May an Employer Prohibit Employees From Taking Pictures at the Workplace?

June 26, 2014 · by ·

3160087487_f6f1d71777_zIn a recent National Labor Relations Board (NLRB) case, Professional Electrical Contractors of Connecticut, Inc., 34-CA-071532, Administrative Law Judge (ALJ) Raymond P. Green found that some rules contained in the employee handbook, which prohibited employees from disclosing their location to third parties and from taking photographs or making recordings at their workplace, violated Section 8(a)(1) of the National Labor Relations Act (NLRA).

This section prohibits an employer to interfere with protected, concerted activity (PCA) as defined by Section 7 of the NLRA, that is, the exercise of employees’ rights “to self-organiz[e], to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

In this case, employer was an electrical company and its employees spent most of their working days at clients’ sites. Employer argued that these rules aimed at protecting the privacy of its clients and testified that clients often prohibited pictures from being taken on their property without authorization.

No Disclosure of Location and Customer Telephone Number of Customer Assignment to Third Parties

The employee handbook stated that employees were forbidden to disclose the location and telephone number of their customer assignment to outsiders. It also stated that “[v]iolation of customer confidentiality may lead to discipline up to and including termination.” Maintaining such confidentiality prevented, according to the employee handbook, employees to “disclose customers’ information to outsiders, including other customers or third parties and members of one’s own family.”

The General Counsel argued that such prohibition could be interpreted by employees as barring Section 7 activities. Employer was arguing that the rule aimed at protecting customers’ confidentiality, as its employees spend most of their working hours at customer sites and thus may have access to information which must be protected.

ALJ Green found that the rule prohibiting to disclose a customer’s location was too broad and violated Section 7 of the NLRA. However, prohibiting disclosing a customer’s phone number did not violate the NLRA.  ALJ Green noted that all employees had personal or professional cell phones and thus there was no need to disclose a customer’s phone number.

Information Technology Policy

The employee handbook also prohibited employees from sending communications or posting information, on or off duty, and to use personal computers in a way which may adversely affect their employer’s business interests or reputation.

ALJ Green found this rule invalid as too broad because it did not merely relate to employees communications made using computers owned by the employer, but also to communications made by employees using their personal computer.

Prohibiting Employees to Take Photographs or to Make Recordings at Their Workplace

The employee handbook also prohibited employees from taking photographs or making recordings at the workplace without prior authorization.

The General Counsel contended that this rule may reasonably be construed as prohibiting employees from photographing or recording Section 7 activities such as picketing or employee communications used in social media. The employer testified that the rule aimed at protecting customers ‘confidentiality and privacy.

ALJ Green cited a recent NLRB case, The Boeing Company case, 19-CA-90932 (May 15, 2014), where an ALJ found that a Boeing rule which prohibited employees to use personal camera-enabled violated Section 8(a)(1) of the NLRA. The Boeing rule allowed employees to carry camera-enabled devices on all company properties and locations “except as restricted by government regulation, contract requirements or by increased local security requirements,” but using these devices to take pictures or to tape a video was prohibited without authorization.

Boeing had argued that the rule was meant to protect the confidentiality of the manufacturing process. However, the ALJ was not convinced, noting that the areas designated as being camera-enabled devices-free were areas included VIP-tours of the plant, and such visitors were allowed to take pictures during the tours. The ALJ noted that “[Boeing]’s manufacturing process is no more in need of protection than an automobile assembly line.” The ALJ distinguished the facts in Boeing from the facts in the Flagstaff Medical Center case, where employers had forbidden employees to take pictures in order to protect hospital patients’ privacy. The ALJ concluded that Boeing’s no camera-enabled devices rule “reasonably discourages its employees from taking photos of protected concerted activities.”

In the Professional Electrical Contractors of Connecticut case, ALJ Green concluded that the rule prohibiting employees from taking photographs and videos at the workplace violated Section 8(a)(1) of the NLRA, and ordered the employee to rescind the language of its rules. This case is a reminder that, while a social media policy may contain language prohibiting employees from taking pictures in the workplace, the language of the policy must clearly indicate that the purpose of the rule is to protect the privacy of the third party whose photograph is taken.

Image is Taking pictures courtesy of Flickr user Greg Habermann under a CC BY 2.0 license

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Filed Under: Social Media Law · Tagged: , , ,

LinkedIn Class Action Suit to Proceed: Emails May Violate California Right to Publicity

June 18, 2014 · by ·

1609874001_8c19b62060_zOn June 12, 2014, Judge Lucy H. Koh from the U.S. District Court for the Northern District of California (San Jose) granted in part and dismissed in part Defendant LinkedIn‘s motion to dismiss in the Perkins v. LinkedIn Corp. case, 13-cv-04303.

Plaintiffs in this case are seeking to represent a class of LinkedIn users who used an email address when signing up for a LinkedIn account. Well, that would be all LinkedIn users, as you need an email address to sign up for the site. They brought a putative class action suit last September against the social media site, alleging it had harvested their email addresses during the sign-up process.

During that process, new users are given the option to allow LinkedIn to search their email contact list for individuals who are not already on LinkedIn. They are given next the option to choose whether or not to invite their contacts to connect with them on LinkedIn. If they do, the site sends an invitation to connect. These messages “come from the user’s name via LinkedIn and contain the following text: “I’d like to add you to my professional network… This text is followed by a signature line that contains the LinkedIn user’s name.” Two more messages are sent if the contact does not sign up. Plaintiffs refer to these messages as “endorsement emails,” because they are made to look, according to Plaintiffs, as if they have been sent by the user and as if the user endorses LinkedIn.

Plaintiffs alleged, inter alia, violation of California’s common law of publicity, of the federal Stored Communication Act (SCA) and of the federal Wiretap Act. Defendant moved to dismiss, claiming that consent was a defense to all of Plaintiffs’ causes of action and also because Plaintiffs had no Article III standing to claim a violation of their right to publicity, as they had failed to allege adequate injury.

Plaintiffs Have Standing  

In a class action, plaintiffs representing the class must show that they have been personally injured. It is not enough that unidentified members of the class have suffered an injury. LinkedIn argued that Plaintiffs had suffered no economic harm. Indeed, while California’s right of publicity protects everybody, not just celebrities, people who are not famous may have a difficult time proving that they have suffered harm because it is more difficult to prove that their names and/or likenesses have a commercial value.

