A fight to protect the dignity of Michelangelo’s David raises questions about freedom of expression; AP, March 28, 2024

 Colleen Barry, AP; A fight to protect the dignity of Michelangelo’s David raises questions about freedom of expression

"The decisions challenge a widely held practice that intellectual property rights are protected for a specified period before entering the public domain — the artist’s lifetime plus 70 years, according to the Berne Convention signed by more than 180 countries including Italy.

More broadly, the decisions raise the question of whether institutions should be the arbiters of taste, and to what extent freedom of expression is being limited...

Court cases have debated whether Italy’s law violates a 2019 European Union directive stating that any artwork no longer protected by copyright falls into the public domain, meaning that “everybody should be free to make, use and share copies of that work.”

The EU Commission has not addressed the issue, but a spokesman told the AP that it is currently checking “conformity of the national laws implementing the copyright directive” and would look at whether Italy’s cultural heritage code interferes with its application."

Moral Rights of the Artist (Humans Only): an Updated US Perspective; Center for Art Law Inc, January 12, 2024

 Irina Tarsis , Center for Art Law Inc; Moral Rights of the Artist (Humans Only): an Updated US Perspective

"I Defining and codifying moral rights

Moral rights, or droit moral (having originated in France), describe rights of creators in their artistic work that are not necessarily pecuniary, yet still integral to and arise from the idea that an artist's very being is included in the work that they create. Recognition and evolution of visual artists' rights in the United States have been slow to develop, and the scope of moral rights enacted in the United States is limited.

Typically, moral rights are neither alienable nor waivable; they last for the duration of an artist's lifetime and can survive for the benefit and discretion of an artist's estate even after the original work is finished or changes ownership through the stream of public commerce.18 The basic moral rights are as follows:

1. right of attribution or authorship, which entitles the artist to:
   • be recognised by name for their work or permit the work to be published anonymously;
   • prevent a wrong person being named as the author of their work;
   • prevent having their name be associated with a work that they did not create;
   • decline having their name be associated with a work that has been modified or distorted in such a way as having the authorship remain with the work is prejudicial to the artist; and
   • remove their name from the work in cases of mutilation or the artist's belief that the work is no longer true to its original creation; and
2. right of integrity, which prevents tampering or modifying the artwork without the artist's consent even after ownership in the artwork transfers;
3. right of disclosure, which concerns the artist's reputation and provides that the artist has discretion to decide when and how their work can be made public; and
4. resale royalty rights, which is a semi-economic right assuring that an artist may continue to benefit financially from commercial appreciation of their work in the secondary market by receiving a percentage of the sale proceeds.

These rights are enumerated in the Berne Convention for the Protection of Literary and Artistic Works (the Convention) under Articles 6 bis19 and 14 ter.20 While the US is a signatory to the Convention,21 according to the US Berne Convention Implementation Act of 1988, the Convention's acts and protocols are not self-executing under the US Constitution, and they must be implemented through US legislation...

ii Space, the final frontier: back to the future

Statutorily, moral rights of artists in the United States are poorly protected and narrowly enforced; some seemingly substantive claims are dismissed on procedure failure to state a claim,114 as res judicata115 or on industrial design grounds.116 As soon as US artists die, the moral rights evaporate altogether. The cavalier rather than chivalrous attitude towards the vision and the will of the artist persists as tastes and emphasis change. Consider, for example, museums deaccessioning art that was once donated directly by an artist.117 Similarly, consider the trend of covering up or removing the New Deal-Era murals from schools and court houses,118 which is evocative of the problem posed by Serra's Tilted Arc in the 1980s. Until the US Supreme Court reviews a VARA case, or Congress amends the Copyright Law to include a resale royalty provision, artists and their advocates remain limited by the available moral rights protections, and they have to be creative in using public and private law to protect artists' rights. For digital artists, the ability to enforce some of their moral rights is becoming easier, at least on the screen.

As protest art and street art become mainstream, and AI-generated art attracts more fans, in real life and in the metaverse,119 moral rights of artists in the United States are still protected by a patchwork of case law, contracts and state and federal regulations. During the 'Some Like it Digital: Meet Me in the Metaverse' webinars hosted by the Center for Art Law in 2022,120 a guest speaker mentioned that the constitutional law for the metaverse is, or will be, the Copyright Law, for better or worse.

Going forward, will there be more artists expressing themselves in the other verse? In space, outside the boundaries of planet Earth, where their moral right will still need to be protected, for now only against other humans?

