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Kerson v. Vermont Law School, Inc. (2023 WL 5313521, 2d Cir. August 18, 2023)

Artist Samuel Kerson painted two large murals directly onto the walls inside a building on the campus of Vermont Law School. Kerson intended the works to depict the United States’ sordid history with slavery and Vermont’s participation in the abolitionist movement. Community members, however, perceived the works as depicting enslaved African people in an offensive, stereotypical style. Beyond that, some also took issue with the
Continue Reading Second Circuit: VARA Permits Building Owner to Hide Visual Art

In 1981 Andy Warhol used a photograph made by Lynn Goldsmith as reference for an illustration of the musician Prince. Vanity Fair magazine had hired Warhol to make the illustration; it was to accompany an article about Prince in the magazine’s November 1984 issue. Goldsmith had issued a limited license for this purpose. The license stated her photograph could be used for reference, “one time only.”

Turns out – in addition to the Vanity Fair illustration – Warhol made
Continue Reading U.S. Supreme Court: Warhol Foundation’s Use of Prince Photograph Not Fair Use

Have you ever convinced yourself that something is simple…just because you want it to be simple?
You’re not alone. In the context of applications for US copyright and trademark registration, people decide every day that do-it-yourself (DIY) is an acceptable option because, to their wishful eyes, “it’s just paperwork.”
Or maybe they think, “maybe I shouldn’t do this completely on my own,” so they fork over a small fee to an online Service that offers to take
Continue Reading US Copyright Applications: Not As Simple As You Think

During these joyous holiday times, thoughts turn to peace on Earth, goodwill toward all and, of course, data scraping.

The United States Supreme Court is presently deciding whether to review a Second Circuit case that gave Google a free pass to scrape the content from another business’ website. The business that got scraped (Genius Media Group, “GMC”) provides an online platform for music enthusiasts who transcribe song lyrics. GMC invested millions of dollars to build its technology and to
Continue Reading Fighting Back Against Data Scrapers

Let’s start with five fundamental concepts:

  • Copyright protects original expression.
  • To qualify for copyright protection, that original expression must be “fixed in a tangible medium.” (For example: painted on canvas; sculpted in stone; captured on film; written on paper.)
  • The tangible media (the canvas; the stone; the film; the paper) are, for estate planning purposes, “tangible personal property.”
  • Copyright rights that attach to original expression are, “intangible personal property.”
  • The intangible copyright rights and the tangible media are

  • Continue Reading Estate Planning: Copyright and the Limits of Digital Property

    The other day I was learning about a fellow lawyer, by reviewing her website. Her trademark practice is similar to mine. The site was inviting. She has a sense of humor.
    “Nice,” thought I, “we should connect.”
    I was reviewing her website because she’d made a mistake in a matter before the Trademark Trial and Appeal Board. Suddenly, my respect for this lawyer circled down the drain.
    Because of the mistake? Absolutely not. We all make mistakes.
    I lost
    Continue Reading Working on Vacation

    You’re a visual artist. You sell a work for $1000. Over time the value appreciates. Your buyer re-sells the work for $50,000. You get nothing (except requests to speak about your work, for no money!)

    There is no law permitting artists to share in “resale royalties” when their works change hands. I discuss this in Conversation #31 (Droit de Suite) in my book, Arts Law Conversations: A Surprisingly Readable Guide for Arts Entrepreneurs.  

    One way around this
    Continue Reading Getting a Cut When Your Work Re-Sells

    The US Copyright Office is establishing a new option for registering multiple “online short literary works” as a group, with a single application and a single fee.
    In plain English, that means: blog entries; social media posts; and short online articles.
    They’re still rolling out the details — which I’ll describe here when they become available. For now, here is the official announcement.
    Continue Reading New Copyright Registration Option for Blog Entries; Social Media Posts

    Many of us, sheltered in place, are using video and web-conferencing services such as Zoom. How fortunate we are, to have such tools at our disposal.
    While keeping physically healthy, here are three tips for staying legally healthy in your web-conferencing environment.

  • Don’t play music or display visual art in the background. The last thing you or your company needs is a lawsuit for copyright infringement, on top of everything else you’re dealing with.
  • Be mindful of your

  • Continue Reading Three Tips for Web-Conferencing

    “Please don’t copy my work.”
    They do it anyway.
    Is it plagiarism or is it copyright infringement?
    Plagiarism is a question of attribution. Let’s say GoodGuy actually created The Work.  BadGuy not only copies The Work, but passes it off as his own. BadGuy is “attributing” authorship of The Work to himself rather than to the actual author, GoodGuy. Bottom line, it’s a lie. It’s telling the world, “I created this” when that’s not true. This is plagiarism.
    Continue Reading Plagiarism v Copyright Infringement. What’s the Difference?

    TIP #1. In recorded music there are almost always two separate copyrights:

  • The musical work (the composition); and
  • The sound recording (the fixation of  sounds that were produced during a particular performance).
  • TIP #2.  Until recently, sound recordings that were fixed before 1972 were not eligible for US copyright protection.
    TIP #3.  There are new procedures for protecting pre-1972 sound recordings. This new scheme is not technically copyright protection, but it’s very similar. The new law itself appears here
    Continue Reading 3 Copyright Tips About {old} Sound Recordings

    No such thing as a “normal” VARA case? Ha! Maybe not. But this one is taking place in Normal, Illinois.
    The Town of Normal wants to destroy a mural that appears on a building, to make way for development. The mural was created by 13 artists. In April, the 13 artists sued the Town and the developer to prevent destruction of the work.
    So far it sounds like a pretty “normal” case — right?
    Now the twist. Attorneys for
    Continue Reading VARA: The Normal case

    Bringing a copyright action in Federal court is expensive. There’s no question; the costs bar many aggrieved copyright owners from justice.
    Several organizations representing copyright owners — along with the United States Copyright Office itself — have been working on legislation toward a copyright “small claims” system, providing an administrative (as opposed to judicial) option for the resolution of copyright-related disputes. Draft legislation was introduced last month, in both the House and the Senate.
    Understandably, the sponsoring organizations are
    Continue Reading Copyright Small Claims: Weighing the Pros and Cons of the CASE Act

    The Orrin G. Hatch – Bob Goodlatte Music Modernization Act (“MMA”) became law on October 11, 2018. It enacts sweeping changes to provisions of the United States Copyright Act affecting the compulsory license for making and distributing phonorecords of musical works (known as the “mechanical license.”)
    Those most affected: Songwriters.
    The response from songwriters: Crickets.
    What songwriters should do, immediately: Wake up and take action!
    The MMA was touted publicly as a long-overdue means for improving efficiency and fairness
    Continue Reading The Music Modernization Act HURTS Indie Songwriters