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					Law and the Visual Arts
Professor Alexandra Roosa 9/22

Romm Art Creations Ltd. v. Simcha International, Inc. 786 F. Supp. 1126 (E.D.N.Y 1992)
• TT seek to enjoin the manufacturing and selling of certain limited editions and fine art posters of artist-competitor. • TTs‟ allege: 1) Trade dress infringement under Lanham Act; 2) dilution of Tarkay trade dress in violation of NY Gen. Bus.Law 368 and common law;3)unfair competition and deceptive acts and trade practices in violation of NY Gen. Bus. Law 349

Romm Art Creations Ltd. v. Simcha International, Inc. 786 F. Supp. 1126 (E.D.N.Y 1992)
• Lanham Act provides civil redress to one damaged by unfair competition through false or misleading advertising and or/trademark or trade dress infringement. To succeed, TT must show Tarkay trade dress has acquired secondary meaning; 2) likelihood of confusion as to source of product • Cts. have long recognized that recovery is not restricted to federally registered trademarks, extends to words, symbols, collections of colors, designs, or adv. Materials or techniques.

Romm Art Creations Ltd. v. Simcha International, Inc. 786 F. Supp. 1126 (E.D.N.Y 1992)
• CT. confirms Magistrate Judge‟s finding that Tarkay met the criteria for an arbitrary or fanciful mark because it identifies the origin of the item; not functional. • TT then must also substantiate “likelihood of confusion” which is a demonstration of a “likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled or indeed simply confused, as to source of the goods in question.”

Romm Art Creations Ltd. v. Simcha International, Inc. 786 F. Supp. 1126 (E.D.N.Y 1992)
• Assessment of “POLAROID FACTORS” evidence, taken cumulatively, does allow an inference that there is some actual confusion as to source in the marketplace caused by similarity of the competing trade dresses, and the Court draws such an inference • Ct. finds that Defs. trade dress does create a likelihood of confusion for an appreciable number of consumers.

Potential Liabilities
• Certain legal protections can operate to limit the ability of an artist to depict certain images or to communicated harmful expressions. These limitations may affect the artist‟s work of art or they may restrict the marketing of the a finished work by the artist, gallery or museum.

Potential Liabilities
• Right of Publicity- area of law which protects the identity or persona of an individual from unauthorized commercial use (generally person‟s name, likeness, sometimes voice, signature, mannerisms, other identifying characteristics, or attributes) • Commercial use of individual‟s likeness may be actionable (even if underlying work is in public domain, person dead) • Remedies may include injunctive relief, as well as actual or statutory damages

Ali v. Playgirl, Inc. 447 F. Supp. 723 (S.D.N.Y. 1978)
• TT brought suit for alleged unauthorized printing, publication and distribution of an objectionable portrait of TT in issue of Playgirl. TT claimed his statutory “right to privacy” was violated. • TT's request for preliminary relief is granted, def. is enjoined from further distribution and dissemination of any copes of 1987 issue, shall not transfer or remove from juris. copies presently in custody or print. Plates or devices used to reproduce portrait…

• TT seeks damages and injunctive relief for violation of 990 and related business torts • Ct found for TT and awarded damages (Def‟s profits +atty fees), permanent injunction from violating use of statute (use of likeness). • Def. appealed -Ct. of Appeals struck injunction, upheld damages. Rejected Def.‟s argument that his conduct (1) did not violate the terms of the statute, and (2) in any event was protected by constitutional guaranty of freedom of speech.

Comedy III Productions, Inc, v. Gary Saderup, Inc. 21 P.3d 797 (Cal. 2001)

• Ct gives effect to plain meaning of statutemakes liable any person who without consent, uses a deceased personality‟s name, voice, photograph, either (1)”on or in” a product or (2) “advertising or selling” a product. • Ct. finds Def.‟s lithos, and t-shirts, are themselves tangible personal property, made as products to be sold, and thus Def. used likeness of 3 Stooges on products within the meaning of the statute.

Comedy III Productions, Inc, v. Gary Saderup, Inc. 21 P.3d 797 (Cal. 2001)

• Ct recognizes that a high degree of First Amendment protection is awarded for noncommercial speech about celebrities, but that it “need not conclude that all expression that trenches on the right of publicity receives such protection.” (needs social utility) • Ct follows those that have in “concluding that depictions of celebrities amounting to little more than the appropriation of the celebrity‟s economic value are not protected expression under the First Amendment.”

Comedy III Productions, Inc, v. Gary Saderup, Inc. 21 P.3d 797 (Cal. 2001)

• Ct notes that some commentators have proposed importing the fair use defense from copyright law to distinguish between protected and unprotected expression -- ct states that the first fair use factor “ purpose and character of use” particularly pertinent to tasks of reconciling the rights of free expression and publicity. • Question here -- is a product containing a celebrity‟s likeness so transformed that it has become primarily def.‟s own expression rather than the celebrity likeness?

