WIPIP concurrent 3 (most of it)

Annemarie Bridy, Fearless Girl Meets Charging Bull: Copyright and the Regulation of Intertextuality

DiModica (who made Charging Bull) complained that Fearless Girl’s placement created an unauthorized derivative work and violated VARA by being a material alteration that prejudiced his honor—Charging Bull was no longer optimistic but transformed into a threat. Turning a semiotic dispute into a legal one.

Can © be leveraged to prevent confrontational dialogue w/preexisting works? What role does copyright play in regulating text to text and author to author interactions? And what can literary theory tell us?

Existing scholarship on role of romantic author: presupposes/valorizes creative genius and possessive individualism. But US © has important differences from European law. Bahktin/Gerard Genette: intertextuality views works relationally rather than as closed systems—dialogism within & between texts. Monologic discourse is poetic; dialogic discourse is associated w/the novel. Monologism privileges unitary voice of author as autonomous; dialogue has mix of voices that are layered in the work. Work is more open and porous. Genette’s hypertextuality: secondary author targets preexisting text & rewrites & completes it in a way original author might not have liked—hypertext as unfaithful continuation of its hypotext.

Dimoda embraces aesthetic monologism, which is encoded in author centric European © law. Strong moral rights, limited exceptions/limitations. US © is hospitable to intertextuality by design, even assumes it. Less author-centric and more focused on public interest in production of creative works. © protects second degree works such as compilations and derivative work, and also excepts a range of second degree uses, including fair use which is flexible/unfaithful/murderous (Genette’s term) and also compulsory license for musical work covers (less flexible but appreciates artistic impulse to remake/reengage the work). Very narrow moral rights that delayed US accession to Berne.

He can’t prevail: derivative work claim requires physical incorporation of elements of the protected work [but consider the case from yesterday finding that embedding was infringement]. Not every modification of a work creates a derivative work, Mass MOCA, and altering the viewer’s experience of a work doesn’t create a derivative work, Lewis Galoob v. Nintendo. Even if the placement did result in a derivative work, the semiotically confrontational nature of its relationship to Charging Bull would mean that it’s a fair use.

Rosenblatt: maybe if juxtaposition is fair use, the fact it’s juxtaposition forces us to go straight to fair use & concedes it’s w/in the scope of the right.

A: but physical incorporation is still necessary.

Ann Bartow, The Economics of Race and Gender in Art Law

Ownership disputes w/racial subtext. Control of Barnes Foundation stolen from Lincoln University, a HBU in Pa.; art now controlled by wealthy mostly white people in Philadelphia—thought the art should be in the hands of nice white guys. Georgia O’Keefe donated art to Fisk Univ., an HBU in Nashville; art now 50% owned and controlled by museum in Bentonville, Ark. founded by Walmart heiress. Leveraged highly contestable claims of financial mismanagement/lack of sophistication.

Georgia O’Keefe lost art theft based on statute of limitation grounds; in the vast majority of art theft cases, by contrast, courts found all kinds of ways around SoLs: possession as continuing crime; demand and refusal rules before SoL restarts; sales reboot the SoL; etc. Nude posing as a career strategy for O’Keefe—it was one of the only ways she could be accepted in the arts community. She didn’t feel it was voluntary. Hazards: sexual harassment, sexual assault, nonconsensual pornography, low pay and labor abuses, gawkers & creeps.

Another example: Barbara Kruger: appropriation art; Hoepker was the foreigner who didn’t comply with 104(a) so wasn’t able to enforce his restored (c). She might not have prevailed on fair use; museum used the art as an ad for the Kruger show, and put it on mugs and the like—she was exploited as she was being accused of exploitation.

Prince and Cariou’s Yes Rasta: both whites dealing in pictures of bodies of black men (and white women from soft-core porn for Prince).

More women than men attend & graduate from art schools/get art degrees. There’s no movement to get more men in art as women in STEM; but men are at the top. Every artist in the top 100 sales in 2013 were men. In 2014, no women in top 2104. Less than 4% of artists in Modern Art at the Met are women, but 76% of the nudes are female. Don’t do as well at art fairs; held only 24% of museum director positions and were underpaid compared to men. Art galleries control value of art by manipulating two signals: price and who buys. Too low and the perception is low quality and too high and the artists seem overhyped. Manipulate the secondary market. Also try to sell to tastemakers. Control value of art worldwide, b/c value is subjective and subject to signalling; white men decide what’s good and valuable. Museums can make or break artists with shows, deaccessioning, etc. Often in collusion with galleries, auction houses and wealthy collectors. China has wealthy collectors in old, European art which has also had an impact.

