Speakers: Christine
Haight Farley, American University, Washington College of Law
What is art? Brown v. Entertainment Merchants Ass’n
(2011): video games are protected under the First Amendment and, more than
that, Scalia analogized video games to other art forms. Unique features: player’s interaction with
virtual world. Recently, MoMa
acquired 14 video games for a new collection; looking for a total of 40. How does a museum decide what’s art, and what
are the criteria for selection—the museum has a list of specific games they
want. Curator argues that standard
criteria for acquisitions apply—historical/cultural relevance, artistic
quality; also interactive features/quality of design. They decided that games such as Grand Theft Auto wouldn’t be included in
order to stick with games that are life-affirming and not violent, which
doesn’t seem to be the standard for, say, Picasso’s Guernica.
Smithsonian has also hosted an exhibit, The Art of Video Games. How
should this art be displayed? It can’t be just viewed or observed, or even read
about with a placard; it must be experienced.
Some games are multiplayer, take years; how do you present that
experience in a museum space? The gallery
space is essentially an arcade.
So this is one form of convergence: artists can be
entertainers, art experienced on multiple platforms by millions of users;
entertainment experience can also be brought into the art world. Other ways in which this convergence is
happening: museums, ever eager to reach digital natives, are creating
apps/games that can be used to tour the museum.
These games are not presented as art but rather as means for
experiencing the art. Google Maps has
updated its service to provide interior views of museums.
Video games wouldn’t fit within VARA, which has a real sense
of the physical and a narrow view of what is visual art. Definition written in
1990, so may not have had the prescience to imagine these new art forms, but
still designed to be very narrow. A kind
of private landmarks law. But could we
read “painting” or “drawing” in a more open way? Can you “paint” digitally with software that
mimics the appearance of traditional media, as with tablets/pens? (Not in the 7th Circuit!) Artists talk about the physicality of using
their fingers on the tablet.
What about machine or algorithmic art, created using
algorithms?
Shyamkrishna Balganesh, University of Pennsylvania Law
School
Copyright and applied art—an unresolved paradox. Products/articles with an aesthetic
dimension. Mazer v. Stein says useful articles
are copyrightable; result = surge in registration for useful articles. 1959 = new regulation from Copyright Office
seeking to restrict registrations. If
the sole intrinsic function is utility, fact of uniqueness & attractive
shape won’t qualify it as copyrightable. But if the shape incorporates features
such as artistic sculpture or pictorial representation that can be identified
separately and are capable of existing independently then they’ll be
registrable. 1976 Act largely codifies
the Copyright Office regulation, but changes “sole intrinsic” to “an
intrinsic.”
What on earth was Congress thinking? House Report says that the act affirms Mazer v. Stein, but wanted to restrict
eligibility for registration and thus deleted “sole” consciously. Done to avoid line-drawing problems. Line-drawing will be done by separability.
But it turns out that conceptual separability is metaphysical and confusing. All the circuits have their own “tests.”
First paradox: conceptual separability abandons aesthetic
neutrality: Bleistein says judges
shouldn’t judge what is art. (I thought Bleistein said judges shouldn’t judge
what is good.) Examining the design
process or consumers’ motivation for purchase (aesthetic appeal or function) is
an abandonment of aesthetic neutrality.
Bigger and more fundamental paradox: fundamental question of
why copyright is so concerned with usefulness?
Copyright has longstanding discomfort with giving useful articles
copyright protection. It’s only applied
art that bears the burden of this, because in other categories functional works
get full protection—computer programs, for example. American
Dental Ass’n: taxonomies are copyrightable even though they have no
literary value and are merely functional.
Two answers: avoidance of dual protection and incentive
rationales. Both, he thinks, are
shaky. Dual protection: there’s design
patent for applied art. But if you compare
the two regimes, design patent is wider—a monopoly right, with no independent
creation defense and no fair use. So if
the objective is to keep things in the public domain, it’s not dual protection
v. nothing, but dual protection v. single protection, and he thinks that
copyright might be preferable to design patent.
Also, Court and Congress have numerous times affirmed that
dual protection is a reality of the IP system: design patent and copyright
protection may coexist, as may utility patent and copyright (computer
programs).
Incentives: useful elements of a design need less incentive
because these are produced industrially rather than artistically. Product
competition around useful/functional dimensions means no need for copyright
protection/less of a moral claim. He
thinks this is oversimplified and naïve, not because incentive is copyright’s
true justification but the reverse. This
argument reifies the superficiality and dominance of copyright’s theory of
incentives. It takes the armchair
empiricism underlying incentives and tries to tweak it.
What’s the real danger? More than a theoretical problem. The
more we move things out of copyright law, the more we entice industry groups to
seek hybrid protection, industry-specific compromises that lack copyright’s
larger safety valves. Vessel Hull Design
Protection Act lacks copyright’s limitations.
