Artist visa renewals get easier for UK applicants

Good news for artist visa holders from the UK: when it's time to renew your visa, the US Consulate in London may reissue the visa without you having to attend an interview in London. In order to qualify, you have to meet certain requirements such as having provided a full set of fingerprints when you last applied for your visa. More info on eligibility for the expedited process is available here, from the consulate's website. Hopefully, other US consulates will start following the London consulate's lead!

Hardcore Infringement

Oh the irony!  Back in January, I brought you the story of a Dutch court whose decision in a copyright infringement lawsuit plagiarized (and possibly infringed) another lawyer's work. Well, those fast and loose copyright attorneys are at it again. A Chicago lawyer named John Steele has filed a lawsuit suing hundreds (if not thousands) of file-sharers for copyright infringement on behalf of First Time Videos LLC, "a leading producer and distributor of adult entertainment content within the transsexual niche." But Mr. Steele sets a poor example for all the porno buffs out there who just got sued. According to Ars Technica, the complaint that Mr. Steele filed with the court is itself a glittering monument to infringement, with swathes of text lifted word-for-word from complaints filed by another company, the U.S. Copyright Group. Fortunately for Mr. Steele, the U.S. Copyright Group doesn't mind. Says Tom Dunlap, who wrote the filings that Mr. Steele infringed, "I don't know Steele but I'm flattered he likes my pleadings."

In Mr. Steele's defense, he's not an expert in copyright law. He makes his bread and butter from matrimonial cases and his number (if you happen to be in northern Illinois) is 1-800-DIVORCE.

via Ars Technica.

Ladies and gentlemen, the Innovative Design Protection and Privacy Prevention Act

Early this summer, I wrote a post about how fashion designers are bereft of copyright protection. Turns out, Chuck Schumer and the Council of Fashion Designers of America are trying to do something about it. In August, Senator Schumer introduced proposed legislation into Congress that, if passed, would extend limited copyright protection to fashion designs. Specifically, the new legislation would protect any fashion design from being copied for a period of three years from the date the fashion design is made public. You can read the bill here.

Clearly, a lot of designers are in support of the proposed legislation. On the other hand, Johanna Blakley, our fashion theorist in a bullet-proof vest from early this summer, points out that "right now, designers pore over vintage magazines and patterns and visit museum archives in order to find inspiration for the next season’s look, cherry picking design elements that feel fresh and in line with the current zeitgeist. It’s a refreshingly open process unhindered by legal consultations. Those archives could become battlefields where litigants try to find evidence to support their assertion that a design is or is not unique. The geeky librarian in me is worried that some powerful people may attempt to limit access to particularly rich collections of design history and some unscrupulous types may destroy or hide rare materials that prove that their new design isn’t as unique as they claim."

The perils of licensing defunct texts

The unfortunate thing about our present copyright system is that some copyright owners are easy to find and some are not. I wrote previously about how this phenomenon affects academics, so I really enjoyed a recent blog entry entitled "Don't do Art History" by Mary Beard, a professor of classics at Cambridge, about her harrowing experiences trying to get rights to reproduce photos from the Soprintendenza of Pompeii and other characters.

Everything you ever wanted to know about artist visas

I get a lot of questions about artist visas so I added a page on my website about them (plug for my law practice: artist visa preparation is one of my practice areas).

View it at www.justinlynchlaw.com/artist_visas.html.

What's so great about copyright if fashion designers do well without it?

One of the traditional justifications for copyright law is that without it, creative people will be discouraged from creating.  The fashion industry is a counterexample, because it has flourished in the absence of copyright protection for clothing (clothes are considered too "utilitarian" to qualify for copyright protection, in the same way that a recipe or a park bench can't be copyrighted, no matter how fanciful).  Of course, creativity has never needed copyright law, which was only recently invented anyway.  Johanna Blakley, in her entertaining presentation on copyright and the fashion industry, displays a chart that shows that revenues in "low IP" industries such as clothing and food dwarf those of "high IP" industries such as music, books and films.  But the clothing and food industries also have going for them the fact that without clothing and food, we'd all be naked and starving: their survival in the absence of copyright protection is no surprise.  Revenues aside, Ms. Blakley has some interesting observations about how the lack of copyright protection in the fashion industry may contribute to increased innovation.

