Copyright Archives - Page 3 of 4

Dentist Claiming to Own Copyright in Patient’s Negative Comments about Her Misused Copyright Law

March 24, 2015 · by marie-andree@maw-law.com ·

Going to the dentist is not particularly pleasant, but, at least, one does not usually expect to have to consult a copyright attorney before sitting in the chair.

However, patients of a Manhattan dentist had to sign, before being able to receive any treatment, including emergency treatment, a confidentiality agreement which assigned to the dentist and her dental practice a copyright over any comments made about her or her practice.

One of these patients was not satisfied by Defendant’s dental services and wrote about his dissatisfaction on Yelp and other sites allowing users to comment about services. According to the complaint, Defendant unsuccessfully asked these sites to remove Plaintiff’s comments, sent Plaintiff invoices purporting to charge $100 per day for the posting of these comments, and threatened to file a copyright infringement, breach of contract, and defamation suit if the comments were not removed from the sites.

Several of the dentist’s patients filed a class action suit in November 2011 in the Southern District of New York (SDNY), claiming that, even if Defendant does indeed own the copyright in these comments, they were not infringing under the fair use defense of Section 107 of the Copyright Act. Defendant moved to dismiss but the motion was denied on March 27, 2013, by Judge Paul A. Crotty from the SDNY.

On February 27, 2015, Judge Crotty rendered a default judgment in favor of Plaintiff. The case is Lee v. Makhenevich, 1:11-cv-08665 (SDNY).

For Judge Crotty, the comments posted by Plaintiff were not infringing as they were fair use. Also, for the SDNY,

“[o[btaining the promise by plaintiff… in the [m]utual [a]greement to [m]aintain [p]rivacy… not to publish criticism of defendants, the [a]greement’s purported assignment of copyrights, and the assertion of copyright claims by defendants for the express purpose of preventing the dissemination of [plaintiff]’s [c]ommentary, constitute breaches of fiduciary duty and violations of dental ethics and are subject to the equitable defenses of unclean hands, and, as to such assignment and assertion, constitute copyright misuse.”

Judge Crotty also ruled that

“[Plaintiff]’s assignment and promise in the [a]greement not to publish criticisms of defendant… are null and void for lack of consideration… [that Plaintiff]’s assignment and promise in the [a]greement not to publish criticisms of defendants are null and void for unconscionability… [that] [t]he [a]greement is a deceptive act or practice in violation of Section 349(a) of the New York General Business Law… and [that] [Plaintiff’]’s [c]ommentary is not actionable defamation under New York common law. “

I will only write about the copyright issues in this case.

Using Copyright to Suppress Speech

This case is interesting because it is a textbook example of a case where a party is using copyright to attempt to suppress speech.

The agreement signed by Plaintiff read, in part, that in consideration for the dentist to agree not to provide any lists of patients or personal information to any marketing companies, the patient would “assign… all Intellectual Property rights, including copyrights, to Dentist for any written, pictorial, and/or electronic commentary.” The agreement claimed that dentists are able to provide such information to third parties because of a “loophole” in HIPAA, the federal medical data privacy law, and added further that “Dentist feels strongly about Patient’s privacy as well as the Practice’s right to control its public image and privacy.” The agreement would last five years from the date of the dentist’s last service to the patient, or three years after the termination of the dentist-patient relationship.

HIPAA, however, forbids covered entities, such as MDs and dentists, from disseminating patient information for marketing purpose, so there is no need for such agreement to protect patient’s privacy. The complaint argued that, since there are no “loopholes” in HIPAA, the assignment was null and void for lack of consideration. Judge Crotty agreed.

In his March 2013 order, Judge Crotty referred to all these actions as “aggressive and threatening conduct.” Indeed they were.

After Plaintiff had published negative comments on both Yelp and DoctorBase, he first received a letter from “North East PC/Attn Urgent/Legal” [catchy title, eh?] threatening him with a $100 000 lawsuit because he had violated the agreement. The letter, signed “Corporate Practice”, informed Plaintiff that the letter “shall serve [him] as the only notice prior to litigation” and contained a draft of a complaint which appeared ready to be filed, if the Plaintiff did not comply with the letter’s demands. The office of the dentist also sent Yelp and DoctorBase DMCA takedown notices, telling them that the dentist owned the copyright in the comments and asking them to take the comments down.

On October 17, 2011, Plaintiff received a letter from Defendant’s attorney, which stated that his comments posted online included damaging inferences which denigrate, defame, and cast aspersions upon the dentist and the dental office” and that “according to The Ethics of Medical Justice / Dental Justice Agreements, under the Code of Internet Ethics, your comments are not considered constructive commentaries but rather as personal attacks to the office’s well-being and reputation.” Medical Justice is the company which had written the agreement used by Defendant. The Center for Technology and Democracy filed a complaint in November 2011 with the Federal Trade Commission asking it to investigate Medical Justice, and the company has since stopped proposing such agreements to dentists and MDs.

Copyright Registration

But after having claimed that the comments infringed her copyright, and after having threatened to sue Plaintiff for copyright infringement, Defendant argued that there could not be a copyright infringement suit at all. In her memorandum of law to support her motion to dismiss, Defendant had claimed that the suit had to be dismissed because a copyright registration is a pre-requisite to any copyright infringement suit, but that Defendant had not registered her copyright in the comments.

Judge Crotty noted though, in his March 2013 order, that Plaintiff does not claim that his own copyright has been infringed, but, rather, that his comments “about Defendants’ hardly defensible practices are subject to copyright protection. Defendant’s argument that the copyright must be registered before relief turns the law upside down.”

Fair Use

Instead, Plaintiff claimed that “non-commercial use of copyrighted materials for criticism and comment is a paradigmatic fair use that is not infringing” and that “[t]he posting of [his comments]… can have no effect on their potential market or value because no such value exists.” On February 27, Judge Crotty agreed on that point.