Innovative Design Protection Act = same thing. Rhetorically they say they want “tweaks” but
actually they want additions to Ch. 13, with no fair use except for teaching
exception and a home sewing exception—the jurisprudence of transformativeness
doesn’t apply. The more we move things out of copyright without addressing
their rationales, we invite these industry-specific rationales with dangers in
terms of future consequences.
So it’s time to engage why we have this exclusion. He
doesn’t mean we need to get rid of it. But need a better account of it.
Jennifer Anglim Kreder, Northern Kentucky University, Salmon
P. Chase College of Law
Intersection of restitution movement with internet age. Nazis engaged in outright theft and forced
sales. Some forced/duressed sales look
“legit” because of documentation. Her
position: there were some voluntary transfers 1933-35, but far less than forced
ones.
Attempts at restitution.
Postwar tribunals in Western countries—but not uniformly accurate
results given the scale of the theft. Even after the war, people filed
individual claims. But Europe also put
into place the world’s most stringent privacy laws. Difficult, if not
impossible, for families to find their art if they even knew their families had
the art. After the war, the US led an effort to secure huge caches of art found
in salt mines etc. Initially the idea
was to return it all; that proved overwhelming and we returned art to source
nations who were supposed to return it to the families, where there was a
massive failure.
Time goes by; 1995: an agreement freezing individual
restitution cases expired, and there were many cases, including class actions
for forced labor. Clinton signed a series of executive agreements committing
foreign nations to resolve claims individually; individuals had to give up US
claims. But there was an art carveout
for these agreements. Also new
scholarship returned art to a focus.
Portraits were seized.
Seger-Thomschitz case: last remaining heir of an Austrian
doctor. One spouse would be in Dachau and
would be forced to sign a power of attorney; the property would be taken and
then the other spouse would be sent to a death camp. One collector helped Jews sell their art and
flee; his role in the Nazi regime is in dispute; may have been in and out of the
regime despite his heritage. It gets
messy.
Idea of restitution regime was that technical defenses, like
statute of limitations, wouldn’t trump; initially thought to be more of a
problem in a civil law jurisdiction. A number of museums and countries signed
on to policies. As of 1998-99, the
status quo was that museums would publicize info and people could come forward
and make claims that would be resolved on the evidence, not on technical
defenses.
Seger-Thomschitz received a letter; extortion after the war
affected the restitution process. When this came out, Austria began
investigating. (Rothschilds got back $90
million of cultural products, including armor.)
Series of paintings was taken from her relatives’ gallery and would be
returned. She didn’t know that her family had owned these. She hired a Viennese
lawyer who started to look into what else the family had owned. Concluded that
it had all been returned, but he was mistaken.
In 2007, an American lawyer suggested that non-Austrian collections
might be relevant, and in fact other paintings had entered into US museums’
collections. Museum of Fine Arts in
Boston researched provenance and came to the conclusion that the painting
should not be returned: there was a payment from the collector mentioned above
(Kleer) to the doctor’s son—a small one for five paintings. The museum filed a declaratory judgment
action; the First Circuit found that the statute of limitations had been missed
by about one year. Absurdity of
subjecting Holocaust era claims to this rule.
Museum argued that the family had knowledge in 1941, when the token
payment was made. MFA website had
publicized the provenance information in 2000; the court found that
significance. The Getty provenance index also had the ownership indicated; as
did the artist’s catalog raisonne, and the Austrian government had the
information too.
Another painting was in Louisiana; the court ruled that
Louisiana prescription principles applied and had run, even though the Viennese
unilaterally investigated and contacted her.
When you’re forced to investigate painting by painting,
claimants are in a virtually impossible position, especially when a collection
has been scattered to the ends of the earth.
Attempts to create a defendant class in one case failed.
Out in California, the state tried to create an actual
discovery rule. The 9th Circuit held this preempted under the
foreign affairs doctrine, even though the executive branch had since the war
favored case by case resolution.
Worst case was from Michigan: Detroit Institute of Art filed
a declaratory judgment, and the court said that the UCC applied; the transfer
occurred in 1938, so the statute of limitations applied in 1941.
Conclusion: unless something’s been stuck in a vault, the
wave of restitution is over because of the internet.
The museum community learned from the Nazi experience how to
deal with antiquities/level of theft that has occurred. Pre-Columbian artifacts, etc. UNESCO treaty said that the problem of
digging up antiquities and selling them in market nations should be
addressed. Museums/collectors by and
large were against adopting a “blank check” allowing source nations to say that
the receipt of materials that were illegal to export should give rise to enforceable
US obligations. New laws: “in the
ground”—everything in the ground belongs to the source country. Not just an
export prohibition, so when someone digs it up, it’s a theft/stolen property.
