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  

Trademarks in a Copyrightable Work: TM Owner Shuts Down Museum Exhibit

Museum Exhibits of Sculptures Made From Louis Vuitton Fakes Shut Down

Sculptures of locusts removed from a museum in Japan after the designer complained, HT Techdirt, stories here and here.

Making fine art from materials in which trademarks appear is a common problem.  These locust sculptures were said by the artist to comment on the relationship between authenticity and imitation.

Does an artist need to purchase REAL Louis Vuitton to make a statement about how fake Louis Vuitton is?How is displaying something in a museum perceived to be a commercial endorsement by Louis Vuitton?

Sculptural works are protected by copyright law.  17 USC 102 a 5

§ 102. Subject matter of copyright: In general

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.


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Fair Use Fridays: Statue of Liberty in Public Domain

Fair use Friday photo of yours truly by NY real estate guru Paolo Zampolli.  Good example of photographing a public domain sculpture (the copyright expired) and a U.S. government work - the U.S. flag (not subject to copyright).   Despite Paolo's best efforts and the tour of New York Harbor on his luxury speedboat, I did not purchase the Statue of Liberty, despite the excellent price Paolo offered. :-)

Italicized text and images below from http://www.loc.gov/wiseguide/oct04/statue.html

Designed and executed by French sculptor Frederic Auguste Bartholdi, the Statue of Liberty was presented by the people of France to the people of America to honor the friendship between the two nations. The statue's significance has broadened over the years, and it is now recognized throughout the world as a symbol of liberty and freedom. Erected on Bedloe's Island in New York Harbor and dedicated on Oct. 28, 1886, the statue has stirred the emotions of millions.

On Aug. 31, 1876, the Copyright Office issued copyright registration number 9939-G for the "Statue of American Independence" as the Statue of Liberty was first named. The copyright claim was filed in America's centennial year, a decade before the statue was erected in New York Harbor. Deposited with the application in the Copyright Office were two rare images. The first is a photograph of the artist's final study model, believed to be executed in terra cotta. The second image is an artistic rendering of how the statue would appear against the New York skyline after it was finally erected on the pedestal designed by architect Richard M. Hunt. This second image has great significance because it shows a very early version of the statue that most people would not recognize. In the original design, the Statue of Liberty is shown holding in her left hand a broken chain and shackle, which represent freedom newly achieved. Bartholdi later made a major change to his design by placing the chain and shackle, symbolically broken by Liberty, at her feet. He then positioned the familiar tablet, inscribed "July IV, MDCCLXXVI" (July 4, 1776), in her left hand.

In 1984, curators working on the Copyright Office exhibition "By Securing to Authors: Copyright, Commerce and Creativity in America" came across this copyright with rare attached documentation. The historic images described above are on permanent display in the exhibit on the fourth floor of the Madison Building (Monday - Friday, 8:30 a.m. to 5 p.m.), along with documentation for the copyright on the pedestal.


Many images and renderings of the Statue of Liberty, including some that reveal interesting details of this symbol of American freedom, are in the Prints and Photographs Online Catalog. Just type "Statue of Liberty" in the search box. The Historic American Buildings Survey has also documented this work extensively. These images are in the American Memory collection "Built in America." Type "Statue of Liberty Liberty Island" in the search box. The 230 black-and-white photos are older images; the 51 color transparencies offer extraordinary views of the statue during its most recent restoration.


Since the copyright registration and deposit system was centralized in the Library of Congress in 1870, more than 30 million creative works have been registered for copyright protection.



 Purchase Copyright Litigation Handbook from West here  

9th Circuit: Toys Not Useful and Thus Copyrightable - Spirited Dissent

Is a toy that has handles on it and shoots things with rubber band mechanisms a "useful article" and thus not copyrightable?  A divided Ninth Circut confirmed a finding of copyrightability over a spirited dissent in  Lanard Toys Ltd v Novelty Inc, 2010 WL 1452527 (April 13, 2010).

At issue was Chinese knockoffs of popular American toys.   Toys are copyrightable as "pictorial, graphic or sculptural works" 17 USC 101.  But is a toy helicopter "useful" when it depicts something useful?  The majority cited a long line of decisions protecting frivolous things like clown noses and toy objects which have no use other than to depict a useful object (but not be used for anything but to play with).