Judge Koh found that Plaintiffs had standing under California’s right of publicity, as they had suffered sufficient injury to satisfy the “case or controversy” requirement of Article III of the Constitution and cited the Fraley v. Facebook case. In Fraley, the Northern District of California had found that plaintiffs, a class of Facebook users, had standing to claim that the social media sites had used their names and likenesses for marketing purposes, when they appeared on Facebook’s “Sponsored Stories” online advertisements. The Fraley Court found that plaintiffs had presented a coherent theory about how they had been injured by such practice, because Facebook profited financially from its users’ apparent endorsement of products and services to their friends. The Fraley Court reasoned that, as ads containing endorsement have more financial value, Facebook had gained more advertising revenue from that practice, and found that “Facebook had been unlawfully profiting from the nonconsensual exploitation of Plaintiffs’ statutory right of publicity” and plaintiffs and successfully identified a linear relationship between the value of their endorsement and additional advertising profit for Facebook.

In Perkins, Judge Koh noted that “using an individual’s name for personalized marketing purposes… is precisely the type of harm that California’s common law right of publicity is geared toward preventing” and concluded that “individuals’ names have economic value where those names are used to endorse or advertise a product to the individuals’ friends and contacts.”

SCA and Wiretap Act Claims Were Dismissed

Judge Koh dismissed both the SCA and the Wiretap Act claims.

The SCA, 18 U.S.C. § 2701 (a) makes it a crime to “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility.” In Theofel v. Farey-Jones, the Ninth Circuit interpreted what is an unauthorized access under the SCA by comparing the SCA with the common law of trespass: [l]ike the tort of trespass, the Stored Communications Act protects individuals’ privacy and proprietary interests. ” For the Ninth Circuit, “[a] defendant is not liable for trespass if the plaintiff authorized his entry,” but consent is not effectively given if the defendant knew, or should have reasonably known “that the plaintiff was mistaken as to the nature and quality of the invasion intended.”

The Wiretap Act, Title III of the Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which has been amended by the Electronic Communications Privacy Act of 1986, prohibits the interception and disclosure of wire, oral, or electronic communications, 18 U.S.C. § 2511. However, under 18 U.S.C. § 2511(2)(d), prior consent is a defense.

In Perkins, both parties conceded that the question of whether authorization or consent had been given to LinkedIn to access Plaintiffs’ contacts was whether a reasonable user who viewed the LinkedIn’s disclosures could reasonably understand that the site would be collecting email addresses in such a way that it would appear that the user had consented or authorized such collection.

The Court found a user could reasonably understand it would be the case and dismissed the SCA and the Wiretap Act claims. The Court noted that during the sign up process, LinkedIn disclosed that it was asking authorization to access the user’s contact list and that the user was given the option to decline. The Court further noted that this disclosure was shown on the sign up page, “prior to the moment at which LinkedIn is alleged to have engage in wrongful conduct” and “was not, as is often the case, a disclosure buried in a Terms of Service or Privacy Policy that may never be viewed.”

Right of Publicity Claim Was Allowed to Proceed for the Second and Third Endorsement Emails

There are four elements in a claim for violation of California’s common law right to publicity: “(1) the  defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to  defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.

LinkedIn argued that Plaintiffs had consented to the use. For the Ninth Circuit, consent must determined in a common law right to publicity cause of action “ objectively from the perspective of a reasonable person,” Jones v. Corbis Corp.

While Judge Koh agreed with LinkedIn that a reasonable user would have understood that her name would be used in invitations to join LinkedIn sent to her contacts in the first endorsement email, Plaintiffs did not consent to the second and third reminder endorsement emails. The disclosures shown to the users during the sign-up process did not inform them that their contacts would receive not just one invitation, but three. Judge Koh noted that “[i]n fact, by stating a mere three screens before the disclosure regarding the first invitation that “We will not . . . email anyone without your permission,” LinkedIn may have actively led users astray.”

Therefore, the Court, while granting LinkedIn’s motion to dismiss as it relates to the first endorsement email, it found that” Plaintiffs had adequately pleaded lack of consent to the sending of the second and third  endorsement emails and that it is plausible that these subsequent emails created independent harm” and allowed this claim to proceed.

Image is eMail courtesy of Flickr user Esparta Palma under a CC BY 2.0 license

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Filed Under: Internet Law, Social Media Law ·

Fashion Model Agreement Broad in Scope Deemed Enforceable by New York Court

June 9, 2014 · by ·

5480863464_5dd73d1199_zAn ongoing case in the New York Supreme Court, a court of first instance, shows the danger of signing a fashion model release agreement which is both vague and wide in scope. The case is Velon v. Di Modolo International LLC.

Plaintiff Stella Velon is a model and an actress. She alleged in her complaint that she attended a casting call in the office of AM Public Relations in New York City in the summer of 2011. Her pictures was taken a few weeks later for what she thought at the time to be a test shoot to be used to pitch marketing ideas for upcoming advertising campaigns. She was paid 400 dollars in cash for her work directly by the photographer. Ms. Velon further alleged in her complaint that she received an email from the AM Public Relations company a few days after the shoot, asking her to execute a release. The email read:

In exchange for consideration received, I hereby give permission to DiModolo (sic) to use my photographic likeness in visual forms and media for advertising campaigns, magazine or billboard, magazine editorial, lookbook, print, and any other lawful purposes ONLY for Dimodolo (sic).

Plaintiff stated in her complaint that she thought this was just “an afterthought in conjunction with the test shoot, a ministerial piece of paperwork that someone had forgotten to secure at the lime of the test shoot and to be used in conjunction with the test shoot.”

But she discovered later that her photograph, showing her wearing Di Modolo jewels, had been used in a Di Modolo advertising campaign. It had also been also featured on billboards in Miami and New Jersey, in print ads, on phone booths and kiosks in New York City, and on postcards given to customers at Di Modolo kiosks in major department stores, including Bloomingdale’s. The ad was also used on social media. A slightly different version of the ad was used by Bloomingdale’s, with the name of the retailer displayed along with Di Modolo’s.

Plaintiff then sued Di Modolo for violation of her right of privacy and publicity, fraudulent inducement, negligent misrepresentation, unjust enrichment and conversion and also sued Bloomingdale’s for violation of her right of privacy and publicity, unjust enrichment and conversion. All of Plaintiff’s claims were dismissed by the New York Supreme Court on May 16, except for right of privacy and publicity claim against both Di Modolo and Bloomingdale’s regarding the Bloomingdale’s ad.

Right of Publicity in New York State

The unauthorized commercial use of an individual’s likeness is protected by the “right to publicity.” Indeed, a person’s likeness can have great commercial value, if this person is an actor, a public figure, or, as in this case, a model.

New York State does not recognize a right of privacy at common law, but one of its statutes, Civil Rights Law §§ 50 and 51, recognizes a right to publicity. It provides a cause of action for injunctive relief and damages.  if “[a] person, firm or corporation…uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian.”

Scope of the Release

Plaintiff noted in her complaint that the release did not refer “to any particular photograph or photographs that were taken on any particular occasion.” It did not contain any territorial or temporal limitations either. Plaintiff pointed out that, if one reads literally the release she executed, Di Modolo has the right to use any of her images for any purposes. Indeed, as written, the photographs could be used everywhere and forever and ever.

