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------------------------------------------------------------------I. An Introduction and Defining What Art Is A. Introduction and Overview 1. Art is the largest unregulated market left in the world. 2. Multi-billion dollar industry. 3. Theft and transport of art is 3d largest illicit trade in world, behind only drugs and weapons. 4. Art law is a combination of many types of law: a. IP law (copyright; moral and economic rts; rts of publicity) b. 1st Amd law (symbolic speech and protest art; censorship of pornography and child pornography; content-neutral and indirect censorship of art; private censorship of art) c. Art markets and artists business relationships (galleries, dealers, and clients; auctions; museums; Ks, commissions, trusts cy press, and fiduciary law) d. International and transnational law of art and cultural property (movement of art in peace time and war time; preservation of art and cultural property). B. What is Art? 1. Basic and Vague Definitions: (1) Art is experience, expression, an organic complex in sensuous medium w/ elements having expressive characteristics; (2) art is what an artist says it is---that which artists produce and put forth; (3) art is what the art-buying public and art community declare art to be; and (4) art is what a judge says it is. 2. Litigation Definitions (these developed b/c art is subject to lower import duties, so importers go to ct instead of paying regular duties) a. Justice Holmes in Bleistein: It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. b. Some Specific Examples A) Silberman v. Innovation League: Deft copied poster of Manhattan skyline. Cropped and enlarged a sectionmade wall decorations and trade dress items. What kind of claim was rejected? MORAL RIGHTS (VARA) Right of Integrity claim fails: the right of integrity to prevent destruction, mutilation, and resulting dishonor of works does not extend to items like posters. WHY NOT? Posters are NOT the kind of art Congress wants to protect with this integrity right. B) United States v. Perry (CB5): Stained glass case; a duty was imposed and the importer objected, claiming it was art; SCOTUS said stained glass was not art b/c it had a utilitarian purpose, i.e., it was not purely ornamental; stained glass is artistically designed but fashioned together by an artisan, not an artist; its not a painting (although a painting on glass would work); SCOTUS said only fine arts intended solely for ornamental purposes are protected. C) Tiffany v. US: Paintings on silk and bone fans held to be a painting; chief was imparted by the work of an artist. D) Olivotti & Co. (CB8): Marble fonts w/ seats; these are mere carvings, so they are subject to a regular duty (as opposed to the reduced duty for art or sculptures); not sculptures or works of art; designed by an artist but built by an artisan; the artistic features were not removable; ornate and decorative but not fine art.

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1) Statute: Works of art, including paintings in oil or water colors, pastels, pen-and-ink drawings, or copies, replicas or reproductions of any of the same, statuary, sculptures, or copies, replicas or reproductions thereof, and etchings and engravings, not specially provided for in this section . . . . E) Brancusi v. US (CB10): Bird in Flight bronze sculpture is art; new schools of thought on art, abstract ideas rather than natural objects; not the courts job to sympathize with the new schools, just to recognize their existence; criteria = purely ornamental, original work, by hand of true artist (sculptor). F) Consmiller v. US (CB13): Marble mantel pieces are NOT art; highly skilled artisan, not an artist; he was trained as an apprentice, not in an art academy or artists studio; work of a factory, not a studio. 1) ARTIST = a PROFESSION learned as a STUDENT in a STUDIO; ARTISAN = a TRADE learned as an APPRENTICE in a SHOP. 2) Contrast w/ US v. Oberlaender: Art appeals not only to the eye but to the emotions as well; not just the product of professional skill but also of conception and imagination of an artist. G) Mayers, Osterwald, & Muhlfeld (CB15): Diamonds are NOT art; no matter how old, no matter how well cut, it still is the work of a highly skilled artisan, not an artist; criteria = purely ornamental, highly skilled, but not from a true artist. Problems A) Art is expression rendered in recognizable models and forms. What about impressionists and post-impressionists? B) Art is experience rendered in some kind of model or form. What about abstract artists? C) Art is expression uniquely attributable to an artist. What about Warhols soup cans and Lichtensteins comic strip panels? Photographs A) Ambrotypists, Daguerreotypists (early photographers) were not characterized as artists; purely mechanical production; in copyright cases, protection allowed in Burrows-Giles case in 1884; at present, photographs are included under books and paper and get in free. Reproductions and Replicas A) Work of an artist or artisan? How many can qualify as art? What level or artistic originality must be present? B) Gregory v. US (CB18): Bronze sculpture of deceased artist; recastings limited to first 2 castings made, NOT first 2 to enter the USA; supervision by artist of helpers and assistants is okay. 1) 1958 Customs reform upped the number of re-castings to 10, and then the Harmonized System upped it to 12. C) Customs Reform of 1958 1) 1958 Amendments: artworks in other media took away most restrictions on art and allowed in all types of modern and contemporary art; the promise of Brancusi was realized for most artists. Harmonized System: 1988 A) U.S. standards and descriptions now match international standards and descriptions; import and export documents should agree; fine art is duty free, within some limits on originality, e.g., sculpture (12 castings can be original art); other kinds of art works, art objects are dutied but at low rates; letter rulings---come out regularly, but they are strictly held to be not binding on the Customs Service. B) Elder & Co. (CB22): Mosaic copy of Panello Acenzione; issue was over originality; found to be original; artists employed, not craftspeople; needed to use artistic discretion and interpretation even though worked from transparency of original; contrast US v. Colombo (cited in Elder & Co.): slavish copy of Disputa in Vatican; artists traveled to site, made color sketches of original, tried to copy it down to smallest detail; not original art. Two Dimensional Works

A) Original or photomechanical most printing, categories such II.

copies, but must be executed by hand, not by mechanical or processes; rules out stenciling, masking, engraving and e.g., lithography and serigraphy; can come under other as paper products and so forth.

Copyrights A. Part 1: An Overview 1. Common Qs: (1) How do you get a copyright? Write something, paint something---do something that creates something. (2) Do you have to register it? No. (3) Do you have to publish it, show it off to the world? No. (4) Do you have to put a copyright notice on it somewhere? No. a. Copyright Act (17 U.S.C. 101 et seq.) Basics (CB27): A) Constitution authorizes Congress to provide protection for a limited time to authors for their writings. B) An author for purposes of copyright law = a creator (whether it be author, photographer, sculptor, painter, etc.). C) Copyright Act grants copyright protection to original works of authorship fixed in any tangible medium of expression. D) Original means anything more than not copied. E) There must also be a scintilla of creativity. F) Copyright Act exempts from copyright protection any idea, procedure, process, system, method of operation, concept, principle, or discovery. G) Copyright protection extends only to the expression of creations of the mind, not to the ideas themselves. b. (1) Can two painters have a painting of the Birth of Venus---the exact same subject matter---and each have a perfectly good copyright? (2) Two authors write about the 9/11 plot---each writes from the perspective of the terrorists, each one tells the tale from landing in USA, taking flight classes, all the way up to the event---do each have copyright? Yes to both. Independent creation vs. copying, and ideas vs. expression. c. What if you have a really creative idea, surely you can protect that from copying? Not so fast---not likely in copyright. An idea, no matter how creative and artistic, is not copyrightable and cannot be protected through copyright law. Only the expression and embodiment of an idea can be copyrighted and protected. Thus, copying an idea is fine. Also, independent creation of works that embody the same idea are fine. d. (1) Can you copyright a theme for a game show, e.g., Survivor? Big Brother? (2) Can you copyright a realistic account of historical events? No to both. No copyright for facts or events or even research (the raw data, the things you discover). e. You take a nice black & white photo. You like it. You make a bunch of photocopies---is each photocopy copyrightable? Not likely. Work must have some creative or original element. A direct, completely slavish copy would not be copyrightable. But it took you a long time to do it---does it matter? Sweat equity doesnt do it. Copyright on new editions, new compilations only protects the newly added or newly compiled material. f. Quick example: Meshwerks copied the designs (expressions) of Toyota cars. The techniques used were creative, and a lot of time, effort, and skill was employed, but the expressions achieved (images depicting the design of Toyota cars) were not original to Meshwerks. 2. Standard of Creativity a. Very low standard---intentionally so. Holmes: Dont want to leave out cutting edge, avante garde art like Goya or Manet in their times, nor art that appeals to less developed tastes. Nimmer: If a work might arguably be regarded as a work of art by any meaningful segment of the population, high brow, low brow, hippy, avante garde, [etc.], then it counts as art for copyright purposes. b. (1) Is a telephone directory copyrightable? Not unless some creative, original selection or arrangement is made. (2) What of Wests pagination and formatting of reported cases? Courts wrote the darn things. It is copyrightable, but only the material and formatting West adds to the opinions, not the text of the opinions themselves. (3) Artist reproduces her

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digital art---separate copyright? A copy of digitalized art is not separately copyrightable; each copy is an exact duplicate of original (jpeg, etc.). Standard of Originality a. Very low standard---it is little more than a prohibition on actual copying. Does not require uniqueness or one of a kind status. Random independent creation of nearly identical works (maps, paintings, etc.) is okay. Anything more than a mere trivial variation that is contributed by the author meets the standard. Mapmakers put mistakes in the map to catch people copying. Limits on Subject Matter a. Can you copyright obscene and outrageous material, e.g., pornography or other obscenity? No problem---you can copyright obscene, immoral material (but publication, distribution, display, and sale of these works is another question). Cant have obscene trademarkCan false and fraudulent material be copyrighted? Yes. b. Derivative works, e.g., reinterpretations and translationsseparately copyrightable? Derivative works are part of the authors bundle of rights. Derivative works are copyrightable, but only the newly added or altered material receives additional copyright protection (and a new date of copyright). Thickness of Copyright a. Two things can make a copyright thin A) Scenes a Faire: Scenes a Faire (scenes that must be done); stock images, actual objects, common themes, standard depictions, common scenarios, etc.; key factor = NOT ORIGINAL; things that are scenes a faire are NOT copyrightable; these can be appropriated by any artist who wishes to depict the scene or theme. Not a French concept, judge just used fancy French terms. B) Merger Doctrine: Is the process of production going to produce similar results? An idea is inseparable from its expression; e.g., Satava: if both artists produce natural objects in glass-in-glass mediums, there are going to be lots of similarities; other examples include stuffed animals and realistic depictions. Very limited ways to express, embody or depict the idea. b. Comparing Circuits: 2nd Circuit (Mattel, Inc. v. Goldberger Doll Mfg. Co., CB48) = Barbie case; total look and feel; Barbie may not have unique features if you look at them one at a time, but look at the total package--her famous face---and you have a copyrightable design. 9th Circuit (Satava v. Lowry, CB45) = Jelly-fish in jar case; the sum of un-protectable elements; thus, its a nonexistent or paper thin copyright. c. Public Domain Works A) Alfred Bell v. Catalda Fine Arts (2d Cir 1951): Reproductions of public domain works are copyrightable; the slight variations are copyrightable, but you cannot copy the copies. Bridgeman Art Lib. v Corel (SDNY 1999): Exact copies (slavish copies) of public domain works not creative enough for copyright protection under USA law case (regardless of whether UK law protected them); thumbnails and other reproductions of these exact copies of images of public domain works is okay. d. Fixed and Tangible Medium A) Speeches, lectures, or choreography not written down or recorded--copyrightable? No; unique and creative but not fixed. B) An actual performance of a play or other live event or reenactment--copyrightable? No; not unless filmed or recorded or otherwise fixed in media. C) Improvised music or other improvised performance---copyrightable? Not unless recorded or notated. Functional/ Utilitarian Items a. Overall design of a utilitarian object, even if designed that way for aesthetic reasons, is not eligible for copyright.

Kelley v. Chicago Parks Dist- (Wildflower garden) Original yes, but not copyrightable, no moral rights. Not a painting or sculpture; site-specific. b. Esquire, Inc. v. Ringer (CB54): Outdoor light fixtures case; copyright claim---successful? No. Why not? Industrial design not copyrightable (do not want monopolies). The light is functional. If there are separate or separable (physically or conceptually) artistic features, can they be copyrighted? Yes but only those features. c. Policies Behind Utilitarian Rule: Preserve competition and progress in productions of useful articles; allow competitors in industry to make useful articles without fear that first competitor to design product will have right to exclude all others who want to make the same product; where form follows function, tying up a certain form in copyright protection could guarantee a life+70 years monopoly; patent law protects innovation and invention, but term is far more limited; in the art context, art is supposed to be ornamental. d. Some Specifics: (1) Can you copyright a dress? Not exactly. Utilitarian works with useful functions are not copyrightable. (2) What about a dress pattern? Now youre talking! (3) Can you protect the style, cut, etc.---distinctive features that tell buyer its the makers dress? Think trademark, not copyright. E.g., Typeface, most clothing, lighting fixtures, household appliances, and buildings excluded (but architectural design is covered elsewhere in Title 17). 7. Duration and Types of Authorship a. Duration A) (1) Whats the current term for a new copyright? Life plus 70 years; many other variations. (2) Eldred v. Ashcroft (CB58): Okay to keep extending copyrights for limited terms; even on works already under copyright protection; Court found this does not raise 1st Amd concerns. b. Types of Authorship A) Types include: sole authorship, joint authorship, and work made for hire. 1) By default, the author is the initial copyright owner at creation. 2) If its a work for hire, the hirer is considered the author and owns the copyright. 3) Even if hirer fails both tests below, hirer may be able to claim joint authorship. B) 2 Ways to Get Work-For-Hire Status (CB67): 1) Employee and w/in scope of employment, OR a) Employee: (1) What is the test of who is an employee? Common law agency test; employer/principal right to control the manner and means of production; many factors go into this determination. (2) Are some factors more important? Paying employee benefits and payroll taxes is a key factor. b) Scope of Employment: What of work done at home? Common law agency test: it is the kind of activity she is employed to perform; occurs substantially w/in the authorized time and space limits; AND actuated, at least in part, by a purpose to serve the master. 2) Specially commissioned work, signed K w/ work made for hire term, and work fits w/in one of nine categories listed in section 101. Alternative to employment works made for hire a) Specially commissioned works; K that says work for hire or something equivalent; agreement before creation, followed by a writing before or after creation; must be on the list of types of works eligible to be Work For Hire in section 101. Problem 2-3 pg. 63She is an employee. Given that she is an employee on the job, the law considers the product a work for hire, and the employer will own the copyright (Her taxes were withheld, works on series of projects assigned by her boss for the benefit of the boss)

