February 20, 2007

Cross-Cultural Partnerships: Thinking beyond IP

Filed under: DMCA, art, open — Wendy @ 3:19 pm

What do anthropologists, teachers, cultural leaders, digital artists, technologists, and lawyers do when they get together? Well, a group of us convened in Maine earlier this winter to talk about cultural sharing: As western corporations seek out the traditional knowledge of farmers and healers in the developing world, or artists seek ways to share their art with corporate audiences, could we develop frameworks in which those from different cultural backgrounds could share knowledge on equal footing?

A few intense days of discussion developed a Cross-Cultural Partnership framework, using the legal infrastructure of a partnership agreement to enable the parties to describe their joint and separate goals in a common project. The framework provides a bare template, to which those working together must add descriptions of their aims and intentions. It’s our hope that the entanglement of the partnership form, requiring greater personal involvement than an arms’-length contract or license, will help parties to bridge different values and backgrounds.

We’re still in early draft and I welcome readers’ thoughts and comments. Excerpts from the template’s preamble follow the “More” link.


(more…)

February 8, 2007

Copyright at the Whitney: the Oldenburg-Picasso Exhibit

Filed under: art — Wendy @ 12:54 pm

It goes without saying that I can’t go anywhere without seeing copyright issues lurking in the background. The last room of the Whitney’s “Picasso and American Art,” however, forced them to the foreground.

Throughout the exhibit, which showed Picasso artworks alongside American artworks they had inspired, were wonderful examples of transformative use — artists from Max Weber to Jasper Johns taking elements from Picasso’s work to create new art. Derivative works they might have been, but no one sued and the world is richer for them.

In the final room, though, there appeared a litigation exhibit: Claes Oldenburg’s “Soft Version of Maquette for a Monument Donated to Chicago by Pablo Picasso, 1968″ was apparently created to help a declaratory judgment plaintiff defeat the City of Chicago’s claim to copyright in the Picasso sculpture, which Picasso had dedicated to the Chicago public. I hope I can find so eminent an exhibit-creator if ever I need one.

A storekeeper wanted to use a photograph of the Picasso to help customers find his store, and a publisher wanted to market copies of the sculptre. The Public Building Commission of Chicago objected. The court found no permission was needed because the work was in the public domain. Under the 1909 Copyright Act, the City’s publication without proper notice of copyright divested it of any claim to copyright (if even Picasso’s dedication could have been read to give it to the Commission in the first place). Unfortunately for future Oldenburgs and publics, revisions to the Copyright Act have done away with the requirement of formal notice of copyright, cutting off that avenue for works to enter the public domain.

Of course there’s a coda to this story: As I was reading the museum label’s account of this story, I thought I’d snap a Treo picture of the label as aide memoire — only to hear a museum guard say, without irony, “no photography.” Hence the blurriness of this image.

October 30, 2006

Chihuly glass at the New York Botanical Garden

Filed under: art — Wendy @ 9:35 am

It’s a shame about the lawsuit , because Dale Chihuly’s artwork is really impressive. He’s brought new ideas to the world of artistic glassblowing, and he’ll always be recognized as the original master of these forms, but copyright shouldn’t give him a monopoly on the ideas.

More photos from my Oct. 29 visit to the Botanical Garden.

September 14, 2006

Classical Music Wants to Be Shared: Isabella Stewart Gardner Museum Podcasts

Filed under: art — Wendy @ 11:54 pm

Boston’s Isabella Stewart Gardner Museum has just launched a terrific classical music series: The Concert Podcast: freely downloadable DRM-free music licensed for sharing under a Creative Commons Music Sharing License.

I started with a Schubert Concert, including a piece I’d had the pleasure of hearing earlier this year at the Metropolitan Museum: Musicians from Marlboro playing “The Shepherd on the Rock.” While nothing can match hearing chamber music live, a string quartet doesn’t fit into my pocket next to the Treo. These podcasts, well chosen and well recorded, help fill the spaces between live concerts. Perhaps they’ll even attract new audiences to the live performances.

Congratulations to the Berkman Center’s clinical program for helping to get this series online. Here’s the podcast feed.