Antidiscrimination as a moral right. Attribution can facilitate discrimination, esp. for gender. Artworks can be racialized or gendered in ways that are perceptible and signaling, as w/software that can discern gender of text authors. Integrity: has multiple meanings, including the quality of being sound moral principle, uprightness, honesty and sincerity. Galleries, auction houses and museums as sites of resistance and reform.

Q: Internal splits in Fisk and Barnes led to majorities to surrender [Bartow notes that they required board takeovers] and there were reasons to see them not as central to the missions of the school. When the institution did try to monetize the collection, the AG limited Fisk’s ability to do so—it was accomplished in a number of different ways, including by using institutional power to threaten [Bartow notes threat to funding]. The capacity to divest the collection once the decision was made was also limited & cabined. [Sounds to me like the expropriation of black wealth or wealth foundation described in Richard Rosenstein’s and Ta-Nehisi Coates’ recent books.]

Rosenblatt: Compare appropriation art. Some are seen as legit and others aren’t. But when I dig in to these problems, they feel more like antitrust problems than IP problems. Why is IP the lever here?

A: there could be other things. And antitrust has a role to play around auctions. But moral rights is more empowering to individual artists. [CRT’s rights claims.]

Q: what if art is a male display behavior of taking attention-grabbing risks making a biological basis for male dominance in the field?

Chien: Uber pays men more than women per hour, but it seems to be b/c men drive faster and more dangerous routes. Correlated w/things that are correlated w/value. Are there ways to quantify what would be the legitimate basis for one thing to be displayed more? What are the right criteria?

Raymond Ku, The First Amendment Implications of Copyright’s Double Standards: It’s More than Just Entertainment

Touting the value of P2P for distributing creativity/access w/o deadweight loss. Reaction of former Register: what’s the big deal? It’s just entertainment.  Debate b/t Justices Stevens & Blackmun about ability to time shift popular entertainment: who cares about Honey Boo Boo?  Stevens struggled to find a political or educational use.  Sony makes more sense when you connect it to Bleistein: why are we judging the value of the programming that’s being watched? 

But we judge that all the time. We’ve been discussing how much creativity is sufficient for © protection and fair use.  When we do this, entertainment essentially always loses.  SAT/Seinfeld Aptitude Test case is the key example.  Interesting doctrine: Protection of creative facts—less need to copy them.  In Hoehling, by contrast, the movie studio didn’t need to justify its copying of Hoehling’s theory.  Case law suggests that for fair use, when we’re dealing with entertainment, for fair use no amount of added creativity is sufficient—Blurred Lines, 60 Years Later, The Harry Potter Lexicon. Even in Cariou v. Prince, court goes out of its way to say that its broad definition of transformativeness doesn’t cover entertainment.

We’re mixing up the idea of results and repetition. With factual works we do want people to reach the same results hopefully.  With fanciful works, the options are infinite and reaching the same result is not inevitable; repetition of results means repetition of expression. Independent contributions are not repetition. [  For factual and fanciful works, repetition is part of the process for learning for both; researching and performing respectively are similar in their contributions to understanding. Retyping Holmes’ common law is meaningless, but a musician that is able to replay or emulate Yo-Yo Ma or paint in Van Gogh’s style is doing something dramatically different, yet we say that copying in the latter circumstance is less justified. For both fanciful and factual, incremental contributions may not be recognized or appreciated as such; also, someone may say it better.

Factual: financial stakes are small in litigation, while for fanciful works the stakes can be significant.  For fanciful works in litigations, the work speaks for itself and everyone’s an expert; there are no standards/informal voluntary standards. Factual works litigation: there’s a practice of framing for the jury, governed by agreed on standards and guidelines (my article tells you the contribution it’s making; general, disciplinary, and institutional standards) whereas Fearless Girl and Charging Bull stand by themselves; courts may defer to professional/expert opinions.

RT: about results, what do you mean? I would have gone the other way, w/TS Eliot’s objective correlative—similar results can be achieved by multiple different expressions (compare romance novels or really any standardized genre, even the middle aged white male adultery novel).

A: When you’re trying to answer a Q, 2+2 has one answer but literary Qs have multiple answers. [Like Barton Beebe on progress & Jeanne Fromer on problem finding.]

Rosenblatt: is this a problem of fictional works versus a problem of ignoring SCt precedent in the form of Campbell’s dictate to consider different meaning or message, not just purpose? Are courts ignoring this b/c they disagree & think that entertainment is frivolous?

A: Easterbrook says he likes Cariou but it doesn’t explain difference b/t me creating a derivative work and me making a fair use, especially in entertainment where we often think it’s something the original author should control.