Preemption a. Copyright has preemptive power under the Supremacy Clause; complete preemption: states cannot maintain separate copyright law; there is no such thing as state copyright law; actions filed in state court under state copyright law theory are removable and claims are subject to dismissal unless amended into federal copyright claims. b. (1) What does it mean to conflict with federal copyright law? State law creates rights or defenses that undercut rights or defenses granted by federal law under copyright scheme. (2) With claims: state law creates right or cause of action with exact same elements as federal law. Therefore, if state law has different elements, different requirements for the action, it may NOT be preempted---additional elements test. c. Scope of Preemption: Protected Rts Under 17 U.S.C. 106 A) Right to copy---to make duplicates of the work or authorize their creation; B) Right to make derivative works; and C) Other rights---to display, distribute, stage or perform, or broadcast the works. d. Sturdza v. United Arab Emirates (CB75): (1) What claims were preempted? Those state law claims that duplicated or undercut rights or defenses granted by federal law under copyright scheme; stealing, copying her design = copyright type claim, no matter what damages are sought; e.g., unfair competition from stealing her design still would be copyright type claim and be preempted. (2) What of the fraud, conspiracy, and intentional infliction of emotional distress claims? Not preempted; did not turn on the act of copying; they alleged inducement of breach and interference with K, so not preempted. B. Part 2: The Copyright Act in Detail 1. Effect of 1976 Copyright Act a. Pre-1976 Copyright Act: Copyright to a work of art was presumed to transfer to the purchaser of the work unless artist or dealer took contractual steps to stop this; thus buyers often had the right to copy and make derivative works. Under the 1976 Copyright Act: Presumption reversed--now presumption is that the copyright does not transfer unless the contract of sale says it does. b. Protected Rts Under 17 U.S.C. 106 (CB72) A) Rt to reproduce a work by any means; B) Rt to prepare derivative works based on the copyrighted work; C) Rt to distribute copies to the public for sale or lease; D) Rt to perform the work or broadcast the work publicly; and E) Rt to display the work publicly. 2. Infringement Elements a. Copyrighted and registered work; A) Copyrightable subject matter: creative and original work or portions added; actual work in tangible medium; non-utilitarian. B) Registered (See 17 USC 411): cannot bring suit unless you register the work or attempt to register; statutory damages will be applicable to new or on-going infringement occurring after registration. b. Access to the work; and A) Plaintiff must prove defendants access to the work---how do you do that? Publication. Distribution. Evidence of actual access. Evidence of actual copying---Koons-like behavior. Striking similarity may help. B) Interaction of Factors: (1) Do you need to prove access if you have evidence of actual copying? No. Evidence of actual copying obviates need for traditional proof of access. (2) What if the two works are very similar---do you still need proof of access? Extreme similarity (striking similarity, near identity, virtually identical) of two works may overcome scant evidence of access. c. Prohibited use of a substantial and material portion of the work.

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A) Proved by: (1) evidence of actual copying, OR (2) substantial similarity. 1) Two Tests for Substantial Similarity a) Extrinsic Similarity: General similarity of elements of the two works; and b) Intrinsic Similarity: Would an average viewer appreciate the similarity of the two works; view the desirable artistic merits of the two works as the same; assume the one was based on the other? 2) Expert testimony is available on Extrinsic, but not on Intrinsic Similarity. B) Is any amount of copying prohibited? No, only: 1) A non-Fair Use use; 2) Of a substantial and material portion of the work (substantial and material means more than trivial, more than de minimis); and 3) With evidence of actual copying OR substantial similarity. C) Substantial and Material Portion 1) Not necessarily the whole work. 2) Substantial and material means more than trivial. 3) Pirate cannot defend taking by pointing out how much more he could have stolen (Sheldon v. Metro-Goldwyn Pictures Corp.). Derivative Works a. Definition = Work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, . . . art reproduction, . . . or any other form in which a work may be recast, transformed, or adapted. b. Potency of Derivative Work Standard: Derivative work need not incorporate most of the original work or even the heart of the work---it potentially infringes rights if second work incorporates a portion of the copyrighted work in some form. c. How Big a Portion? Campbell v. Acuff-Rose Music (CB97): Took opening lines of Pretty Woman song and bass riff; found OK (or at least SCOTUS reversed and remanded a previous finding that it was infringement, and said to look at all factors). Harper & Row v. Nation Enters. (CB113, 417): Took 400 words of verbatim quotes from Ford memoirs. Los Angeles News Service: Beating of Reginald Denny tape cases; in actions against Reuters Television, KCAL-TV, and CBS, courts held that using a few seconds of a 4 min 30 second videotape could be infringement. De Minimis Use a. Ringgold v. Black Entertainment Television (CB85): Incidental use in background of TV show; no more than 27 seconds of air time, a few seconds at a time; never featured as subject of full shot. Ct found this was NOT de minimis (de minimis line was crossed), thus it was infringement; factors = amount used; time of exposure; prominence (focus, lighting, camera angles, etc.). A) Note: Library of Congress charges PBS rates for usage on full screen, partial screen or partial shot of work, background use. b. Leicester v. Warner Bros. (CB90): Batman Forever case; use of architectural features observable from street OK; this was de minimis. Copying Artistic Designs a. Copying a design into another medium is not a protected use. For example, going from drawing to sculpture or photograph to painting or sculpture. b. Following a copyrightable plan or sketch (2D work) to create an actual 3D work is not a protected use. For example, Jones Bros.---made a monument from a hand drawn copy of design sheet. Fair Use Doctrine a. Fair Use via 17 U.S.C. 107---The Act gives 4 factors to be looked at in determining whether a particular use is fair: (1) purpose of use (commercial or noncommercial; public interest [e.g., news, education, etc.]; comment or criticism [e.g., parody purposes, actual reviews, satire]); (2) nature of copyrighted work; (3) amount taken (purpose of use affects how much you can take); and (4) effect on market for the original.

A) Rogers v. Koons (CB92): D copied photo of ppl holding puppies and used it to make a 3D sculpture; extensive proof of actual copying; ct found infringement. No parody B) Campbell v. Acuff-Rose (CB97): Factors are balanced; no factor is the key factor anymore; bad score on one can be balanced by extremely high score on another; case by case determination. -2 Live Crews commercial parody of Roy Orbisons song, Oh, Pretty Woman, and whether it may be a fair use within the meaning of the Copyright Act 1976. Was a parody. Put a cloud over satire. b. Approved Fair Uses: (1) Education (what I do for class each week); (2) comment and criticism (actual reviews and critiques; parody; satire?); and (3) news reporting. A) Act says fair uses = criticism, comment, news reporting, teaching, scholarship, or research. c. Examples: A) Education 1) Simple copying of limited portions for display in class; copying of entire chapters; copying of entire work (articles, books); copying and displaying, publishing, distributing further---on web, in casebooks, etc. B) Comment, Critique 1) Use of limited portions for illustration of points of comment or criticism; not a license to reprint the highlights of the work. Harper & Row v. Nation Enters. (CB113, 417): Ford memoirs case; reproducing the heart of the work to comment on the work is not fair use; other motives (scooping another magazine) were at work too; holding is noteworthy because the memoirs were of a U.S. President (Ford) and the commentary was political speech, usually very highly protected under 1st Amendment. C) News Reporting 1) Copyrighted images or footage are not fair game for sampling or other forms of duplication; even taking very small amounts can be unfair. 2) Los Angeles News Service: Beating of Reginald Denny tape cases; in actions against Reuters Television, KCAL-TV, and CBS, courts held that using a few seconds of a 4 min 30 second videotape could be infringement; highly poignant footage of trucker being beaten during South Central L.A. riots. d. Parody: The Granddaddy of Fair Use Exceptions A) When you got it, you got it---parodic purpose is the key! 1) Allows commercial uses (element 1) of famous, extremely valuable copyrighted works in the same medium (element 2). 2) You get to take vast amounts of the work in order to conger up the original (element 3). 3) Youve got a fair chance to convince the court that your parody will not dilute or undercut the market for the original (element 4). B) Parodic Purpose: You must convince the court that ONE of your purposes for creating the work is to make fun of (spoof, criticize) the original work; must be apparent from the work itself---your own testimony wont cut it; need not be the sole purpose or even primary purpose; nature of original work matters. C) Transformative Rqmt 1) Your work must transform the original into a new artistic creation with separate artistic merit; but has to happen new content; new meaning and new expression 2) Parodic work reveals two works by two different artists---the parody and the original. 3) If average viewer/listener would think the original artist reprised or updated her own work, you will fail on element 1 (parodic nature) and element 4 (effect on market for original). D) See slides 40-45 (Copyright part 2) for examples.

III. Trademark Concepts -Consumer protection from confusion in commerce was the initial and prevailing reason for the law. Not protecting artists, creativity, innovations0 just the consumer public from confusion. Is there such a thing a s a mark that has no use or association with selling, producing goods? -No. COMMERCE is the key. Use in commerce both by the owner of the mark and the infringer is the key. Can trademarks last forever? Yes- if you keep using the mark and renewing the mark. -So courts have an incentive to keep trademarks and trade dress in their place. What is the Statute of Repose? 5 year statute under which marks can become incontestable if registered and used continuously for 5 years w/o challenge. Can it allow marks to become incontestable? Common Law Trademark -protects distinctive words, text, letters, symbols, slogans, designs, packaging Trademark is for goods in commerce, used to indicate origin of goods and distinguish from goods of another source. Can you tell the strength of a mark just by looking at it? (Fanciful Marks)Exxon, Kodak, Colgate Toothpaste, Budweiser Beer? Very strong (Arbitrary Marks) Hidden Valley Ranch, Red Baron Pizza.weaker in comparison to Exxon (Suggestive Marks) Pepsi, Snap-On tools, Velveeta Cheese, Viagra Highest levelFanciful Marks having no meaning or connotation that relates to the goods and their qualities, and Arbitrary Marks with independent meaning but unrelated to the goods qualities See slides Problems with existing marks? -Jello brand gelatin and Gel-O brand hair styling gel. Consumer confusion -Sticky brand gummed postable note sheets and Sticky brand maple syrup. Could co-exist -Johnsons Baby Oil and Jeans Huile de Bebe. Translation is a problem. Cant get around it. Rock and Roll Hall of Fame and Museum, Inc. v. Gentile Productions -RR alleged various trademark and unfair-competition claims under state and federal law. -Museums design is unique and distinctive -Several items marketed by the museum display on the rear of the museums bldg, which looks dramatically different from the front. Drawings on the front of the museum on the 2 t-shirts in the record are similar, but they are quite different from the photo featured in the museums poster. And, although the photo from the poster is also uded on a postcard, another postcard displays various close-up photos of 9

the museum which, individually and perhaps even collectively, and not even immediately recognizable as photos of the museum. Dastar v. Twentieth Century Fox (2003) -WWII documentary footage. Fell into public domain and not protected by copyright BUT a trademark claim. -Trademark is not an alternate route-an end run- around limitations of copyright and patents. -copyrights and patents are true intellectual property rights (also const. based) meant to reward and encourage ingenuity and originality of creativeness -Origin means source of goods- the actual producer of the goods Assignment- means sale -transfer of all rights in a mark -must be in writing if federally registered -must sell good will of a going concern with mark or assignment is ineffective -assignee can blow the good will acqd and trash the mark if it lets the goods quality slide-the mark may become fraudulent and original rights will be lost. Infringement-elements Likelihood of confusion (need psychological expert to do statistics with public to see if they are confused..$$$$); By reasonably prudent buyer; Class of goods may affect the standard -High class, expensive goods may call for reasonably discriminating buyer -Sales to professional buyers may call for reasonably prudent expert Likelihood of Confusion -Proof of actual confusion is nice, but not reqd -Exact similitude is not reqd -Generally confusion is where buyers purchase junior users goods thinking they come from senior user(thought they were buying louie vaton) -Reverse confusionpurchasing senior users goods mistaking them for junior users goods. This is actionable because junior user gets undue credit for producing and selling quality goods. Likelihood of confusion factors: a) Strength of marks b) Relatedness of goods and services c) Degree of similarity btw the designation and the trademark in: (1) appearance, (2) pronunciation of the words used, (3) verbal translations of the pictures or designs involved, (4) suggestion d) Actual confusion e) Marketing channels f) Intent of the actor in adopting the designation g) Degree of care likely to be exercised by purchasers h) Expansion into product lines Bonus facts -Proof of fraud..it is not reqd, but it would be helpful 10

-Exact or close similarity of the two marks -Proof of pretenders knowledge of owners mark -Proof of pretenders direct copying of owners mark-e.g. using manufacturers own trademark clip art Prudent buyers??? -How reasonable and prudent a buyer is in the eye of the beholder (judge or jury) -Nolan Mutant of Omaha case- must have been a reasonably stupid buyer to be confused into thinking that Mutual of Omaha supplied those t-shirts and bumper stickers. - Busch v. Balducci6% of poll takers thought AB sponsored the Michelob oily ad. Affirmative Defenses and Avoidances Abandonment Genericization Laches Acquiescence Unclean hands Fair Use Abandonment= discontinuation of use of mark with intent not to resume; but intent can be inferred. If mark is not used for 2 consecutive years, presumption is that you intentionally abandoned it. Genericization= allowing a mark to become a generic description for goods-a genus, of which other competitors goods become species. Happens when owner uses or allows others to use the mark name as a noun or verb, instead of an adjective modifying a noun. Aspirin, thermos bottles, escalators, cellophane. Laches= show that the owner knew of competitors use and unreasonably sat on its hands, allowing competitor to labor on to a position of unfair prejudice before enforcing trademark rights. Easy to allege-every enforcement action takes time to set up-but hard to prove. Acquiescence=demonstrating intent not to enforce your trademark rights. A form of abandonment-if you allow your mark to be misused directly (by competitors) or indirectly (by the press or other media) you may lose the rights in it. Unclean Hands=doing something illegal or oppressive with your marks and then trying to defend those marks with a trademark action. Since most trademark actions seek injunctive (equitable) relief, if you seek equity, you must do equity. State Law Anti-Dilution What is it? About famous marksstates are the frontrunners on this concept-many states had anti-dilution laws to protect entities doing business in the state. Prevent tarnishing and degrading uses- sex, drugs, rock n roll Prevents dilution thru use in a commercial enterprise (even though not necessarily used as a trademark) ; or Excessive use in non-commercial fair use settings that blur the marks uniqueness and singularity 11

Federal Trademark Dilution Act15 USC 1125(c) Elements: -commercial use in commerce; -of a famous mark or trade name; -causing dilution of the distinctive quality of the mark

What are famous marks? Degree of inherent or acquired distinctiveness of the mark; Duration and extent of owners use of the mark Duration and extent of advertising and publicity of the mark Geographical extent of the trading area in which the mark is used; Channels of trade for the goods or services with which the mark is used; Nature and extent of use of the same or similar marks by third parties; and Whether the mark was registered under earlier (pre 1943) What is dilution under the Fed Act? -Lessening of the capacity of a famous mark to identify and distinguish goods or services, Regardless of the presence of competition btw the parties or likelihood of confusion, mistake or deception. - Fed cts will consider concepts of tarnishing, degrading, or diluting marks borrowed from state law. - Exceptions (1) fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark. (2) noncommercial use of a mark (3) all forms of news reporting and news commentary (4) parody and other forms of comment and criticism (newly recognized in Trademark Dilution Revision Act of 2006) Mosely v. Victorias Secret= proof of actual dilution was found to be reqd for a federal dilution act claim. Actual dilution can be very hard to prove. ****See slides for Chapter 3 for infringement-unregistered trade dress*** Fair Uses Good faith, non-trademark (non-commercial) uses of surnames, descriptive terms, or geographic terms that happen to be marks. Nominative or comparative use of marks of competitors in advertising or promotional material News reporting Parodies and other forms of comment and criticism Even with fair use, it pays to acknowledge the registered trademark status and its owner to avoid the owner going after you.

