In 2000, a photographer named Patrick Cariou came out with a book of photographs he took during the 6 years when he lived with the Rastafarians in Jamaica.

In 2007, Richard Prince, along with his dealer, Gagosian Gallery, began exhibiting a series of collages that featured 41 photographs from Cariou’s book. Cariou sued Prince and Gagosian for copyright infringement. Prince and Gagosian claimed fair use.

Fair use is a frequently used excuse to infringement. Basically, the fair use defense says this:

Even though I borrowed your copyrighted work, it was fair use, so it wasn’t infringement. (more…)

This exciting guide to IP entitled, Copyright: A Primer, was prepared by the Bryan Cave Intellectual Property Team. We hope it’s helpful.

Troy Klyber, lawyer at the Art Institute of Chicago, has written a terrific blog post about an odd (and sad) impact on artists who put a copyright notice on their work in the olden days as the law required. I sat on a speakers’ panel with Troy. He is one of the leading practical thinkers at the intersection of art and copyright.

Mark Twain channeled the frustration of many artists when he wrote, “Only one thing is impossible for God: To find any sense in any copyright law on the planet.” One such frustration is the realm of derivative works. Artists understand that all art is ultimately derivative. For example, Ernest Hemingway wrote, “All modern American literature comes from one book by Mark Twain called Huckleberry Finn.”

But copyright law takes a narrower view, defining “derivative work” as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101.

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Over lunch the other day, a coworker asked whether it was true that there was no need to register work with the Copyright Office as long as you put it into an envelope and mail it to yourself. Gazing past the rigatoni stuck in his teeth and focusing on the question, I realized that I had heard it before. Many times before. "So what’s the deal?" he asked, "Is it true or not?"

The answer is … buried in the following multiple-choice test.

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Recently, a Nevada photographer found that social networking privacy settings may not seem so cool. She found a photograph of hers she had posted to her profile used in an ad by a sunglasses company she had never heard of. Although this may seem like blatant infringement (as she thought), whether it is may depend on permissions you give to third parties without even knowing it.

The web has been abuzz recently about this issue (a popular example being a husband whose wife’s picture popped up for a dating site ad), and the sites and advertisers have been pointing the fingers at each other. Regardless, artists should be particularly mindful of the risks and benefits posting pictures may create—and that means clicking on and actually reading those links at the top or the bottom of home page entitled "Privacy" or "Settings" or "Terms of Use."

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 As we discussed in Pitfall No. 1, copyright protection for nature-based works is a different animal (so to speak). While judicial opinions may seem intimidating to most artists (and people generally), it’s important to understand how courts handle copyrighted works since court is where you go to have your protections enforced.

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By Tobias Butler, Attorney at Law

Copyright law is prejudiced against art that depicts nature. Faithful recreations of nature by themselves are simply not copyrightable. And, regardless of the beauty and innovation of a work of art, it can miss copyright protection if the artist fails to incorporate anything beyond exact elements from the natural world. So, in order to secure copyright protection, an artist needs to add his original touch to the work of art.

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On the week’s eve before Chicago’s Art Institute christens its new modern art wing, some thoughts on Chicago art located (or which used to be located) outdoors.  Throughout the 80′s and 90′s, Chapman Kelley’s meticulous display of native wildflowers graced Chicago’s Grant Park.  In 2004 they were "mutilated" or reconfigured – depending on your perspective.  Kelley’s recent (April 13, 2009) Brief before the 7th Circuit Court of Appeals of the matter at hand can be found here.

Over at The Art Law Blog, not to be confused with our blog on Artlawteam.com, the Kelley Brief reignited some exhaustion over the September 2008 decision concerning Kelley’s Wildflower Works.  In the September 2008 decision, Kelley’s works were denied protection under the Visual Artists Rights Act (VARA) under the notion, among other considerations of "originality,"  that precedent excluded so-called "site specific" works (works which are built specifically for the place where they are located, not meant to be transplanted - pardon the pun – anywhere else) from VARA’s reach.

While there is much to be written and waxed upon concerning what should and what should not be covered or protected by VARA (which the Kelley Brief does in spades and the Art Law Blog seems to do well here and here), perhaps the real consideration when advising clients should be "Can we get it in writing?" 

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Take a look at the chart entitled:  "WHAT IS ART?" to find out what art is copyrightable.

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