Misuse

Plaintiff also sought a declaration that the agreement’s promise not to publish criticisms, the purported acquisition of copyrights in the comments, and the assertion of copyright claims, constituted breaches of fiduciary duty, violations of dental ethics, and were subject to the equitable defenses of unclean hands and copyright misuse.

Judge Crotty agreed with Plaintiff on these points as well, and awarded him $4,766 in damages.

This post was originally published on The 1709 Blog.

Filed Under: Copyright, Fair Use · Tagged: Copyright, Fair Use, SDNY

Fox News Motion for Summary Judgment Denied in 9/11 Photograph Fair Use Case

March 16, 2015 · by marie-andree@maw-law.com ·

On February 10, Judge Edgardo Ramos from the Southern District of New York (SDNY) denied Fox News Network’s motion for summary judgment of a copyright infringement suit filed by the copyright holder of an iconic 9/11 photograph. The case is North Jersey Media Group Inc. v. Jeanine Pirro and Fox News Network, LLC.

Plaintiff is North Jersey Media Group, the publisher of New Jersey newspaper The Record. It holds the copyright of the widely published photograph of three New York firefighters raising the American flag near the ruins of the World Trade Center. This photograph was taken on 9/11 by photojournalist Thomas E. Franklin while on assignment from The Record. It has since genreated more than $1 million in licensing revenue.

On September 11, 2013, a Fox News employee posted this photograph on the Facebook page of one of Fox’s television shows, Justice with Judge Jeanine, and chose to associate it with another iconic photograph, taken by Joe Rosenthal, which shows four U.S. Marines raising the American flag on Iwo Jima, during World War II. The two images were not otherwise altered, but the employee juxtaposed #neverforget on the images before posting them on Facebook.

Plaintiff contacted Fox News on September 13, 2013, asking the photograph to be taken down. The posting was deleted a few days later. In October 2013, Plaintiff filed a copyright infringement suit against Jeanine Pirro, aka Judge Jeanine, and against the network. Defendants moved for summary judgment, claiming fair use. The SDNY denied the motion, after having examined the four fair use factors set forth by Section 107 of the Copyright Act.

The Supreme Court explained in 1994 in its Campbell v. Acuff-Rose case that, under this first factor, courts must assess whether the new work merely supersedes the original work or if it “instead adds something new, with a further purpose or different character [and] alter[s] the first [work] with new expression, meaning, or message, … in other words, whether and to what extent the new work is “transformative.”

First Fair Use Factor: Purpose and Character of the Use

Defendants argued that their use was transformative as it drew a parallel between 9/11 and Iwo Jima and, as such, had to be categorized as comment under Section 107, which lists comments as one of the categories of use which may be protected by fair use. Defendants also argued that adding the hashtag #neverforget “signaled FoxNews’ participation in an ongoing, global discussion” about 9/11, and that they had altered the original work by using a cropped lower-resolution version of it.

Judge Ramos was not convinced by these arguments, as these changes were “barely discernable” (sic) and because Second Circuit case law requires more changes for the use to be transformative. Judge Ramos gave as examples the works created by Richard Prince from Patrick Cariou’s photographs of Rastafarians used by Richard Prince to create his “Canal Zone” series, noting that Prince had varied the portions of the original works used, and had also changed the scale and medium of the original works.

One remembers that the Second Circuit had found twenty-five out of thirty of Prince’s works to be transformative in Cariou v. Prince. Judge Ramos concluded that the 9/11 photograph was even less transformed by Defendants than the five Prince works which the Second Circuit did not find to be transformative. It is interesting to see how the thirty works at stake in Cariou were used by Judge Ramos as visual fair use “benchmarks” to assess whether a particular use is transformative enough to be protected by fair use.

Judge Ramos also noted that “#neverforget was a ubiquitous presence on social media that day [and that] [t]hus Fox News ‘commentary, if such it was, merely amounted to exclaiming “Me too.” The first factor was found to favor Plaintiff.

Second Fair Use Factor: Commercial Use and Nature and of the Work

Fox News operates for profit and Judge Jeanine’s Facebook page “is intended to capture revenues for the network.” Therefore, the use of the protected work was commercial. However, Second Circuit courts, when assessing fair use, discount the fact that almost all newspapers are published for profit. Doing otherwise would mean that commercial uses are presumptively not protected by fair use. That was not the intent of the Congress, according to the Supreme Court (Campbell, at 584).

Instead, courts consider that “the more transformative the work, the less important the commercial purpose.” As Judge Ramos did not find Defendants’use to be transformative, the second factor had thus to be carefully weighed. He concluded that there was “at least a question of material fact as to whether Fox News posted [the combined photographs] for the purely expressive purpose of commenting on the events of September 11, 2001, or whether it did so for the commercial purpose of promoting the [Judge Jeanine] program.” Therefore, this point would have to be debated in court.

Courts distinguish expressive works from factual works in their analysis of the nature of a work, and that leads to a discussion on the nature and even the scope of copyright protection of photographs depicting current events. Defendants claimed that the copyright in the photograph taken by Thomas Franklin had to be limited “to Franklin’s decisions in taking the photograph” and that “Plaintiff cannot claim ownership in the firefighters’ actions, the expressions on their faces, their ashen uniforms, or the American flag.” Plaintiff instead claimed that the work “involved many creative decisions,” such as the lens chosen and the orientation of the photograph.