Trademark parody- Thin Ice -Shooting the kingthe consequences can be pretty severe whether you hit or miss Artisitcally, you want to use enough to conger up the original mark, but be transformative (outrageous, ridiculous, etc.) enough so that you do not suggest that the original owner sponsored your use. 12

-Commercial/Non-commercial usage remains important if not critical. Parodies Targeting the original and what it stands for is the clearest form of parody

III. Moral and Economic Rights A. An Overview 1. The continental European concept of Droits Moraux (singularly, Le Droit Moral) encompasses the following rights: a. Right to Create or Not to Create; b. Right of Respect (to Determine Completeness); c. Right to Disclose or to Withdraw from Display; d. Right of Attribution (or Paternity); and e. Right of Integrity (to Prevent Display of Modified, Distorted, or Mutilated Art). 2. Viewed as a personal right more than a property right. a. Arise from the artists personality and injuries affect the persona and reputation of the artist. b. Hence, generally not transferable (but may descend to heirs). c. In strictest regimes (e.g., France) they are inalienable--cannot give them up even by contractual waiver. 3. Public Policy---Artist Orientation a. To protect an artists reputation and encourage artists to create more art; AND b. To protect the art works themselves---they have part of the personality of the artist poured into them. 4. Public Policy---Cultural Property Orientation a. To protect the integrity of art in the nation---the record of achievement of the countrys artists; AND b. To protect and preserve the national cultural identity---cultural property of the nation---for educational and enrichment purposes. 5. German or French? a. French courts recognized authors moral rights-type claims in the 17th century; much of the philosophy of the rights comes from Kant and Hegel; Kant viewed rights in artistic works exclusively as moral rights rather than property rights; the value of art is not the object itself (property) but the expression of self embodied therein, able to communicate ideas; other Germans---Karl Gareis, Otto Friedrick von Gierke, and John Kohler refined and expanded on the concept of moral rights arising from an artists personality poured into her works. b. German Philosophy, French Law: Dualist Theory (German origin)---authors rights (property rights, such as copyright) are distinct from moral rights enjoyed by the author; the French courts in 1878 were the first to explicitly recognize and enforce moral rights in the modern sense---unusual judicially created law in a civil law country; French copyright law accepted the Dualist Theory; by 1957 French law codified the moral rights doctrine. c. Distinctly Un-American: No moral rights tradition; viewed intellectual property rights as property rights only; careful balance allowing rights to authors to encourage the creation and publication of original ideas for the greater good of society---education and enrichment; incidentally, to allow artist to enjoy the fruits of their labors; no room for moral rights protecting the personality of the artist in this equation.

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d. Distinctly Un-British: No moral rights tradition; viewed intellectual property rights as property rights based on LABOR (labour) (See John Locke); careful balance allowing rights to authors to allow artist to economically enjoy the fruits of their labours; no reason to think about moral rights protecting the personality of the artist in this equation. e. Public Policy: France v. USA A) France: Protects intangible and essentially valuable attributes lent to work by the artist in addition to authors rights in physical work; protects culture---integrity rights preserve work from destruction; doubly encourages artists to create---get two bundles of rights to exploit; allows artists rights to jerk around clients and others. B) USA (pre-VARA): Protects economic rights (authors rights) in physical works; does not protect individual works from destruction; encourages creation which is supposed to further the culture and education of the nation; contract law limits artists rights to jerk around clients and others. B. Moral Rights---Le Droit Moral/ Droits Moraux 1. Respect and Completeness---Right to Create or Not to Create a. Artists have the right to determine when they will produce art; artists cannot be compelled by contractors or patrons to start work or even to complete works in progress; not even delivery; contract compensatory damages may apply to return parties to status quo ante but not expectancy damages and not injunctive relief; lack of inspiration is held to be a known risk of nonperformance shared by both sides, so no contract damages if this frustrates the contract performance. b. Eden v. Whistler (CB167): Commission to paint portrait of Lord Edens wife; Whistler completed it but then became dissatisfied with it and painted over it; Eden could not compel restoration of the work or delivery of a new work; Eden was entitled to his money back and any related compensatory contractual damages; French case---recognizes droit moral applies to foreign artists working in France. c. When is the work of art done/finished? Rouault c. Consorts Vollard (Fr. 1947): Works deposited with gallery were not considered complete until artist declared them complete. Bowers v. Bonnard (Fr. 1951): Artist Pierre Bonnard attempted to use his right of completion to deny division of paintings with his wife in settlement of community property; eventually, experts were appointed---not to determine completeness---but to determine which works had been displayed as finished works (these would be subject to division). d. Right to Compel Completion---Dubuffet v. Renault Corp.: Artist successfully sued for injunction to allow completion of sculpture designed for particular location at Renault headquarters. e. The Right to Create A) Artists may compel completion of a commission to produce art that is in progress; patrons have no corresponding right to call it quits or to order completion. B) America---No Right Not to Create 1) National Historic Shrines v. Dali (CB169): Dali under fire for not going through with fund-raising stunt; case analyzed on contract law grounds; contract law still does not compel forced servitude---cannot make him paint the painting, but can limit what you can do to replace the service; artist still can be on the hook for expectancy damages--not simply out of pocket costs. f. Completeness---Discarded Works A) Carco c. Camoin: Camoin cut up canvases and threw them out; Carco found them, reconstructed them, and offered them for sale; court ruled Carco could not do it; artist had right to decide work was not fit for display or sale, and finder of pieces had no right to trump that determination. g. Completeness---An American in Paris?? Ct believed so.

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B) Stella v. Mazoh: Someone left the art out in the rain; Frank Stella threw out works and someone fished them out of his trash and offered them for sale; Frank said STOP and the court agreed. 2. Right to Withdraw a. France: Limited statutory right in France pertains to printed works, but must pay publisher for all works withdrawn; however, coupled with other rights---integrity, etc.---an artist may enforce right to withdraw to protect reputation (artist oriented). The artist can remove it, and only the artist. Cultural property moral rightsartist cannot remove it, it is part of the cultural property of the nation or locality. Non-moral rights regimeproperty owner or govt decides (for public safety reasons). b. USA: No direct right in USA (Gene Autry v. Republic Productions (CB179)); but alternate theories---e.g., defamation, unfair business practices---may get you the results you want; Ringo Starr received an injunction on distribution of certain works produced when he was suffering from alcoholism. 3. Right of Paternity/ Attribution a. The right to be identified and recognized as the author/creator of a work; easy to grasp (to realize greatness, you must be associated with the greatness of your creations). b. Hard questions = Works for hire? Large scale collaborative works (e.g., motion pictures)? Should artists be able to disown (disassociate themselves from) works? c. France A) Naturally, France recognizes the right of attribution. B) Right to disown? Also possible, but not attempted as often it seems. d. USA A) Recognition of a right of attribution? No. However, a right to disown works has been allowed in the motion picture industry---films by Alan (or Allen) Smithee are actually disowned films the director thinks were improperly edited and no longer wants attribution for. B) Not recognized unless written into K. C) Examples 1) Vargas v. Esquire (CB182): Contractual arrangement; Alberto Vargas to provide a bunch of drawings in regular installments to Esquire Magazine; all rights (property rights) to work transferred to Esquire; Esquire started displaying works as Esquire Girls with no attribution to Vargas (or Varga); court would not imply term into contract to require attribution; if not specified in contract, Esquire could display them however it saw fit. 2) Geisel v. Poynter Prods.: Poynter had obtained the rights to the work from the copyright owner (Liberty Magazine); Dr. Seuss could not stop use of his name with stuffed toys as long as the producer fairly stated the connection: based on or derived from cartoons by Dr. Seuss; Lanham Act, Defamation, unfair competition all failed. 4. Right of Integrity a. Right to prevent display of cropped, fragmented, or rearranged work; right to prevent destruction of work; or right to mandate destruction of altered, or damaged work. A) Thus, rights allowed depend on whether the right is construed as protecting artists reputation or protecting societal and cultural interest in art. b. Comparison---Bernard Buffets Refrigerator (France) (CB187): Artist allowed to prevent separate sale of 6 panels painted on fridge and intended to be shown together. Calders Pittsburgh Mobile (USA): Artist fought under U.S. law but could not stop Allegheny County from displaying a B/W mobile that had been painted green and gold and fixed so it did not move. c. Colorization---American film maker John Huston sued and received relief to prevent airing of Ted Turners colorized version of his film Asphalt

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Jungle in France; the rest of the world (including USA) had to live with the colorized version. d. Pre-VARA: Cropping---can you crop photos for easier display? Discarded Works---can you recover the pieces and display the work? France = No. USA = Maybe, maybe not. Site specific Art???? Problem 4-5 (Serras Tilted Art-chunk of rusting steel) Should it stay or should it go? Its about integrity, me and my genius etc. Public opinion and govtit looks like crap. We want to move it. Who wins? Federal Plaza gets to move it. A) Frank Stella: Someone left perfectly good artwork out in the rain case. e. Wojnarowicz v. Amer. Family Assoc. (CB201): Defendant American Family Assoc. violated New York Artists Authorship Rights Act (preventing display of altered, defaced, mutilated or modified form of work designed to harm artists reputation); self-proclaimed Decency in America group distributed pamphlet w/ cropped and fragmented images---sexual scenes, Jesus shooting up, homosexual behavior---to protest NEA funding of plaintiffs art show at Illinois State University; trademark claims failed b/c no use of single distinctive image in trade; copyright claims failed on comment, criticism fair use defense. f. Gilliam v. ABC (CB195): Monty Python prevented airing of edited versions of TV episodes; group claimed editing produced work that Now [was] something completely different; Time Life (working for ABC) was sub-licensee of BBC and BBC failed to grant them rights to discretionary editing, nor could they grant these rights because BBC had no such rights after production; contract theory (sub-license rights) and Lanham Act (false designation of origin). A) Creative Theories: Gilliam v. ABC recognized authors rights under section 43(a) of Lanham Act---false designation of origin. That the airing of edited, modified work as though it was the work of the author would be a false designation of origin. Similarly, a moral rights type claim under Copyright Act of 1976, 17 USC 106, could be that the edited version is a derivative work, and unless copyright owner specifically licensed creation of derivative works, then the broadcasters would be limited to the rights actually granted---a limited right to display and broadcast the original, uncut work. Could have required running covenant requiring BBC to impose editing approval terms on licensees. g. Movies and TV: Editing for television, and breaking up flow of movie by inserting commercials is standard fare and no violation of authors rights. Stevens v. NBC: Nine interruptions of play for commercials is fine. Preminger v. Columbia Pictures: Anatomy of a Murder case dicta; cutting out one third of movie for TV airing might violate authors rights. A) Creative Theories: WGN v. United Video followed and applied Gilliam v. ABC on copyright claim that an edited version (embedded teletype removed) created unauthorized derivative work and thus violated 106 right; Prosser argued that extension of privacy claims (false light and right of publicity) could be worked into moral rights integrity claims---that display of modified work as if it were the work of the author is false and causes reputational injury. 5. Visual Artists Rights Act(VARA) a. The Pathway to Vara A) USA reluctantly acceded to the Berne Convention and sought to implement it into US law (Berne Conv. Implementation Act 1988). B) Berne has a provision on moral rights (Art. 6bis)---integrity and attribution specifically named. C) USA begrudgingly writes moral rights law into copyright code---known as VARA (1990). b. According to 17 U.S.C. 101, a "work of visual art" is: (1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, OR (2) a still photographic image produced for exhibition purposes

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only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. A) A work of visual art does not include: 1) Any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication; 2) Any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container; 3) Any work made for hire; or 4) Any work not subject to copyright protection under this title. c. VARA's Moral Rights (17 U.S.C. 106A) A) Right of Attribution (Paternity); B) Right of Integrity (distortion, mutilation, modification)---including a limited right to prevent destruction---IF prejudicial to artists honor or reputation and IF it's a work of recognized stature. d. VARA Protections (17 U.S.C. 106A) A) Section (b) of section 106A provides that these rights are only possessed by the author (creator) of the works; joint authors possess the right jointly. B) Section (d) of 106A says the rights are to extend for the lifetime of the author for works created after effective date. C) Section (e) says that rights are not to be transferable, but can be waived with proper writing. e. Martin v. City of Indianapolis (CB215): Sculptor vindicated after city destroyed his outdoor sculpture in urban renewal; statutory damages affirmed; no exemplary damages for willful conduct even though city failed to follow a pre-VARA agreement with Martin to give notice to Martin, and failed to pay attention to Martins requests for permission to remove sculpture on his own. f. Carter v. Helmsley-Spear, Inc. (CB209): Art installation in lobby of building; no right to complete work; work held not to be work of visual art because of Work for Hire doctrine (withholding = employees = work for hire); also held not to be work of recognized stature, but hard to tell because it was never completed. g. Work of Recognized Stature A) Martin: Won a local art contest; some mention in art review magazines = recognized stature (note: work had already been destroyed at time of suit). B) Carter: Experts poured over the partially completed work and declared it not to be of recognized stature (i.e., It wasnt going to amount to anything great.). h. Incomplete Works A) Carter: No VARA integrity protection because experts determined work (presumably when it would be completed) was not going to be a work of recognized stature. B) Mass. Museum of Contemporary Art (MassMoCA) v. Bchel (CB219): Partially completed Training Ground for Democracy installation receives VARA protection; both right of integrity and right of attribution applied. i. MassMoCA v. Buchel A) Facts: Large installation with general anti-war theme planned for the museum (which has unusually large exhibition space); not much put in writing, but Bchel was to design it and the MassMoCA people were to put it together including obtaining a lot of the pieces for the installation; the two sides stopped getting along, stopped communicating---Bchel unhappy with the work put in by the museum, the museum unhappy with the lack of direction from Bchel; Bchel gives up---work canceled, but partially installed; MassMoCA draped parts of the work, but people could see under and around the drapes and the installation was too huge not to be noticed; MassMoCA wanted to display the work as partially installed; MassMoCA told Bchel it would not identify the installation as the artists work if Bchel didnt want the credit; Bchel sued---dont