So "Shoot Copter" "Drop Copter" and the "Pull-N-Launch Play Set" that obviously copied the features of other toys were infringing articles within the meaning of the Copyright Act.

Growing up in a large family, my siblings and I always found toys that we could use to zap each other quite useful, perhaps not the use intended by the manufacturer.

It seems anomalous that the poor inventor who made the real thing gets only twenty years of protection, but the clown who made the silly imitative toy gets life plus forever protection for his "original work of authorship".   Query whether such protection promotes the purposes of the Copyright Act.

Sculpture, History, Copyright Infringement and Fair Use of the Korean War Veteran's Memorial

In Gaylord v. United States, February 25, 2010, the U.S. Court of Appeals for the Federal Circuit upheld a sculptor's right to sue the U.S. government for copyright infringement for unauthorized use of the sculptures on a postage stamp.  The Federal Circuit reversed a decision of the Federal Court of Claims that found that the U.S. government use of Gaylord's sculptures that were made for the Korean War Veteran's Memorial were "fair use".   You can visit the decision here and I recommend that you do so even if just to view the images appearing in the court's opinion.   The Court inserted the images in the body of the text of the opinion in color.  Despite the low image quality, inclusion of the images really gives the reader an opportunity to compare the images and really see what the court is talking about, which is a terrific development in technology and an outgrowth of federal courts going digital.  It is annoying to read a 20-page decision comparing images that one can't see, and we can hope that those days will soon be past.

The Gaylord case involves the United States licensing a photograph of a sculpture to use the photograph on a postage stamp.   Although the photograph was properly registered as a derivative work of Gaylord's sculpture, the U.S.P.S. neglected to license the right to use the underlying sculpture itself.

So the photographer got paid $1,500 for the photograph of the Memorial (snowy scene, great camera angle).

The Federal Circuit conducted a fair use analysis that I found problematic, and concluded that the U.S. government's use of the underlying sculptural work was not fair.

While I support a sculptor's right to commercialize his images, stopping the U.S.P.S. from issuing a stamp featuring the Korean War Veteran's Memorial without paying the sculptor again - or each time - gives the sculptor a monopoly on a work that he has made an icon of a tragic historical moment at taxpayer expense. U.S. government works of this type should be in the public domain, and the government contracting process should be fixed to ensure that taxpayers don't get soaked every time the government wishes to publish or sell images of a property like a monument symbolizing the war dead.  The sculptor dotted his copyright ps and qs, but as a matter of public policy, any of us should be able to go to any public park, take photographs and sell images of what we see, at least permanent installations.   I would thin the copyright out further to subtract all non-copyrightable elements:  government-issue ponchos, helmets, etc., apply the scenes-a-fair doctrine (there are only so many ways to depict the Korean War Veteran's Memorial).

It was not smart to commission a monument that is not a work-for-hire, or at least that permitted the government a non-exclusive license.  But the Federal Circuit didn't get the "purpose" of the work right.  If a Korean Vet's group wanted to print t-shirts with an image of the Memorial for their friends, loved ones, fundraising purposes, etc., I'd say those are all fair uses, too.  The image is of the Memorial, not the sculptures.

I have a problem, too, with giving an AP photographer a monopoly over a Presidential candidate's image -- it is too uncomfortably close to handing out a monopoly on historical facts.

Fifth Circuit on Corporate Logos, First Amendment, VARA and Copyright, Utilitarian Objects and Ralph the Cactus Planter

http://www.austinchronicle.com/

In Kleinman v. City of San Marcos, --- F.3d ----, 2010 WL 447894 (5th Cir. 2010 Feb. 10, 2010), the Fifth Circuit decided the question of whether Ralph the Cactus Planter, a junked Oldsmobile '88 filled with dirt, planted with cactus and covered with paintings by artists commissioned to include the message "make love not war" was protected by the First Amendment or a work covered by the Visual Artists Rights Act ("VARA").

The Fifth Circuit looked to the Second Circuit's analysis in Bery v. Bery, 97 F.3d 689 (2d Cir. 1996) and adopted Bery's distinction between works of fine art and works of decorative art.   The court found the Junked Vehicle statute to survive intermediate scrutiny under a First Amendment analysis. 

The court found that VARA did not apply, since Ralph was a distinctive corporate symbol of the Planet K business (novelty shops).  VARA excludes "any merchandising item or advertising, promotional, descriptive, covering, packaging material or container."    The court upheld the district court's finding that Ralph was "promotional material" and thus VARA did not apply.

