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Adverse Possession of Art
Get PDFSome cases and commentators have argued that the doctrine of adverse possession, which gives title to a long-term possessor of property, should not be applied to personal property, especially art. This Article concludes that it is impossible to determine whether adverse possession applies to personalty in California. It then looks at the doctrine, policy, and practicalities of the statute of limitations, laches, and adverse possession, focusing on the practical effect of the increased cost of litigation. It concludes that most objections to applying adverse possession to personalty are, in fact, objections to barring the claiming owner through the statute of limitations. As a theoretical matter, once suit is barred by the statute of limitations, the application of adverse possession is appropriate, but adverse possession seems less important to successful litigants for personal property than it does for realty because there are few effective gatekeepers for personalty
The Five-Factor Framework: A New Approach to Analyzing Public Benefits in Fair Use Cases
Get PDFFair use is among “the most troublesome [doctrines] in the whole law of copyright.” Despite being one of the primary defenses against a claim of copyright infringement, the doctrine is confusingly unpredictable, providing copyright users little ex ante certainty about the lawfulness of their actions. Unfortunately, the Supreme Court’s latest fair use pronouncement may only further muddle the doctrine.
In Google, LLC v. Oracle America, Inc., the Supreme Court accepted Google’s fair use defense for its appropriation of Oracle’s copyrighted code. In reaching that conclusion, Justice Breyer made a few unusual moves in his majority opinion. First, he “sidestep[ped]” the threshold question of the allegedly copyrighted work’s copyrightability. Second, he contemplated the four fair use factors out of their statutory order. Finally, his analysis of the fourth factor incorporated public benefits as an unconventional market effect. This Note argues that, of these jurisprudential choices, the last—explicit recognition of public benefits’ relevance to fair use—is likely to have an outsize impact on future cases. It further contends that Justice Breyer’s method for incorporating public benefits will negatively affect the clarity and transparency of these future fair use decisions. Public benefits are relevant to courts’ ultimate equitable fair use decisions, but courts must nevertheless accord the statutory considerations their due weight by engaging in the focused, factor-by-factor discussions of them that Congress provided for.
While the public may benefit from a challenged use, “public benefits”—as Justice Breyer used the term—do not bear on the fourth fair use factor as codified by Congress. The fourth factor directs courts to consider “the effect of the use upon the potential market for or value of the copyrighted work.” Courts analyze this factor by investigating whether the use usurps the original work’s primary market or licensing opportunities, as well as whether the use creates a new market for the original work. “Public benefits,” meanwhile, represent non-competitive contributions to social welfare. Public benefits may include facilitating access to copyrighted works (through providing access to new users or making already-authorized users’ access more efficient); supporting the challenged user’s broader, public-oriented goals; or “promot[ing] or . . . protect[ing] the creative process.” In Oracle, the challenged use facilitated third parties’ creation of new copyright-eligible works. In any given case, therefore, public benefits represent externalities that the public is set to receive notwithstanding the challenged use’s effect on the original author’s incentives to create or its own creative expression. Justice Breyer’s public benefits analysis—necessary though it is to resolving fair use cases equitably—therefore departed from the fourth factor’s ambit. If lower courts follow his lead, the relevance of fair use’s statutory language will decrease. And if the statutory framework stops guiding fair use analysis, copyright owners and users will face greater uncertainty when predicting whether any given use will be fair, for they will no longer have a means to predict courts’ methodologies, let alone what decisions will issue.
Fair use requires contextual analysis within a standardized and coherent framework. To produce greater transparency and predictability, this Note proposes reorganizing fair use analysis to isolate and incorporate public benefits as a fifth factor. Part I uses a potted history of fair use to argue that the defense exists to ensure the public reaps the maximum benefits from copyrighted works. Part II contends that existing approaches to fair use fail to adequately value public benefits deriving from challenged uses of copyrighted works. Part III proposes the five-factor framework, whereby courts would investigate public benefits as a fifth factor and then incorporate their findings into fair use’s ultimate holistic balancing. Finally, Part IV applies the new framework to Oracle to demonstrate the virtues of clearer reasoning
Fair Use in the Rag Trade: In Defense of the Fashion Industry’s Casual Appropriation of Artwork
Get PDFThroughout history, the concept of appropriation has been understood as an act by which an interloper takes the work of another without consent and uses it for a different, typically self-serving, purpose. This concept, however, has become increasingly misapplied by courts in the context of art, and is particularly flawed when applied to fashion art. Recent federal case law purporting to clarify the appropriation doctrine for the art world has only served to muddle it further, as judges have struggled to make determinations on issues of artistry. As such, the existing rules are not only muddy, but also specious, when related to fashion. This Article analyzes the weaknesses in the current judicial framework governing art appropriation and demonstrates why the existing framework should not apply to fashion as a unique and transformative form of art.