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display it unfinished (right of integrity and contract law) and do not display it without identifying Buchel as the artist (attribution). B) Holdings: District court said no VARA application, no integrity or attribution rights; the court of appeals (1st Cir.) reversed---it applied VARA to each claim raised by Bchel; MassMoCA cannot display the work as partially installed; MassMoCA cannot display the work partially installed or not without giving attribution to Bchel; since Bchel doesnt want display of the partially installed work or attribution, it means the work cannot be displayed in any manner or form regardless of the description; pretty strong, almost European-like interpretation and application of VARA. j. Non-Visual Art A) Chesler v. Avon Book Div.: Publishing contract did not preserve right to approve alterations, editing and condensing of book when issued in paperback---no moral rights integrity protection. B) Ohio Players, George Benson: Able to stop production and distribution of cobbled together work that was not produced and approved by the artists, and negatively affected their reputation. C. Economic Rights---Droit de Suite 1. Overview a. Droit de Suite is a French concept---economic rights akin to copyright when copyright does not afford them. b. Designed to allow economic exploitation of work that is not intended or suited for reproduction and future exploitation by duplication---i.e., most visual art. c. Each work of art is a factory giving the original artist 3% of sale price every time it is sold. 2. Europe a. France: 1920 Act---allowed 3% of sale price to original artist every time work sold at public auction; 1957 Act---3% of sale price expanded to cover sales by dealers, galleries, agents, merchants; SPADEM (ASCAP-BMI-Fox type agency) was not vigorous to enforce expanded post-1957 requirements; life plus 50 years, but not transferable (only passes to spouse and heirs, not assignees or legatees; not subject to creditors). b. Germany: 25% of increased value comparing present sale to last sale. c. Italy: Complicated sliding scale formula; the more the increase in value between sales, the higher the percentage owed to artist. d. United Kingdom: Pre-Berne Convention adoption, did not recognize or enforce foreign droit de suite laws; big gap---Christies, Sothebys in London handle huge business. e. Generally speaking, sales outside the country are not subject to countries economic droit de suite laws. f. European Union A) Directive 2001/84/EC of the European Parliament and of the Council of 27 Sept. 2001 on the resale right for the benefit of the author of an original work of art; term of protection = same as copyright (life+70 yrs); application = minimum sale price set by Member State; may not exceed EUR 3,000; calculated as a percentage of the sale price to be paid to artist by the seller; sale price is divided into five price brackets--the rate of the royalty ranges from 4% to 0.25%, depending on the bracket; however, the total amount of the royalty may not exceed EUR 12,500. 1) Beneficiaries = the author of the original work and her heirs; applies to nationals of EU countries; nationals of non-EU countries enjoy the resale right if the legislation in their country permits resale right protection (reciprocation) in that country for authors from the Member States of the EU; however, Member States of the EU may decide to apply this Directive to authors who are nationals of non-EU countries but whose habitual residence is in the Member State concerned; not every EU nation is thrilled with this directive; UK (home of Sothebys and Christies in London) has dragged its feet taking advantage of every extension, but will have it by 2012. 3. USA

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a. Federal: Droit de Suite was hotly debated for inclusion in 1976 Act and Berne Convention enacting law (VARA), but ultimately rejected; state laws = California; local laws = Seattle. b. Alternatives to Droit de Suite A) Could start a royalty system (akin to ASCAP-BMI-Fox) get % of profit on resale, administered by galleries, dealers, and auction houses. B) Contract: Write in provision to require royalty % on resale running with the title to the work itself; requires artists to get down and dirty (money grubbing) with their own clients, and many will not want to do this. c. Do We Need Droit de Suite? A) Jeffrey Wu and Tom Camp studies show that only a small number of American artists have significant resales worthy of this kind of law. B) Artists of that stature have the clout to write economic rights into their contracts of sale. C) If limited to public sales (i.e., auctions) not all art changes hands that way. d. California A) 1976 Statute; 5% of resale price; when sale is in California or seller is a Californian; extra-territorial enforcement suggests problems; so far has stood up to copyright federal preemption challenge. B) Only applies to art whose sale price exceeds $1,000; can lead to complicated efforts to track down artist; if artist cannot be found, the money is paid to California Arts Commission in trust for artist; if unclaimed after 7 years, used for public art; it can be waived by contract, but only for a higher rate than 5%; right to collect can be assigned, but apparently not the right to receive; monies are not subject to creditors. IV. Right of Publicity A. Overview 1. Originally, one of the four privacy claims: (1) intrusion/invasion of privacy; (2) publication of embarrassing private matters of non-public figures; (3) false light; and (4) appropriation of a valuable name or likeness for purposes of trade. a. The first three were really about privacy---protection against wrongful exposure. b. Appropriation was about property rights. 2. Viewed as a property right, although the defense of these rights has developed into a tort claim; the action has equitable undertones as it is phrased as an action to remedy unjust enrichment by theft of the good will built up by well known artists and celebrities. B. Public Policy: The public policy behind publicity rights mirrors the policies behind intellectual property rights (to reward, encourage, and protect those who expend effort in perfecting their artistic endeavors or public craft (often sport or entertainment)), which in turn makes their image and persona valuable property deserving of protection from wrongful appropriation. C. Comparison 1. Time, Inc. v. Hill (CB262): Although brought under the New York statute that is the basis of right of publicity claims in New York, it was a false light case---Hill was newsworthy, but not a celebrity with a valuable persona; plaintiffs sought compensatory damage for harm caused by falsities in news story about their hostage crisis; court said absence of malice and freedom of press precluded claim; Richard Nixon (Hills attorney) consoled himself from the loss by winning the presidency of the US and trashing the stature of the office of president forever. 2. Zacchini v. Scripps Howard (CB249): SCOTUSs only foray into right of publicity; news liable and P wins; unusual facts---entire act of paid performer taken and rebroadcast; described distinction of privacy actions and property actions; called publicity a property claim; described goals and public policies in two ways: (1) IP goals---to encourage and reward creativity, art, innovation, and hard work, and (2) to prevent unjust enrichment---usurper taking for free what everyone else has to pay for.

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D.

Typical Elements of Publicity Claim 1. Use of persons name or likeness or other attributes, such as voice, stage act, signature, mannerisms---sometimes phrased as a knowing use; 2. On products, goods, merchandise or in the advertising of the same; a. Not only in commercial speech, but also use in trade. b. Noncommercial uses tend to be fair uses or they are covered under dilution if applicable. 3. Without consent. E. How famous do you have to be? 1. Whether the fame or value of a plaintiffs name, likeness, or persona is an element of the cause of action varies from place to place; it depends on the law of the jurisdiction; if kinship to right of privacy, invasion of privacy is the goal of statute or policy, fame is no issue; where fame is not an element, the issue only affects damages---whether you can obtain commercial or emotional distress damages. F. Five Freedom of Expression Defenses 1. Comment and Criticism---parodies, etc. a. Cardtoons Case (CB265, 273, 282): Cardtoons parodied Major League Baseball players salaries, arrogance, and self-importance; no real issue over unjust appropriation under right of publicity; court allowed Cardtoons to publish the cards because Oklahoma statute construed not to prevent 1st Amd expression in form of parody; allowing celebrities to quash criticism and lampooning serves no public policy purpose as valuable as 1st Amd purpose. 2. Artistic Expression a. Protection of Artistic Expression = Riley v. Natl Fed. Of the Blind; Times v. Hill; Bery v. NYC A) Art, like other speech, is intended to be bought and sold---no 1st Amd reduction in value for making money on speech. B) No need for particularized message, meaning, expression. C) Lewis Carrolls Jabberwocky verse; Pollocks paintings for example. D) In contrast: commercial speech is advertising and marketing material---not items of expression that are offered for sale. b. Pro Art and Artist A) Simeonov v. Cheryl Tiegs (CB259): Artist allowed to make 20 bronze busts from cast of supermodel in spite of publicity claim under NY statute; right of publicity simply has to give way to the 1st Amd; any artist can make a recognizable likeness of a celebrity and make a limited number of copies without violating NYs Right of Publicity statute. c. Comedy III v. Saderup (CB262): Three Stooges owners win; their rights prevailed against artist who drew charcoal sketch of Stooges; California Ct App said original artwork okay; reproductions of the art were not protected; California Supreme Ct said 1st Amd right to artistic expression must be balanced against celebritys right to control and exploit his image; no question Saderup was skillful artist and used this artistic skill in making the charcoal drawing; no question it was a work of art, as were reproductions. A) Transformative Rqmt = Borrowing from copyright fair use standards, Cal Supreme Ct said balancing of publicity against art requires art to be transformative; question: is the work merely a depiction of the celebrity, no matter how skillfully executed, or did the artist add new creative expression that has value beyond that of stars image? Subsidiary inquiry: would average member of public buy this for the art or the artist or for the celebritys image? Artist in this case added nothing. d. Hoepker v. Kruger (CB268): Reinforces the liberal New York interpretation of artistic expression over right of publicity as in Simeonov v. Tiegs; however, it goes on to say that Barbara Kruger would have satisfied the Comedy III transformative test with her art. e. ETW [Eldrick Tiger Woods] v. Jireh [Rick Rush] (CB274) A) Sports painter Rick Rush did Masters tribute in limited edition of 5000 prominently featuring image of Tiger Woods; all trademark claims failed . . . because . . .? Right of publicity was arguably violated.

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B) 1st Amd right to expression through art was preserved over Tigers rights to control and exploit his image; court left open issue of mass produced merchandise---T-shirts, cards, and the like; court reinforces idea that art is expected to be sold commercially and it has no effect on the 1st Amd analysis. C) The 6th Cir hails the triumphant return of Rogers v. Grimaldi (2d Cir. 1989); image or name of celebrity can be used if related to expressive content of work AND not simply a disguised advertisement for unrelated commercial services or products; Parks (Outkast CD) failed the test; ETW passed the test. D) ETW also applied the standards of Cardtoons and Comedy III; Rick Rush passed the Cardtoons test even though there was no parody or comment or criticism in the work; Rick Rush passed the Comedy III test---6th Cir found his celebration of the image of Tiger Woods and the Masters tournament was transformative---of what? 3. News Reporting of Newsworthy Events a. Zacchini: Failed because TV news published the entire act. b. Montana v. San Jose Mercury News: Newspaper could publish prominent image of Joe Montana because 49ers Superbowl victories were newsworthy story. c. Namath v. Sports Illustrated (CB256): Same. d. Booth v. Curtis Publg (CB256): Picture and story of star on vacation could be used as news in magazine. 4. Advertising and Promotion of the Speakers Activities Relating to one of the Above Uses a. Montana v. San Jose Mercury News: Newspaper could publish posters of prior front pages of newspaper with prominent depiction of Joe Montana because they showed quality and contents of news publication. b. Booth v. Curtis Publg and Namath v. Sports Illustrated: Picture of celebrity could be reprinted in commercial ad for news magazine to show quality and contents of publication. 5. Nominal Fair Use (but not listed) V. Censorship of Symbolic Speech A. Power and Censorship 1. Power goes hand in hand with censorship; censorship is evidence of power; power and knowledge---one leads to the other and vice versa; censorship binds the two. 2. Humans with power wield censorship; history of man is a history of censorship; not a Western world issue vs. Eastern; not a developed nation problem vs. undeveloped nation; not specific to any particular religion; really, the absence of censorship wherever that has occurred is the peculiar thing. 3. Maintain power = (1) destroy dissent, political opposition, and (2) maintain your vision of social order, decency. Demonstrate power = (1) punish undesirables, dissenters, and (2) social engineering. Obtain more power = (1) control of knowledge, (2) control of access to knowledge, and (3) control of access to positions of power. B. Governments: Clan, kings and other autocrats, church, and democracy. C. Symbolic Speech and Art 1. Visual artists most often communicate through symbols; symbolic imagery can be powerful, visceral; emotional and intellectual; quick---1 picture vs. 1,000 words; good for literate and illiterate. 2. Protest Art: Art is an outlet and avenue of expression to complain about oppressive forces---religion (esp. Catholicism), govt, and The State, nationalism, warfare, and social and economic conditions. 3. Often receives less protection than pure verbal expression; even though visual communication is no less effective in communicating ideas (but perhaps not one single idea to each viewer); Speech vs. Conduct distinction--regulating conduct part of communication is less offensive, and more permissible; regulations of conduct are much more likely to be viewed as content neutral, supporting greater regulation. D. Constitutional Challenges to Legislation

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E.

F.

G.

H.

I.

J.

K.