In the court's words:

Irrespective of the intentions of its creators or Planet K's owner, the car-planter is a utilitarian device, an advertisement, and ultimately a “junked vehicle.” These qualities objectively dominate any expressive component of its exterior painting. Appellants concede that the car falls within the definition of the San Marcos ordinance. Moreover, the Eighth Circuit, confronted before Hurley with a wrecked auto that was displayed streetside to remind the public how the owner's son had been killed, had no difficulty finding that the auto's removal under a junked-vehicle ordinance survived intermediate scrutiny. Davis v. Norman, 555 F.2d 189 (8th Cir.1977). When the “expressive” component of an object, considered objectively in light of its function and utility, is at best secondary, the public display of the object is conduct subject to reasonable state regulation. We therefore pretermit “recourse to principles of aesthetics.”

The decision is problematic for artists and lacking in copyright analysis.   A chassis of an car that has been almost completely transformed is not at all a "utilitarian object".

Marcel Duchamp Fountain, 1917 photo Alfred Steiglitz

(courtesy Wikipedia).

The artwork would appear to be a sculptural work and have sufficient copyrightable elements to be protected as such under federal law.  Two painters were commissioned to paint the work.  The court's VARA analysis seems problematic, compare the First Circuit's thoughtful analysis in Buchel v. Mass MoCA, discussed here.   Query also how narrowly tailored the junk vehicle statute really is.

Why put a fence around Ralph?  Can the state really put a fence around every art installation that contains part of an old car?

Visual Artists Rights Act: Artist Moral Rights in Unfinished Sculptural Works

In Massachusetts Museum of Contemporary Art Foundation v. Buchel, --- F.3d ---, 2010 WL 297834 (1st. Cir. January 27, 2010), the First Circuit decided a case of first impression that decided a number of complex issues related to the Visual Artists Rights Act ("VARA").

I first wrote about the case here (Visual Artists Rights Act - Right to Display Works That Do Not Yet Exist - December 16, 2007).  The case involved a Swiss installation artist, Christoph Buechel (The "u" in Buechel has an umlaut, but Blogger, unless I am missing something, does not), who, without a clear written agreement, agreed with the Mass Moca to install one of his works.   It was agreed that Mass Moca would pay, and that Buechel would own the copy.

Buechel's installations have been likened to "bristling three-dimensional history paintings" yet are "so obsessively detailed that they might be described as panoramic collage" (full size images here).

The District Court denied Buechel injunctive relief and granted summary judgment against him.   The fact pattern was a law professor's delight:  during the installation, Mass Moca's staff (being directed by emails from Switzerland, allegedly made aesthetic decisions against the artist's will, made "compromises" he did not agree to, covered the work in tarps (allegedly inviting sneek peeks) and held an exhibition next door, which purportedly was orchestrated to subject the artist to ridicule (a local paper referred to the art as "Crap under Wrap").

A few takeaways from a decision that reads like a Peter Greenaway film watches:

1.  artists have rights in unfinished works;
2.  installations are sculptural works;
3. unfinished works are sufficiently "fixed" to be copyrightable subject matter;
4.  if you are going to allege joint authorship (as Mass Moca did, you have to specifically allege your copyrightable contribution);
5.  if you are a museum, get VARA waivers in advance or a clear understanding in writing of who pays for what and what happens if things go wrong;
6.  VARA's moral rights include "attribution" and "integrity";
7. no statutory damages for violations of an artist's right of attribution;
8.   VARA does not include a right of "divulgation" (which sounds a lot like the "display" or "distribution" rights under the Copyright Act;
9.   If you are going to argue that someone violated your rights to prepare a derivative work, if you do not develop the argument on appeal, the court may find that you waived it;
10.  Even if VARA doesn't help you, go back to Section 106 and find another traditional copyright that's been violated and allege it.