Plaintiff argued that her case was similar to the Harlock v. Scott Kay Inc. case, (N.Y.App.Div.2005), where the court had found that a “Model Release” which had been signed by a model in connection with two modeling sessions was not an enforceable contract because the spaces for the insertion of essential terms had not been filled. But the New York Supreme Court did not find the Harlock case persuasive as the release Plaintiff had signed was unlimited, whereas essential terms were not stated at all in Harlock.

Di Modolo moved to dismiss the right of publicity cause of action, arguing that New York Civil Rights Law §§ 50 and 51 creates a right of action only if a person’s likeness was made without that person’s written consent, and that, in this case, Plaintiff had signed the release. That argument convinced the court which dismissed Plaintiff’s Civil Right Law claim.

However, the court did not dismiss Plaintiff’s claim for unauthorized use of her likeness against both Di Modolo and Bloomingdale’s to create the Bloomingdale’s advertising, because the release that Plaintiff had executed was only in favor of Di Modolo.

How To Read a Fashion Model’s Release Agreement 101

A model release is a contract which states who has the right to use the images taken of the model, how, and for how long.

A fashion modeling agreement should indicate the timing (how long?), the territory (where?) and the scope of the modeling services (the model is paid to do what, exactly?). If the modeling agreement you are asked to sign does not clearly state how long your image can be used, where it can be used, and what you are paid to do, well, do not sign it before having it reviewed  by an attorney.

  • Nature of the Use

A modeling agreement should clearly state which services the model is asked to perform and for what purpose. Is the model hired to shoot a video, or to be part of a fashion show, or, as in the case discussed above, to be photographed for a test? Will the photography be only used in print, or will it shown also on television?

It is important to know exactly why you have been asked to work. Getting work is always great news but rushing into signing just any contract is not a good idea at all.

  • Timing

You also need to know how long the other party to the contract will have the right to use your image. It may be only for one time, say, the day of the fashion show. In any case, the contract must indicate clearly the date of the termination of the contract.

Be careful when the contract contains language such as “present or future” and/or does not indicate any dates. You do not want to give up the right to use your likeness in perpetuity, especially as  the value of your image may increase in the future. The release should state a clear and fixed amount of time during which the contracting parties will have the right to use the image.

  • Territory

Where will the other party to the contract have the right to use your likeness? Will it be in the U.S. only, or will the other party have the right to use your image in a foreign country?

  • Consideration

How will you be compensated for the use of your image? How will you be paid and when?

Needless to say, this little 101 paragraph is not legal advice. It is best to consult an attorney before signing a fashion model agreement.

Image is Contract courtesy of Flickr user Steve Snodgrass under a CC BY 2.0 license

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What is a Parody under EU Law? An Advocate General of the European Court of Justice Answers

June 5, 2014 · by ·

13558708083_3998a3999f_zOn May 22th, Pedro Cruz Villalón, an Advocate General of the European Court of Justice (ECJ), published his opinion in Deckmyn, C-201/13 (not yet available in English.) This case has been closely followed in the European Union (EU) by intellectual property and free speech enthusiasts as the question asked to the court was about the nature of a parody under EU law.

What is a preliminary question?

The mission of the ECJ is to make sure that EU law is applied consistently all around the Union. Under article 267(b) of the Lisbon Treaty, the court has jurisdiction to give preliminary rulings about the interpretations of EU acts such as a directive. National courts wishing to receive guidance about how a particular EU act should be interpreted may ask the ECJ a preliminary question. When the ECJ answers it, the national court must apply the EU law accordingly as an article 267 ruling is mandatory and not merely advisory. The ECJ has nine Advocates General (AG) which write opinions after oral proceedings when they take a position on how the court should rule in a particular case. However, following the AG’s opinion is not mandatory for the ECJ and so AG Villalón’s opinion may or may not be followed by the court when it will issue its judgment in Deckmyn in few months.

A Calendar Which Parodied then-Ghent’s Mayor

The Deckmyn case started with a free calendar. Mr. Deckmyn is a member of the Belgium political party Vlaams Belang which advocates Flemish independence and strict immigration policies. During a reception at the Ghent city hall in 2011, Deckmyn distributed a calendar spoofing a cover of the cartoon series “Suske en Wiske” created by Willebrod Vandersteen, which is famous in Belgium. The front cover of the calendar showed a drawing of then Ghent‘s mayor flying in the air while distributing money to people wearing burqas and/or having dark skin. The calendar indicated that Deckmyn was its editor and also that the drawing was a “free adaptation of Vandersteen.” The design was also published on a website and in a magazine printed by Deckmyn’s political party.

Vandersteen’s heirs sued, alleging copyright infringement. They won an emergency court ruling against Deckmyn and other involved parties. Defendants appealed to the Brussels Court of appeals, using a parody defense among others. But Vandersteen’s heirs argued that, by parodying a “Surke en Wiske” cover, defendants had given the public the impression that the heirs approved the extreme political views of the Vlaams Belang party .

The Brussels Court of Appeals asked several preliminary questions to the ECJ. It asked whether a parody is an autonomous concept of European Union law. The court also asked the ECJ if a parody must be original, if a parody must be such that it cannot be reasonably attributed to the author of the original work, if a parody must aim at being humorous, whether it must mocks the original work or not, and finally if a parody must mention the source of the work parodied.

Parody is an autonomous concept of EU law

Article 5.3(k) of Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society (the “Information Society Directive“) gives Member States the option to provide an exception to copyright infringement if the infringing work has been used “for the purpose of caricature, parody or pastiche.” Article 22 § 1, 6° of the June 30, 1994 Belgium copyright law provides such an exception.

Should EU law or Member States laws have the power to decide what is a parody? In AG Villalón’s opinion, parody is an autonomous concept of the EU law. Even though providing parody exception is not mandatory under the Information Society Directive, it would be incompatible with the Directive’s objectives to allow each Member States to have its own concept of what constitutes a parody. AG Villalón cited the 2010 ECJ Padawan case, where the court stated, about the private levy exception of the Information Society Directive that Member States cannot be free to determine the limits of a copyright exception as it would lead to inconsistencies throughout the EU and thus would be incompatible with the objectives of the Directive.

What is a parody under EU law?

AG Villalón examined the definition of ‘parody’ in several languages used in the EU and concluded that a parody is essentially a burlesque imitation. As such, it is both a copy and a creation (at 49). A “parody is always in part a tribute or a recognition of the original work” (at 50). Also, in AG Villalón’s opinion, a parody can mock the original work or may merely use the original work to mock a third party. Both types of parodies are within the scope of the Information Society Directive.