The Katz v. Chevaldina case in on appeal in the Eleventh Circuit, and our case is likely to go to trial. Therefore, the issue of copyright protection afforded by works of photojournalists may be further debated this year in US courts.Judge Ramos found that the second factor favored a finding of fair use, noting that Franklin “did not create the scene or stage his subjects.” Judge Ramos cited the Southern District of Florida Katz v. Chevaldina case, where the plaintiff had registered the copyright in a photograph representing him in an unflattering way and then filed a copyright infringement suit against a blogger who had used it to illustrate blog posts criticizing the plaintiff. The Southern District of Florida had found “no evidence that the photographer influenced, at all, the Plaintiff’s activity, pose, expression or clothing” and that, therefore, the second fair use factor weighted in favor of defendant.

Third Fair Use Factor: Amount and Substantiality of the Portion Used

Judge Ramos quoted the recent Second Circuit Authors Guild v. Hathi Trust case, where the court quoted the Supreme Court in Campbell: “[t]he crux of the inquiry is whether ‘no more was taken than necessary.’ Judge Ramous concluded that this factor was neutral, as it was not clear whether Defendants could have used less of the protected work and still make sure that the public would recognize the iconic 9/11 photograph.

Fourth Fair Use Factor: Effect on the Market

Judge Ramos quoted the Second Circuit Cariou case, where the court noted that what matters when assessing this factor is “not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps the market of the original work” (emphasis in original). For the Second Circuit, a defendant in a copyright infringement cases has usurped the market if her target audience and the nature of the infringing content are the same as the original work. Courts must also consider whether the use is transformative.

This illustrates that the four factors are not compartmentalized: whether a use is transformative (first factor) may determine the nature of the work (second factor), which may in turn determine the effect on the market (fourth factor). In our case, Judge Ramos weighted against a finding of fair use, as Fox News did not substantially transform the original work, and also because Plaintiff still derives significant licensing revenue from the protected work.

Judge Ramos denied Defendants’ motion for summary judgment. The issue of fair use will have to be decided in court, unless the parties decide to settle.

This post was originally published on The 1709 Blog.

Image of truck courtesy of Flickr user (vincent desjardins) under a CC BY 2.0 license.

Filed Under: Copyright, Fair Use · Tagged: Copyright, Fair Use, Southern District of New York

Copyright Infringement Suit Filed By Graffiti Artists against Roberto Cavalli Will Proceed

March 3, 2015 · by marie-andree@maw-law.com ·

This post originally appeared on The 1709 Blog.

Will representing graffiti artists soon become a micro niche for US IP attorneys? Here is another case where graffiti artists sued a corporation for allegedly using their art. On February 12, the Central District Court of California (CD California) denied Defendant Roberto Cavalli’s motion to dismiss a copyright infringement suit filed last year by Jason Williams and others graffiti artists. The case is Williams et. Al v. Roberto Cavalli S.p.A. et al., cv 14-06659.

Plaintiffs are Jason Williams, known as Revok, Victor Chapa, known as Reyes, and Jeffrey Rubin, known as Steel. They are graffiti artists who had been invited in 2012 by a San Francisco property owner to create a mural in San Francisco’s Mission District (the “Mural”). Revok and Steel painted their signatures, over a background of “revolutions” imagery which is Chapa’s signature style (CD California p. 1 & 2).

Defendant is Roberto Cavalli, an Italian fashion company known for its colorful prints. It produces and markets a lower-priced brand called Just Cavalli, which introduced in March 2014 a capsule line of clothing and accessories decorated with graffiti art (the “Graffiti Collection”). Revok, Reyes and Steel claimed that the line reproduced without authorization elements of the Mural, using high-resolution photography. They asked Defendant to stop selling the Graffiti Collection, but Defendant did not comply. One of the reasons for not complying was apparently that Italians are on vacation in August (!) (amended complaint at 34).

Plaintiffs then filed a copyright and trademark suit against Cavalli, the company producing the goods, and retailers selling the line, such as Amazon and Nordstrom. Defendant moved for summary judgment, which was denied by the CD California. As this is a copyright law blog, I will only comment about copyright infringement.

Signature and Droit Moral

Revok and Steel had used their respective signatures as part of the design, and claimed that Defendant made them indiscernible and superimposed the Just Cavalli name over Chapa’s imagery, even adding sometimes its own signature, thus giving the impression that Roberto Cavalli created these designs. Plaintiffs considered this to be “a defacement” and also “a false representation that {Roberto Cavalli] rather than Plaintiffs was the creator” (amended complaint at 32). However, they did not claim that Defendant had thus violated the Visual Artists Rights Act of 1990 (VARA).

VARA, 17 U.S.C. § 106A, was enacted to implement article 6bis of the Berne Convention into U.S law. It provides authors of a work of visual art the right to claim authorship of that work, to prevent the use of his or her name as the author of any work of visual art which he or she did not create, and 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.“ Under § 101 of the Copyright Act, a painting or drawing existing in a single copy is indeed a work of visual art, and thus it can be argued that VARA applies to the Mural.

However, VARA is not always successfully used by graffiti artists in a court of law. In 2013, New York City graffiti artists claimed in the Eastern District of New York (EDNY) that a realtor about to destroy the 5Pointz buildings in Queens, on which they had painted several of their works, would thus violate VARA, as destroying their work would be prejudicial to their honor and reputation. But Judge Block from the EDNY was not convinced, noting that Plaintiffs knew that the buildings were intended to be demolished, and that they therefore had “created their own hardships” when painting on a support they knew was doomed (the case is Cohen v. G&M Realty LP).

In our case, the possible VARA issue was not the destruction of the support, but the alteration of the signature, which could possibly prevent the artists to claim authorship of the Mural. However, Plaintiffs chose not to argue that Defendant violated their rights under VARA.

Signature as Copyright Management Information

Instead, they claimed that the signatures on the mural constitute copyright management information (CMI), which is protected by § 1202 (b) of the Copyright Act, under which no person can remove or alter any copyright management information without the authority of the copyright owner or the law.§ 1202(c) lists “[t]he name of, and other identifying information about, the author of a work” as CMI.