1. Facial Challenge: Law (statute, ordinance) as interpreted by courts violates free speech provision in all circumstances and for all parties; vagueness, overbreadth, or other defect in design and coverage dooms the law---chilling effect self-censorship inhibits free expression. 2. As Applied Challenge: Law works an impermissible effect on speech of particular parties or in particular situations; judicial construction may preserve it---limit it to certain situations, protecting affected parties. Limiting Speech Under 1st Amd 1. Viewpoint Based Restrictions = Strictest Scrutiny 2. Content Based Restrictions = Strict Scrutiny 3. Content Neutral Restrictions = Intermediate Scrutiny 4. Criminal or Regulatory w/ Incidental Effect on Speech = Rational Basis Test (RBT) 5. Special Cases: Prior Restraints of Press, Prior Restraints of Other Speech, Symbolic Speech and Expressive Conduct, and Commercial Speech. Levels of Speech Regulation: Low to High 1. Criminal laws that incidentally touch on speech (fraud, false rep, forgery) (rational basis). 2. Laws on symbolic speech and conduct and artistic expression (art, some visual protests and demonstrations) (intermediate scrutiny). 3. Content neutral time, place, manner restrictions (zoning, parades, concerts) (intermediate scrutiny). 4. Laws on highly expressive symbolic speech or conduct (flag burning, armband wearing) (strict scrutiny). 5. Content based restrictions (complete bans, censoring, internet regs) (strict scrutiny). 6. Viewpoint based content based restriction (strict scrutiny with strong presumption of failure). Content Based: Strict Scrutiny 1. Must be: (1) narrowly tailored (2) to serve a compelling govt interest. 2. Must use: (1) least restrictive means; (2) if less restrictive means exist to accomplish compelling interest, they must be employed. Non-Content Based: Intermediate Scrutiny 1. Time, place, and manner restrictions (e.g., zoning ordinances, parade permits, etc.). 2. Conduct regulations associated w/ symbolic speech or expressive conduct (e.g., draft card burning, trafficking in source code for DeCSS). Content Neutral: Intermediate Scrutiny 1. Requires: (1) An important or substantial govtal interest (2) unrelated to the suppression of free expression. (3) The restriction is no greater than is essential to the furtherance of that interest. (4) Leaves open ample alternative channels for communication of the information. Rational Basis 1. (1) Rationally related (2) to a legitimate govt interest. 2. Supposed to be reserved for non-expression related regulations (e.g., criminal statutes and ordinances of general applicability). How Expressive is Cloth? Very 1. Red flags (Stromberg v. Cal.) a. Facts = A true Commie; youth indoctrination; flag ceremony; violated red flag part of law, related to criminal syndicalism statutes. b. What violation of 1st Amd? Overbreadth; innocent flag related activities; no clear, present danger (really, no danger period). c. Rational? Not that insurrection goes unpunished; peaceful and orderly opposition. d. Rational: Free political discussion; responsive to the will of the people; changes by lawful means; vague and indefinite (re: fair use of this opportunity). 2. Red, white, and blue flags (West Va. Bd. Ed. v. Barnette (CB248)) a. Back Story: A) Gobitis case: Jehovahs Witness school children refuse to salute flag; Frankfurter, J., affirms schools decision to force the salute--says school district entitled to make decision; SCOTUS not a school board

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for the nation; deference to democratic process and institutions charged to regulate, make law; Stone, J., dissents---cannot compel public affirmations that violate religious convictions. B) In Gobitis, public perception was that SCOTUS had declared that Jehovahs Witnesses were unpatriotic (not good as war is breaking out); freakish violence occurs in spots across the country---actual tarring and feathering in Wisconsin; dragging man from car in Illinois and bashing his face on hood draped with flag (to make him kiss the flag he hates so much); after these unintended consequences, SCOTUS takes another case on flag saluting. b. Barnette---SCOTUS takes another look at flag saluting A) Symbolic message (of the salute or of the non-salute) is a powerful thing; Jehovahs witnesses believe the Book of Exodus provision against worship of graven images prevents them from saluting the flag. B) Justice Robert Jackson wrote opinion. 1) Took leave of absence in 1945 in order to become the chief Nuremburg prosecutor. 2) Terminello dissent: Bill of Rights is not a suicide pact C) Rational? Symbolic conduct protected---very meaningful expression. The salute? The flag? The non-salute? Not so clear. D) Outcome: Salute may not be compelled; no one shall be forced to conform to a set of beliefs. E) On Symbols: Primitive but effective; a shortcut from mind to mind; knit the loyalty of members, citizens; show rank, function, authority; notes: A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn; doesnt note the irony that this means symbols do not have a single, particularized message. F) On Conformity: Our traditions reject it (early Christians, William Tell, Quakers, William Penn); freedom to speak but no freedom not to affirm; exterminating dissenters; unanimity of the graveyard; fixed star in our constitutional constellation. G) On Politics: 1) Freedom of speech: not subject to vote; not subject to elections; avoid ends by avoiding beginnings; govt by consent of the governed, and cannot coerce that consent. 2) Authority controlled by public opinion, not public opinion by authority. 3. Black arm bands (Tinker v. Des Moines School Dist.) a. Facts = Vietnam; protestors and their high school children; planned protest w/ black armbands; peaceful, silent; administrators quash it. b. Some symbols are so meaningful they are akin to pure speech (in other words some are NOT); black armbands = mighty powerful symbol, mighty powerful expression. c. Do kids have 1st Amd rights beyond schoolhouse door? Yes. School must show material and substantial interference with educational functioning; undifferentiated fear wont cut it; highly probable, if not imminent; unpopular opinions at school = perfect place for them. 4. Comparisons a. Flag display = ambiguous meaning; flag salute = one meaning? (non-salute proved to have at least two meanings); flag burning = one meaning?; black arm band = one meaning? b. Flag burnings A) TX v. Johnson (CB361): Texass (and most states) flag desecration laws held unconstitutional; flag is pregnant with expressive content; so is burning it; laws were content based restrictions on speech; proffered state interest in public order or preserving symbols of nationhood not compelling enough to allow ban. B) US v. Eichman: After federal Flag Protection Law (1989) passed, Johnson and buddies burned flags on steps of Capitol and tested new law protecting flag as unalloyed symbol of USA; SCOTUS struck it down as

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content based restriction w/o compelling interest; sadly, Johnson couldnt light his flag and was not prosecuted. C) Texas Statute = protection of a venerated object from destruction or desecration; New York and 1989 Federal Act = protection of flag from destruction or desecration as unalloyed symbol of USA. Is the statute drafted to restrain speech? Yes---although it is drafted as an act to prevent conduct (destruction of flag), SCOTUS has construed it for its manifest purpose to quash the expression inherent in burning the flag. D) Does the govt care what you are saying about the flag or the USA when you burn it, i.e., what your viewpoint is? Not on face, but obviously burning the flag in a respectful way to dispose of a worn out flag is not targeted. Thus, these are content based laws designed for the suppression of speech. E) What was the govt interest involved? Protect and preserve the flag because it is a powerful symbol of country, US history, patriotism, nationalism; ironically, the same reasons people want to express the opposite viewpoint by burning the flag. Is this a compelling govt interest (for strict scrutiny analysis)? SCOTUS says no, time and time again. F) Why are flag laws not content neutral regulation of expressive, symbolic conduct? Not content neutral (although worded to address conduct); expression is targeted; viewpoint is targeted; ordinance was drafted in response to expression---govt purpose is to quash this form of expression; here SCOTUS looks past pretextual wording to strike down law. c. Morse v. Frederick: Bong Hits 4 Jesus case; Justice Roberts thinks this is an implicit drug reference; Im sure I dont know what he is getting at (ask Michael Phelps); attendance at torch relay, where banner was held up. Is it a school activity? Yes---school was across the street; held sponsored and supervised school event. Could it disrupt or interfere with the schools functioning, educational activities? Yes---upholds school discipline for banner bearer. VI. Censorship of Obscenity and Child Porn A. Overview 1. Definitions: Pornography = from the Greek, is literally "the writing of or about prostitutes"; obscenity = from the Latin, meaning "dirty" or "containing filth or excrement." 2. Morality and Decency: Being---Depicting---Describing: One leads to the others; human form---good or bad? Sex and sexuality---good or bad? Indecent relations (e.g., youth, incest). Perversion (old sense---homosexuality, bestiality, sodomy). Perversion (new sense---prurient interests). Immoral topics (e.g., birth control). Indecency, vulgarity. 3. Human Form a. Being---Depicting---Describing: Human form. Being nude; staring at nudity; Judeo Christian/Biblical tradition = Adam and Eve had something to hide; Noah cursed his son for gazing on his drunken naked form; David peeping on Bathsheba; Greco-Roman tradition = the gods were nude; athletes were nude; lots of nude art. b. Being---Depicting---Describing: Human form. Biblical free pass; mythological free pass. No prurient interest here? Ordinary subjects---not permitted; transient, temporal freedom---decade to decade, era to era; countermeasures (e.g. Fig-leafing---Michelangelos David vs. Satyr Anapauomenos--- and Ashcrofts draping). c. Being---Depicting---Describing: Sex and sexuality. Attitudes of indecency; appealing to immoral, prurient interest; human see, human do; enshrining nudity = advocating sex and sex perversion; putting in fixed and tangible medium (e.g., art and literature) makes it acceptable; breakdown in common morality. 4. Govt Role a. Punish Crime (crimes w/ victims): rape, child abuse, prostitution, sex slavery. b. Simple Morality (victimless offenses): abuses affect fabric of society.

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c. Social Engineering: 1st the church; later, crusaders like Comstock, backed by scions like JP Morgan. d. Reformation: morality, alcohol, slavery. e. Religious Revival: Jewish, Christian, and Islamic. 5. From Sex to Obscenity in the UK a. Georgian (mid 1700s1837): decency = delicacy; nothing to make girls blush; nudity and sex cause harm; human see, human do; Bowdlerism; not an expression issue in the UK---no 1st Amd, no presumption of free expression. b. Victorian (1837-1900): obscenity = corruption; materials that would corrupt most vulnerable members; materials that corrupt cause harm; vulnerable humans see, then do; not a free expression issue in UK. c. Comparison A) Georgian = Delicacy; female (young); nothing that would embarrass; maintain pleasant atmosphere; no unpleasant talk; nothing scandalous. B) Victorian = Vulnerability; children and perverts; nothing that would corrupt; prevent immoral action---corrupted youths and perverts who go out and do immoral things b/c they saw or read about immoral things. B. Notable People and Efforts 1. Georgian Bowdlerism: The Bowdler family in England (Thomas and Harriet); family friendly versions of great classics; The Family Shakespeare (1818); The Bible (1822); The History of the Decline and Fall of the Roman Empire (1826); Bowdlerize = to attack literature to clean it up, to reduce it to a selfproclaimed standard of decency. 2. Victorian Pragmatism: Regina v. Hicklin (Q.B. 1868) (UK) (CB287): protect the most vulnerable of societys members; test [is] . . . whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall; children, perverts; venue in the Cloister or The Nun in her Smock; The Confessional Unmasked; Annie Besants literature on contraception; nothing about the right to speak or the right to be heard. 3. American Comstockery a. Sex to obscenity in the USA; social engineering by the train load; pictures; books; rubber articles; contraceptives; materials that lower morals, appeal to baser instincts; no real argument over expression. b. Social engineering; societies formed (e.g., Suppression of Vice, Watch and Ward); backed by powerful figures, big money; proactive: expose and eradicate; not limited to smut in print or on paper; 194,000 obscene pictures and photographs, 134,000 pounds of books, 14,200 stereopticon plates, 60,300 rubber articles, 5,500 sets of playing cards and 31,500 boxes of "aphrodisiacs in first six months of operation; bars, theater, recreation, entertainment; 61 coach passenger train with convicts; Comstockery; federal law passed---no use of mail for smut. 4. Victorian Model is the USA Model (1870-1950s) a. Regina v. Hicklin (Q.B. 1868) (UK): Standard is potential for corruption of societys most vulnerable members. b. However, theres a growing interest in issues of art and literary value. Should works be taken as a whole? Should modern standards be applied? Should we write laws for the average adult member of community? C. Censorship of Obscenity: History and Case law 1. Regina v. Hicklin (Q.B. 1868) (UK): "A work is obscene if any portion of the material has a tendency to corrupt those whose minds are open to such influences ... and into whose hands a publication of this sort may fall." Low standard: ask if the work might corrupt children? 2. One Book Called "Ulysses" (SDNY and 2d Cir. 1933): Obscenity judged by dominant effect of the book as a whole; not obscene when, if viewed objectively, the presentation is sincere and the erotic material is not introduced to stir the sex impulses or to lead to sexually impure and lustful thoughts and does not furnish the dominant note of the publication; James Joyces Ulysses was not obscene. 3. Sexuality v. Obscenity: How mature is our thinking (1920s-1950s)? Can we talk about sex and sexuality? Can we have a mature discussion about it in print? Can we depict it visually in a tasteful way (having scientific,

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artistic, educational value)? Do we recognize social science---human see, human not always do? Is there any point to maintaining regulations of any kind? 4. Roth v. US (1957) (CB288) a. Facts = Federal Obscenity Act (Comstock Act)---obscene, lewd, lascivious, or filthy material is non-mailable; Roth tried to mail it; Alberts (companion case) kept and advertised obscene material; issue = is obscenity expression protected by First Amendment? b. The petitioners aimed high---make obscenity like hate speech, insurrections, and subject it to the incitement/clear and present danger standard. That would have been consistent with 1st Amd law in most other areas of speech, but it would have been a drastic turn for obscenity law. What would be incited--immoral conduct? Sexual deviance? Sex crimes? What clear and present danger would have to be shown--immoral conduct? Sexual deviance? Sex crimes? No court preceding Roth ever questioned govts ability to regulate obscenity--it was patently obvious that govt had a role to clean up obscenity like any other kind of filth in the community. Ignoring that unbroken line of precedent would have been a drastic step indeed. c. Brennan, J., at Work: A) How did Brennan dispose of these arguments? Obscenity is not protected expression under 1st Amd, i.e., its not speech for 1st Amd purposes; open and shut case; all previous 1st Amd cases assumed it was not protected; if not protected speech, dont need clear and present danger or incitement tests to ban it. B) Fine, obscenity is not protected; it can be regulated at will. Is that what Brennan wanted? Is he some kind of modern Comstock?? No way. So, what is Brennan up to? Brennan has a plan to save a bunch of speech from censorship by focusing on the definition of obscenity. C) Brennans syllogism #1 = obscenity obviously can be banned, so we must be certain of what is obscenity so we can ban it when we see it; thus leaving all that is not obscenity to be seen, heard, enjoyed. D) How did Brennan feel about the prevailing test of obscenity---Hicklin? Goodbye Hicklin. What was wrong with Hicklin? Overbroad, vague, and ill conceived. Focused on parts, not the work taken as a whole. Too much open and frank discussion of sexuality, etc., barred. If obscenity is to be speech non grata and banned at will, definition of obscenity cannot encompass all speech unfit for children. E) How does Brennan link the value issue into the definition of obscenity (syllogism #2)? All ideas with even the slightest redeeming social importance receive full 1st Amd protection. Obscenity, like fighting words and defamation, contribute no useful ideas to the marketplace. Fighting words, etc., are utterly without redeeming social value. Therefore, if something is not utterly without redeeming social value, it is not obscenity. F) Brennan syllogism #3: Great interest = importance; importance = necessary to dialogue; all things necessary to dialogue = protected by 1st Amd; discussion of sex in art, science, literature is necessary, important, and therefore protected by 1st Amd (unless it crosses over and is obscenity). G) Prior Law 1) Obscenity is bad; obscenity causes harm; anything indecent, immoral, lewd, lascivious, or filthy is obscenity; obscenity is not protected expression, so we can ban obscenity whenever we want. 2) Anything indecent, immoral, lewd, lascivious, or filthy is obscenity; obscenity can affect anyone; earlier cases found young, old, smart, dumb, uneducated, educated people all susceptible. 3) Discussion of sex is dangerous, corrupting; any open, frank discussion of sex tends toward the indecent and obscene. H) New Law (Brennan) 1) Obscenity is bad; obscenity causes harm; obscenity is utterly without redeeming social value; if something is not utterly without redeeming social value, it cannot be obscenity and we cannot ban it.