Here is the court's summary of its own holdings:
1. VARA's protection of an artist's moral rights extends to unfinished creations that are “works of art” within the meaning of the Copyright Act;

2. The right of integrity under VARA protects artists from distortions, mutilations or modifications of their works that are prejudicial to their reputation or honor, and prejudice must be shown for both injunctive relief and damages;

3. Büchel has adduced sufficient evidence to raise a genuine issue of material fact as to whether MASS MoCA violated his right of integrity on one of his three asserted bases for liability, namely, by modifying “Training Ground” over his objections in a manner that harmed his honor or reputation. His right-of-integrity claims based on the yellow tarpaulins and the mere display of “Training Ground” lack merit;
4. Büchel's right-of-attribution claim is moot, as VARA provides only injunctive relief to protect the right of attribution and the installation no longer exists;

5. The record reveals a genuine issue of material fact as to whether MASS MoCA violated Büchel's exclusive right under section 106(5) of the Copyright Act to display his work publicly;

6. Büchel fails to adequately develop his claim that MASS MoCA violated his exclusive right under section 106(2) to prepare derivative works based on “Training Ground,” and that claim is therefore waived.

We thus remand the case for further proceedings on Büchel's remaining right-of-integrity claim under VARA and his public display claim under section 106 of the Copyright Act.

Although this has been billed as a victory for artist's rights, it showcases some of VARA's weaknesses (no $$$ for the artist if a right to attribution is violated).   It also means that every museum counsel in the country, if not the world, will be trying to force artists to sign away rights as a condition of display.

Again, a decision and a fact pattern worth reading and savoring, but a decision that seems to be unfortunate for Mass Moca, an institution that seemed to be trying to support the avant-garde in an idealistic and trusting, if perhaps misguided manner.
A scaled-down version of the installation was exhibited at Art Basel in Miami Beach in 2007 and sold.

Motion to Stay Imposition of Attorneys Fees Under the Copyright Act

I last wrote on the Renoir/Guino case decided by the Ninth Circuit creating perpetually unpublished works here. The defendants are now back in district court disagreeing with the Ninth Circuit's finding that the copyright is valid and pointing out that the Register of Copyrights might not have registered the work if she had been provided with accurate information on publication in the registration certificate.

In Societe Civile Succession Richard Guino v. Beseder Inc., 2009 WL 2497447 (D. Ariz. Aug. 13, 2009), the defendant made a motion to stay the determination of attorneys fees until the Court first inquired "whether the Register of Copyrights would have refused to copyright the works at issue if [she] had known of inaccurate information regarding the first date of publication contained in the copyright application pursuant to 17 U.S.C. Section 411."

A motion to stay is a last-ditch desperation shot. The district court shot it down.

Since I tend to root for the underdog, I have to point out that the district court's reasoning is flawed. In rejecting the motion, the district court reasoned that a finding of a "valid copyright" leads to an award of attorneys fees, and that if the Register said she wouldn't register, that would create an "irreconcilable conflict." The district court reasoned that this was a question "previously decided".

But just because a copyright is valid does not mean that attorneys fees are available for infringements. A failure to register disentitles a copyright plaintiff to attorneys fees and statutory damages.

You can have a valid copyright and no registration. And a valid copyright and no attorneys fees. Happens every day, as I advise many potential clients who have failed to register their copyrights.

If a copyright owner fails to register properly and promptly, statutory damages and attorneys fees are not available against an infringer.

Section 412 of the Copyright Act provides that registration is a prerequisite for statutory damages and attorneys and gives the particulars.

Statutory damages and attorneys fees are governed by Sections 504 and 505 of the Copyright Act.

If indeed the plaintiff made misrepresentations in obtaining a copyright registration, the defendants ought to read Fogerty v. Fantasy and its progeny and develop more nuanced arguments against an award of attorneys fees. In my Copyright Litigation Handbook I note the surprisingly unsettled area of law that is attorneys fees under the Copyright Act. There is much room for advocacy, the Circuits don't agree, and in a case that Prof. Patry called a "brain teaser," the defendants should not be tagged for full attorneys fees on litigating an unsettled or novel area of law if there was some degree of bad faith by plaintiff in registration.

But on the losing end of a case and getting whacked for attorneys fees, the adrenal glands have worked overtime, are blown out and it is tough to put in the time necessary to protect yourself. At the end of a hard-fought litigation, courts may be sympathetic to a party that really believed in its case. This is particularly true when your adversary is wealthier or has allowed himself to gloat. There are very serious cases declining to award attorneys fees, so a non-victorious party ought to marshal every factor possible to persuade a court to exercise its wide discretion in that party's favor.

Renoir Self-Portrait above.