AG Villalón noted that the Member States’ courts have each developed their own tests to determine if a parody is creative enough to be given a safe harbor from copyright infringement. The courts examine if the parody can be confused with the original work, if it keeps a sufficient distance from the original work, and if it used more elements of the original work than necessary (at 55). For AG Villalón, such findings are within the margin of appreciation the Directive leaves to the Member States, since recital 32 of the Directive states that the list of exceptions to copyright provided by the Directive “takes due account of the different legal traditions in Member States.”

Parody and Freedom of Speech

For AG Villalón, a parody is “both a form of artistic expression and a manifestation of freedom of expression. In the Deckmyn case, the parody used the original work “to convey a political message in an allegedly more effective way” (at 70).

This message had, however, racist and exclusionary undertones as its authors used the original work to express their opinion that then Gent mayor was too generous towards immigrants. Is such a message nevertheless protected by free speech in the EU?

Free speech is a fundamental right in the EU and is protected by article 11 § 1 of the EU charter of fundamental rights. AG Villalón asked the question: “To what extent the interpretation by the civil courts of the scope of the parody exception may be conditioned by fundamental rights?” (at 76). As noted by AG Villalón, freedom of speech may be limited, such by article 10 § 2 of the European convention of human rights from the Council of Europe. The EU Charter also protects fundamental rights which may conflict with freedom of speech, such as human dignity (article 1) or discrimination based on race or religion (article 21). Judges from Member States’ courts, when interpreting the Information Society Directive, “cannot ignore (…) that the Charter exists “(at 84).

Parody Not Protected if Message is Radically Contrary to Deepest Convictions of Society

This is why AG Villalón concluded that if the message conveyed by the parody is “radically contrary to the deepest convictions of society” then it will not be protected by copyright exceptions. It belongs however to Member States courts to determine if a particular parody, while outrageous, should nevertheless be protected as a parody because it does not reach this extreme level.

AG Villalón explained that:

“in principle and strict view of the concept of parody, a certain image can be excluded from that concept simply because the message is not shared by the author of the original work or may deserve to be rejected by a large part of public opinion. However, we should not accept as parody, and authors of the work with which the parody is created can legitimately argue this point, reworks of the original work, which in form or in substance transmit a message radically contrary to the deepest convictions of society, on which ultimately the European public space is constructed and ultimately exists “ (at 85).

If the ECJ follows the AG’s conclusions, the Brussels Court of appeals will have to judge if the message of the calendar, which is obviously racist and exclusionary, reached this threshold level. It will probably judge that it can be protected as parody, unless the moral rights of the heirs trump free speech. Indeed, the heirs also argued in front of the court of appeals that Deckmyn’s unauthorized use was a violation of their moral rights, as it associated the Suske en Wiske characters with racist political opinions. The court of appeals did not ask a question about the relationship between moral rights and parody to the court and thus the ECJ did not address this issue. However, the court of appeals will have to address the issue in its ruling.

Would the calendar have instead featured instead, say, a message denying the Holocaust, which is illegal in Belgium as in other EU Member States, the court would certainly deny protection as a parody. The US does not recognize extensive moral rights, and the First Amendment protects racist speech. The Deckmyn case is yet another example of the differences between EU and US conceptions of free speech and copyright law, and how to balance these two fundamental rights.

Image is Hyena courtesy of Flickr user U.S. Geological Survey a CC BY 2.0 license

 

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Filed Under: Copyright ·

Federal Trade Commission Publishes Report On Big Data Industry

June 4, 2014 · by ·

6137322778_d669bebc1e_zThe Federal Trade Commission (FTC) published on May 27 a report on “Data Brokers: A Call for Transparency and Accountability” which details data brokers practices and recommends legislation to regulate the Big Data industry.

The FTC used its power provided by section 6(b) of the Federal Trade Commission Act to issue identical Orders to File Special Reports to nine data brokers, representatives of the industry, and to seek information about their data collection and use practices. The FTC used their answers to write the report.

What is a data broker?

There are three main categories of data brokers services: marketing services, risk mitigation services, or people search services. This personal data industry is quite successful, as all these products “generated a combined total of approximately $426 million in annual revenue in 2012 for the nine data brokers” (p. 23).

The FTC’s complaint against Spokeo, where the FTC alleged that data broker Spokeo had breached the Fair Credit Reporting Act (FCRA), provides a glimpse into what may be a data broker business model:

“Spokeo assembles consumer information from “hundreds of online and offline sources,” such as social networking sites, data brokers, and other sources to create consumer profiles, which Defendant promotes as “coherent people profiles” and “powerful intelligence.”These consumer profiles identify specific individuals and display such information as the individual’s physical address, phone number, marital status, age range, or email address, Spokeo profiles are further organized by descriptive headers denoting, among other things, a person’s hobbies, ethnicity, religion, or participation on social networking sites, and may contain photos or other information, such as economic health graphics, that Spokeo attributes to a particular individual.”

It should be noted that collecting data that way is legal, as are the activities of the nine data brokers which participated in the FTC review of their industry. .

How is Data Collected?

Data brokers do not only collect personal data directly from consumers, but also from a variety of sources. Some are government sources, such as public licensing, real estate records or court records. Some are online sources, such as social media sites or blogs. Others are commercial sources, such as information provided by a consumer when purchasing an item online. Brokers acquire data ownership of the data, contract to use it for a limited period, or only acquire the right to resell the data (p. 16).

How Data Brokers Develop their Products

After collecting personal data, data brokers use the information to create derivative products, such as lists of consumers sharing the same characteristics or interests. They do so by inferring that, because a particular person likes something or has made a particular purchase, then this person has an interest in an activity or product, or is part of a group, such as ““Financially Challenged” (p.25). This is the part that I find the most troubling, because inferring something about an individual reduces his or her personality, is dehumanizing, and may lead to discrimination. \However, in the data brokers’ world, we all end up in little boxes, such as “Allergy Sufferer” or “Modest Wages” based on assumptions.

How is the Data Used?

These profiles can be used by third parties for marketing and risk mitigation purposes, or to search for people. If the data is used for marketing purposes, it allows a site to customize the pages viewed when a consumer visits it, or it can be used to gain knowledge of users‘interests in order to sell advertising space. The report also explains how data brokers are able to connect the dots between consumers’ online and offline interests. The process is called “onboarding” (p.27-30).

If data is used for risk mitigation purposes, it may allow third parties to verify the identity of a particular person or to prevent fraud. For instance, data brokers may provide their clients with a quiz about a particular user, which asks simple questions such as “what is your mother’s birthday?” to verify if the user is indeed who he claims he is.

Consumers Should Have More Control Over Their Data

Consumers do benefit from the work of data brokers, as their products can be used to prevent fraud and identity theft or to deliver tailored advertisements (p.47). However, while data brokers collect and aggregate consumers’ personal information on a large scale, and then sell this information to third parties, most consumers are not aware of this use of their data, nor which data is collected and how, even as this is done on such a massive scale.

