Tuesday 22 July 2014

Print-a-Pony: golden opportunity, or taking artwork for a ride?

Printed in 3D, they may never look the same again
With apologies for the cross-post, there follows the first part of a blogpost from Iona Silverman on the 1709 Blog, "My Little Pony Gets 3D Printed", here, which focuses on some of the copyright issues arising from a fascinating piece of commercial cooperation 
"3D printing is a bit of a buzzword at the moment and its not the first time that this blogger has written about protection of IP rights in the 3D printer world. Rightsholders need to be thinking about how best to exploit 3D printing rather than how to avoid it, and one company that has done just that is Hasbro. 

Rather than targeting creators of fan art to stop them customising the popular My Little Pony range (because, really trying to stop your fans from enjoying your product is not a great business proposition), Hasbro is going to partner with 3D printing company Shapeways to sell fan art.

Five artists will design My Little Pony figurines which can be printed to order. John Frascott, chief marketing officer at Hasbro, describes the process as "mass customisation" - the figurines don't make sense for mass manufacture but enough people will buy them that Hasbro can justify allowing the artists to create and sell them.

It's not clear whether the artists will be employed by Hasbro or whether they are merely granted permission to create fan art (likely the former, for Hasbro to retain control of any copyright created) but it is clear that this is a clear demonstration that we will see more and more customised goods in future, meaning more and more 3D printing. ..."
Iona then goes on to ask a number of copyright-related questions, as one might expect in a piece written for a copyright law blog, and readers can consider those issues at their leisure.  From the perspective of Art & Artifice, however, it would be good to get some reactions from artists and those who represent them as to what this ingenious use of a 3D-based business opportunity might make to them

Monday 21 July 2014

Fair Use in the Visual Trenches

I've recently been preparing to teach a class on intellectual property to visual artists in Seattle. As I gathered information and images for a slide show, I wondered how to explain to working artists (in the course of a few hours no less) why this is fair use:

And this is not.

Yes, we can talk about the four main factors in a fair use analysis and, of course, transformativeness and parody, but practically speaking how is a working artist to put this to use? If lawyers and judges can't agree, or even explain the concept without discussing how vague and opaque the fair use doctrine is, what is an artist to do?

During my research I located a January 2014 Fair Use Report prepared for the College Art Association. The report addresses concerns that fair use is underutilized by the visual arts community due to confusion and fear about copyright infringement.

Some of the key findings and figures are summarized in the report as follows:
"Visual artists and other visual arts professionals, a term used in this report to include (among others) art historians, educators, professors, editors or publishers, museum professionals, and gallerists, share a common problem in creating and circulating their work: confusion and misunderstanding of the nature of copyright law and the availability of fair use—the limited right to reuse copyrighted material without permission or payment.

Fair use is flexible, available, and even core to the missions of many visual arts activities. 

Members of the visual arts communities typically overestimate the risk of employing fair use, which leads them to avoid it, even in circumstances where the law permits and so doing would not harm personal relationships necessary for their work.

They pay a high price for copyright confusion and misunderstanding. Their work is constrained and censored, most powerfully by themselves, because of that confusion and the resulting fear and anxiety.”
The report further found that approximately one third of those in the field had abandoned or declined to undertake certain projects due to copyright issues, this includes museums failing to digitize collections, curators declining to do shows where copyright permissions may be an issue, and artists who avoid collage and other types of appropriation art.

While I agree that fair use is flexible and available, it is perhaps the doctrine's over-flexibility that has led to many of these problems. Couple this with copyrights of expansive duration, lack of guidance with respect to orphan works, and at times avid copyright enforcement, and it is no wonder that some artists are avoiding the fair use morass all together. The outcome of these matters is so often unpredictable, and the courts' lack of consistency in application has left us with a hyper-flexible fair use doctrine and vague best practices.

Of course, this is not to say artists should be voluntarily ignorant and fearful of copyright law. Education about copyright serves as an extremely valuable tool in preventing unnecessary self-censorship and allows artists to understand and assess on their own terms the risks associated with particular uses of copyright-protected materials. Indeed artists should have an understanding that they themselves are the beneficiaries (not just the victims) of copyright protection and all the rights and opportunities associated therewith.

Friday 18 July 2014

A&A at The John Marshall Law School Review of Intellectual Property Law 6th Annual Symposium

I am very pleased to report that on October 24, 2014 I will be speaking at The John Marshall Law School Review of Intellectual Property Law Sixth Annual Symposium in Chicago.  The focus of this year's symposium is the intersection of art and intellectual property.  I will be speaking on appropriation art, in particular legal issues related to art's own self-appropriation.

Thursday 17 July 2014

In the Washington Post, David Montgomery reports on a fascinating episode in the tale of contemporary art curatorship. In "Corcoran breakup plan backed by District ahead of hearing; critics seek alternative" he explains that the Corcoran Gallery of Art and Design's dramatic plan to dissolve and reorganize itself with new custodians has received support in the form of an endorsement by District Attorney General Irvin B. Nathan. The Corcoran is Washington DC's oldest private art museum but it has been facing severe financial problems in recent years. Its reorganisation proposal -- which would involve transferring its art college operations to George Washington University and passing a sizeable proportion of its 17,000 artworks to the National Gallery of Art has attracted hundreds of pages of court briefs, not to mention submissions from 53 individuals in their capacity as members of the public.

A public hearing is set for 2:30 pm this Friday before Judge Robert Okun, though it is unclear whether he will give a ruling straight away, delay it or order further proceedings.

Thursday 10 July 2014

Latest from Detroit

When we last caught up on the situation, creditors of the city of Detroit were looking to the Detroit Institute of Arts (DIA) collection as a source of cash, and experts had been hired by the DIA and the City to value the collection.

By the latest report, however, it seems that although the collection may be worth as much as $4.6bn, a sale of the artworks would not raise enough to pay the City's creditors.

The report in question was produced by Michael Plummer of Artvest Partners LLC, who was hired by the DIA to provide an expert opinion on:
  1. The indicative value of the works in the DIA Collection; 
  2. The feasibility and likely effects on the market and value realization of a sale of the DIA Collection under a variety of market and sale conditions;
  3. Creditor-proposed sales of the DIA Collection;
  4. Monetization alternatives described in Christie's report to the City of Detroit; and
  5. Infirmities in any rebuttal expert reports
What Plummer concludes in the report (dated 8 July 2014) is that:
Rather than being a source of cash to creditors or a burden on the current city. In fact the DIA is the single most important cultural asset the City currently owns for rebuilding the vitality of the city. 
In response to the report, a spokesman for Kevyn Orr, the emergency financial manager for Detroit, said "The report makes it abundantly clear that selling art to settle debt will not generate the kind of revenue the city's creditors claim it will."

Whether the report will stop the creditors from chasing is another matter.

We previously reported that the next major stage of this saga is the trial to determine the fairness and feasibility of the restructuring plan submitted by the City, which was scheduled to start on 24 July. According to the Guardian, however, a federal judge overseeing Detroit's bankruptcy has scheduled the next hearing to start on 14 August 2014.

Read the full report here.
Source: The Guardian, 9 July 2014