For the Plaintiffs, Defendant intentionally removed this information “with the intent to induce, enable, facilitate, or conceal an infringement of Plaintiff’s right under the [Copyright] Act“ and, in some pieces of the Graffiti Collection, even “replaced such information with false, altered and inaccurate copyright management information” (amended complaint at 49).

Defendant argued that section 1202 does not protect signatures. However, as it did not cite any authority for that proposition, this argument failed to convince the court, noting that “a signature seems to be the exact type of information that would identity the author of a work” and, as such, are within the scope of § 1202(c)(2).

Defendant also argued that, as § 1202 was enacted as part of the Digital Millennium Copyright Act (DMCA), some technological process must be used to place or remove the signature, and that it was not the case here. However, the court cited several cases from courts belonging to the Ninth Circuit which had found signatures not in digital form to be CMIs. Therefore, the CD California denied Defendant’s motion to dismiss Plaintiff’s cause of action for violation of § 1202 of the Copyright Act. The suit will now proceed.

Image is courtesy of Flickr user Horia Varlan under a CC BY 2.0 license.

Filed Under: Copyright, Fashion Law · Tagged: Copyright, DMCA, Graffiti, Moral Right

Paparazzi’s Photographs Protectable by US Copyright

February 18, 2015 · by marie-andree@maw-law.com ·

This blog post was first published on The 1709 Blog.

On January 26, 2015, the Southern District Court of New York (SDNY) denied summary judgment to Defendant, a web site which had used Plaintiff’s protected photographs without authorization. The case is BWP Media USA, Inc. v. Gossip Cop Media, LLC,13-civ-7574 (KPF) (SDNY 2015).

Plaintiff BWP Media is a media company specializing in celebrity pictures, which can either be described as “entertainment-related photojournalism,” as did the complaint, or, less demurely, as employing paparazzi to follow celebrities around and take their pictures. Plaintiff licenses its works to various media outlets, including TMZ. Defendant Gossip Cop is a website commenting celebrity gossip news and sometimes rating their accuracy on a scale from zero to ten.

Second Circuit Requires Plaintiff to Have Already Registered its Copyright

In order to illustrate some of its articles, Defendant reproduced without authorization three photographs and one video in which Plaintiff claimed copyright ownership. Defendant moved to dismiss, claiming fair use, but its arguments did not convince the court.

As copyright registration for the video, featuring actress Gwyneth Paltrow on a scooter, was pending at the time the copyright infringement was filed, the SDNY granted the motion to dismiss with respect to the video. Indeed, a majority of Second Circuit courts, of which the SDNY belongs, have held that a pending copyright application is not a copyright registration, which is a necessary prerequisite to file a copyright infringement suit under 17 USC §411(a).

Fair Use Claim Survives Motion to Dismiss

The three remaining works were photographs of celebrities, taken by paparazzi, which had been published online by various news organizations. For instance, a picture of Mila Kunis and Ashton Kutcher had been published by The Sun to illustrate an article claiming that the couple was moving to the UK. Defendant reproduced the photograph in an article rating this information to be false. Another image showed Robert Pattinson leaving the Chateau Marmont hotel. This image was used by Defendant to deny a report that the actor had partied hard that night. A third image showed Liberty Ross sans wedding ring, but Defendant did not comment on the original story about her alleged marital troubles.

The SDNY denied Defendant’s motion to dismiss the copyright infringement claim for these three pictures. Defendant had claimed fair use. The fair use defense is provided by 17 USC § 107, which enumerates fours nonexclusive factors, the purpose and character of the use, the nature of the copyrighted work, the amount taken by Defendant and the effect of the use on the potential market. Even though this defense is a mixed question of fact and law, the Second Circuit allows resolution of fair use inquiry at the motion to dismiss stage, if the facts necessary to establish the defense are evident on the face of the complaint.

First Factor: Transformative Use

The first factor asks whether the infringing work merely supersedes the original work or if, instead, it adds something new and is thus transformative.

The SDNY noted that the Second Circuit in Cariou v. Prince found that “[t]he law imposes no requirement that a work comment on the original or its author in order to be considered transformative” (at 706). The Cariou court had also noted that the commercial use of an infringing work may still be considered fair use, if it is transformative. Also, the Second Circuit recognized last year in Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P. that “[a]lmost all newspapers, books and magazines are published by commercial enterprises that seek a profit.”

The SDNY reasoned that Defendant is indeed a for-profit entity, but that it used the infringing pictures “to illustrate or bolster the stories run by The Sun [and other media outlets], and proceeds to attack the factual bases of these stories.” The SDNY added that “while [Defendant] Cop may [be] a far cry from Woodward and Bernstein” [that is called an “ironic understatement”] the fact that the news thus analyzed was “on the tawdry side of the news ledger” does not prevent a finding of fair use. The SDNY found the first factor to weigh in Defendant’s favor for the Kunis/Kutcher and the Patterson photographs, but not for the Ross’ photograph, as Defendant had not commented on the original report that the actress may have marital troubles.

Second Factor: Nature of the Work- Paparazzi Pictures may be Creative Works

IP attorneys feeling guilty if reading gossip magazines while waiting for their nails to dry may welcome the news that they are thus assessing whether such images should be protected by copyright. In the Second Circuit, it seems that the answer is yes.

The SDNY quoted a 2012 Sixth Circuit case, Balsey v. LFP, Inc., which held that, while a paparazzi photographer does “not direct [the subject] or create the background for the images,” he, however, does “ha[ve] control over the exposure of the film…[and] use[s] his artistic skills to edit the pictures for size, color, clarity, and [chooses] which images to publish based on the allurement of the subject” (Balsey at 760). Therefore, Plaintiff’s images may be considered creative works, even though they were taken by paparazzi. The SDNY nevertheless declined to give weight to the second favor in favor of either party.