But the big unanswered question in this presentation on fashion and the law is why Ms. Blakley is wearing a jacket that looks like it was inspired by a bullet-proof vest.   

Photo Licensing 101

Getty Images has launched a new website to educate people on the nuts and bolts of photo licensing. Developed in response to a survey that found a woeful level of misinformation, even among creative industry professionals, about the legal aspects of using photos found on the Internet (for example, um... the importance of getting permission from the photographer, not to mention the model), www.stockphotorights.com provides "an educational resource for image buyers and a go-to place for debate, discussion, news and information for members of the photography community."

The site contains a lot of great information, albeit with a few inaccuracies (for example, the FAQs at one point seem to imply that all photographs are under copyright, which isn't true). Needless to say, the site also encourages image users to license their images from stock photo agencies such as Getty Images. That said, the good thing about licensing through Getty Images and similar agencies is that they will tell you whether or not a model release has been obtained for a particular photo and the purposes for which the photo can be used, and, in the event that they failed to obtain the permissions that they promised they obtained, they will indemnify you if you get in trouble as a result (i.e., they will foot the bill).

The video below, from the site's homepage, explains the various rights that different people may have with respect to a single image: it is necessary that permission from all rights holders be obtained before using an image.

Judges are dance theorists too

                (photo: alexbcthompson)

How many people learn the steps from the Single Ladies video by watching Beyonce on YouTube? Well apparently, a dance you learn by looking at a YouTube video is not choreography, at least not under New York tax law.

New York imposes a four percent sales tax on admission charges at “places of amusement.” However, charges paid for admission to live, choreographic performances are exempt from the tax. The Tax Appeals Tribunal of New York recently decided a case in which Nite Moves, a strip club in an Albany suburb, claimed that its cover charges are not taxable because the pole dancing routines at its establishment are choreographic performances. To support this argument, Nite Moves turned to Judith Lynne Hanna, a specialist on exotic dance and adult entertainment. Dr. Hanna reviewed DVD footage of exotic dance routines performed at Nite Moves and stated that they indeed were live, choreographed performances.

The tribunal differed. Strangely, it seemed to take the view that for a dance routine to be a live choreographed performance, the performer must have actually created the steps.

“With regard to whether it is a choreographed performance, we note that the record sets forth how the dancers help each other when they are getting started, how they view other dancers on YouTube and practice the dances they see on the internet. . . . We question how much planning goes into attempting a dance seen on YouTube. . . . Dr. Hanna said, inter alia, that she saw a range of movements typical of adult entertainment elsewhere and that she saw the individual creativity of the dancers. It is unclear how, based on a 22 minute DVD, Dr. Hanna could divine a particular dancer's 'creativity' as opposed to a dancer on YouTube, for instance, from which the performance may have been copied.”

This is odd. According to the tribunal, the YouTube routines may have been choreographed, but when they are replicated by other dancers, they are not choreographed. The question for the court should not have been “how much planning goes into attempting a dance seen on YouTube,” but how much planning went into creating the dance seen on YouTube. The tribunal's decision also happens to be at odds with the practice of many dance companies that often have dancers consult video footage to learn choreography. (Actually, judges routinely throw logic out the window when strippers are around. For a Freudian reading of why this might be so, you might enjoy Amy Adler's Girls! Girls! Girls!: The Supreme Court Confronts the G-String).

Strip clubs were probably not among the intended beneficiaries of the tax law’s exemption for choreographed performances. But if Nite Moves is not entitled to the exemption, the reason cannot be that its dancers get their routines from YouTube.

The tribunal's decision is here.

06/04/2010 Update: Alistair Macaulay, chief dance critic of The New York Times, has declared the male pole dancing routine in Cirque du Soleil's latest production, Banana Shpeel, "the most enchanting new choreography around Broadway."  