Puerto Rican Frog Doll Knock-Offs: Interlocutory Appeal of Preliminary Injunction

In Coquico, Inc. v. Rodriguez-Miranda, 2009 WL 903954 (1st Cir. April 6, 2009) , the First Circuit Court of Appeals tackled in a copyright infringement action the important issue of whether a preliminary injunction stopping the distribution of stuffed plush dolls depicting the coqui comun - a common brown frog in Puerto Rico - should be upheld.   [A coqui is a frog (anuran) - this is not to be confused with the Puerto-Rican coquito, my favorite Christmas cocktail made from fresh coconuts].

When attorneys are asked to discuss the difference between the federal and state forums in New York, the availability of interlocutory appeals is usually cited as a difference.  An "interlocutory" appeal is one brought prior to the conclusion of the litigation (final judgment).  In litigation practice in the courts of New York State, many of the trial court's interlocutory rulings may be appealed to the Appellate Division.   In federal practice, appeals ordinarily lie only from final judgments.  28 U.S.C. 1291. That means if a U.S. District Court judge makes a series of adverse rulings, one may be forced to try an entire case before appealing any particular adverse ruling.

But certain interlocutory appeals are permitted.  For example, Rule 23(f) of the Federal Rules of Civil Procedure permits federal courts of appeals to consider interlocutory orders granting or denying class action certifications.   28 U.S.C. 1292(a)(1) authorizes interlocutory appeals from grants, continuances, modifications, refusals or dissolving injunctions, or refusals to dissolve or modify injunctions.

In Coquico, the First Circuit reviewed the decision from the District Court of Puerto Rico granting a preliminary injunction against a producer of stuffed frogs that produced coqui comun frogs substantially similar to those of Coquico's copyrighted frogs.   The defendant argued that since the coqui comun is found in nature, the only "original" elements were a brass ring, a Puerto-Rican flag on the coqui's underbelly, and a hang tag.   The defendant relied on the merger and scenes-a-fair doctrines.

The First Circuit rejected the defendant's arguments.  It found that the following element were protected:  1. distinctive stitching pattern; 2. idiosyncratic color combination; 3. pose; 4. placement of Puerto Rican flag on underbelly; 5. dimensions (combined with other elements).

The court was persuaded by the plethora of plush frogs produced by plaintiff.   The poor defendant did not even get its frog nature photos into evidence to support its claims that its coqui comun was just art imitating nature.

Renoir-Guino: Interminable Foreign Copyrights

A series of sculptures was created and published by Pierre-Auguste Renoir in 1917 in France. Renoir died in 1919. The sculptures were published without a copyright notice. Guino died in 1973. In 1973 (56 years later) Guino (or his estate) obtained a determination in a French court that he was co-author of the sculptures, and was awarded a one-half interest in the sculptures.

In 1984, a company representing the joint interest of certain Renoir family members and the Guino family ("Societe Civile Succession Richard Guino") obtained US copyright registrations based on a claim that the sculptures were unpublished or first published in 1983.

In 2003, Jean-Emmanual Renoir, a great grandson of Renoir, sold "some of the sculptures, or molds or castings thereof" to a gallerist in Scottsdale, Arizona.

The Societe Civile Richard Guino sued Renoir's great-grandson for copyright infringement. Since works published prior to 1923 are all in the public domain, how could this possibly happen?

The Ninth Circuit took a case called "Twin Books" involving publication of the story of Bambi in Germany in 1923 without notice and again in 1926 with notice. The Ninth Circuit made a number of extrapolations from the Twin Books case. I won't go through the reasoning which involves the interplay of the 1909 Copyright Act, the 1976 Copyright Act and the Copyright Restoration Act, but suffice it to say that the Ninth Circuit's rule is that if an ancient Greek vase is discovered tomorrow, its copyright term would be the "finite term of seventy years after the death of the last author [under sections 303(a) and 302(a) and (b)] or December 21, 2047 whichever is later."

The case appears to hold that any foreign publication of a work without copyright notice is to be treated as if the work was not published.

The case is Societe Civile Succession Richard Guino v. Renoir, -- F.3d ---, 2008 WL 5142844 (9th Cir. December 8, 2008). Poor great-grandson Renoir and the gallerist to whom he sold the works also lost Lanham Act claims for false advertising. Rebecca Tushnet's here, and Michael Atkins here. William Patry, who calls the case a "brain-teaser" here. Renoir-Guino photos found here.