Archive for March, 2009

Picasso Settlement to Remain Confidential

March 31, 2009

In a precedent setting decision by a New York district court (S.D.N.Y), the terms of a settlement agreement between two New York City art museums and the possible heirs to two paintings by Pablo Picasso will remain confidential, reports the New York Law Journal.

In 2007 the Museum of Modern Art and the Guggenheim Museum filed suit against Julius Schoeps to quiet title to two paintings by Pablo Picasso that were once owned by a relative of Mr. Schoeps.  The paintings at issue are Boy Leading a Horse and Le Moulin de la Galette.  Mr. Schoeps had claimed that he was the rightful owner of the artworks as heir to the estate of his great uncle, who was apparently forced to relinquish the paintings under duress instituted by the Nazi regime. The museums disputed this position.

The case was to go to trial in February, but the settlement agreement was made shortly before.  At that time, Reuters reported that an attorney for the museums told the court that “There will be complete peace between the museums and the Mendelssohn-Bartholdy and other heirs,” the settlement’s “dollar amount” would remain confidential, and that “[t]he paintings will remain in the museums.” U.S. District Judge Rakoff urged that the terms of the settlement be made public, citing the “weight of history” and inferred a public interest in access to the truth of the matter.  The Judge then gave the parties 30 days to address the issue and explain the necessity for confidentiality.

Had it progressed to trial, the case may have presented interesting points on New York’s 3-year demand and refusal rule, replevin and the factual issues of a laches defense.

New York Law Journal (subscription required) 

N.Y. Museums Settle in Claim of Nazi-Looted Picassos (Reuters )

Art Claims in the United States: 10 Years Aftr the Washington Conference


Images:  Above right, Boy Leading a Horse, 1905-1906, Museum of Modern Art, New York.  Above left, Le Moulin de la Galette, circa 1900, Solomon R. Guggenheim Museum, New York.

Helen Levitt, 1913 – 2009

March 30, 2009

 Helen Levitt, known for her photographs of New York life, died on Sunday at the age of 95. She was born in Brooklyn and lived much of her life in Manhattan.  By the early 1930s she had begun working with the media and some of her best known photographs were produced in the late 1930s and 40s.

 Ms. Levitt’s photographs were included in the inaugural exhibition of the Museum of Modern Art’s Photography Department in 1940. The first national retrospective of her photographs was held at the San Francisco Museum of Modern Art in 1991.

Helen Levitt, Who Froze New York Street Life on Film, is Dead at 95

Helen Levitt’s Indelible Eye (NPR, audio + images)

What is Fair Use?

March 27, 2009

Fair use is a defense to copyright (or trademark) infringement.  A person (a defendant in a lawsuit) that takes up this position is admitting, for the purpose of the defense, that he or she did infringe the owner’s copyright, but that such a use constitutes a fair use of the material.  The reason that the use is or may be fair relates to Constitutional free speech rights.  This, however, does not mean that all such uses are a fair use, nor that the assertion of  fair use will always result in a successful defense to infringement.  Rather, to put forth a fair use defense is to assert the issue of speech rights into the argument.  In a lawsuit, the court then decides if  the act constitutes a fair use or not.  This decision is made by the court, the judge, by balancing certain statutory factors.  No single factor is dispositive (theoretically at least).  Generally, the judge will analyze the facts, apply them to each factor, consider which party is favored for each, and then come to a decision by balancing the overall result of the analysis.

 The statutory fair use factors are: 

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

 ~ 17 U.S.C. § 107 Limitations on Exclusive Rights:  Fair Use  (emphasis added).

In turn, these factors are defined by case law that has developed over time.  A few interesting cases to consider for research on the interpretation of the factors are:

Blanch v. Koons, 467 F.3d 244 (2nd Cir. 2006) 

Rogers v. Koons, 960 F.2d 301 (2nd Cir. 1992) 

Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) 

Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) 

American Geophysical Union v. Texaco, 60 F.3d  913 (2nd Cir. 1994) (amended 1994 & 1995) 

Sony v. Universal City Studios, 464 U.S. 417 (1984) 



Fair Use (U.S. Copyright Office) 

Infringement and Fair Use (

Salander Arrest, $88m Art Fraud Alleged

March 27, 2009

 Lawrence Salander of Salander-O’Reilly Galleries was arrested Thursday in New York, charged with stealing $88 million through consignments of artworks at his gallery.  Charges include selling the same artworks to multiple buyers.  Manhattan D.A. Robert Morgenthau has also accused Salander of inflating the value of artworks, enabling him to gain greater investments from victims of the scheme. 