When France and parts of Italy banned Marithé+François Girbaud’s appropriation of Leonardo da Vinci’s “Last Supper” in its advertising campaign (Figure 1), it was not because of any ostensible copyright violation. Rather, the advertisements were banned because they made offensive use of religious symbolism. While Marithé+François Girbaud argued that the female version of the fresco showed “the place of women in society today, which is a reflection of our changing values,” a French judge ruled that it presented “a gratuitous and aggressive act of intrusion of people’s innermost beliefs.” Apparently everyone forgot that the advertisement was based on a painting, and not the Bible. No one seemed to care about whether the advertisement was a transgression against da Vinci. In fact, one might recognize the piece as an extraordinary transformation of his work.
In the same vein, there were no concerns about copyright infringement when Yves St. Laurent appropriated Piet Mondrian in creating his iconic Mondrian dress (Figure 2). This is because art appropriation is recognized as a valid, and valuable, artistic endeavor itself. Respected appropriation artists such as Andy Warhol, Sherrie Levine, and Richard Prince have created famously provocative works of art by using the work of others. Many in the fashion industry likewise embrace art appropriation in their own works, as well as in the advertising of them (Figure 3).
As discussed more thoroughly in Part I of this Article, fashion itself is art, and fashion artists have created truly remarkable pieces by appropriating others’ artworks. Take, for example, L’Wren Scott’s transformation of Gustav Klimt’s Hygieia (Figure 4). Scott appropriated the original work from a fragment of Klimt’s painting, Medicine, which is one of a series of paintings on the ceiling of University of Vienna’s Great Hall. The splendor of this artistic appropriation is undeniable.
Lately, however, United States federal courts have sought to limit art appropriation. Recent rulings from within the United States Court of Appeals for the Second Circuit (“Second Circuit”) have prohibited artists such as Richard Prince and the foundation representing Andy Warhol from using the fair use defense to claims of appropriation, or more specifically, copyright infringement. By rendering artists’ works indefensible as such, courts threaten to stifle artistic creation, including beautifully inspired fashion works like those created by L’Wren Scott. These rulings may create a chilling effect on the fashion industry and would deny the world the benefit of some of the most superb works of art that fashion artists create.
In this Article, I will argue that the existing legal framework governing art appropriation is overly restrictive and should be relaxed, particularly as applied to the fashion industry. The increasingly prohibitive common law governing the fair use doctrine is contrary to public policy intended to support the continuing inspiration of artists in our society, as specifically charged by the United States Constitution. Accordingly, Part I of this Article demonstrates that fashion is art, both culturally and legally. In the same vein, Part II illustrates how fashion has historically made uniquely transformative creations when borrowing from other works of art which, as explained in Part III, must be supported. In Part III, I examine the legal framework surrounding copyright law and the right artists have to use others’ works fairly. I conclude with a discussion of the fair use doctrine as applied to fashion in Part IV and entreat courts to recognize the inherently transformative nature of appropriative fashion. Courts should interpret the fashion industry’s right to fair use liberally, so as to follow, rather than thwart, the directive of the United States Constitution to “promote the Progress of . . . Art[].