May 1, 2006

WSJ on Computers in the Movies (and Trademark Missteps)

Filed under: art, open — Wendy @ 9:56 pm

The Wall Street Journal runs an amusing feature on computers in the movies: from the improbable email addresses of Mission: Impossible, to the appearance of real nmap screens in the Matrix. Clips, too.

Unfortunately, a good article is marred by a wrong turn on trademark law:

Sometimes, Hollywood depictions look different from reality on purpose. Filmmakers must sidestep delicate trademark issues when setting a scene. Prominently showing an AOL email screen or Google search page, for example, requires approval from the companies, so some production designers create a variation that avoids the red tape. Other times, filmmakers exaggerate the look of money transfers or Web searches with full-screen blinking graphics and sound effects, while removing extraneous details, so that viewers don’t miss them in important scenes.

Wrong. Trademark law does not give companies veto power over the depiction of real products, either in documentary or in fiction. That’s why when Disney’s George of the Jungle 2 showed Caterpillar bulldozers battling George’s jungle creatures, to unflattering effect, an Illinois district court denied Caterpillar Inc.’s bid to stop it.

The court found Cat unlikely to succeed on either infringement or dilution grounds (”[T]here is no apparent competition between Caterpillar bulldozers and George 2 videos and DVDs…. Part of what drives the Court’s discomfort with Caterpillar’s position is the fact that the appearance of products bearing well known trademarks in cinema and television is a common phenomenon. For example, action movies frequently feature automobiles in a variety of situations. Is the mere appearance of a Ford Taurus in a garden variety car chase scene sufficient by itself to constitute unfair competition?”) (Example recalled by way of Duke Center for the Study of the Public Domain comics.)

Moviemakers can use the brand-name products their real-life audiences use. They can even insult those products. As Eugene Volokh said at the time of the Disney-Catfight, “So long as the moviemaker doesn’t make false factual assertions about someone — so long as the work is clearly fictional, and not intended to represent any real claims that Caterpillar is somehow committing some crime or misconduct — the moviemaker’s speech is constitutionally and statutorily protected. See, e.g., Mattel v. MCA Records (9th Cir.), the “Barbie Girl” case, speaking about the ‘noncommercial use’ exception to the Federal Trademark Dilution Act.”

If moviemakers aren’t using real computer services in their movies, it’s either because they are getting bad legal advice, or because mutt and pine aren’t so photogenic as animated folding envelopes. I hope it’s the latter.

April 21, 2006

Miro Heirs Quash Google Tribute

Filed under: art — Wendy @ 11:06 am

Searching with Google yesterday, I smiled at its logo, playfully reworked to look like a Joan Miró painting in honor of the Spanish artist’s birthday. His family and Artist’s Rights Society weren’t smiling, the Mercury News reported, asking Google to remove the tribute mid-day. Google honored the request while saying that the logo did not infringe.

[President of Artists Rights Society Theodore] Feder said the society receives hundreds of requests each day from media organizations who are interested in reproducing a copyrighted work in some form. He said the authorization process is simple: all Google needed to do was send an e-mail asking permission to use the images.

“We would have asked the estate or the family, and they would have said yes or no,” he said.

But fair use, as U.S. courts recognize it, eliminates the need to ask permission. Fair use saves us from the sanitized world where only authorized tributes or commentary are permitted. Moral rights, applied in many European countries but not the U.S., protect the “integrity” of artists’ works — but even that was hardly under threat.

No one would think from this logo, which linked to a Google search for “Joan Miró,” that the artist (who died in 1983) endorsed Google; instead, many more might have been inspired, as I was, to click through to some of the originals artworks whose elements were re-mixed here. Copyright prevents someone from making Miró lithographs without permission, it doesn’t and shouldn’t prevent Google from honoring artists before they’re dead 70 years.

Enterprising Wikipedians have already added note of the controversy to the Miró biography.

April 17, 2006

Airport: Symbols in/for the Public Domain

Filed under: DMCA, art — Wendy @ 2:48 pm

Boing Boing links the clever short film [ airport ], made entirely from the common airport direction and instruction symbols.