 Mr. Salander is accused of grand larceny, falsifying business records, scheming to defraud, forgery, and perjury.  He has pled not guilty and is currently held on $1m bail.  His passport has also been seized.  The Times article displays an image of a gray hooded Mr. Salander, surrounded by police officers in a New York courtroom.

 26 victims  of the alleged scheme are presently known, but it is unclear as to whether the list will grow as the case progresses.  Tennis legend John McEnroe is listed among them.  According to the Times, Salander-O’Reilly filed for bankruptcy 16 months ago. 

Art Dealer is Charged With Stealing $88 Million (NY Times) 

John McEnroe Duped in Art Scam (Reuters)

Photography is Not Art

March 25, 2009

 The dispute over the Shepard Fairey Obama “Hope” poster has dredged up a slew of self-appointed art and culture commentators.  This includes a vocal minority  that has expressed viewpoints of the retrograde “photography is not art” variety.  For most people with any substantive knowledge of this topic, it is an issue that died in the 1970s – if not earlier.

 By the 1970s, the common “snapshot”  influenced photographic image making, both aesthetically and technically.  Photo-based artists began to examine and  use the familiar process in a conceptual way, and explored such popular media as the Polaroid SX-70 technology as well as low-tech Kodak Instamatic cameras and such.  Early in that period, there were some arguments about this type of photography, and whether such ordinary style imagery was “art” or something lesser.  However, as many Photo I students are aware, the weakness of the argument evaporated over time; photography is an art media.  Regardless of  technique or media, artistic images contain creativity (originality), intention, and decisiveness.

 There is also an older example of the “photography is not art” argument that was largely dispensed with by Burrow-Giles Lithographic v. Sarony in 1884.  This case recognized that photography was not purely mechanical; the process required the choices and decisions of the image maker, and therefore contained “originality” and qualified as copyrightable subject matter.  In the context of copyright, the originality needed is quite small, and the term also refers to the artist as the “origin” of the image.  Alternatively, in the terminology of visual art, originality sometimes means new, unique, or something having a recognizable style.

 Unfortunately, some of the recent dialogue on this issue stems from a fundamental misunderstanding of art, including photography, both in terms of the media and its conceptual position.  The efforts to redefine photography as not being “art,” is to attempt to categorize it as lacking creativity and having a lesser cultural importance.  The attack on photography as not art also misunderstands or ignores the nature of art/image creation and the significance of the artist or image maker in that process.  It recalls the pre-1884 position of the camera as an automatic image machine, and perhaps suggests another equal dispute over whether digital works can be art.  Paint brush or pencil, camera or computer; these are all tools of the artist.  And sometimes, deliberate non-intention is intentional.  That is the nature of art.

 The heart of the current anti-creativity dialogue seems to be trading on the issues of art for that of copyright.  That is, the attacks on originality are essentially aimed at the art aspect, or creative/value aspects of the photograph.  When a photograph is not art, it is essentially being defined as non-creative.  Something that is non-creative, or totally lacking in originality, would theoretically be ineligible for copyright protection.  This non-creative imaging might, perhaps, include something like a medical x-ray.  By attacking a (regular) photograph as non-creative, the proponents of this perspective are making a results-based argument.  There is a desire that the photograph not be art, and hence, not creative (original), and therefore uncopyrightable. 