Third Factor: The Amount Taken

To assess the third fair use factor, Second Circuit courts examined the portion of the original work which was used without authorization, which must be “reasonable in relation to the purpose of the copying” (Blanch v. Koons at 257). Also, the Supreme Court noted in Campbell v. Acuff-Rose that courts must look at the quantity of the materials used, but also their quality and importance (Campbell at 587).

Here, Defendant copied Plaintiff’s works in their entirety, which, according to the SDNY, “suggests that they were used to convey the ‘fact’ of the photograph to viewers” and that purpose is indeed reasonable for the SDNY. However, the SDNY once again differentiates the Liberty Ross ‘photograph from the other ones, as Defendant did not use it to comment about the veracity of breaking up rumors. As such, it “was used to convey precisely the same information as in its original publication.” The SDNY found the third factor to weigh in Plaintiff’s favor.

Fourth Factor: Effect on the Market

If the unauthorized copy usurps the market by offering a substitute product, there is no fair use. Defendant argued that it operates a “unique, transformative news reporting market” as it evaluates gossip, not merely republished them from other sources. However, the SDNY found that Defendant’s articles may be found to be adequate substitutes for the original articles. Therefore, they could deprive the media outlets buying pictures from Plaintiff, and, by extension, Plaintiff itself, of a portion of their market. The SDNY found therefore that the fourth factor weighed in Plaintiff’s favor.

The case will now proceed further.

Image of the ladies gossiping courtesy of the Boston Public Library, under a CC BY 2.0 license,

Filed Under: Copyright · Tagged: Copyright, Fair Use, SDNY

Be Mindful of Your Ability to Copy Street Art

February 2, 2015 · by marie-andree@maw-law.com ·

This blog post was originally published on The 1709 Blog.

Mark Anthony Miller is a Brooklyn street artist, known as CAM, whose works can be seen in Brooklyn’s DUMBO neighborhood. His work is often inspired by stained glasses, as could be seen last year in theAlways be Mindful of your Ability to Fly exhibition at the DUMBO Art Festival.

On January 21, he filed a complaint in the Eastern District Court of New York for copyright infringement against Toll Brothers, Inc., a real estate development company, claiming that Defendant used without permission a reproduction of one of his works, a mural in DUMBO now destroyed. The case is Craig Anthony Miller v. Toll Brothers, Inc.,no. 1:15-cv-0032. Here is a link to the complaint, courtesy of New York attorney Mark Jaffe.

Plaintiff, as part of the 303 Collective, painted in 2009 a90-foot “elephant mural” on a warehouse located at Water Street in DUMBO. The owner of the wall had given the artists permission to paint it. The work was a striking piece, featuring lush vegetation, angels, and wild animals, including elephants, over a vivid orange background. As explained on his web site, CAM is inspired by the Hindu God Ganesh, who is represented as having the head of an elephant. The elephant mural was painted over in 2009, and the warehouse itself was eventually torn down for make way to, surprise, surprise, a luxury apartment development.

Plaintiff claims that Defendant used in 2012, without his permission, a photograph of the elephant mural in advertisements for its 205 Water Street in Brooklyn luxury condominium development. At the time, the mural had not yet been destroyed, and had, according to the complaint, “served as the backdrop for countless videos, weddings, engagements, fashion shoots, television and print advertisements” (p.2). Defendant’s advertisements were posted in the New York City subways, telephone booths and bus shelters, and also in the print and the online version of The New York Times.

The complaint states that Plaintiff contacted Defendant after learning about the advertisement and that they engaged in negotiations over possible compensation for this unauthorized use. However, while “Plaintiff produced work for [Defendant] for a number of months,… no projects ever materialized and no payment was ever made to Plaintiff for the infringing use of the [elephant mural]”(p. 4).

Plaintiff has registered the copyright for the mural, and he is claiming infringement of his exclusive rights. He is seeking either actual or statutory damages, as provided by §504 of the Copyright Act, attorney’s fees, as provided by §505 of the Copyright Act, and injunctive relief, under §502 of the Copyright Act, asking the Court to order Defendant to destroy all copies of the allegedly infringing advertisement.

There have been several similar cases lately, where graffiti artists sued a company for infringement of their copyright (see here, here and here). It will be interesting to see when this trend will die down, signaling that corporate counsels are finally aware that street art is, well, art, and as such, original enough to be fully protected by U.S. copyright.

Image is courtesy of Flickr user dumbonyc under a CC BY-SA2.0 license.

Filed Under: Copyright · Tagged: Copyright, copyright infringement, Graffiti

First Sale Doctrine Allows Retailer to Sell in U.S. Gray Market Watches Bought Abroad

January 29, 2015 · by marie-andree@maw-law.com ·

This blog post was originally published on The IPKat blog.

On January 20, 2015, a three-judge panel from the 9^th Circuit affirmed a Central District of California’s decision which had granted summary judgment to defendant U.S. discount retailer Costco. The discounter had been sued for copyright infringement by Swiss luxury watch manufacturer Omega. The case is Omega S.A. v. Costco Wholesale Corp., No. 11-57137 (9^th Circ.).

A Gray-Market of Genuine Luxury Goods

Costco sold Omega “Seamaster” watches in its stores. It had purchased them abroad in 2004 in the “gray market,”after Omega had sold the watches to authorized foreign distributors. Indeed, instead of buying goods directly from an official supplier, some companies buy genuine goods in the secondary market, after they have been first sold by an authorized distributor.

Choosing where your products will be sold, or “placement,” is an important part of the marketing mix. The watches were sold by Costco for 35% less than Omega’s suggested retail price (p.19) and “Price” is also a component of the marketing mix. It is therefore not surprising that many luxury companies are less than happy to see their products sold by discount retailers, for fear of losing the aura of prestige which is one of the reasons customers may buy a luxury product.