In Thaler, District of Columbia Court asked 'Must … originator be a human being to claim copyright protection?' and answered 'yes'; with a footnote: 'The issue of whether non-human sentient beings may be covered by “person” in the Copyright Act is only “fun conjecture for academics”',121 though useful in illuminating the purposes and limits of copyright protection as AI is increasingly employed. Nonetheless, delving into this debate is an unnecessary detour because “[t]he day sentient refugees from some intergalactic war arrive on Earth and are granted asylum in Iceland, copyright law will be the least of our problems”.122 With human-generated art being sent into space, though, the subject of protecting artists' rights (freedom of expression, attribution, etc) will increasingly abut against international treaties controlling the parameters of sending objects into and outside of our solar system, onto other planets and for display on space stations."

Poet and translator to sue British Museum for copyright and moral rights infringement; The Art Newspaper, July 7, 2023

 Anny Shaw, The Art Newspaper; Poet and translator to sue British Museum for copyright and moral rights infringement

"Sharples notes that the legal case will not only focus on copyright, but also Wang’s moral rights, in particular the right to attribution—or the right to be named or identified as the author."

Aboriginal flag copyright transferred to Commonwealth, as artist agrees to make flag freely available to all; ABC News, January 24, 2022

Jake Evans, ABC News; Aboriginal flag copyright transferred to Commonwealth, as artist agrees to make flag freely available to all

"The iconic flag that has become a symbol of Aboriginal Australia is now freely available for public use, after its designer agreed to transfer copyright to the Commonwealth following long negotiations.

Luritja artist Harold Thomas created the flag in 1970 to represent Aboriginal people and their connection to the land, and it has been an official national flag since the end of the last century — but its copyright remained with Mr Thomas.

Anyone who wanted to use the flag legally had to ask permission or pay a fee.

Indigenous Affairs Minister Ken Wyatt said following negotiations with Mr Thomas, the flag now belonged to all Australians...

Copyright issues with the flag had repeatedly drawn conflict, such as when Mr Thomas handed the rights to use the flag on clothing to a non-Indigenous company, which later threatened legal action against the NRL and AFL for using the flag on player uniforms.

That led to Mr Wyatt encouraging football fans to drape themselves in the Aboriginal flag in protest.

Mr Thomas will retain moral rights over the flag, but has agreed to give up copyright in return for all future royalties the Commonwealth receives from flag sales to be put towards the ongoing work of NAIDOC.

The government has also agreed to establish an annual scholarship in Mr Thomas's honour worth $100,000 for Indigenous students to develop skills in leadership, and to create an online history and education portal for the flag."

Au Revoir, Droit de Suite—9th Circuit Narrows California Resale Royalty Act to a Single Year’s Sales; Lexology, July 9, 2018

Sullivan & Worcester LLP - Nicholas O'Donnell, Lexology; Au Revoir, Droit de Suite—9th Circuit Narrows California Resale Royalty Act to a Single Year’s Sales

[Kip Currier: A very savvy undergraduate student in a Pitt course for which I was guest lecturing on Patents and Trademarks earlier this month asked me about resale rights in the U.S. 

Timely article on recent developments, given my lecture yesterday on International Intellectual Property, moral rights, and the U.S.'s Visual Artists Rights Act of 1990 too.]

"The idea of moral rights continues to be a notable difference between European and American intellectual property rights with respect to visual arts. Last week’s decision by the U.S. Court of Appeals for the 9th Circuit in a case brought by artist Chuck Close and others addressing the California Resale Royalty Act (the CRRA) underscores those distinctions. In holding that the CRRA is mostly preempted by federal copyright law and thus can be applied to entitle artists to secondary royalties only for sales of art in a single calendar year—1977—the 9th Circuit affirmed the skepticism with which American law continues to regard anything other than classic copyright. Given the failure of efforts to pass national legislation to provide for resale royalties, this decision is probably the end of the line for the foreseeable future in the U.S. for droit de suite, the term of art used to describe the concept."

Elon Musk drawn into farting unicorn dispute with potter; The Guardian, June 27, 2018

Sam Levin, The Guardian; Elon Musk drawn into farting unicorn dispute with potter 

[Kip Currier: Given the facts as presented in this article (and knowing that the U.S. only recognizes "moral rights" vis-a-vis the very narrow Visual Artists Right Act [VARA]), is there anyone who still doesn't think that at the very least the "decent" thing to do would have been for Elon Musk/Tesla to provide attribution (let alone some kind of compensation) when repeatedly using Tom Edwards' image? Imagine if the situation were reversed and someone was using Elon Musk's "original expressions" without attribution.]

"Edwards said he wanted to speak out in part because he often hears similar stories from artists. “I realize my farting unicorn is not as serious as whistleblowers,” he said, “but honestly, it’s all about integrity.”

He added: “I’d really like to get on Elon Musk’s good side … He’s really really interesting. But he isn’t above copyright law.""

Frida Kahlo Barbie doll banned from shop shelves in Mexico; BBC, April 20, 2018

BBC; Frida Kahlo Barbie doll banned from shop shelves in Mexico

"A court has barred sales in Mexico of a controversial Frida Kahlo Barbie doll, ruling that members of her family own the sole rights to her image.