Also cool is the AIGA page where the design association makes all the symbols available in EPS and GIF formats:

This system of 50 symbol signs was designed for use at the crossroads of modern life: in airports and other transportation hubs and at large international events. Produced through a collaboration between the AIGA and the U.S. Department of Transportation, they are an example of how public-minded designers can address a universal communication need.

These copyright-free symbols have become the standard for off-the-shelf symbols in the catalogues of U.S. sign companies.

Indeed, I’d suggest that the symbols’ freedom from trademark and copyright claims has directly spurred their widespread adoption, which in turn has helped to make them more universally understood. Score one more for the commons.

February 22, 2006

Biting the Hand that Feeds the TV Show

Filed under: art, open — Wendy @ 6:31 am

The NYT updates the story of the “Lazy Sunday” sketch: after finding new life for Saturday Night Live in a mock rap segment that spread “virally” far beyond the television sets, NBC sent out the copyright squads. They sent cease-and-desist letters to hosting sites such as YouTube, whose copy of the video had risen to the top of a Google search.

Julie Summersgill, a spokeswoman for NBC Universal, said the company meant no ill will toward fan sites but wanted to protect its copyrights. “We’re taking a long and careful look at how to protect our content,” she said.

Several online commentators noted that NBC’s response to YouTube, while legally justified, may have been short-sighted. The online popularity of “Lazy Sunday” has been credited with reviving interest in “Saturday Night Live” at a time when it is in need of some buzz.

I’m sure NBC lawyers need no reminding that unlike trademarks, copyrights do not need to be policed to retain their validity. Instead, NBC seems to be shutting down its own best advertising.

August 28, 2005

Architecture and Copyright: Order without law?

Filed under: art, open — Wendy @ 12:36 pm


The New York Times runs an interesting piece on copying in architecture, Hi, Gorgeous. Haven’t I Seen You Somewhere?
While the article takes its cue from a recent lawsuit by an architecture student against the designer of the Freedom Tower, it calls that suit an anomaly. (See the Patry Copyright Blog for more on Shine v. Childs.) Most architects, apparently, don’t sue, even when they see their work echoed by others.

Are architects just nicer than other copyright holders? Unlikely.

More probably, they’ve found alternatives to the legal protections copyright gives. Like artists everywhere, they copy from the masters. They also have other ways of protecting their authorship interests: Architecture clients need full buildings designed, not just pictures of facades; architects can complain publicly about others who fail to give credit for inspiration, lowering the reputation of someone who copyright law might say has only used an unprotectible idea [see Ellickson]; and the great designers aren’t just re-selling their last-years’ designs in any event.

As Elizabeth Diller of Diller, Scofidio & Renfro put it, “The only way to avert the problem of plagiarism is to be a moving target. If your work is copied and that upsets you, it means you waited too long to move on.” That’s a motto more industries should heed.

July 12, 2005

The Myopia of Classical Labels

Filed under: art — Wendy @ 9:10 am

As the BBC prepares to announce the tremendous success of its free Beethoven downloads, the Beethoven Experience.

You’d think that arts leaders struggling to expand their market to younger generations would welcome evidence that downloaders want to give classical a try. Any classical afficionado knows that one performance of Beethoven’s Ninth isn’t a direct substitute for another, just as baseball fans don’t stop watching just because they’ve now seen the Red Sox win the Series. Instead, hearing and appreciating an intial performance is the first step toward wanting to hear the other greats, in concert or on CD. Those pop fans who realize Gianandrea Noseda’s Pastorale fits on their iPods may well be moved to try more.

But instead of welcoming this new audience with offerings of their own, the labels complain that downloads are “devaluing the perceived value of music.” They make the same error intellectual property maximalists do — thinking that “exclusion” equals “value.” If few people want to pay for your product, it doesn’t have much market value, no matter how much you want to charge. The RIAA’s 2003 Consumer Profile indicates just 3% of U.S. music purchases were classical, while BPI reports that in the U.K., classical CD sales totaled under 14 million for that year. Against that small market, a million downloads in two weeks is huge. Labels should focus not on the hypothetical hordes who might buy high-priced CDs, but on the real likelihood that free downloads introduce a wider audience of potential purchasers of a wide range of classical music.

I for one, hope the BBC extends this experiment. Listening to the BBC Symphony’s Beethoven 1 now.

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