Omega did not want its watches to be sold by Costco, and sued the discount retailer for copyright infringement, arguing that it had breached §602 of the Copyright Act, which forbids importing protected works into the United States “without the authority of the owner of copyright.” As watches cannot usually be protected by copyright in the U.S., because they are useful articles, Omega had each of the Seamaster watches engraved on its underside with a tiny copyrighted Omega design, the “Globe De
sign,” in order to be able to assert a copyright in them. Costco did not have permission to use this design.

Costco asserted a first sale doctrine defense. The Central District of California granted summary judgment to Costco, noting that Omega had engraved the Globe Design on its watches at least in part to control importation of the watches, and thus had misused its copyright. But the 9^th Circuit reversed the decision in 2008 and remanded, holding that the first sale doctrine does not apply to copies of works produced abroad. The Supreme Court affirmed per curiam in 2010. On remand, the district court granted again summary judgment to Costco. Omega appealed and the 9^th Circuit affirmed this time, because the Supreme Court held in 2013 in Kirtsaeng v. John Wiley & Sons that the first sale doctrine applies to goods manufactured abroad.

First Sale Doctrine

109(a) of the Copyright Act authorizes the owner of a lawfully made copy of a protected work to sell or dispose of that copy without having to ask permission of the copyright owner. Therefore, once a copy of a protected work has been lawfully sold, the owner of that copy, and the subsequent owners as well, may dispose of it as they wish, because the first sale of the work has “exhausted” the copyright owner’s exclusive distribution right under § 106(3).

In Quality King Distributors, Inc. v. L’anza Research Int’l, Inc., the Supreme Court held in 1998 that §602(a)(1), which refers to §106(3)’s exclusive distribution right, incorporates the “first sale” doctrine limitation. That means that §602(a)(1) allows the importation into the United States of a copy of a protected work purchased abroad. In the Quality King case, however, the copy, while purchased abroad, had been manufactured in the U.S.A., and thus the case could be distinguished from the Costco case.

But while the Costco suit was under way, the Supreme Court held in 2013, in Kirtsaeng v. John Wiley & Sons, that the first sale doctrine also applies to copies of protected works lawfully manufactured abroad. The Kirtsaeng judgment retroactively applied in the Costco case, and therefore, the Ninth Circuit found that Omega had no copyright infringement cause of action against Costco:

“Omega’right to control importation and distribution of its copyrighted Omega Globe expired after that authorized first sale, and Costco’s subsequent sale of the watches did not constitute copyright infringement” (p.7).

This decision is a big victory for Costco and similar retailers alike. As noted by Judge Wardlaw in her concurring opinion, Costco sells “a wide range of luxury goods, including Dom Pérignon Champagne, Waterford crystal, Dolce & Gabbana handbags”(p. 9). We may soon see more luxury goods in discounter’s aisles, alongside gallons of laundry detergent and giant cans of tomato soup.

Image is courtesy of Flickr user Bas Lammers under a CC BY-SA 2.0 license.

Filed Under: Copyright · Tagged: Copyright, First Sale Doctrine

Three’s Company and Four Fair Use Factors

September 3, 2014 · by marie-andree@maw-law.com ·

The European Court of Justice just released today its Deckmyn judgment, where it defines what a parody is under European Union law. I wrote about it a while ago, and will come back to it. Meanwhile, there is an interesting parody case just here in New York, David Adjmi v. Dlt Entertainment Ltd., 14 cv.0568.

Plaintiff David Adjmi is a playwright, and his plays have been performed at the Royal Shakespeare Company in England, Lincoln Center, and the American Repertory Theather among others. He wrote 3C, an original play parodying the television show Three’s Company, which ran from 1977 to 1984. Defendant DLT Entertainment holds the copyright to Three’s Company. It sent Plaintiff a cease and desist letter in June 2012, asking that the production of 3C, which played Off Broadway in 2012, to be stopped. After the production ended as scheduled in July 2012, a publisher expressed interest in publishing 3C in a book of Plaintiff’s plays, and an another publisher want to prepare an acting edition of 3C, and also license its future productions on behalf of the playwright.

Plaintiff then filed suit in the Southern District of New York (SDNY) on January 30, 2014, seeking a declaration that his play does not infringe DLT’s copyright, and filed an amended complaint in February 25. Defendants filed a counterclaim for copyright infringement against both the playwright and the producers of 3C, claiming that the play is not fair use, but rather is an unauthorized derivative work. The playwright moved for judgment on the pleading, and, on August 25, filed a memorandum of law to support this motion, addressing the four fair use factors.

The doctrine of fair use is codified in the Copyright Act of 1976, 17 U.S.C. §107, and provides an affirmative defense to a copyright infringement claim. 17 U.S.C. §107 lists four non-exclusive four factors , which the courts consider when determining if a particular use of a protected work is fair:

“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.”

A determination of fair use is a mixed question of law and fact, and no factor is dispositive. The memorandum of law argues that the play is a parody, and, as such, is “quintessential fair use.” It cites the Campbell v. Acuff-Rose Music case, where the Supreme Court explained that “the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s work.” As such, parody is speech protected by the First Amendment.

In Three’s Company, Chrissy and Janet are sharing an apartment in Santa Monica with Jack. Although their relationships are platonic, Jack is pretending to be gay as their landlord frowns upon a man being the roommate of two women. 3C also features two women sharing platonically an apartment with a man. However, the man is really homosexual, but has not revealed his sexuality publicly, as he is afraid of people’s reactions. Indeed, his landlord is homophobic. One of the women is a cocaine user and has been in an abusive relationship. The other woman has very poor self-esteem to the point she allows her lecherous landlord to molest her.