The toy company Mattel launched a range of new Barbie dolls based on "inspiring women" - artist Frida Kahlo among them.

But some of Kahlo's relatives said the manufacturer had used the painter's image without permission."

Cady Noland Sues Three Galleries for Copyright Infringement Over Disavowed Log Cabin Sculpture; artnetnews, July 21, 2017

Julia Halperin & Eileen Kinsella, artnetnews; Cady Noland Sues Three Galleries for Copyright Infringement Over Disavowed Log Cabin Sculpture

"How much can you conserve an artwork before it becomes something entirely different?

This question is at the heart of a lawsuit filed in New York earlier this week by the artist Cady Noland. She claims that a collector and a group of dealers infringed her copyright by hiring a conservator to repair her sculpture Log Cabin (1990) without consulting her. The repair, Noland says, went way beyond the bounds of normal conservation."

'Charging Bull' sculptor calls for New York to remove 'Fearless Girl' statue; Guardian, April 12, 2017

Jamiles Lartey, Guardian; 

'Charging Bull' sculptor calls for New York to remove 'Fearless Girl' statue

"Siegel and Di Modica have asked the city of New York to remove the statue, which became something of a phenomenon when it was first installed earlier this year, and tied by many to the global Women’s March movement. They say the city should place the “Fearless Girl” somewhere else where it no longer relies on the “Charging Bull”. “The work is incomplete without Mr Di Modica’s Charging Bull, and as such it constitutes a derivative work,” Seigel said, noting that the statue of the girl, hands on her hips, only becomes “fearless” because of the much larger, aggressive bull.

Siegel pointed to a 1990 copyright statute that grants visual artists the right “to prevent any intentional distortion, mutilation or other modification of that work which would be prejudicial to [the artist’s] reputation”.

In addition to the removal of the statue, Di Modica was seeking unspecified damages from the city of New York. Siegel said, however, that his client had not filed a lawsuit yet and is hoping the city – specifically its mayor, Bill de Blasio – will come to the table with the artist in good faith. De Blasio recently extended “Fearless Girl’s” permit through March 2018 and has called it a symbol of “standing up to fear, standing up to power” and doing what’s right. Seigel said the “inescapable implication” was that Di Modica’s bull became “a force against doing what’s right”."

EFF Says No to So-Called “Moral Rights” Copyright Expansion; Electronic Frontier Foundation (EFF), March 30, 2017

Kerry Sheehan and Kit Walsh, Electronic Frontier Foundation (EFF): 

EFF Says No to So-Called “Moral Rights” Copyright Expansion

"The fight over moral rights, particularly the right of Integrity, is ultimately one about who gets to control the meaning of a particular work. If an author can prevent a use they perceive as a “prejudicial distortion” of their work, that author has the power to veto others’ attempts to contest, reinterpret, criticize, or draw new meanings from those works...

A statutory right of attribution could also interfere with privacy protective measures employed by online platforms. Many platforms strip identifying metadata from works on their platforms to protect their users' privacy, If doing so were to trigger liability for violating an author’s right of attribution, platforms would likely be chilled from protecting their users’ privacy in this way.

For centuries, American courts have grappled with how to address harm to reputation without impinging on the freedom of speech guaranteed by the First Amendment. And as copyright’s scope has expanded in recent decades, the courts have provided the safeguards that partially mitigate the harm of overly broad speech regulation."

Elena Ferrante’s Right to a Pseudonym; Atlantic, 11/15/16

Atlantic; Elena Ferrante’s Right to a Pseudonym:

"Curiously, the United States remains possibly the only country in the world not to recognize an author’s right to be named as the creator of his or her own work, despite huge pressure from authors’ groups and legal experts to do so. American law provides for a limited “right of attribution,” as it is called in the U.S. Copyright Act, but only in relation to works of fine art. Writers, musicians, and creators working in other disciplines have no such right at all. Establishing one would bring the United States into line with the rest of the world—a good thing when creative works literally circulate without borders, and reputations must stand or fall on the global stage.

In Italy, the copyright law says that a pseudonym will be treated as equivalent to the author’s true name, unless (and until) the author chooses to reveal his or her identity. Both the language of the law, and its silences, are arguably significant. In no way is any outsider empowered to reveal an author’s “true” identity when the author has chosen to publish under a pseudonym. Italian law wouldn’t seem to condone a concerted effort such as Gatti’s to uncover Ferrante’s identity."