The FTC Protecting Consumer Privacy in an Era of Rapid Change report, published in March 2012, already recommended that data brokers provide consumers with reasonable access to their data. In the 2014 report, the FTC found that out of the nine data brokers selling marketing products, only four provide consumers with access to certain limited information. These four data brokers also allow consumers to opt out of the use or sharing of their personal information for marketing purposes (p.43), but only two of them allow consumers to correct their information (p.42).

Two of the data brokers providing people search services give consumers an opt-out option. None of these particular brokers provide an option to delete information, as “such measures would be futile” according to them because, since they automatically refresh their data by web crawling or other similar methods, the same information as the one deleted would appear again on the Internet and in their databases (p.45). This casts further doubt as to whether a ‘right to be forgotten’ is even possible.

Current Legislation

The Fair Credit Reporting Act (FCRA) is a federal law enacted in 1970 to regulate the consumer reporting industry. The FCRA regulates consumer credit reports, which are defined as “any written [or] oral communication of any information by a consumer reporting agency, bearing on a consumer’s credit worthiness, (…) general reputation, personal characteristics, or mode of living which is used or expected to be used or collected (…) for the purpose as a factor in establishing the consumer’s eligibility for credit or insurance to be used primarily for personal, family, or household purposes; (…) employment purposes; or(…) any other purpose” such as issuing a license, 15 U.S.C. § 1681a(d)(1). As defined, the FCRA applies to some of the data brokers’ activities, but not to all. For instance, if data brokers ‘products are used as risk mitigation products, but only to confirm a person’s identity, not to determine his eligibility, the FCRA does not apply.

Legislative Recommendations

The FTC deplored “a fundamental lack of transparency about data broker industry
practices” (p.49). While data is collected on a massive scale, consumers are not aware of how data is collected, analyzed, and which information is inferred based on this data. This is why the FTC “ unanimously recommends that Congress should consider enacting legislation that would enable consumers to learn of the existence and activities of data brokers and provide consumers with reasonable access to information about them held by these entities” (p. 49).

The FTC recommended legislation requiring data brokers to give consumers (1) access to their data and (2) the ability to opt out of having it shared for marketing purpose. Such access should include any sensitive data, and should be at “a reasonable level of detail” that is,“enough detail that a consumer can see the breadth of categories the data broker has about them, including any sensitive data.”

The FTC also recommends legislation requiring data brokers to clearly disclose to consumers that they use the data and that they make some inferences based on this data. The FTC also recommends legislation requiring data brokers “to clearly disclose the names and/or categories of their data sources, so that consumers are better able to determine if, for example, they need to correct their data with an original public record source” (p.52).

The FTC also unanimously recommended legislation requiring data brokers offering people search products to:

(1) allow consumers to access their own information;

(2) allow consumers to opt out of the use of this information;

(3) clearly disclose to consumers the data brokers’ sources of information, so that, if possible, the consumer can correct his or her information at the source; and

(4) clearly disclose any limitations of the opt out, such as the fact that close matches of an individual’s name may continue to appear in search results.

Best Practice Recommendations

The FTC called on all data brokers to adopt the principles in the 2012 FTC Privacy Report, which proposed a privacy framework focusing on three principles, privacy by design, simplified consumer choice and transparency. Privacy by design means that one considers privacy issues at every stage of product development.

What’s Next?

In its report on the practices of data brokers published in September 2013, the U.S. Government Accountability Office had also called on Congress to enact legislation to regulate the data broker industry. The White House published last month a report on Big Data: Seizing Opportunities, Preserving Values, where it notes that Big Data may lead to discrimination and states that “[w]e must begin a national conversation on big data, discrimination, and civil liberties” (p.64 of the White House report).

Senators Jay Rockefeller and Ed Markey have introduced last February the “Data Broker Accountability and Transparency Act” bill. The Act requires data brokers to establish procedures to ensure the accuracy of data collected, assembled and maintained. The Act would also give consumers the power to review and to correct personally identifiable information. This would be done through a web site and data brokers would have to place a clear and conspicuous notice on that site telling consumers ow they can review their personal information and how they can express their preference about its use for marketing purposes. Consumers would also have the power to correct their information.

This bill has been referred to the Committee on Commerce, Science, and Transportation. Similar bills are likely to be introduced following the FTC report.

Image is courtesy of Flickr user Philippe Put under a CC BY 2.0 license

 

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Tintin n’apprécie guère la parodie, mille sabords!

April 23, 2014 · by ·

Deux journalistes français avaient créé un blog sur Tumblr, ‘

Les deux journalistes faisaient sur le blog du Petit XXIe une revue de presse de l’actualité française et internationale. Chaque publication sur Tumblr comportait un titre, un lien vers un article publié sur le web, et une vignette tirée d’un album Tintin. Le fait que les vignettes illustraient de manière pertinente, sinon décalée, des faits d’actualités, rendait fors plaisant la lecture du Petit XXIe.

Mais les vignettes Tintin ne sont désormais plus visibles sur le site Tumblr. A leur place, on peut lire ” This image has been removed at the request …read more

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Filed Under: Cyber High and Law ·

9th Circuit Seems to Recognize That Performers Have a Copyright in Their Performance

March 31, 2014 · by ·

13019224533_c4607520a7_zA panel majority of the Ninth Circuit Court of Appeals held last month in Garcia v. Google that an actress who had briefly appeared in a movie was likely to have a separate copyright in her performance.

Much has been written about that case. What interested me particularly was the seed of recognition of copyright in a performance, as the European Union (EU) and all the countries which have acceded to the 1961 Rome Convention already recognize as a right.

Here are the facts of the Garcia case. Appellant Cindy Garcia participated, albeit involuntarily, in the making of the short, yet infamous, “Innocence of Muslims” movie.

She had answered a casting call for the amateur “Desert Warrior” movie and was only given parts of the script where her character appeared. Her work lasted only three and a half day. Her five-second performance, as well as the performance of other actors, was later dubbed in post production with the original dialogue being replaced by anti-Islamic words.

Appellant first saw the final movie, renamed “Innocence of Muslims,” after it was uploaded on YouTube by its director in the summer of 2012. An Egyptian cleric issued a fatwa about the film, calling for the death of everybody involved in it. Appellant received direct threats to her life, and started taking security precautions when traveling.

She unsuccessfully filled eight DMCA takedown notices to have YouTube remove the video from its site. She then asked a district court to issue a temporary restraining order to have the video removed, claiming that the video infringed her copyright in her performance.

The district court treated this request as a request for a preliminary injunction and denied it because Appellant did not file her suit until several months after the movie was uploaded to YouTube. She appealed and the Ninth Circuit reversed.