The memorandum argues that the play “demonstrates how some of the assumptions and stereotypes on which the superficial comedy of Three’s Company was based were harmful, even toxic, to real people.” Plaintiff stated in his original complaint that, in writing 3C, he “wanted to deconstruct the sunny, silly sitcom visions of Three’s Company and contrast it with the reality of life in the 1970’s for many people.” The complaint states further that “Three’s Company was a light-hearted farce; 3C is heavy and dark” and that that 3C is a parody and thus fair use.

The memorandum addresses the four fair use factors. As for the first factor, the purpose and character of the use, Plaintiff argues that he “altered [Three’s Company’s] characters and invented his own plot for them.” He parodied the television show “to expose and criticize the toxic assumptions about sexuality, gender, and age at the heart [of the show.]” As such, the use of the original work is transformative. In Campbell, the Supreme Court explained that the first factor must aim at determining whether the new work merely supersedes the original work or if the use is instead transformative.

Plaintiff also argued that the second factor, the nature of the original work, should weigh in his favor, albeit he did not elaborate much. It is surprising that Plaintiff did not reiterate there that his work is creative.

As for the third factor, the amount and substantiality of Plaintiff’s use in relation to the original work, the memorandum quoted the Seventh Circuit case Chicago Bd. Of Educ. v.Substance, Inc., where the court recognized that “a parodist has to be able to quote, sometimes very extensively, from the parodied work in order to make the criticism.” It also quoted the Campbell case, where the Supreme Court explained that copying for parodic purpose “does not become excessive… merely because the portion taken was the original’s heart.”

It also cited the Eleventh Circuit‘s Suntrust Bank v. Houghton Mifflin Co. case, which is probably the most permanent case law in that matter. The Eleventh Circuit found the novel The Wind Done Gone, written by Alice Randall, to be fair use, even though it had appropriated characters, plot, and major scenes from Gone With the Wind, as the novel “generally sets out to demystify GWTW and strip the romanticism from Mitchell’s specific account of this period of our history.” The Eleventh Circuit defined parody as a work aiming to “comment upon or criticize a prior work by appropriating elements of the original in creating a new artistic, as opposed to scholarly or journalistic, work.” Plaintiff acknowledged the title of the play refers to the television show, but that he did not copy dialogue and added many new elements,

Plaintiff notes that the fourth factor, the effect on the market for the original work “generally weighs in favor of a parodist,” noting that , if only licensed parody would be permitted, a copyright owner could prevent parody of his work, to the detriment of free expression. A parody does not satisfy the demand for the original, and plaintiff argues his play, which has so far only played for a limited time Off Broadway, does not fulfill the demand for the television show, which is still in syndication.

Image is Ye Olde Doorbell (306/365) by Flickr user derrickcollins, under a CC BY-ND 2.0 license.

CC BY-ND 2.0)

Filed Under: Copyright · Tagged: Copyright, copyright infringement, Fair Use

Sherlock Holmes Will Not Jump the Shark

August 26, 2014 · by marie-andree@maw-law.com ·

Benedict Cumberbatch won an Emmy Award last night for his portrayal of Sherlock Holmes in the BBC series Sherlock and Martin Freeman won an Emmy for portraying Dr. Watson in the same show.

More movies, television series or books featuring the famous detective and doctor are likely to be made in the years to come as the Seventh Circuit decided last June that Sherlock Holmes and Doctor Watson, the famous characters created by Sir Arthur Conan Doyle, are no longer protected by copyright (Klinger v. Conan Doyle Estate, Ltd.,). I wrote about this case for the TTLF newsletter in July.

Sherlock Holmes and Dr. Watson first appeared in A Study in Scarlet, a story penned by Sir Arthur Conan Doyle which was published in 1887 and first released in the U.S. in 1890. This story is thus in the public domain in the U.S. because all work published before January 1st, 1923 are in the public domain in the U.S. However, Sir Arthur Conan Doyle published ten Sherlock Holmes stories, also after January 1st, 1923 and these then stories are still protected by copyright in the U.S.

The Estate of Conan Doyle (ECD) argued in front of the Seventh Circuit that if a “complex” character is protected by copyright, it is thus protected until the last work where the character appear falls into the public domain. The ECD further argued that “flat” characters don’t evolve, but “round” characters do. This argument failed to convince the Seventh Circuit, which decided that the two characters were no longer protected by copyright. The court added, however, that the original elements added in the later stories remained protected. The ECD then petitioned the Supreme Court to accept to review the case, but the Supreme Court denied certiorari (meaning it refused to review the case).

That decision was disappointed for many IP attorneys and scholars, as one of the questions asked to the Supreme Court in the petition was whether “a character that develops dynamically over time is entitled to copyright protection based on the last publication depicting the character’s evolution.” In essence, answering this question by the affirmative would have allowed authors to extend the protection of their characters indefinitely, as long as they would have continued to develop their characters “dynamically” (whatever that exactly means). Mickey would have finally married Minnie. Superman would have started a publishing empire. The Hulk would have created a line of face creams designed to cover greenness.

The art of developing a character is maybe best known by television writers, sometimes to the point of “shark-jumping.” Just imagine Sherlock Holmes in shorts (maybe tweed shorts?), on water skis, and smoking his pipe. Not a happy thought.

The image is Baker Street, London – What’s This? Sherlock Holmes – The Sherlock Holmes Food & Beverages! courtesy of Flickr user Elliott Brown under a CC BY 2.0 license.