The International Fight Over Marcel Duchamp's Chess Set; Atlantic, 9/8/15

Quinn Norton, Atlantic; The International Fight Over Marcel Duchamp's Chess Set:

"Often called Moral Rights, French creators and their heirs are entitled not only to remuneration, but a high degree of creative control on how their works are used or represented in the world. It was this idea, of controlling how the artist's creation is used by others, that brought the estate to issue their Cease and Desist against Kildall and Cera. Farcot is particularly interested in how 3D printing is influenced by the mishmash of Berne laws governing the world. I spoke with him while he was waiting on an Ultimaker print of toys he was giving children in an upcoming weekend workshop he was teaching.

“It’s not black or white,” Farcot said. “It’s not easy for the creators, Kildall and Cera, to... say they should go ahead, go to court and they will win easily.” Facing a ruinously expensive legal fight thousands of miles and an ocean away, Kildall and Cera backed down. They quietly removed the files from Thingiverse, and negotiated a resolution with Duchamp’s heirs.

If the case was too hard to fight in French court, it would have been almost too easy to fight in U.S. court, the jurisdiction that could affect the lives of Kildall and Cera. “So under U.S. law, the chess pieces are absolutely in the public domain... and a U.S. court won’t honor French moral rights. I don’t see any practical way for the Duchamp estate to sue over the 3D-printed chess pieces in a U.S. court,” said Mitch Stoltz, a senior staff attorney at the Electronic Frontier Foundation who specializes in intellectual property."

Artist Outraged at 'Plagiarism' of His Sculpture in China; Associated Press via New York Times, 8/12/15

Associated Press via New York Times; Artist Outraged at 'Plagiarism' of His Sculpture in China:

"Renowned artist Anish Kapoor has expressed outrage about the appearance of a sculpture in China that appears identical to his "Cloud Gate" in Chicago.

Representatives of the British-Indian sculptor said Wednesday he was shocked at the "blatant plagiarism" of his sculpture, a giant, mirrored piece displayed in Chicago's Millennium Park that reflects the city's skyline...

"It seems that in China today it is permissible to steal the creativity of others," he said. "I hope that the Mayor of Chicago will join me in this action. The Chinese authorities must act to stop this kind of infringement and allow the full enforcement of copyright.""

Artist Files Suit Over Missing Empire State Building Paintings; New York Times, 1/31/14

Randy Kennedy, New York Times; Artist Files Suit Over Missing Empire State Building Paintings:

"The paintings, by the New York artist Kysa Johnson, were commissioned by the building’s owners and installed in 2000. But last year, art collectors visiting the building to see the pieces could not find them and told Ms. Johnson, who asked the building’s current owner, the Empire State Realty Trust, what had happened to them. According to a lawsuit the artist filed this week in federal court in New York, the trust told her that the paintings “could not be located, were likely destroyed and therefore could not be returned to” her.

The suit — which says that Ms. Johnson retained ownership of the paintings under her commissioning contract — is unusual because it is not simply a property-loss case but is being pursued under the Visual Artists Rights Act, a copyright protection put into place in 1991 that safeguards the moral rights of artists against distortion, mutilation or destruction of their work."

Win a brand new Nikon D5000 camera worth over £400; (London) Guardian, 5/28/10

(London) Guardian; Win a brand new Nikon D5000 camera worth over £400: Each month, Camera club gives a Guardian photographer – and you – a monthly assignment to complete. We want you to pick your favourite image from your assignment shoot and email it to us. The best of the bunch will win a Nikon D5000 DSLR:

"7. The closing date and time of the Competition is 11.59pm on Thursday 24 June 2010. Entries received after that date and time will not be considered.

8. You own the copyright to your Competition entry as its author.

9. By submitting an entry to the Competition, You give GNM:

a. permission for your entry to be published on guardian.co.uk and grant GNM a non-exclusive, royalty-free, worldwide licence to republish your Competition entry in electronic format and hard copy for purposes connected with the Competition; and

b. the right to use your name and town or city of residence for the sole purpose of identifying You as the author of your entry and/or as a winner of the Competition.

GNM will use reasonable efforts to assert the entrant's moral rights in the photograph. However GNM may cut, edit, crop or arrange the entry as it sees fit.

10. Your entry must be your own work, must not be copied, must not contain any third-party materials and/or content that you do not have permission to use and must not otherwise be obscene, defamatory or in breach of any applicable legislation or regulations. If we have reason to believe your entry is not your own work or otherwise breaches this paragraph 10, then we may not consider it. You warrant and undertake that photos submitted will not infringe intellectual property, privacy or any other rights of any third party. You must ensure that any person or persons whose image is used in an entry has given valid consent for the use of their image or has waived any rights they may have in the image submitted. Where such person is under 16, the consent of that person's parent or guardian must be obtained. Failure to adequately demonstrate such consent to the satisfaction of GNM may result in the entrant's disqualification and forfeiture of any prize."

http://www.guardian.co.uk/artanddesign/2010/apr/30/win-a-brand-new-nikon-d5000-camera