Do Actors Have an Independent Copyright Interest in their Performance?

The question presented to the panel was whether an individual who made an independently copyrightable contribution to a joint work can retain a copyright interest in that contribution.

Appellant argued that, while not owning the copyright in the “Innocence of Muslims” movie, as she is not a joint author, she did own the independent copyright in her performance, albeit “only in the portion of [the movie] that represents her individual creativity.”

The panel agreed, noting that “nothing in the Copyright Act suggests that a copyright interest in a creative contribution to a work simply disappears because the contributor doesn’t qualify as a joint author of the entire work.” As an actress, Appellant interpreted the dialogue, using body language and facial expression, and thus the fact that her voice had been dubbed did not prevent her from making a protectable contribution to the movie as Google had argued.

In his dissent, Judge Smith argued that a performance cannot be a “work.” Indeed, under §102(a) of the Copyright Act, only “original works of authorship fixed in any tangible medium of expression” are being protected by copyright. Judge Smith also argued that the Copyright Act provides a list of categories works which can be copyrighted, and that this list does not includes performance.

However, the list mentions “dramatic works” and one could argue that a performance is a “dramatic work,” especially since the House Report on the Copyright Act stated in 1976 that original works of authorship is “purposely left undefined.”

Judge Smith also argued that a performer is not an author. The Supreme Court defined an author in the Community for Creative Non-Violence v. Reid case as the person “who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” Instead, Appellant “simply acted out others’ ideas or script.” However, actors, by interpreting original screenplays, are the creative medium between words and stage directions and the final result fixed on film.

Arguing that performers have some rights in their performance is not such as legal stretch. The law of each of the EU Member States recognizes that performers have the”exclusive right to authorize or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part” the fixation of their performances. That is because article 2(b) of the 2001/29/EC Directive set out this goal to be achieved by each EU Member State.

Also, article 7 of 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations provides for some rights for performers, among them the right to prevent the unauthorized reproduction of their rights. However, the United States did not accede to the Convention.

Indeed, the Copyright Office has a longstanding practice to deny claims by actors to register a copyright in their performances in movies, and it is not ready to recognize copyright in a performance. The Copyright Office refused last March 6 to register Appellant’s copyright in her “Innocence of Muslims” performance, writing in a letter to her attorney that “the Office finds that the Copyright Act vests exclusive authority in the Register of Copyrights to render a decision as to issue a certificate of registration or refuse an application for registration.”

The Ninth Circuit obviously made its decision to protect Appellant’s safety and the scope of the ruling is narrow. The panel found that Appellant had indeed granted an implied license to the movie director, but that such license must be interpreted broadly. However, the scope of the license did not encompass the use of her performance for just any project. The panel reasoned that, as the movie director had lied to Appellant, telling her that the movie was an Arabian adventure to secure her participation to his project, the director had exceeded the scope of the implied license. Therefore, the panel concluded that it was an unauthorized, infringing use of the performance.

Image is courtesy of Flickr user Tom Page under a CC BY-SA 2.0 license

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Trademark on Rye

March 17, 2014 · by ·

6591795781_1d585c0286 (1)On March 12, Katz’s Delicatessen (Katz’s) filed a trademark infringement and false designation of origin suit against the owners of the food truck Katz &Dogz (K&D) in the Southern District Court of New York.

According to the complaint, Katz’s contacted the owners of K&D last fall and offered $1,500 to bear the cost of changing the name of their venture and changing the name of their ‘Reuben Orgasm’ sandwich. The offer was raised to $7,000 during the discussion, but the parties did not ultimately reach an agreement, and Katz’s filed a trademark infringement suit.

The Trademarks

Katz’s is the owner of two trademarks, KATZ’S and KATZ’S DELICATESSEN.

KATZ’s is registered in international class 29 for “[f]oods, namely, corned beef, pastrami, salami, frankfurters, knockwurst, knoblewurst, brisket, turkey, roast beef, tongue, Romanian salami, pickles, sauerkraut, Swiss cheese, nova lox, matzoh ball soup, chicken noodle soup, and split pea soup“ and in international class 30 for “[f]oods, namely, mustard, rye bread, Russian dressing, knishes, bagels, bialy, cheesecake, rugelach, babka, and black and white cookies.” While the trademark registration was only issued last year, its first use in commerce was April 1, 1888.

KATZ’S DELICATESSEN is registered in international class 42 for “restaurant services, mail order services featuring food products and catering on and off premise.”

Similar (Yummy) Products

When you register a trademark, you only register it in the classes corresponding to the description of your goods or services. The USPTO uses the International Trademark Classification of Goods and Services established by the WIPO Nice Agreement to classify goods and services when registering a trademark. Using such classifications helps the USPTO determine if similar trademarks are used on similar goods and services.

K&D is a food truck which travels though New York City and also operates a food cart, according to the complaint. K&D sells pastrami, corned beef Reuben sandwiches, hot dogs and knishes to hungry New Yorkers. These foods are also sold at Katz’s as evidenced by the trademark registration, and as known to any visitor of the Houston Street restaurant.

Is Katz’s a Famous Trademark?

Katz’s is known in New York, and outside of New York, as it has often been used as a décor for television shows and movies. It most famously appeared in movie theaters as the place where ‘Sally’ faked an orgasm to prove to ‘Harry’ that women are able to fake them without men noticing it. The complaint mentions that scene, adding that ‘movie aficionados reenact the scene multiple times each week to the amusement of other patrons and employees.’ Call me grumpy, but I prefer to go without movie reenactments while having lunch, but that is not the point. Nor is relevant the fact that I learned from a Katz’s employee years ago how to put French fries and salt in a paper bag and then shake the bag for an even coating throughout all your frites.

Whether or not KATZ’S is a famous trademark will be an issue if the suit goes through, because Katz’s also sued K&D for trademark dilution. The federal Trademark Dilution Act, 15 U.S.C. § 1125(c), allows the owner of a ‘famous mark’ to file for an injunction if another mark “is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury.” The Act defines a ‘famous mark’ as a mark “widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner.”

If a mark is ‘famous,’ the owner does not have to prove likelihood of confusion by consumers. That means that even if consumers indeed know that, say, the (fictitious) sparkling beverage ‘Koki-Kalo’ is not manufactured by Coca-Cola, the famous brand would be able to prevent ‘Koki- Kalo’ from using the trademark  without having to present any evidence of likelihood of confusion in the market.

Likelihood of Confusion

The Trademark Act, 15 U.S.C. §1114 (1) (a), prevents the use in commerce of a mark so similar with a registered mark that it would be “likely to cause confusion, or to cause mistake, or to deceive.” The owner of the mark suing for trademark infringement must prove that defendant’s use of the mark is likely to create confusion.