Filed Under: Copyright · Tagged: Copyright, Protection of Characters by Copyright, Seventh Circuit, Sherlock Holmes

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

March 31, 2014 · by marie-andree@maw-law.com ·

A 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

Filed Under: Copyright · Tagged: Copyright, Performers' Copyright

Gentrification, Moral Rights and Graffiti Art: a New York Story

December 10, 2013 · by marie-andree@maw-law.com ·

On November 12, 2013, Senior District Judge Block from the Eastern District Court of New York (EDNY) declined to issue an injunction which would have prevented the 5Pointz buildings in Long Island, New York, to be demolished. The EDNY published its opinion on November 20. The case is Cohen v. G&M Realty LP.

The seventeen plaintiffs in this case are graffiti artists who had painted their works on the walls of 5Pointz, which would be destroyed by demolishing the buildings. This is why they filed suit against defendants, real estate development companies and owners of the buildings, asking the EDNY to issue a temporary restraining order to prevent 5Pointz from being torn down.

Plaintiffs argued that any intentional distortion, mutilation, modification or destruction of 24 of their works would be prejudicial to their honor and reputation pursuant to the Visual Artists Rights Act of 1990 (VARA), the federal law which provides some moral rights to some visual artworks.

5Pointz

5Pointz is not just one building, but several buildings in Queens covering 200,000 square feet which have been covered by graffiti since the mid 90’s or so. In 2002, one of the plaintiffs, Jonathan Cohen, a professional artist under the name “Meres One, approached Gerald Wolkoff, who owns the building, to become the curator of the space. Wolkoff agreed and Cohen started selecting which artists could display their works. Each artist retained all copyrights to their work, and none were paid.

Graffiti artists from all around the world came to the site, which became known as 5 Pointz. The ever-changing facades and interiors became world-famous and were quite a sight from the 7 line, as the train snaked around the buildings.

What are Moral Rights?

Moral rights are non-economic rights that authors may enjoy, and are even considered human rights under article 27-2° of the Universal Declaration of Human Rights, which states that “[e]veryone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

Moral rights are:

a) The right of first disclosure, that is, the right to reconsider the work or to withdraw its publication; b) the right of attribution, that is, the right to be recognized as the author of the work, or to publish the work anonymously; and c) the right of integrity, that is, the right to have the work respected and to prevent is mutilation or distortion.

The Visual Artists Rights of 1990

VARA recognizes only two moral rights, the right of attribution and the right of integrity. However, the scope of VARA is limited to works of visual arts, defined by 17 U.S.C. § 101 as single copies of drawing, print or sculpture, or limited editions of 200 copies or fewer signed and numbered by the author.

Artists have the right to claim authorship of a work and the right to prevent its distortion or mutilation or other modification which would be prejudicial to the artist’s honor or reputation , 17 U.S.C. § 106A(a)(3)(A). They also have the right to prevent its destruction if the work is “of recognized stature” under 17 U.S.C. § 106A(a)(3)(B).

What is a Work of Art of “Recognized Stature”?

VARA, however, does not define what “recognized stature” means. The Southern District Court of New York (SDNY) proposed in 1994 in Carter v. Helmsley-Spear to use a two-tiered test to prove such stature.

First, plaintiff must show that the work has stature, meaning that it is ‘meritorious’. This is necessary as copyright protects works of authorship as long as they are original, but the level of originality required is very low. No need to be Picasso to have one’s drawings protected by copyright. But a ‘meritorious’ work would induce some awe that a competent amateur drawing may not bring.

But whose opinion about the work should the judge take into consideration? The second tier of the SDNY Carter test requires the plaintiff to prove that the stature is ‘recognized’ by art experts, the artistic community, or by some cross-section of society, but not necessarily everybody.

The EDNY acknowledged the two-tiered Carter test, and heard testimony from three of the seventeen plaintiffs during a preliminary injunction hearing. The court also heard expert testimony. Defendant’s art expert testified that in her view, people came to see 5Pointz not to see a particular work, but to see the ensemble.

The court seems to have been convinced by this testimony, as it found that 5Pointz could not be protected by VARA, as the law only protects a work of visual art, while 5Pointz is a “tourist site.”

The Transient Nature of Graffiti Art

Artists took turn at 5Pointz to cover some parts of the buildings, which were used to rotate quickly from one art work to another. Cohen is quoted in a 2007 interview with the Christian Monitor, cited by the EDNY, that some works only last 12 hours, some remain for two years.

Some walls, however, bore artworks which Cohen wanted to preserve, not allowing subsequent artists to paint over, among them the 24 works of the plaintiffs in this case.

The transient nature of graffiti, even its ephemeral nature, also weighed in the EDNY decision, as Judge Block noted that, because the artists knew that the buildings were intended to be demolished, they had “created their own hardships.”

During the trial, Wolkoff, the owner of the building, testified that he had told Cohen that the buildings would eventually be torn down. Some of the 5Pointz artists also testified that they knew the buildings would be eventually be torn down.

The EDNY also quoted a 2002 NDNY case, Pollara v.Seymour, where the court denied VARA protection to a mural commissioned to the artist as a “single use” piece for a particular event, reasoning that “[i]t defies the underlying purposes of VARA to assume that the statute was intended to protect works of artistic merit without regard to whether…[they] were otherwise intended to be preserved for posterity as works of artistic merit.”

The owners of 5Pointz have now white washed the buildings. However, the case is not over and a trial court will review whether plaintiffs are entitled to damages. While doing so, it will decide whether the 24 works are of recognized stature under VARA. If the trial court recognizes the plaintiff’s works are of “recognized stature” under VARA, defendants may have to pay monetary damages to the artists.

The EDNY noted that New York City could have exercised its power of eminent domain to acquire the site, but it chose not to do so. That leaves us with the regret that 5Pointz will not become officially what it had been, unofficially, for years: the world’s greatest museum of graffiti, in the very city where this art was first born.

Image is @5pointz courtesy of Flickr user Pelle Sten pursuant to a CC BY 2.0 license.

Filed Under: Copyright · Tagged: Copyright, Graffiti, Moral Rights, VARA