Author: Christine Farley

12

IP and Development

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Greetings from Namibia! (Do I win the contest for posting from the most far flung place?) I am in Namibia (of Brad & Angelina fame) for a conference organized by IIPI on “IP Used in Support of Culture Based Industries.” The main question being addressed is whether IP (especially copyright & trademark) can help improve the markets for African art. The problem is that although the US is the major market for African art, US consumers are not willing to pay enough for the art in order to support the communities that create it. Beautiful, hand-crafted pieces made of indigenous materials using ancient techniques are sold at bargain prices that reflect tiny sums paid to the artisans that created them. We buy these pieces at places like World Market because they look nice, but we learn nothing about their origin and significance. If that’s all we value why not buy even cheaper versions made in China? These artisans are hopeful that they can stop that type of competition by asserting IP rights in the art. Many obstacles exist of course, including the current absence of appropriate legal mechanisms and the fact that much art is already in the public domain. namibian art.pngBut the audience and participants at this conference were optimistic and very creative. One idea: could certification marks be used to prevent others from appropriating the terms used to describe the places and techniques used to create the art? Of course that won’t prevent others from copying the works; it just prevents them from using the terminology. It’s a start, but it will only be effective where it is accompanied by an education campaign about the art. The hope is that consumers will come to value the authentic, once they know what it is.

2

Matlock Needs CLE on IP

Andy%20Griffith%20wallpaper.jpgThe Washington Post has a story today about Andy Griffith suing a man who changed his name to Andy Griffith to run for sheriff. According to the Post (but one can never be sure because the press is always confusing IP laws), the famous Griffith is suing for trademark, copyright and right of privacy violations. Bad reporting or bad lawyering I say. Can’t see that any copyrights are involved. As to right of privacy, publicity seems a better choice. Privacy laws usually are more exacting in their requirement of use in advertising. But even right of publicity mandates commercial misappropriation. Assuming the candidate was advertising his candidacy and soliciting campaign contributions, does this use meet either threshold? Since his advertisements are not for a commercial venture and since his solicitation is not commercial in nature, I say no. This issue of whether or not a defendant’s use a trademark must be used commercially is currently hotly contested, with my vote and slightly more authority suggesting such a requirement. The one strong point the plaintiff has is the fact of a trademark in his name. I never did understand why a show about a sheriff named Andy Taylor was called “The Andy Griffith Show,” perhaps Griffith had prescient trademark lawyers at the time.

The Griffith formerly known as William Harold Fenrick admitted that he legally adopted the new name to create publicity to aid his race. The best laid plans…he came in third. Curiously, Andy of Mayberry in addition to damages and fees, is also asking the court to order the defendant’s name change. A court ordered “Opie” would sure send a message to would-be pirate sherrifs. Remedies experts, please weigh in.

7

Nazi Stolen Art Claims Pervade Record Auction

Welcome to the season of the major art auctions in New York. The New York Times (11/9/06) reported:

In a landmark sale, the biggest in auction history, nearly half a billion dollars’ worth of art changed hands last night at Christie’s sale of Impressionist and modern art. Soaring prices for blockbuster paintings by Klimt and Gauguin left thousands of spectators, who came to watch and to buy, gasping.

Not me. Instead I’m gasping at all the legal back stories involved in Wednesday night’s auction.

Picasso_angel_fernandez_de_soto.jpgThe most current one involved Christie’s lead item: Picasso’s “Portrait de Angel Fernandez de Soto” a.k.a. “The Absinthe Drinker.” On Monday, SDNY judge Jed Rakoff dismissed a suit brought against the auction house by an heir of a prominent Jewish Berlin banker who had owned the painting during WWII. The suit claimed title to the painting and sought its return or $60 million plus attorneys fees. Although Judge Rakoff ruled that the federal court had no jurisdiction over the matter, he hinted at his opinion on the merits stating, “I know that no one in the art world is just interested in money or in buying and selling paintings for profit. They’re guided by their belief in truth and beauty. But nevertheless, one might suspect that this is just a fight about money.” That suspicion was first raised by Christie’s who publicly questioned the motivation of the plaintiff in waiting 70 years to bring suit and then only days before this major auction. Christie’s attempted to take the high ground calling the plaintiff’s actions “a disservice to the restitution community.”