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2) Obscenity is different from normal, healthy discussion and expression concerning sex; sex is a great and mysterious motive force in human life, important to mankind; like other important themes, it is necessary to society, necessary to our democracy. 3) Obscenity is material that appeals to a prurient interest; prurient is a lewd, leering, unnatural, perverted interest in sex; so if material is not designed to appeal to a prurient interest, it is not obscenity. I) What else does Brennan conserve from the developing 20th Century law on obscenity? Everything: (1) Dominant theme (2) taken as a whole (3) contemporary values (4) average member of community. J) Roth Test: 1) Whether to the average person 2) applying contemporary community standards 3) the dominant theme of the material 4) taken as a whole 5) appeals to a prurient interest. 5. Post-Roth a. Jacobellis v. OH (1964) (CB292) A) French film called "Les Amants" ("The Lovers"); film declared not obscene; four opinions---not one with over 2 votes. B) Potter Stewarts concurrence gives definitive tests of obscenity: hard core porn and I know it when I see it. C) On Community Standards: SCOTUS (some of them) rejected local community standards in favor of national standards; local standards too cumbersome, unfair to nationwide distributors of films and other materials---impossible to predict what will fly in all the places the material will reach; why should Peoria, Portland, or Provo define what the rest of the country should see and hear? b. Memoirs v. Mass. (1966) (CB292): Book named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Massachusetts; applied the following 3 prong test: (1) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (2) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (3) the material is utterly without redeeming social value. c. Stanley v. GA (1969) (CB308): SCOTUS unanimously ruled that mere private possession of pornography---even legally obscene material---in one's own home was constitutionally protected; govt purpose to curb poisoning effect of obscenity on peoples minds was not valid. Is this an end to Comstockery (social engineering)? YES. "If the 1st Amd means anything, it means that a State has no business telling a man sitting in his own house what books he may read or what films he may watch." d. Kois v. WI (1972) (CB297): Value issue (scientific, artistic, literary); interrelationship of elements; attempts at serious art "must be considered in assessing whether the dominant theme of the material is to [appeal to a] prurient interest"; serious art does not appeal to perverts, no matter how graphic, how much like common pornography it becomes. 6. Miller v. CA (1973) (CB293) a. Test = whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; SCOTUS emphasizes local community standards; the work depicts, in a patently offensive way, sexual conduct specifically defined by the applicable state law; SCOTUS specifies that patently offensive means depiction of hard core sexual conduct; the work, taken as a whole, lacks serious literary, artistic, political or scientific value. b. The test is not that far from the safety net test Brennan constructed. It substitutes local community standards for national, and gets more specific in what counts as obscenity: depictions of hard core sexual conduct. Literary works are beginning to sound like an after-thought as Miller seems much more focused on the visual, not the descriptive. Miller calls for states to define what hard-core means with some specificity, leading to

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embarrassingly detailed state and local laws describing graphic sexual acts and excretory functions that will not be allowed in that jurisdiction. 7. Laws Must Use Miller Standards a. Am. Booksellers v. Hudnut (7th Cir 1985, affd 1986): Statute regulating pornography as graphic, sexually explicit depiction of subordination of women was not sufficient because it did not contain prurient interest and patently offensive and other Miller standards. b. Cruz v. Ferre (11th Cir 1985): Statute regulating cable TV had proper obscenity definition from Miller, but its indecent material test was struck down as vague and overbroad because it was not as rigorous as the Miller test. 8. Issues After Miller a. What are community standards? What community do you use? A) Community Standards---Miller said a national community is not constitutionally required; local community standards are allowed, specifically statewide standards. Hamling v. USA (1974): No precise geographical area is a constitutional requirement for establishing the relevant community; smaller geographical communities such as the community or vicinage from which the jurors come may be used (i.e., county or federal district). Smith v. USA (1977) (CB300, 302): Adds that the state can define a geographic limit to community standards by defining the area from which a jury could be selected. B) Proving Community Standards---Triers of fact (jurors or court) are entitled to draw on their knowledge of the norms of the community from which they come to decide whether the "average person" would find that the disputed material appeals to "prurient interest" or is "patently offensive." USA v. Ten Erotic Paintings (4th Cir. 1970) used experts on Roth and Memoirs standards. Paris Adult Theatre I v. Slaton (1973): Experts may be used to testify as to the nature of the contemporary community standards, but such testimony is not constitutionally required. b. What does taken as a whole mean? A) Cincinnati v. Contemp. Arts Center (OH Mun. 1990) (CB303): Retrospective of Robert Mapplethorpe photographs challenged under obscenity law; reported to be the first obscenity prosecution against a museum or art gallery in recorded U.S. history; first known obscenity prosecution of a museum director (Barrie) in United States. 1) Question on taken as a whole is whether S&M photographs define the entire exhibition or does the totality of the exhibition protect the individual S&M photographs. Is each photograph a separate item (a separate exhibition to be separately analyzed under Miller)? Context and content is at issue. 2) Court found that only relevant content and context is within each individual photograph; therefore each of the S&M photographs is a separate exhibition and can be separately prosecuted; Perfect Moment exhibition was merely a distribution vehicle for the individual photographs display. c. What does appeals to the prurient interest mean? A) USA v. Various Articles of Obscene Merchandise Schedule 1967 (2d Cir 1979): Courts should consider content of the material not the nature of the intended audience or the discretion used in the mailing of the material. B) Oregon v. Liles (1975): Judge Dooleys frank standard that material appeals to prurient interest and is obscene if I wouldnt want my momma to see it or know I was looking at it. C) Bartanen v. AZ (1979): A prurient interest in sex is not the same as a candid, wholesome, or healthy interest in sex. Material does not appeal to the prurient interest just because it deals with sex or shows nude bodies. Prurient interest is an unhealthy, unwholesome, morbid, degrading or shameful interest in sex, a leering or longing interest. D) Ripplinger v. Collins (9th Cir 1989) (CB307) 1) What is the problem with jurors and prurient appeal? How does the case resolve it? Jurors or court need not find that the material

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actually achieves arousal or satisfies prurient appeal in the average person in the community or in members of the intended recipient group; all they need find is that the nature of the material must be designed to appeal to such audience; attempt to arouse is enough; impact is not required. 2) Jurors are not to use own personal standards (this would arouse me) but rather community standards (this is designed to appeal to prurient interests of some pervert of my community); coupled with the patently offensive standard---this is patently offensive hard core porn in my community; juror sits as judge of the materials appeal, not the object of the appeal. d. How do you assess literary, artistic, political, or scientific value? e. Special Cases: Child Porn A) Child pornography has been treated differently than all other forms of obscenity; child pornography has come to be regarded as a victim-oriented criminal offense, not a public morality regulation; it is the treatment of children as victims both at the time of the filming and later at the time of the display causing physical and psychological damage; industry has the potential to haunt these individuals in their future lives. B) NY v. Ferber (1982) (CB305, 306): Pointed out that the states must attack the entire chain of distribution, the entire market, for child pornography in order to successfully wipe it out; that is the entire strategy of child pornography laws---to wipe out the existence of child pornography, not merely to regulate it. C) Child Porn = Non-Speech: Child pornography has come to be recognized by commentators such as Professor Amy Adler (NYU) as being the latest form of non-speech to be added to the categories of defamation, fighting words, and true threats; this allows much more extensive regulation. D) Osborne v. OH (1990) (CB308): Simple possession of child pornography, even in the privacy of ones own home, is not permitted; this contrast to Stanley v. Georgia, where Georgia was attempting to regulate the quality and character of peoples minds through a regulation of possession of obscenity; Osborne points out the need to cut off the entire market, both the supply side and the demand side, by prohibiting even simple possession of child pornography in private homes. E) Child Porn Problems = Fact that child pornography is non-speech or at least non-protected speech does not end the issue; makes the determination of what exactly is child pornography all the more important---what exploits children or creates the market on the supply side or demand side? E.g., perverts like children's clothing catalogs--do you move to suppress the Baby Gap catalog? Nudity in sexual situations is not necessary to satisfy the prurient interest of true perverts. What of sexting? F) Ashcroft v. Free Speech Coalition (2002) (CB319): Justice Kennedy wrestled with the issue of whether computer-generated, virtual child porn is subject to regulation. The laws and cases interpreting the laws all agree that the primary reason to ban the industry is to wipe out a harm on the children caught up in the industry. Virtual child porn has no actors let alone victims, but the images and videos feed the desires and perpetuate the industry. Kennedy had to draw the line, and wrote virtual child porn out of the bounds of material subject to regulation as child pornography. VII. Content-Neutral Govt Regulation of Art and Private Censorship of Art A. Comparisons: The comparison here is between the SCOTUSs treatment of symbolic speech as content-based regulations of speech vs. treatment as content-neutral regulations of conduct. On the one side are a flag display case (Stromberg v. Cal.), a flag salute or non-salute case (West Va. Bd. Of Ed. v. Barnette), and the wearing of a black arm band (Tinker v. Des Moines School Dist.), all of which were held to involve symbol expression akin to pure speech, and all of them resulted in the law or govt action being struck down as a content-based restriction of speech.

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On the other hand is OBrien, a case involving the burning of a draft card in a political protest. B. USA v. OBrien (1969) (CB330) 1. The origin of the content-neutral, intermediate scrutiny test. Draft card burning (during Vietnam War) case. Did OBrien explain his motive? Yes. Is expression obvious from the act, i.e., is it akin to pure speech? Yes. Fairly unambiguous, singular, particularized, political message. 2. What was the statute that was violated? Thou shall not be without thy draft card. How did he violate it? He burned up his draft card and then didnt have it anymore. Is the statute drafted to restrain speech? No, just hold on to the card. Does the govt care what you say about the draft, i.e., what your viewpoint on the draft is? No, just hold on to the card. Thus, CONTENT NEUTRAL---NOT designed for the suppression of speech. 3. What was the govt interest involved? Need draft cards to run an orderly selective service. Do you need to quash some speech to vindicate it? No. Is this govt purpose substantial or important? Yes (SCOTUS thought so). 4. Is this measure about holding on to your card pretty well designed to further the govt interest and only that govt interest? Pretty much. Is it vague or overbroad? No, carry your card; only your card. Thus, narrowly tailored to a substantial or important govt interest. 5. There are a thousand other ways (more than ample alternatives) to protest the war or the draft or the govts foreign policies that do not involve burning your own, one-and-only draft card. Burn a facsimile of the card (a mimeograph in 1969), or something that resembles a draft card, a photo of your draft card, etc. 6. Is this a good paradigm for content-neutral regulation of expressive, symbolic conduct? Yes. Conduct targeted, not speech. No one targeted for any expression. Govt purpose has nothing to do with expression. This is a good case to write the standard for intermediate scrutiny. C. Indirect or Private Censorship: (1) Not going after the art---certainly not its contents---but going after the museum, the gallery, the forum, the artist with legal or economic pressure. (2) Pressure without overt censorship---no less effective, especially where the artist or organization under attack has a precarious financial position or depends on public or private patronage for its survival. (3) Private Censorship---often self-censorship---can go without review or remedy. only the court of public opinion may have its say. 1. Govt Owned Art a. Serra v. GSA (CB334): Direct attack on the art; after consultation and thought, had it removed; implicit rqmts---aesthetically pleasing and accepted by the community. b. Claudio v. USA (CB340): Political art; no rt against removal in K or under law; not public forum (got in the way of cthouse functioning); not content-based (related to govt purpose of running ct properly). 2. Indirect Censorship---Means include: (1) Govt cutting funding or threatening to cut funding or denying grants; or (2) govt going after leases or licenses--liquor licenses, building permits, biz licenses, etc. 3. Private Censorship---Means include: (1) Adverse publicity (it may cause free exposure and added foot traffic, but it can close down other areas of public or private patronage); (2) boycotts, picketing; (3) active steps by citizens to remove art; or (4) capitulation by museums or galleries. 4. NEA v. Finley (1998) (CB348) a. NEA Regulations of 1990 = moral conservatives in Congress outraged by use of Natl Endowment for the Arts funds to pay for Mapplethorpe retrospective and display of Serranos Piss Christ called for end of NEA. Compromise to save the existence of the NEA required NEA to apply general standards of decency and respect for the diverse beliefs and values of the American public in making grant determinations. Karen Finley and three other performance artists pending applications were nixed. b. Karen Finley and the other artists suit failed as SCOTUS upheld NEA regulations; when govt is acting as patron, not policeman, and the nature of the process is to make selective, esthetic decisions as to the distribution

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of limited funds, it is okay to apply any number of criteria in allocating the funds---even opaque criteria such as decency and respect for diverse values. c. Potential for chilling effect is remote b/c no artist is guaranteed share of limited funds; distinguished from Rosenberger v. Bd. Regents U. Va.: U. Va. set up open public forum for student groups then denied all groups with religious viewpoint; no forum created by NEA; no attempt to silence artists. 5. Brooklyn Inst. of Arts and Sciences v. NYC (Giuliani) (CB355) a. This = case study in indirect censorship. b. Facts = Saatchi buys controversial art; Saatchi shows art at the Royal Academy in London---controversy builds, publicity grows; before the opening, Giuliani threatens Brooklyn Museum of Art with cut in funding to stop the show (huge % of operating budget at stake); show opens anyway to much larger publicity and attendance than usual; Giuliani follows through on cut of funding; museum sues in federal court to restore funding; Giuliani countersues in state court to go after lease. c. Federal court sides with art museum and grants preliminary injunction to restore funding; the court finds irreparable harm from the loss of funding and, more importantly, likelihood of success on the merits; NEA v. Finley is distinguished---not a patronage distribution issue; history of NYC and Museum is much different. d. Giuliani and museum reconcile and dismiss their law suits; meanwhile, vandals attack the Virgin Mary painting; Saatchi is the big winner---his art is worth a lot more money now. D. Funding v. Patronage 1. Funding cases (Brooklyn Inst. of Art v. NYC; Cuban Museum v. Miami) have better chances of succeeding; showing continuing funding relationship ended by thinly veiled pretext that equates censorship 2. Patronage cases (NEA v. Finley; Advocates for the Arts v. Thompson) are not successful; discretionary distribution of limited funds calls for choices and application of many criteria; even small minded criticism of content is not 1st Amd violation. E. Problem of Public Opinion 1. Scandal breeds publicity; publicity breeds more publicity; publicity can inspire interest and attendance. Short term: Publicity of any kind looks good; can draw visitors, collectors, and put artist or institution on the radar screen. Long term: Acquiring a reputation for scandal can damage the attractiveness of the artist for public and private funding. Entities and foundations that dont want to be associated with scandal dont pay; no review of private funding cuts. Except for obvious instant reaction cases like Brooklyn Inst. of Art v. NYC, a more long term chill on govt funding can go without review. 2. Nelson v. Streeter (CB378) a. This = case study in private censorship. b. Facts = Harold Washington, venerated first African American mayor of Chicago, dies. Nelson, a student at the School of the Art Institute of Chicago, enters painting in student art show depicting Washington in womans lingere. Students dislike it; visitors dislike it; aldermen go crazy over it. Aldermen pass resolutions requiring Art Institute to take the painting down and requiring apology from Art Institute or cut in funding. Not satisfied, the aldermen personally visit the show, brandish weapons, take the painting down. Later, they carry it off to the museum directors office, threatening to burn it there. Somehow, a 6-inch gash appears in the work. Painting stays down, unrepaired. Director issues apology and promises that the painting will not be displayed again. Nelson files lawsuit (1983 action) against the aldermen for civil rights (1st Amd) violation. c. District Court sides with Nelson---no govtal immunity because enraged aldermen were acting on their own but under color of state law. No public justification of preventing riot and civil unrest---no proof of imminent threat of such. Laughable claim that they took the painting down to save it from destruction by the mob was rejected. 7th Cir affirms. Nelson in for pretty sizeable damages because of civil rights nature of suit.

