AALS Section on Art Law: Art in an Age of Digital Convergence

Moderator:  Megan Carpenter, Texas Wesleyan University School of Law

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 7^th 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 9^th 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.