The painting has been owned by the foundation of Sir Andrew Lloyd Weber’s (of “Cats” fame) since 1995. According to the plaintiff, his ancestor consigned the painting to his Swiss art dealer who sold it in the last months of his life. Christie’s contends the painting was sold after his death, but argues that either way it was a legal sale. The plaintiff’s suit rests on his claim the sale of the painting was under duress by the Nazis; a so-called “forced sale.” In this case, it seems that the Nazis seized the banker’s assets thereby forcing him to sell the art in 1934 in a depressed Berlin art market. This set of facts departs slightly from successful forced-sale claims in which art was sold in “Jew auctions” where Jewish art dealers were prohibited from making sales other than through Nazi-organized art auctions.

The lawsuit was re-filed in New York State Supreme Court on Wednesday. Finally, just hours before the auction, Christie’s announced it was withdrawing the painting because “of eleventh-hour claims” that cast a “cloud of doubt” over title to the painting. The painting was estimated sale at $40 to $60 million. This means that if the painting were sold at say $50 million (all the other works sold exceeded their estimates), Christie’s lost $6 million, or its 12% commission (the lower commission charged for expensive works).

pAdele1.jpgAlso part of Wednesday’s auction were five Gustav Klimts that were the subject of a 2004 Supreme Court case, Austria v. Altmann, 541 U.S. 677. In that case, Adele Bloch-Bauer, the subject of one of the paintings, willed the paintings to the Austrian Museum upon her husband’s death. She died, the WWII ensued and the paintings were seized by the Nazis. After the war, her husband willed them to their nieces and nephews. The Supreme Court ruled that the 1976 Foreign Sovereign Immunities Act could be applied retroactively to Altmann’s case, thus paving the way for Altman to sue the Austrian Government in US Courts. In April of this year, the Austrian National Gallery was compelled by a national arbitration board to return the five paintings to Maria Altmann, the niece of the original owner. On Wednesday night, the portrait of Adele Bloch-Bauer sold for $87.9 million, a Klimt record and almost double its estimate. The room reportedly exploded in applause.

Still another work in Wednesday’s auction was the subject of a legal dispute. “Berliner Strassenszene” by Ernst Ludwig Kirchner was only recently was turned over to the heirs of Jewish shoe factory owner Alfred Hess by the Bruecke-Museum in Berlin, where it hung since 1980. In that dispute, Hess’ widow contended she was intimidated into bringing the painting back to Germany from safety in Switzerland.

6

Finally, Koons Won

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Some of the most wrong-headed copyright law was developed by Post-Pop artist Jeff Koons–-by losing. It all started with Rogers v. Koons and Judge Haight (no relation & I’d deny it if there were just based on this opinion). In that case commercial photographer Art Rogers (yes, his name is Art with a capital A) sued Koons for copying his photograph of a seated couple holding numerous puppies on their laps. Koons sent the photo (he found it on a greeting card) to a art studio in Italy with instructions to reproduce it in a sculpture. Judge Haight easily ruled that this was copyright infringement and the 2d Circuit affirmed. In two subsequent SDNY cases, Koons had Judge Haight’s reasoning thrown back at him. (In these cases the photographer of “Boys with Pig” and the copyright owner of Odie were victorious.) Given Koons’ string of losses, photographer Andrea Blanch must have thought she won the jackpot when she saw her work reproduced in his collage painting “Niagra.” I don’t mean to comment on her motives, but the copyright lawyer she consulted probably envisioned attorneys fees.

There’s much to comment on here, including what the opinion does to fair use doctrine (especially transformative use & the parody/satire dichotomy) and what it does to the law’s treatment of appropriation art. But since I’ve written about these cases before, I’ll confine my post to an analysis of why the court reached a different conclusion in this case. As I read the opinion, I kept wondering why earlier Koons courts could not have taken the same approach. Let me first set out what’s the same in these cases. Koons has stuck with the same lawyer throughout, all the litigation has been in the 2d Circuit (SDNY), and this plaintiff’s profile is similar to Art Rogers’.