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VIII. A.

Art Markets: Galleries, Dealers, and Clients Art---Not Your Average Profession 1. Hard to get started. 2. Hard to get recognized. 3. Hard to make it lucrative. 4. I learned a lot more about marketing, networking, and advertising from trying to sell art than trying to develop clients. 5. Pressures from all sides---landlords, clients, dealers, galleries, and govt. B. History: Romantic imagery aside, the story of art is a story of limited success stories and many failures and disappointments; not until the Italian Renaissance did artists achieve a certain amount of stature, status, recognition (and it was not a snowball effect from there); the biggest Names---Michelangelo, Da Vinci, Rembrandt, Manet, Monet---all suffered from pressures from govt, the church, patrons (who often were the church or govt), and public opinion that constrained their artistic choices; most had to fight to stay solvent and fight to make a decent living. C. Artists Selling Art: 1st Amd protects artist from overt censorship but also protects right to sell art and make a living (Bery v. New York (2d Cir. 1996) (artpaintings), Weinberg v. Chicago (7th Cir. 2002) (pamphlets, writings)); right to free expression includes right to avoid restrictions on distribution and sale, but not every circuit or state court agrees with this outcome (Mastrovincenzo v. New York (2d Cir. 2006); 1st Amd right requires balance of commercial/merchandizing nature vs. expressive/artistic nature of activity; selling painted t-shirts not same as selling paintings; doesnt relegate art to commercial speech, but lessons artists rights. D. Living Space, Working Space: Notorious lack of resources; Bohemian lifestyle = poverty; artists need living space, but also a studio or working space---sometimes needs for studio space are quite large; art processes can be toxic, hazardous--solvents, fumes, chemicals, heavy metals, kilns, and furnaces; you dont necessarily want to live on top of your work. E. Govt Assistance to Artists: GOVT HANDOUTS---In times of dire need, govt programs can give aid directly to artists; e.g., Great Depression---WPA project (helped Milton Avery, Stuart Davis, Mark Rothko, Willem deKooning and Jackson Pollock; also minority artists such as Jacob Lawrence, William Johnson); TAX BREAKS---can be helpful if the artist is earning enough money to even be subject to taxation; REAL ESTATE PROJECTS---create art venues or places for artists to live and work; GOVT FUNDING---NEA (usually helps get other aid) along w/ state and regional commissions, and specific grants; CARROT AND STICK---any problems?; RESPECT FOR DIVERSE VALUES AND DECENCY---good or bad?; not about moral rts, i.e., generally not about artists values or sense of decency. F. Private Assistance to Artists: FREE SERVICES---volunteer attys and accountants for the arts, free exhibition space; PRIVATE FOUNDATIONS; PATRONAGE---just buy the art. G. About Ks 1. Ks can solve most of artists business problems, but: a. Artists dont like using Ks; A) PR nightmare---art is not supposed to be about the $$. B) Artists get more clients and patrons through friendships, relationships, and trust than through Ks. b. Many artists are not very business savvy; and A) Especially compared to many wealthy collectors, dealers, galleries, and museums. c. Artists think like artists, not attys. A) Youve got to help them get over it. 2. K Issues: Commissions and Sales a. COPYRIGHT, 106 rights: duplication, derivative works, display, work for hire issues; MORAL RIGHTS, RESALE RIGHTS---to the extent transferable; PERFORMANCE REQS---installation, weatherproofing, upkeep, removal; CUSTOMER APPROVAL---satisfaction?; EXPECTATIONS---artistic license, nature of media, and artists style or techniques; PAYMENT---percentage up front, progress payments, liquidated damages for cancellation or non-performance; LAW---

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choice of forum, choice of law provisions; ADR---mediation, arbitration?; RISK OF LOSS---pre/post creation, may depend on where customer takes delivery; INSURANCE---through creation, shipping, after installation, issues about 3d parties, liability, etc. b. UCC Sales and Stop-Gaps A) In the absence of contract terms, UCC will imply stop-gap terms as to: price, timing issues (delivery, payment), risk of loss, best efforts; however, the UCC standard will be one of reasonableness in the circumstances, not necessarily what your client or anyone else had in mind. H. Beyond Purchase and Sale: Complicated Issues 1. Dealers, galleries---consignment? purchase? what terms? conflicts of interest? To a certain extent, they are inherent (dealers and galleries want to make max profit and so does the artist); but it can work---compare attorneys desire to collect fees vs. clients interests not to pay too much; question is fiduciary duties (how to receive them?). 2. Fiduciary Duties and Breach of Trust: Remember that art trade is largest, most lucrative, high-dollar, unregulated trade left in the USA; unlike lawyers, doctors, securities and commodities brokers, architects, builders, beauticians, and barbers, art dealers and gallery owners most often are NOT regulated by law, code, registration, written duties, reporting, review, or discipline. 3. How do you obtain fiduciary duties and prevent breach of trust? FRIENDSHIP, HONOR, DECORUM, CUSTOM---but these never were considered adequate in other areas of life and trade; CIVIL LAW SUITS (tort claims)---expensive and time-consuming; some CRIMINAL LAWS (fraud, misrep., etc.) for the worst offenses; some STATE LAWS exist (NY has a bunch), but nothing like the average state board of healing arts or the average state bar with a code, written duties, registration, reporting, complaint procedure, review, and discipline; BY CONTRACT. 4. What can go wrong? In re Rothko Estate: Estate of 798 paintings; cannot dump them, selling them all at once would cause market for Rothko to bottom out; executors---negligence, self-dealing, and sweetheart deals; Q = why did it go so wrong?; A = inadequate estate contracts, trusts, and estate planning documents to spell out duties, terms and conditions, review and approval by heirs/beneficiaries, and dispute resolution. I. What affects the value of art? Upward Pressures = rarity, notoriety, successful sales and high prices at public auctions and sales, publicity, and quality; downward pressures = too much stock, forgery scandals, actions by artist, poor sales and low prices at public auctions and sales, and lack of quality. J. K Issues 1. Dealers a. Purchase or consignment b. Exclusive arrangements---time frame and cancellation issues. c. Output---total output, % of output, and rt of first refusal. d. Expectations---publicity, placement in solo and group shows, best efforts, etc. e. Payment---percentage commission, liquated damages for cancellation or non-performance. f. Law---choice of forum, choice of law provisions. g. ADR---mediation, arbitration? 2. Galleries a. Exclusive arrangements---time frame and cancellation issues. b. Purchase or consignment---total output, % of output, rt of first refusal, consignment financing stmt (UCC-1; security interest; IF artist will use them). c. Expectations---publicity, solo and group shows, best efforts, introductions to collectors. d. Payment---purchase of percentage commission, liquated damages for cancellation or non-performance. e. Moral rts, resale rts. f. Law---choice of forum, choice of law provisions. g. ADR---mediation, arbitration?

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h. Special terms---loans or work to collectors, discount arrangement for collectors of multiple works. 3. Dealers and Galleries a. Insurance---who pays when the works are in dealers possession, or traveling to/from shows? b. Costs---who pays for costs of exhibitions, shows, storage costs? c. Risk of loss---absent agreement, who bears risks of loss for theft, destruction? A) Is there an agency arrangement or bailment for hire (nongratuitous bailment) arrangement? B) It may be determined by the place that the dealer or gallery takes delivery of the art. 4. Getting Paid a. Payment at signing, up front % and progress payments---avoid the issue of not getting paid by getting paid up front or getting enough throughout the creation process to avoid the all or nothing problem at completion. b. Dont deliver until fully paid---try not to give the completed artwork over until you get paid. c. Mechanics lien---if your artwork is an improvement to real property (an installation of sculpture or fixtures or a mural) you may be able to give notice and file a mechanics lien on the property to secure final payment; check local law. d. Liquidated damages in K e. ADR f. Litigation IX. International Protection of Art and Cultural Property: International Movement of Art in Wartime A. Simple Claims, Not Simple Issues: An antiquity was removed from a country that normally would value it highly, but the person in possession of it had no use or fondness for it but could use the money it brought from its sale; now, years after the item has passed through several hands, each of whom purchased it in good faith for a fair price, the original country from which it was removed wants it back. B. Legal, Policy Issues---Recovery 1. Whose law applies? The law of the country where the item first was removed? The law of the countries where the item changed hands at several points over the years? The law of the country where the item ultimately wound up and where the first country is making a demand for its return? 2. The events happened quite a while ago. Is there a statute of limitations that applies? A laches defense? From when does the claim start to runfrom removal over a century ago? Or only after an official demand is made and refused, even if that date is over a hundred years after the removal of the object? Tolling for the time when claimant did not know sufficient facts to make a proper demand or to bring a legal claim? 3. At the time of removal, the item arguably was the property of the nation as a relic of the past and a prime example of the culture and history of a people. However, its removal predated several international conventions on the topic of movement or theft of cultural property. It would be difficult to make a conclusive statement that its removal and export was illegal under that nations laws at the time, let alone under the customary international law of the time. 4. The item has great value to the people and the culture in which it was created, and to the nation that conquered and succeeded this people and their culture, and to mankind in general. 5. Who has the paramount claim to this item of great value: The descendants, if any, of the original people who created it? The nation that encompasses the territory where this people used to live? The major international art and cultural institution that has been carefully preserving the object, restoring it, and making it available to the world for education, study, and simple enjoyment as a magnificent example of mankinds cultural heritage? 6. Should we decide ownership based on the history (the people and their culture that created the object), or the geography (the nation that encompasses the territory where this people used to live), or contract law (the last good

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faith purchaser for value should retain or obtain possession), or to the country or institution that is best able to protect, preserve, restore, and make the object available to the most people possible for education, study, and simple cultural enjoyment? C. Iraq 2003 1. Iraqs National Museum and National Library and Archives and Bagdads Koranic Library had one of the finest collections of ancient historical art, artifacts, ancient manuscripts, and books; 5,000 years of history in Mesopotamia---a birthplace of civilization---was reflected in the collections. 2. Ancient cultures: Sumerian, Babylonia, and Assyrian, not mention some of the oldest books and artifacts of from the start of Islam; artifacts from some of mankinds first great cities: Assur, Babylon, Nineveh (aka Nineva), Nimrud, and Ur. 3. US Invasion: 48 Hours of Looting a. 170,000 objects reported to be missing or destroyed; National Library and Archives and Koranic Library burned; many objects had been removed to vaults for fear of bombing and other collateral damage---only 20,000 or so pieces (the larger pieces and smaller less important ones) were left in the display galleries; unfortunately, the looters obtained access to the vaults by gunpoint and other means. b. Not Entirely Unorganized: A) Some looters were there for gain, others just for vandalism and destruction; it was obvious to the curators standing by that an organized few knew exactly what they were doing; some knew where to obtain the keys to the vaults; some went straight to the most valuable works and took them away. B) Ironically, the greatest hope for survival and recovery of some works lies in that fact that Saddam Hussein and his cronies may have pilfered many of the most valuable items for the presidential palaces and officials homes. c. American Protection = Nonexistent A) We had no idea that citizens were going to loot their own national treasures---What of 1st Gulf War? Small scale looting occurred in Southern Iraq and THAT amount was called a tragedy; prior warnings were given re: Bagdad museum. B) Some guy on the phone says a biblical library is on fire--Correspondent called the Marines command center to tell them about the fire a block or two away; the marines did not take action. C) You see the same picture of a guy carrying a vase out of a building over and over again---Within minutes curators called the military. D) Quit being so henny penny . . .This is war. Its untidy.---Rumsfeld chastised journalists for dwelling on US troops near complete inability or inaction in face of looting. d. Stolen, Missing, or Destroyed A) The Hammurabi Code---in its original stone edition, one of the earliest codes of law in the world; predates the 10 commandments by 400 years. B) The Koran---one of the earliest known copies. C) Stone tablets and objects with some of the earliest known forms of writing in the world. 1) Projects to translate 1,000s of pieces now ended. D) 5,500 yr old alabaster, silver and gold objects from the city of Ur (Abrahams era). E) Iraqs National Museum is compared to the Cairo Museum---the scene here would be equivalent to looters carrying out the treasures of King Tuts tomb while soldiers watched. F) Jacques Chirac of France calls it a crime against humanity. e. What Can Be Done? A) UNESCO has called for an immediate ban on all trade in Iraqi objects (Summerian, Balbylonian, Assyrian, etc.); cultural ministers, UN Officials, educators and others are meeting in Paris to try to get a game