Satan Shoes or Satan Speech? Balancing Trademark and First Amendment Rights in the Altered Authentic Goods Context
Get PDFIn March 2021, art collective MSCHF released 666 pairs of radically altered Nike Air Max 97 sneakers on its website, christening them “Satan Shoes.” The sneakers were updated from their original form to include a pentagram charm hanging from the laces and a citation to “Luke 10:18” printed on the mudguards. MSCHF employees allegedly mixed their own blood with red ink and injected the combination into the shoes’ midsoles. A small black loop of fabric featuring an upside-down cross extended from the shoes’ tongues, and each shoe was individually numbered out of 666 above the heel. The Satan Shoes—arguably more artistic expression than consumer good after undergoing these devilish alterations—invite the question: Do artists who redesign authentic goods bearing famous trademarks and re-sell those goods to consumers violate the Trademark Act of 1946 (“the Lanham Act”)? If so, can they assert a First Amendment defense?
“Internet mischief maker” Gabriel Whaley founded MSCHF in 2016 as “a creative studio that makes internet to tell stories,” and the collective’s work has been compared to the work of prolific artists like Banksy, Warhol, and Duchamp. Every two weeks, MSCHF “drops” new art on its website. CNN referred to the collective as “the master of releasing products that nobody really needs, but everyone absolutely wants.” Previous drops have included works like the Cuss Collar, a dog collar that swears whenever the dog wearing it barks and a weekly newsletter filled with “unhinged” email chains called Boomer Email. Many of MSCHF’s drops make pointed political and social commentary. For instance, MSCHF offers a Guns to Swords program that promises to buy people’s guns, melt them down into swords, and send the swords back to the former-guns’ owners. In its Medical Bill Art drop, MSCHF made paintings out of three medical bills, sold them for 1,018 per pair within one minute of their release. Nike sued MSCHF in the Eastern District of New York (EDNY) on March 29, alleging trademark infringement, false designation of origin, unfair competition, and trademark dilution under the Lanham Act, as well as common law trademark infringement and unfair competition. By April 7, the parties had settled, but not before Nike secured a temporary restraining order against MSCHF.
MSCHF does not fit the image of a typical counterfeiter. The Satan Shoes are not counterfeits or knockoffs and MSCHF is not trying to pass them off as authentic Nikes because they are authentic Nikes. MSCHF describes itself as an “art collective,” and sometimes refers to its work as “performance art.” In other words, MSCHF had a unique opportunity to argue that in creating the Satan Shoes it sought to create works of art that comment upon Nike and collaboration culture rather than a product that would freeride off of Nike’s goodwill and reputation. That is exactly what MSCHF argued before it settled.
Whether the Satan Shoes are more akin to Medical Bill Art’s impactful artistic commentary or more like the Cuss Collar, an entertaining consumer product, is an intellectually valuable debate not only for cultural critics but also for the legal world. This Note will argue that authentic goods that are altered post-sale and resold primarily as works of artistic expression to sophisticated consumers should be protected by the First Amendment. In doing so, this Note will offer courts a framework for analyzing whether an altered authentic good should qualify for a First Amendment defense by determining whether the good functions more like a competing consumer product or a work of artistic expression in the marketplace. Part I of this Note will provide an overview of the relevant trademark law. Part II will discuss the legal problems posed by cases involving modified authentic goods that function like art, and the lack of relevant defenses for trademark use in that context. Part III proposes considerations for courts seeking to balance trademark owners’ rights with the rights of the public to sell modified authentic goods as artistic expression. Part III also provides business considerations for those seeking to modify and resell authentic goods
Sedating Democracy’s Watchdogs: Critical Reflections on Canada’s Proposed Online News Act
Get PDFIn April 2022, the Government of Canada introduced Bill C-18 (the Online News Act). This Bill is one of the recent attempts by governments in several countries to address a perceived crisis-level disruption to newspapers’ finances by requiring internet platform operators to pay for newspapers’ content displayed on their platforms. As of the writing of these comments, the Bill has passed the third reading at the House of Commons and is now awaiting review and voting by the Senate.
The stated purpose of Bill C-18 is “to regulate digital news intermediaries with a view to enhancing fairness in the Canadian digital news marketplace and contributing to its sustainability, including the sustainability of news businesses in Canada, in both the non-profit and for-profits sectors, including independent local ones.” It seeks to accomplish this goal by “establish[ing] a framework through which digital news intermediary operators and news businesses may enter into agreements respecting news content that is made available by digital news intermediaries.”