Now for the differences: 1) Here the plaintiff’s photograph is an advertisement. While this should make no difference and while other successful plaintiffs have certainly made commercial use of their copyrighted works, I suggest this difference matters to the court. In both the district court and 2d circuit opinion, plaintiff’s photograph is characterized as not being creative. (This affects the analysis under FU factors 2 & 3.) And as an advertisement, these courts are able to easily contrast it’s objective and message with Koons’ objective and message, thereby aiding Koons’ argument that his use is “transformative.” 2)The court “gets” Koons’ work. In the 1st Koons case, Judge Haight’s lack of esteem for the artist pervades the opinion. (For instance, he remarks how Koons’ 1st career was as a commodities trader & how he hires other artists to make his work.) After that, the 2d Circuit and subsequent SDNY courts replayed that assesment without any further opportunity for Koons to explain his work. The district court in this case produced a short opinion heavy on block quotes, including many from Koons’ affidavit. Here, the 2d Circuit paints a different portrait of the artist and weaves his testimony into a coherent story of how fair use law enables just this kind of creativity by granting to artists access to “raw materials” such as Blanch’s photography.

In the end, justice was done here both to Jeff Koons and to the fair use doctrine. Unfortunately, the price of this legal success may be Koons’ status as bad boy of the art world. The doctrinal fit is so cosy that his work feels staid. It doesn’t push boundaries; it doesn’t piss off judges. His work is no longer illegal art, and, if we take him at his word that he’s created an entirely new work out of raw materials, it may not even be properly deemed appropriation art.

7

Whole Latte Trademark Trouble

Greetings from sunny Northwest DC! I’m a bit slow out of the gate as it’s taken me a couple of days to recover from Halloween. Here’s what I look like today; obviously slowly getting back to my old self.

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I thought I’d make my first post about a story that combines two topics about which I am obsessed: trademarks & coffee. It seems there’s a controversy brewing between Starbucks & the gov’t of Ethiopia over the designations of certain Ethiopian coffee beans. The short version: apparently Starbucks, through the a trade association it dominates, is opposing Ethiopia’s US trademark applications for SIDAMO & HARAR. (Ethiopia’s earlier trademark for YIRGHACHEFFE must have escaped notice.) The story was brought to light by Oxfam who is bitter over the action, which it says blocks Ethiopia and it’s poor farmers from annual revenues of $88 million. The thinking here is that control of the intellectual property connected with these famous coffee beans translates into increased revenues. Presumably, Starbucks’ Sidamo beans, which now sell for $10.45 a pound, would cost a little more due to trademark license fees, which would be passed on to Ethiopian farmers by their government.

The piece that doesn’t make sense to me is why Ethiopia is seeking trademarks rather than certification marks. Although this may seem a technical point, it relates to a global battle over the protection of geographical indications (GIs). The European view is that GIs are an important form of IP that protects things like champagne & feta. The US stance is that basic trademark law is more than enough protection. The US has been promoting certification marks, a type of mark protected under federal law, amongst developing countries (mostly through Free Trade Agreements) as a counter to the European model. HARAR would work as either a GI or a certification mark since the distinctive beans are associated with the Harar region. But as a trademark it has trouble because it may be understood less as a brand than as a type of bean. Whether a trademark or a certification mark, Starbucks would still have to license the use the word. I note that in an earlier proceeding in which Ethiopia challenged a Starbucks’ mark including Sidamo, Ethiopia similarly claimed previous use as a mark (since 1929). (Starbucks voluntarily abandoned that mark.) The certification mark strategy might save Ethiopia from a challenge that the term is generic since even Starbucks admits that Sidamo is the “birthplace of coffee.”

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I’ve put in a call to Ron Layton, founder of Light Years IP, who is advising Ethiopia on their strategy. I’ll report back any intelligence.

UPDATE 11/6/06

Today Starbucks has taken out a full-page ad in the New York Times defending itself from Oxfam’s attack. Last week Oxfam took out full-page ads in a few major west coast papers decrying Starbuck’s position on Ethiopia’s trademark strategy.