We have come to accept that more.
Problem of lack of documentation: fakes affect the market,
and affect science as well as understanding of history. We lose contextual
information of use to archaeologists, not just the beauty of the objects.
But if we refuse to allow acquisition and study of
unprovenanced artifacts, we lose entire fields—biblical archaeology, for
example. Museums have acknowledged that
a problem exists, and have come towards UNESCO principles. Try to stop buying antiquities without
provenance in order to deny fuel to the black market, but if something’s nice
enough they may still. New idea:
registry for objects; ability to post pictures and information. If an object lacks provenance to 1970, source
nations can come look for their stuff.
Best of intentions were behind the registry, but she predicts that 50
years from now museums will run to court and claim that the statute of
limitations has run because an object was in the registry and the registry was
widely available. Criminal law (stolen
property) may be the only solution.
Jeff W. Slattery, Thomas Jefferson School of Law
Perpetual control over works even after the copyright
expires through contract? While owners
of public domain images should be allowed to charge for access, but attempts to
control use of images should be
preempted as in conflict with the purpose of copyright and its limited times. Licensing commonly controls number of copies
of allowed, media, size/placement, territor, duration, provisions for returning
images, etc. Many museums make
substantial sums—10-20% of operating budgets—from image licensing.
Google has done a public domain art project, releasing
images from public domain artworks and stating that claims that 2-D
reproductions of art are copyrighted represent an assault on the public
domain. Still, depending on local laws
(Australia governs use of public domain images), reuse of content may be
prohibited. Corbis, by contrast, says it’s not trying to prevent use of images
from other sources, only to protect its investment in digitization and
preservation. It’s true that such
efforts cost money. But control over
reproduction/distribution is the wrong mechanism.
Q for Balganesh: note that there was an industrial design
provision of the 1976 Act that got lopped off at the last moment, but the
remaining language of the Copyright Act wasn’t affected. Would you take the same position on a
generalized industrial design protection statute that would cover the
waterfront?
Balganesh: The legislative history behind the definition of
PGS works claims aesthetic neutrality: that creates the contradiction. Not familiar with the non-enacted industrial
design provision, but these rights are monopoly rights—no appropriation art, no
independent creation, no fair use.
Safety valves should be general to address concerns that are consumer-
and public-specific.
Q related to museum issues: Communist China created license
restrictions on showing the terra cotta warriors. Whether it’s the public domain, looting, etc.
there’s a separate body of law that might help: nonprofit organizations. If you
want nonprofit status, you need to treat public domain works as available to
the public.
Carpenter: there’s a debate over whether museums are
operating as public trusts because of nonprofit status. Museums often claim that they shouldn’t have
to return art because of their public benefit missions, but that can also be an
argument for returning looted art.
Samuelson for Balganesh: Oversimplifying—there are
functionality limits on many aspects of copyright. Saying it doesn’t preclude
protection for computer programs is wrong: the code may be protectable, but all
over the software cases is an effort to distinguish between unprotected
functional elements and protected code.
102(b) applies to all kinds of works, and not just to one kind. Architectural works: certain design elements
are unprotected. Some objects are not
eligible to be architectural works because of their functionality. Etc.
Functionality is just a deep problem for copyright generally. If we have to choose
between full-dress copyright and no protection, and there are first mover
advantages for a good industrial designer, then we go for zero. The 10-year limit on industrial design
protection was aimed at saying you won’t get full-dress protection. Yes, I think fair use is great too, but since
it was judge-made in copyright before it went into the statute, we could invent
it where needed too.
Balganesh: What he really means is that functionality, to
the extent that it’s a per se bar, works in applied art in a way that’s
different from how it’s a bar in software.
When it comes to protecting aspects of a work, functionality is always
integral—abstraction, filtration, comparison does that. The distinction is the ex ante/a priori
definitional bar, where that’s only applied art.
Samuelson: doesn’t think that’s true. Architecture again. Yoga positions as choreographic works, but
functionality mattered. Synthetic biology—a lot of articles recently claiming
that they should be copyrightable too if software is. But the Copyright Office
won’t register claims since it thinks that the subject matter is functional.
Yes, we protected software, but that was done in ignorance!
Balganesh: if functionality were a general/categorical bar
eliminating useful elements from protection, that would make sense. (I think he’s defining “categorical” two
different ways depending on who’s talking.
A chair is not categorically excluded as a useful article; you have to
examine the specific chair to determine whether there’s separability of some
elements, say a crest carved on the back.
Instead, the functional parts are categorically excluded … as with
software, etc.) Thinks that the design
protection act is an abomination—a circumvention of copyright.
In terms of inventing fair use, we’ve codified some specific
exceptions, so Congress is consciously precluding a generic fair use—or at
least he expects right owners to make that argument and courts to be
sympathetic.
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