The key element of Bill C-18 is empowering an “eligible news business” or “group of eligible news businesses” to initiate a regulated bargaining process (either individually or collectively) with an “operator” of a “digital news intermediary” and imposing a corresponding duty on such operator to participate in the process, coupled with a duty on all participants to bargain in good faith. The bargaining process consists of three steps. It begins with bargaining sessions. If the parties are unable within a reasonable period to reach an agreement in the bargaining sessions, they enter mediation sessions, and if the mediation sessions do not result in an agreement within a reasonable period, then either party may initiate final offer arbitration.
The underlying assumption behind the proposed legislation is that fundamental unfairness exists in the relationships between news publishers and internet platforms. Essentially, the Bill’s animating narrative draws a connection between newspapers’ declining revenue (both from advertising and from readers’ subscriptions), the growth of digital advertising and of Google’s and Facebook’s dominance thereof, and the fact that newspapers’ content can be accessed freely via Google News or Facebook users’ postings. The logic runs as follows: By providing links to newspapers’ stories, Google and Facebook freeride on that content to attract readers to their platforms (and away from newspapers). As readers have migrated, so have advertisers. Faced with dwindling advertising revenue and confronting platforms with unmatched bargaining power, newspapers have no choice but to acquiesce to the sharing of their stories through these platforms because without readers’ traffic to their websites, they would lose even more advertisers. Hence not only the need to force platforms into a negotiation process that could result in payment obligations imposed on them through mandatory arbitration but also the need to allow newspaper publishers to bargain collectively.
In the following comments, I wish first to question the logic behind the proposed legislation and then to highlight and discuss three noteworthy elements of Bill C-18: (1) how it relates to and departs from copyright (and how it contemplates payments for actions and in circumstances that exceed news publishers’ entitlements under the Copyright Act); (2) the difference between collective administration of copyright and the Bill C-18’s collective bargaining model; and (3) the sweeping immunity from scrutiny under the Competition Act afforded to such collective bargaining. Finally, I will share my biggest concern about Bill C-18’s proposed solution: its sedating impact on the watchdog role of the press
How Pre-Service Teachers Define “Good” Mathematics Teaching and Learning
No full textMathematics self-efficacy (beliefs about oneself as a learner of mathematics) and mathematics teaching efficacy (beliefs about oneself as a mathematics teacher) are important constructs that influence pre-service teachers’ (PTs’) learning and teaching (Bandura 1986). However, less is known qualitatively about how PTs define good teaching and learning when they make efficacy judgments such as, “I am good at learning mathematics” or “I am good at teaching mathematics.” This qualitative case study used journaling to examine 23 elementary PTs’ definitions of being good at doing and teaching mathematics. Our findings suggest PTs define being good at mathematics in a variety of ways, including receiving good grades, being fluid (quickly and successfully doing procedures), and having the ability to apply mathematics to new contexts. PTs also held a variety of definitions of good mathematics teaching, including focusing on student understanding, using group work and manipulatives, and having passion. These results have implications for researchers studying self-efficacy and teaching efficacy as well as for teacher educators hoping to engage PTs fully in their classrooms
Fatwās on Jihād from Premodern Morocco: Introduction and Critical Edition of an Excerpt from al-Zayyātī’s Selected Jewels
No full textThis article provides an Arabic critical edition of one section of an important but unpublished source for the history of late fifteenth-century Morocco: al-Jawāhir al-mukhtāra fī-mā waqaftu ʿalayhi min al-nawāzil bi-Jibāl Ghumāra (Selected jewels: Legal cases I encountered in the Ghumāra Mountains) by the Mālikī jurist ʿAbd al-ʿAzīz b. al-Ḥasan al-Zayyātī (d. 1055/1645). Although this multivolume collection of legal opinions (fatwās) was compiled in the mid-seventeenth century, it includes numerous fatwās from the fifteenth century onward that do not appear in earlier works, including Aḥmad al-Wansharīsī’s (d. 914/1508) famous collection of fatwās, al-Miʿyār al-muʿrib. This excerpt from the chapter on jihād sheds substantial light on Maghribī legal responses to the Portuguese occupation of Moroccan ports beginning in the fifteenth century. An introduction to the Arabic edition explains the importance of this period and offers an English summary of the Arabic text
