A New Form of 3D Copying: Sculptures From Scans Using Microsoft Kinect

Thanks to BoingBoing video showing use of Microsoft Kinect as a 3d scanner to sculpt portraits.

 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

4th Circuit: Fine Art Paintings from Photographs and Actual Damages For Copyright Infringement

In Hofmann v. O'Brien, 2010 WL 675006 (4th Cir. Feb 26, 2010), the Court of Appeals for the Fourth Circuit considered the following fact scenario following a jury trial:

1. Plaintiff Douglas Hofmann is a fine art painter who works from photographs.  Hofman staged numerous photographs involving ballet dancers.   He intended to paint fine art works from the photographs.   A low res example of Hofman's work from his website.

Douglas Hofmann Master Class

2.   John O'Brien is a deceased fine art painter.  During his lifetime he took one of Hofmann's photographs without Hofmann's permission and created a painting from the photograph that was essentially a copy.   His widow, Mary O'Brien posted an image of O'Brien's painting on his website and offered prints for sale.  An example of O'Brien's work:

John O'Brien Her First Ballet

3.   A trial was held.  The jury awarded $201,550 in actual damages based on claims of conversion and copyright infringement.   Hofmann's out of pocket costs to create the photograph were $1,550.

The main issue before the court was whether the jury instructions on damages were correct and whether the jury's damage award was supported by the evidence.   Since the photograph was presumably not registred timely, Hofmann was forced to prove "actual damages" under Section 504(b) of the Copyright Act.  Section 504(b) states:

(b) Actual Damages and Profits. — The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

The Fourth Circuit found that the artist had not proved actual damages sufficient to support the jury's award and reversed for remittitur or trial.   

Cases throwing out testimony relating to actual damages of a copyright are legion and proof of actual damages is notoriously difficult.    As the Fourth Circuit cautions "General claims of 'hurt feelings' or an owner's 'personal objections to the manipulation of his artwork' must not enter into the calculus'

[quoting Mackie v. Reiser, 296 F.3d 909, 917 (9th Cir. 2002)].

The decision doesn't tell us whether the widow knew that the work was infringing - a widow is not generally the best defendant, no matter what the merits of your case are.

This case reinforces the importance for artists of promptly registering copyrights with the Copyright Office so that they may be entitled to statutory damages and attorneys fees.    I discuss these issues further in Copyright Litigation Handbook - Chapter 15 - Evidence and Experts); Chapter 16 - Jury Instructions; Chapter 17 - Damages and Profits; and Chapter 18 - Costs and Attorneys Fees.

Birth of the Virtual Gallery? ArtWeLove.com at Pulse Art Fair

Founder by Quentin Curry

Ran into Laurence Lafforgue, founder of Artwelove.com at their booth at the Pulse Art Fair on the occasion of their launch of Shop.artwelove.com.   Laurence works with the rising stars of the art world to make their works available to fans through affordable, limited edition prints that can be purchased over the internet.  The prints arrived unframed, but the site provides framing suggestions from the artists, together with a three-minute video interviewing the artist about the particular artwork.

The interview with Quentin Curry is found here.

The prints start at $50 and are selling like hotcakes - so whether you buy as an investor, an art lover or both, check them out.

From AWL's FAQ page:

What is a limited edition?


An edition is a limited run of a particular piece of artwork. Once an edition is closed, the print cannot be reproduced, ever. ArtWeLove works directly with artists to offer editions for sale solely on Shop.ArtWeLove.

How unique is my limited edition piece?

Your piece is one of a limited run specifically created with the artist, and approved in sizes and print types by the artist. No additional prints will be made of this unique work -- and it is only available through Shop.ArtWeLove.com. Each print comes with a certificate of authenticity which is numbered and signed by the artist.

How do I know these prints are authentic fine art works?

All of our projects are developed under the artist's direct supervision. Each print is paired with a certificate of authenticity, signed by the artist, and is individually numbered. All our prints are created using some of the finest archival pigment inks available, and they are printed on high quality fine art or photo-base paper. For prints in particular, we use a “Giclee” printing process, which provides better color accuracy than other means of reproduction. Giclee printing is an industry accepted standard for fine art reproduction, used throughout museums and galleries; they can be worth thousands of dollars. Numerous examples of Giclee prints can be found in New York City at the Metropolitan Museum, the Museum of Modern Art, and in Chelsea galleries. Some auctions of Giclee prints have fetched $10,800 for Annie Leibovitz, $9,600 for Chuck Close, and $22,800 for Wolfgang Tillmans (April 23/24 2004, Photographs, New York, Phillips de Pury & Company).