Copyright judges seen running away with stolen paragraph

A Dutch court has held that placing embedded links on a website without permission from the author of the linked content is copyright infringement (an embedded link allows a visitor to a website to view content on an external site, such as a YouTube video, without having to go to that site). Interestingly, the court's ruling plagiarizes a blog post by Douwe Linders, an attorney at Netherlands IP boutique SOLV Advocaten. The offending text, which was lifted word-for-word from the blog post and, ahem, embedded into the opinion without quotation marks or any mention of its provenance, reads: "In case law and legal literature it is generally held that an embedded link constitutes a publication. After all, the material can be viewed or heard within the context of the website of those who placed the link, and placement causes the material to reach a new audience." You would think that judges who come down on the side of authors would follow the don't-plagiarize rule they learned as kids.

Now, in the United States at least, plagiarism and copyright infringement are not the same. The U.S. Copyright Office's fair use factsheet includes "quotations of short passages in a scholarly or technical work, for illustration or clarification of the author's observations" among its examples of fair uses. However, actually using quotation marks and attributing the source of the quoted text would strengthen the fair use argument. After all, Mr. Linders' words "can be viewed or heard within the context of the [opinion], and placement causes the material to reach a new audience."

(via 24 oranges)

Free talk on arts law issues

Artist/lawyer Sergio Muñoz Sarmiento, author of the thoughtful website Clancco.com and attorney at Volunteer Lawyers for the Arts, presents a free talk on his experiences at the intersection of art and law, specifically the legal issues that arise in the implementation of art projects. RSVP required.

Thursday, February 18, 2010 at 6:30

Lower Manhattan Cultural Council

Click here for workshop description and RSVP form.

Adventures in legal advertising

Introducing the very funny law firm commercial. A little off-topic for arts law roundup perhaps, but this blog is also about entrepreneurship. How many law firm commercials have made you laugh?

(via Lowering the Bar)

Tino Sehgal's Immaterial Art

The New York Times Magazine has a very interesting article about Tino Sehgal, the Berlin-based conceptual artist. Sehgal experimented with dance early in his career, but his recent creations, which he calls "staged situations," are conceived as artworks rather than theater, and have been acquired by the Tate and the Museum of Modern Art, among others. Nevertheless, his work builds on the ephemerality of dance (unless it's recorded, a dance performance is gone as soon as it is performed) and takes that quality to its logical extreme. Sehgal is adamant that his work be completely intangible: it cannot be documented in any way, which means it can't be photographed or publicized and is bought and sold without involving any objects whatsoever.

The only objects in the works themselves are human beings. For example, in This situation, the viewer is greeted by six people who intone "Welcome to this situation" in unison and then engage in a conversation inspired by a quote spoken by one of the six, all the while making slow, tai-chi like movements and occasionally including the visitor in the discussion. The process is repeated each time a new visitor enters the gallery.

The legal aspects of buying and selling this art can be confounding. The Times writes: "Since there can be no written contract, the sale of a Sehgal piece must be conducted orally, with a lawyer or a notary public on hand to witness it. The work is described; the right to install it for an unspecified number of times under the supervision of Sehgal or one of his representatives is stipulated; and the price is stated. The buyer agrees to certain restrictions, perhaps the most important being the ban on future documentation, which extends to any subsequent transfers of ownership. 'If the work gets resold, it has to be done in the same way it was acquired originally,' says Jan Mot, who is Sehgal’s dealer in Brussels. 'If it is not done according to the conditions of the first sale, one could debate whether it was an authentic sale. It’s like making a false Tino Sehgal, if you start making documentation and a certificate.'"

So if you document the work in any way, you've suddenly got a forgery on your hands. Sehgal isn't kidding when he says his work is ephemeral.

Two of Sehgal's works will occupy the entire Guggenheim rotunda, January 29 - March 10, 2010. Information about the exhibit is here.

Related post: Another reason for choreographers to videotape their work.