One of the exhibits of Katz’s complaint is this post on Twitter, where a user contacted @KatzsDeli, asking if they are indeed behind the Katz and Dogz truck venture.

Trademark law is there to protect the consumers. If consumers are indeed confused as to the origin of a particular product or service, they could make decisions based on inaccurate information. In this case, consumers may believe that Katz’s did indeed jump into the trendy food truck business.

The complaint also points out that one of the sandwiches sold by K&D is ‘The Reuben Orgasm’ and that an ad featured on K&D’s truck asks passersby “Are you ready for the Reuben Orgasm?” which could be another source of confusion for consumers, as Katz’s is associated with the ‘When Harry Met Sally’ scene.

Katz’s is seeking damages in excess of $ 1,000,000. That sum can still buy you lots of sandwiches in New York City.

Image is Katz’s Deli, Pastrami Sandwich, courtesy of Flickr user Kevin Tao pursuant to a CC BY-ND 2.0 license.

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Filed Under: Trademark ·

Is Collecting License Plate Data Protected by the First Amendment?

March 13, 2014 · by ·

9600608221_bef9576f1eTwo companies, Digital Recognition Network (DNR) and Vigilant Solutions (Vigilant), filed a complaint last month in the Utah Central District Court against Utah’s Governor and Utah’s Attorney General. They are asking the court to declare that the state’s Automatic License Plate Reader System Act (the Act) violates the First Amendment.

The case number is 2:14-cv-00099-CW-PMW.

What are Automatic License Plate Readers?

DNR manufactures automatic license plate reader systems (ALPR). They are composed of mobile or fixed high speed cameras, which record the license plates of every vehicle around them. Vigilant’s proprietary software converts these images into computer-readable data, allowing thus the creation of databases of the locations of all of these vehicles.

Clients are mainly recovery companies, better known as “the repo man,” which are cruising the streets looking for cars in arrears by using  vehicles carrying the DNR cameras. By using DNR services, they receive a ping when a car they want to repossess is in their vicinity.

As described on the DNR web site, clients are able to “[r]eceive up to the minute location updates” when using its services. That is because DNR “maintain[s] up to date information on asset locations for timely recovery.” In other words, the repo man knows where the cars in arrears are at any time, and it is then up to him to reclaim them.

According to DNR’s website, 190,000 vehicles have been recovered using this system. The data is also sold to law enforcement agencies, as DNR provides the data to Vigilant, which then shares it with law enforcement agencies.

The Utah Act

Utah enacted the Automatic License Plate Reader System Act in April of last year.

§ 41-6a-2003 of the Utah’s Act generally prohibits the use of automatic license plate reader systems. They are a few exceptions, such as when used by law enforcement agencies to protect public safety, conduct criminal investigations, comply with the law, enforce parking laws, enforce motor carrier laws, collect a toll electronically, or to control access to a secured area. No “repo man exception.”

§ 41-6a-2003 of the Act prohibits selling data thus collected. It cannot be held more than 30 days by a private entity and more than 90 days by the government, except when it is necessary to preserve it longer pursuant to a preservation request, a disclosure order or a warrant. Therefore, the Act prohibits building commercial databases with ALPR data.

As the Utah Act clearly prevents plaintiffs to enact their business model in the state, plaintiffs had to stop collecting and sharing ALPR data there, and are bringing this suit as they wish to resume their business in Utah.

Privacy Laws

The plaintiffs are careful to note that the ALPR data does not contain any personally identifiable information. They argue that, to allow identifying a person, this data would have to be combined with other data, such as data held by departments of motor vehicles, but which they cannot access since the federal Drivers Privacy Protection Act (DPPA), as well as several state laws, protects the privacy of motor vehicle records.

Is Disseminating ALPR Data Protected by the First Amendment?

Plaintiffs claim that disseminating ALPR data they collect is speech protected by the First Amendment.

They argue that the Utah Act is a content-based speech restriction, as it is the content of what is being photographed that is being regulated. They also claim that the Act discriminates based on the content of the speech and the identity of the speaker, and thus could not survive the “heightened scrutiny“ standard of review, that is, the intermediate level of scrutiny. Under that standard of review, the law must further an important government interest by means that are substantially related to that interest.

Laws protecting privacy indeed restrict the dissemination of truthful information. Justice Marshall, noted in the 1989 The Florida Star v. B.J.F. Supreme Court opinion that there is “tension between the right which the First Amendment accords to a free press, on the one hand, and the protections which various statutes and common-law doctrines accord to personal privacy against the publication of truthful information, on the other” (at 530). There is no doubt that the ALPR data is truthful information.

Warren and Brandeis wrote in their classic law review article that “[t]he right of privacy does not prohibit any publication of matter which is of public or general interest” (at 214). But what is the public interest in publishing ALPR?

Plaintiffs make the argument that such data is helpful to law enforcement agencies to fight crimes. In the 2001 Bartnicki v. Vopper case, the Supreme Court noted that “there are some rare occasions in which a law suppressing one party’s speech may be justified by an interest in deterring criminal conduct by another” (at 530). But here, the law would suppress speech which, at least according to the plaintiff, contributes in deterring criminal conduct…  Also, the data may also used for commercial purposes, as third parties which are not law enforcement agencies may buy the data. It is not clear if the plaintiffs are selling this data to private parties, but it would be possible to do so.

ALPR  impact everybody’s privacy, as these systems record information about all the cars in their vicinity, not just a few chosen targets.  Much can be inferred, whether wrongly or not, from the location of our car and our whereabouts, and not only for surveillance purpose. Did we park at the shopping mall to go to the health club or to gorge on French fries? The answer to that question may interest our health care provider. Did we visit a big box hardware store several times last week? This may interest its competitor across town.

Some Legislative Answers

Like Utah, Vermont has enacted a law last year regulating the use of ALPR systems, which restricts their use for legitimate law enforcement purposes.

Other states are considering enacting bills banning license plates scanners, such as Massachusetts. A New Hampshire bill, HB 675, is now dead. It would have authorized the use of license plate scanning devices, but only by law enforcement agencies, not by private parties.

A federal bill, HR 2644, would prohibit providing some grants to law enforcement agencies using an automated license plate reader unless they have written and binding policies limiting the length of time the data is stored, and do not store data in a database, and do not share data with a third party which is not another law enforcement agency. HR 2644 is not likely to be enacted.

The Utah case will certainly be followed by legislators around the U.S. Meanwhile, Utah legislators are anticipating its outcome by trying to quickly enact a new law. SB 222 would restrict the scope of the Utah Act by providing that the restrictions on the use of ALPR systems only apply to a governmental entity.  SB222 has been received from Senate for enrolling and should be enacted very soon.

Image is courtesy of Flickr user Nan Palmero pursuant to a CC BY 2.0 license.