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plan on quelling the trade---database of items a 1st priority; US and British asked to seal the borders. B) Theoretically, the United States might be called into question for violations of its international law duties (1954 Hague Convention on Protection of Cultural Property in the Event of Armed Conflict, 1970 UNESCO Convention, customary international law that USA helped write); not that it will ever answer for these lapses (military necessity, discretionary executive action (esp. in military action), no waiver of sovereign immunity for damage to cultural property in wartime). D. To the Victor go the Spoils: The right of plunder as a consequence of victory over your foe was assumed from ancient times; Romans considered opponents treasures to be res nullius---ownerless---from the beginning of hostilities; if you could grab it, it was yours under the ius praedae---law of booty; Greeks v. Trojans; Assyrians, Babelonians, Egyptians, Persians and others raiding ancient Israel; Romans v. Greeks; Visigoths, vandals, Carthegenians, and later on, the Spanish, all raiding Rome. 1. More Recent Examples: Wars between Protestants and Catholics in 16th and 17th centuries involved plunder; Italian states raided each other and other entities; 1857---British (under the 8th Earl of Elgin) and French forces systematically plundered the Chinese Summer Palace near Beijing after the Opium War; 1885---British systematically looted the Mandalay Regalia in the Burmese royal palace after winning the 3rd Anglo-Burmese War. 2. Obvious Insult: Losing national treasures is stinging salt in a nations wounds. Revenge becomes a powerful rallying cry. Getting works in plunder, then losing it back to the angry opponent as they conquer you back was par for the course. As recently as World War II, Germany attempted to justify some of its theft of art from other European nations by claiming, Yeah, but they took it from us in the 16th and 17th Centuries! After being plundered by Germany, the Soviet Union plundered Germany as thoroughly as it could after it prevailed on the Eastern Front in WWII. D. Not the Most Pressing Concern: Damage to art and cultural property may be grave, but often it is one of the least of a conquered nations concerns. Civil unrest; insurrection. Economic turmoil. Looting; break down in law and order. Starvation, disease. Wartime reparations. Loss of territory and other valuable resources. Nor was it often an issue of international regard in the face of chaos and bloodshed, territorial disputes, refugees, health, and economic concerns. E. Art Collection via War: Case of Napoleon 1. Napoleon used his wars of conquest and aggression of late 18th and early 19th centuries to build up a stock of artworks for the French Republic. Seriously well organized plunder of art: cultural ministers made lists of works, and Napoleons forces made war against the nations or city states where the items could be found. Especially evident in the Netherlands and Napoleons Sojourn in Italy (game plan was to raid the Netherlands and Italy of every significant art work they could find). 2. This = birth of Louvre. Former Louvre Palace was transformed into the first public national art collection of the republic. Art poured in from the Netherlands and Italy by the wagon load. The sprawling Louvre complex was just the place for stocking up with looted works---a kings ransom of works (literally, in some cases!). 3. Napoleons Theory of Propriety: France is the source of all artistic excellence in Europe. Therefore, every nations works owe a debt of inspiration and artistic merit to France. So all excellent works of art are, therefore, French in origin. Napoleon was just bringing them home! Alternatively, in order to keep the French beacon of artistic excellence to all of Europe burning brightly, needed to bring home meritorious works for French artists to study (very similar to Elgins goal for Greek art). F. Art Collection via War: Case of Hitler 1. Like Napoleon and Lord Elgin before him, Adolf Hitler sought out art from other nations for educational purposes---to educate and improve the artistic sophistication of the Nazi party and the Third Reich. Simple idea---just take it. Along the way, Hitler could also bring so called degenerate art (post-

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impressionistic, expressionistic, cubist, fauve, and most other modern art) to Germany so that that proper Aryans would see it for what it was, and not be corrupted by it. 2. The Einsatzstab Reichsleiter Rosenberg (ERR) a. Hitlers appointed cultural minister, Alfred Rosenberg, created the ERR to seek out and obtain art and cultural works for the education and edification of the Nazi party. Systematic plunder of all conquered nations ensues---by 1943, 350 ERR agents were employed. ERR officials accompanied the wermacht into countries and subsequently had the cooperation and support of the police and security forces in carrying out their deeds. b. Appropriate works (particularly Dutch, Flemish, French, Italian and Germanic old masters) were targeted, and the best of the lot was to be installed in Hitlers planned Louvre-type museum in Linz (near Hitlers home town). Degenerate art wound up being boxed up, sold for cash or exchanged for proper Aryan art, or destroyed (intentionally or by collateral war damage). c. Estimates are that over 600,000 significant works were pillaged. Jewish owners and art dealers especially were targeted for looting. One quarter to one third of European art works may have been looted by the Nazis. Many were destroyed; some tens of thousands (not hundreds of thousands) were returned to original owners; 100,000 missing works may still be in existence. G. Art Collection via War: Case of the Soviets 1. Estimates are that over a million works possessed by Germany (both German owned works and works plundered from other European nations and private parties---esp. Jewish) were seized and taken back to the USSR after its victory over Germany. Some were displayed in the 1990s---represented to be hidden treasures of the Hermitage (St. Petersburg) and Pushkin (Moscow) collections. Few if any works have been restored to proper owners except by letting them buy them back. 2. Russian Federal Law (1998) on return of cultural property was passed by 2/3s of Duma and ordered to be signed by the Russian Const. Ct, but still opposed by Yeltsin. Seizure and control by ally---victorious force. Nationalized ownership by recognized govt is arguable state action. H. Early Attempts to Cap Plunder: GROTIUS 17th Century treatises on the laws of war give some suggestions against plunder, and work out complex rules on prize and seizure on the high seas. VATTALs seminal works in the early 19th Century suggest the beginning of a code of war that was to limit the plunder of private property and items of cultural and religious significance. BRITISH (NOVA SCOTIA) PRIZE COURT determined seizure of art and scientific works from American vessel in War of 1812 was not proper and ordered their return. US LIEBER CODE (Civil War era code of conduct of warfare) recognized that cultural property was private property, and private property should not be plundered if you can avoid it, esp. if it cant be moved without damage; and dont destroy, sell off, or give away items of cultural property; resolve claims in peace treaty. I. Peace Treaties and their Non-Use 1. From early times, peace treaties traditionally were used to resolve stolen and pillaged art issues---U.S. Lieber Code recognized this practice. Napoleon used them to extort art out of Italian city states. Gave arguable color of law (however cynical) to the organized plunder. After Napoleons ultimate defeat, French tried to write clause into peace treaty to leave intact the collections and libraries of art and educational institutions in France (i.e., the Louvre collection). The coalition forces thought about this for about five seconds and said, Uh, NO. 2. The issue of lost, stolen, and pillaged art was not dealt with in the peace treaties after the Napoleonic wars (coalition forces preferred to take these matters up privately with French officials rather than deal with it at the peace conference). The same mistake (or calculated approach) was made in the peace conference after WWII (documentation of art plunder was undertaken by the allied forces, and these matters were inquired into and recorded in the Nuremburg trials). Naturally, art was not the number issue at the Paris Peace Accords of 1815 and the Nuremberg trials of 1945-46 (but Rosenberg was hung for his many offenses including art theft).

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3. Post-Conflict Treaties: Case Concerning Certain Property (Liechtenstein v. Germany), 2005 I.C.J. 6. Convention on Settlement of Matters Arising Out of War and Occupation (1952, EIF 1955)--USA, UK, France, West Germany signed. Treaty on the Final Settlement with Germany (1990, EIF 1991)--USA, UK, France, West and East Germany signed. Confiscated, stolen, pillaged art or just lost and missing art might be subject to the convention depending on method of transfer during Nazi era. J. Public International Law 1. 1907 HAGUE CONVENTION ON LAWS AND CUSTOMS OF WAR ON LAND---took stance that cultural, educational, religious items were to be considered private property and not subject to seizure as plunder or booty. CULTURAL HERITAGE THEORY VS. CULTURAL PROPERTY. 1954 HAGUE CONVENTION FOR THE PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF ARMED CONFLICT---resolves for members to take steps to protect their own cultural heritage items (e.g., store it away from military targets), and to protect and respect the cultural items of other parties---no moving, plundering, or requisitioning it. Two PROTOCOLS (1954 and 1999) refine terms. 2. UNESCO and UNIDROIT---call for respect and protection and return of illegally removed cultural property in peacetime and wartime, but they are limited by their effective dates (1970 and 1995 respectively), so they dont cover WWII or other war claims prior to that date. UNESCO has, in 1978, established a mediation body that will help entities resolve disputes over cultural property. Cultural property theory vs. cultural heritage. 3. Customary International Law on Plunder: ALLIED MILITARY LAW DURING OCCUPATION OF GERMANY 1945-48---Rule 52 recognized that plunder of art and items of cultural and religious significance was forbidden and nullified any transaction of art or cultural property within occupied zones without proper license. NUREMBERG TRIALS applied general international law against plunder of private property and esp. art and cultural property. UN GENERAL ASSEMBLY RESOLUTIONS recognize that art and cultural property/heritage should not be subject to seizure and plunder. OPINIO JURIS may be solidly in favor of protection, non-seizure, and return of cultural property, but state practice is sporadic (e.g., Soviet Union has been very reluctant to give up plundered art from WWII). K. US Law Mechanisms 1. CRIMINAL LAW---simple cases of theft under local state law, and more complicated cases such as dealing in goods illegally exported under federal National Stolen Property Act (contact local law enforcement and FBI for art theft; Justice Dept and State Dept for international issues). US CUSTOMS---if a stolen item is entering or leaving a US port, Customs can seize it or detain it under US Customs law and the Cultural Property Convention Implementation Act of 1983. CIVIL ACTION---A thief cannot pass good title even to a good faith purchaser. In circumstances where one or more interested parties acted in good faith or under color of law, civil mechanisms may be needed to restore property. 2. Steps for Civil Action: (1) Make Formal Demand for Return---for laches and statute of limitations purposes, you must fix a knowledge and demand date (NY statute of limitations runs from refusal of demand). (2) Perhaps first file for TRO---ex parte if necessary---art is extremely portable, and you may want to hold it in the jurisdiction for many reasons favorable law, execution of judgment, conservation of art (cover sale, transportation, or even custody by 3rd party). (3) If demand leads to negotiations---agree ahead of time to toll the assertion of statute of limitations and laches defenses (at least agree on date on which statute started to run). 3. Defenses to Civil Action: (1) Statute of Limitations and Laches---discovery and demand and refusal jurisdictions. (2) State Action, sovereign immunity--did a properly acting properly recognized government take the good legally and subsequently allow them to pass on? (3) Abandonment---intentional relinquishment of a known right (leaving it behind or in someones safe keeping under duress or fleeing from the enemy is not abandonment). (4) Good faith purchaser---not a defense in USA or UK, but can shift the responsibility and damages to one who acted negligently, or in bad faith or illegally.

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L. Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg (7th Cir. 1990): A few tips for art lawyers and their clients: if its too good to be true, it isnt true; dont buy art out of crates in a pre-customs, duty-free warehouse at an airport, especially in Switzerland; out of the trunks of cars, back of unmarked trucks, etc., not good; red flags, red flags, red flags. 1. Defendant Peg Goldberg was a nice Indiana gallery owner and dealer. Replevin Claim = one of the ancient writs of common law: youve got something that belongs to me; give it back. If obtained wrongfully, replevin granted. MANY ISSUES: choice of law on limitations period; when does it run; choice of law on title and possession---no title passed by a thief (UK and USA) or good faith purchaser for value gets good title (most of Europe)--but was this in good faith with all the red flags; effect of Turkish Confiscation decrees. OTHER POSSIBILITIES: UNESCO applied (post-1970), but USA may not have ratified it fully at time of seizure; Goldberg also subject to prosecution under US Natl Stolen Property Act. M. Orkin v. Taylor (9th Cir 2007): Confiscation or sale under duress---decrees of the victors (USA, UK, France, USSR) reversed these transactions. If proof indicates property, incl. artworks, were subject to German confiscation or forced transfer under duress, title did not pass to Nazis or their transferees. But what of sale under general pressure of wartime, Jewish owner to a Jewish art dealer? Abandoned works? Why abandoned? Duress vs. inconvenience. Holocaust Assets Laws didnt create new private right of action. Time barred: 1963 Auction sale to Taylor, Cat.Rais. 1970--well documented events to give Orkin notice of claim. 1. See also Dunbar v. Seger-Thomschitz (E.D. La. 2009). 2. Taylors 1963 auction purchase, Cat.Rais. van Gogh 1970well documented events to give Orkin notice of claim. Dunbars open and notorious possession for limitations period = good title. Concealment can toll the limitations period, but laches sometimes applies. Holocaust Victims Act, Holocaust Assets Laws didnt create new private right of action for Orkin or Seger-Thomschitz, no new accrual time for claim. N. Nations as Parties to a Case: Altmann v. Austria 1. Maria Altmanns uncle, Ferdinand Bloch-Bauer raided by Nazis after the annexation of Austria. Works stolen by Nazis wound up in Austrian Gallery (national gallery of Austria---agency/instrumentality of government). They bargain hard with Bloch---Bauers heirs. Eventually, wont give up the 6 Klimts at issue. Maria would sue in Austria, but filing fee is astronomical---$1.3 million because amount in controversy is approximately $130-200 million. 2. Foreign Sovereign Immunities issue. Act of State? Statutes of Limitations? New York---Demand, Refusal? California---Discovery of whereabouts of art (liberally interpreted)? Newer law allows claims to be brought until 2008? O. Getting Art Back 1. Central Registry of Looted Art: Tools for recovery of Nazi looted art complied on the Central Registry of Information on Looted Cultural Property 1933-45s site. COMMISSION FOR ART RECOVERY--lobbying and advocacy group that pushes for nations and institutions to take action to recover and restore looted art, sometimes suing them if they fail to act. COMMISSION FOR LOOTED ART IN EUROPE---not for profit agency that will search and attempt to aid recovery through investigation, location, and recovery. HOLOCAUST CLAIMS PROCESSING OFFICE---assists in processing claims for looted art from holocaust survivors and their heirs. 2. Databases of Looted Art: LOST ART INTERNET DATABASE--German Republic database and search engine for resources and information w/ no cost. Supports English, German and Russian language. Can search for status on works reported lost in 1933-45 time frame by keyword searches or advanced searches (title, artist/authors name, owner, galleries, collections, and other criteria). ART LOSS REGISTER--general listing service and searchable database (fee-based) for reporting and cross-checking lost or stolen works. Collected information is not limited to WWII losses, but can limit inquiries to Holocaust connected losses. TRACE---listing service for lost, stolen, missing art. Small fee charged for listing and cross-checking on their database; not limited to wartime losses, although they link to cultural property sites. 3. Art Loss Register in Detail

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a. The Art Loss Register (ALR) is the world's largest private international database of lost and stolen art, antiques and collectibles. ALR provides recovery and search services to collectors, the art trade, insurers, and law enforcement through technology and a professionally trained staff of art historians. b. In 1998, the ALR compiled a database of 1933-1945 cultural spoliation claims. Claims are defined as objects confiscated by Nazi looting agencies, the Soviet Trophy Brigades, or in individual acts of looting by Allied troops. ALR database lists thousands of works of art that were looted from both private and museum collections. It is not confined to Holocaust claims, although these represent the majority of losses. Artworks have also been reported missing from state collections in France, Germany, Belgium, Hungary, Russia, Italy, Austria, Poland, Holland, and the Ukraine. c. All Holocaust claims are registered on the ALR database free of charge and are systematically checked against forthcoming auction house sales---over 300,000 lots per annum. ALR attends art trade fairs in Holland, Switzerland, Germany and France, Italy and the United States where dealers' stock is compared to the database in order to identify stolen and looted art on behalf of theft victims. Claims are also compared to museum records (current holdings and loan exhibits) Nazi confiscation lists, catalogue raisonns, exhibition catalogues, and other literature with the aim of locating the missing artworks. d. Since the project started, the ALR has been responsible for the identification of 21 paintings looted during World War II, located in auction house catalogues or with art dealers. Works by Claude Monet, Pierre Bonnard, Alfred Sisley, Max Liebermann, Karl Hofer, Camille Pissarro and Ferdinand Georg Waldmller have been recovered and returned to proper owners. Recent big claim settled: Picasso (Femme en blanc). April 24, 2012 Insert Chapter 11 and 12 once slides are posted

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