 In a statement that revisits the 19th century notion that the photographic process is without  originality and is not  art, Luc Sante, in an interview with the Times has described the type of photographic image taken by Mannie Garcia for the Associated Press as one that may have been created “by a child or robot or chimpanzee.”  That is, one which does not include sufficient intention, creativity, choice, or significant participation to qualify as art.   He associates photographs of this sort with “luck,” AKA, a random occurrence or accident.  (One can only wonder what he thinks about action painting). The denigration of Garcia’s intent, creative decisions, observation and participation is a peculiar position for anyone possessing a credible knowledge of the media.  Despite Sante’s opinion, Garcia’s photograph certainly must contain something original as Shepard Fairey was sufficiently struck by it to select it after sorting through hundreds of images, as he apparently had.

 One voice of  knowledge and expertise quoted in the same Times article belongs to Anne Tucker, a recognized expert and a highly respected curator of photography at the Museum of Fine Arts Houston.   She was apparently interviewed because the museum purchased both the AP/Garcia photograph and a copy of Fairey’s “Hope” poster for its collection.  Ms. Tucker stated that she “strongly disagreed with attributing Mr. Garcia’s success to dumb luck”  and provided a succinct metaphor as well,  “[w]hen Willie Mays was exactly in the outfield where the ball came down, that was not an accident.”  Well stated.

 Mannie Garcia does not refer to himself an artist, according to the Times, however he says that there is a distinction between taking a photograph, which alludes to an automatic or mechanical process, and making a photograph, which infers creativity and intention.  He says, “I could put that [camera] on all programmed settings and automatic — that’s ‘taking a picture.’” However, this also illustrates a distinction between Mr. Garcia’s perspective and that of a person using the photographic medium from an unambiguous art-based position.  An artist, or anyone for that matter, may use the automatic camera settings to create an intentional image–an image that includes originality. The active involvement of a human being with a camera is simply a different level than that of an x-ray technician pushing a button.  For his job, Mr. Garcia is trying to create a specific aesthetic and the use of manual settings is often necessary for that goal.  Also, it should be pointed out that despite Mr. Garcia’s assertions, even if he were to use automatic settings, the image that would result from his intention would still be copyrightable–simply based on his decisions and participation in the process.

 Regardless, the Times’ author takes the position that accident or luck is at the core of photographic image making and that premedition is a critical aspect of art or originality.  To support his position, Noam Cohen states that both Alberto Korda (creator of a famous Che Guevara photograph) and Garcia were “covering something else” at some type of larger public event.  This is a weak argument for discounting the photographer’s involvement in creating an image.  The act of observing the details within a larger scene are well within the traditions of photography and art in general.  Cohen infers that the images of Guevara and Obama resulted by chance and this is an indicator of the lack of creativity (originality) on the part of the image maker.  Chance, it should be noted is not the same as accident or luck, rather it is more like opportunity. One can choose to take it or not.  The image maker decides to push the shutter release at a particular time––something in that person’s consciousness caused him or her to take that action.  Without the action, the image wouldn’t exist; it originates with the person.  Cohen also says “Only later did the photograph capture the public imagination, reworked by artists to reach its ubiquitous status.”  (Emphasis added).  However, this argument dismisses the integrity of the image–the photograph itself–outside of the context of public dissemination.  It also does not account for images that “capture the public imagination” somewhat after the fact.

 These types of arguments have primarily arisen out of the hoopla surrounding the Fairey v. AP lawsuit and sometimes, as in much of the article reviewed here, fail to provide a supportable analysis of both the art and legal issues.  Regardless, there appears to be a multi-fronted attempt  to disparage Garcia’s photograph as unoriginal.  In a similar angle, Lawrence Lessig and his group have solicited information on photographs similar to Garcia’s in an apparent attempt to undermine the originality of the image as well.  The goal is apparently to dispute its eligibility for copyright protection, even though this does not appear to be an issue in the suit itself.  The project seems to be either a misunderstanding of copyright, or a misguided attempt to alter the copyright definition, rather than an effort to expand fair-use.  Regardless, tactics that make a weak point by bashing photographs as not art are not only pathetic, but fundamentally incorrect as well.  A well-reasoned argument for expanded fair use would be much more beneficial.


Read the full Times article here.


More on this Topic:

Shepard Fairey on Fair Use:  the Rachel Maddow Interview 

A Fair Use Battle Intensifies 

Obama Icon Takes on the Copyright Ac



Integrity Lost: Lawrence Lessig helps Shepard Fairey