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Defaced Art and the Law

March 10, 2014 · by ·

2215900549_4ec748f858Last month, a Miami-based artist, Maximo Caminero, smashed one of the ancient vases dipped in modern paint which form the “Colored Vases” installation by Chinese artist Ai Weiwei. They were shown at the “Ai Weiwei: According to What?” exhibition currently on view at the Pérez Art Museum in Miami. The exhibition will be presented at the Brooklyn Museum in New York later this year.

Mr. Caminero has since told the press that he did it to protest the fact that the work of local artists are not shown in Miami museums. He has been charged with criminal mischief. I will not focus in this post about the legal actions Mr. Caminero is likely to face, but rather about the injuried party, the artist who created the work.

Ai Weiwei

This is not the first time that a work of art is being defaced as a sign of protest. Mr. Ai himself did so to create his Dropping a Han Dynasty Urn work in 1995, a photographic triptych showing him dropping a 2,000 year old Chinese Han Dynasty urn to the ground and breaking it.

Mr. Ai, probably one of the most famous contemporary artists, helped design the ’Bird’s Nest’ national stadium in Beijing, built for the 2008 Olympic Games. The same year, on May 12th, an earthquake devastated the Sichuan province, killing more than 70,0000 people. Mr. Ai started collecting the names of the children who had been killed when their schools, built using shoddy material, collapsed. He launched a citizen’s investigation on his blog and also asked his Twitter followers to forward him names, a move which did not fare well with Chinese authorities, who had tried to keep the death toll a secret. He was beaten up by the police in 2009 and had to undergo emergency brain surgery.

Mr. Ai nevertheless created a series of art works to commemorate the tragedy, such as a wall of backpacks to commemorate the children who lost their lives in the tragedy.

In 2011, Mr. Ai was arrested and was secretly detained for 81 days. He was released later that year and he is currently living in China, albeit not completely free as he is still denied a passport.

Is it Legal to Destroy a Piece of Art that we own?

Coming back to Mr. Ai dropping ancient vases to create new art…  In the documentary, Ai Weiwei Never Sorry, his younger brother said during an interview: “Things of our past often influence our future.”

Mr. Ai owned the vase he dropped, which he had bought in an antique market. This point is made by the Hirshhorn museum’s interim director Kerry Brougher in an interview with the Washington Post, noting there that the fact that Mr. Ai owned the vase he smashed, while Mr. Caminero did not own the piece of art he destroyed, made a huge difference, as Mr. Ai had the authority to destroy the urn while Mr. Caminero did not have that authority.

British artists Jake and Dinos Chapman were also the owners of one of the last remaining sets of the 80 etchings of Goya’s Disasters of War printed from the artist’s plates. They drew clowns and puppies heads on them, and named their work ‘Insult to Injury.’ Is it insulting to Goya? Does it injure the public?

In these two cases, the original work destroyed to create a derivative work of art had been created several centuries ago, and thus nobody owned a copyright anymore.

However, owning a piece of art does not necessary give the ownership in the copyright of the work we own. Therefore,  t would be illegal, under Section 106 of the U.S. Copyright Act, to buy a piece of art still protected by copyright, while not owning the copyright, and destroy it .

Destroying Art and Ethics

Even if one has, in some cases, the right to destroy a work of art we own, destroying or defacing art nevertheless raises ethical issues.

Did Mr. Ai have the right to destroy a remnant of ancient China to protest the contemporary Chinese regime? Shouldn’t it be preserved for future generations? Do we have the right to balance our own assessment of the artistic, or, more crassly, of the market value of an original work of work, against the value of the derivative work created by destroying/defacing the original work?

Is it unethical to make a unilateral decision that the general public will not have the right to see a particular piece ever again?

That argument was made by the British judge who sentenced the man who had defaced a Mark Rothko painting on view at the Tate Modern gallery in London to two years in jail. This man had written “A potential piece of yellowism” with a marker on the painting to promote a rather obscure art movement called ‘yellowism.’’ The judge who sentenced him noted that because such act would lead to a need for increased security in museums,  “the effects of such security reviews is to distance the public from the works of art they come to enjoy.”

However, in that case, the art defaced did not belong to the protester.

Destroying Art and Droit Moral

The man who had defaced the Rothko painting compared himself to Marcel Duchamp. Mr. Ai has also referenced the French artist as one of his sources of inspiration.

One of Marcel Duchamp’s (in)famous pieces, Fountain, is a ‘readymade’ work of art. Originally a mundane urinal, Marcel Duchamp stripped it from its original function, and presented as a work of art.

The original piece has been lost. They are however several versions later created by Marcel Duchamp. One of these has been defaced in France, not once, but twice, and by the same person to boot.

In 1993, Pierre Pinoncely, a performance artist, urinated in Fountain, and then destroyed the piece using a hammer. He stated that he wanted to finish Duchamp’s work by giving the urinal its primary function back. However, this does not explain why he also broke it with a hammer, as noted by the French court which sentenced him to a suspended one-month prison sentence and a hefty fine:  “if urinating in a urinal can render the work back to its first use, no one can claim that a urinal is used with a hammer.”

Fountain is quite a  provocative piece…  In 2000, Chinese artists Cai Yuan and JJ Xi also urinated on Marcel Duchamp’s Fountain on view at the Tate Modern in London. They were arrested, but no charges were filed against them.

Mr. Pinoncely reiterated his act in 2006, when he once again destroyed Fountain using a hammer, this time during a Dada exhibition in Paris, and was again sentenced to a suspended prison sentence and a fine.

The French courts did not address the droit moral issues raised if someone willingly destroys a work of art. This right, which cannot be sold and is perpetual, is detailed by article L. 121-1 of the French Intellectual Property Code, under which

“[t]he author has the right to respect for his name, his nature/talent and his work. This right is attached to his person. It is perpetual, inalienable and imprescriptible. It is transferable upon death to the heirs of the author. The right to exercise it can be given to a third party by a will.”

While the U.S. does not have such a comprehensive droit moral, a section 106(A) was added to the Copyright Ac t in 1990 by the Visual Artists Rights Act (VARA). Authors of works of visual art have the right “to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.”

As works of visual art are defined  by 17 U.S.C. § 101 as single copy drawing, print or sculpture, or a limited edition of 200 copies or fewer signed and numbered by the author, Mr. Ai’s  works would be protected by VARA, although it is doubtful that Mr. Ai, a Chinese citizen, could asses any rights under VARA. However, China acceded in 1992 to the Berne Convention, which article 6bis provides for moral rights.

While Mr. Ai did not find Mr. Caminero’s gesture particularly amusing, he does plan any legal actions. His admirers are left with the regret of not being able to see the complete Colored Vases again.

Image is Vandalism on Hans Kloepfer courtesy of Flickr user Mathias, pursuant to a  CC BY 2.0 license.

 

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