.  The judgment acknowledges the defendants’ argument that the claimant couldn’t have a monopoly in a black and white image of the Houses of Parliament with a red bus in it.  However, the Court did in effect enforce such a monopoly.  David highlighted visual differences between the photos, e.g. the defendants’ photo barely shows the bridge or the river.  David queried how far the court had been influenced by the defendants’ previous admission of copyright infringement and referred to the German concept of ‘salami slicing’.  That concept provides that an infringer cannot avoid infringement by making small incremental changes until they just avoid infringement: in such a case the infringer would have to make a bigger change than someone who had not previously infringed.

Rachel Buker then provided a US perspective on the case.  Rachel considered that the claimant would have been unlikely to succeed in the US due to the US Courts’ strict application of the idea/expression distinction.  This principle is well demonstrated by Kerr v. New Yorker Magazine (63 F. Supp. 2d 320 - (SDNY 1999)), which concerned an image of a man’s head in profile with a Mohawk haircut forming the silhouette of the Manhattan skyline.  In that case the US Court held that even if the defendant had taken the claimant’s idea they had not copied his expression of that idea.

Richard Davis (who acted for the defendants) was in the audience and provided some thoughts.  First, the claimant had effectively urged the Court to treat the copyright work as a patent claim (see paragraph 61 of the judgment).  Copyright cases should not be decided like patent cases.  Second, the defendants had initially appealed the judgment and been granted leave to appeal by the Court of Appeal, but the appeal was later withdrawn.  Had the Court of Appeal had a chance to consider the case they could have taken one of two approaches: (i) dismiss the outcome and re-do the legal analysis accordingly (ii) hold that absent any obvious error of fact or law the judgment could not be questioned.

The evening concluded with an interesting debate about the scope of copyright protection in photographs.  Issues included the relevance or otherwise of artistic merit, the amount of effort expended by the claimant and the defendant in creating their photos, the commercial success of a work and what must be appropriated in order for infringement to be found (e.g. the claimant’s skill and labour or essential parts of visual appearance).  Readers may wish to consider the following expression of an abstract idea:

Again, we'd like to thank all those who attended and Simmons & Simmons for hosting and providing a tour of the firm's fantastic art collection.  Also thanks to William for this entry.  We truly appreciate it.