Comedy III Productions, Inc, v. Gary Saderup, Inc. 21 P.3d 797 (Cal. 2001)

Comedy III Productions, Inc, v. Gary Saderup, Inc. 21 P.3d 797 (Cal. 2001)
• Ct can not discern any significant transformative or creative contribution, also notes that the marketability and economic value of def‟s. work derives primarily from fame of celebrities depicted. • Ct. finds that if def. wishes to depict 3 Stooges as he has done, he can only do so with right-of-publicity holder.

The Visual Artist and the Law of Defamation - Robert C. Lind
• Area of law is fairly complex, demanding elements of proof for TTs‟ as well as a number of defenses and constitutional protections afforded to defendants. • Law of defamation is traditionally comprised of two torts: libel and slander. Written, sculpted, printed or painted statement (libel)/ if spoken (slander) • To be successful, TT must prove 1) defamatory statement; 2) purported fact; 3) regarding the TT; 4) made by def.; 5) communicated to third person

Silberman v. Georges 456 N.Y.S.2d 395 (App.Div. 1982)
• Ct reversed, dismissed complaint on law. • Ct found that “statement made by def. in his obviously allegorical and symbolic painting was of one of critical opinion at most and constituting no accusation of criminal or antisocial conduct. • Ct found “further,the fair meaning of the picture does not exceed appropriate comment nor was there any showing of malice whatever.” TT not damaged in any way by def.‟s expression.

Andy Warhol for the Visual Arts, Inc. v. Federal Insurance Co. 189 F.3d 208 (2d Cir. 1999)
• Appeal deals with whether notice to an insurance carrier of liability claims made against its insured‟s was given as soon as practicable so as to trigger the company‟s obligation to provide coverage. • TT‟s seek judicial ruling on whether they are covered by carrier‟s policy for any liability that might be found against them in Dauman‟s and Time‟s copyright suit. Dist. Ct granted def‟s motion for summary judgment.

Andy Warhol for the Visual Arts, Inc. v. Federal Insurance Co. 189 F.3d 208 (2d Cir. 1999)
• App.Ct reverses, with respect to insurance coverage for the claims of Time • Ct‟s reasoning, if the language of an insurance contract is unambiguous we apply its terms, if amb., ct. looks outside the policy to extrinsic evidence, if any to ascertain intent of parties or if none, language should be construed with the reasonable expectations of the the insured when he entered contract.

Andy Warhol for the Visual Arts, Inc. v. Federal Insurance Co. 189 F.3d 208 (2d Cir. 1999)
• Central dispute is the meaning of the word “claim”, ct. finds policy ambiguous, applies definition gleaned from case law-for notice to be claim it must be made by party whose rights allegedly have been violated • CT finds that 1) tolling agmt. provides no indication that TT was aware of Time claim;2) Dauman‟s and Time‟s claims are not identical,3)policy does not provide that insured‟s failure to provide notice for one claim prohibits cov. for another if related to same wrongful act.

Selfick v. City of Chicago 485 F. Supp. 644 (N.D. Ill 1979)
• TT brought action challenging decision by Def. to revoke permission to display certain sculptures. HH alleges that permit revocation violated his freedom of speech rights as guaranteed by the 1st and 14th Amendment, seeks injunctive and monetary relief.

Selfick v. City of Chicago 485 F. Supp. 644 (N.D. Ill 1979)
• Ct. believes that the art form involved in this case constitutes speech within the meaning of the first amendment and thus is entitled to constitutional protection. Here, defs. have voluntarily provided a public forum and invited TT to display art at public facility. In doing so a “constitutionally protected interest” has been created.

Selfick v. City of Chicago 485 F. Supp. 644 (N.D. Ill 1979)
• Ct. also finds that Def.‟s decision to revoke was based predominantly on content. Was attempt to regulate content and must be judged under first amendment principles. • TT‟s sculpture is protected by 1st. Amendment. Defs. Revoked b/c of objection to social and political nature of work. • Ct. finds in favor of TT, Defs. Must exhibit TT‟s sculpture for 5 consecutive days, within next 60 days, with Defs. Notifying TT as to dates within 10 days.

City of Indio v. Arroyo 191 Cal. Rptr. 565 (ct. App.1983)
• App. Ct must consider whether provisions of the city of Indio‟s sign ordinance violate the 1st. Amendment and article I, sec. 2 of Cal. Constitution. • Sup. Ct. issued preliminary injunction finding the mural violated the city code. Ct. also held provisions of the sign ordinance were “neither overbroad nor uncertain”,”not unconst. on their face, nor as applied,” and do not interfere with Defs.‟ rights under 1st Amend. or Cal. Constitution.

City of Indio v. Arroyo 191 Cal. Rptr. 565 (ct. App.1983)
• Ct. concludes TT need not have any particular subjective intent in order to claim that the 1st Amendment protection. • Ord. reaches beyond permissible regulation of com. advs. and announce. to proscribe private efforts to relieve urban blight. Ct. holds its overbroad as applied to such murals.

• Ct also holds ordinance has procedural defects of constitutional dimension. • Statute found unconstitutional on its face, judgment against Defs. is reversed.

City of St. George v. Turner 813 P.2d 1188 (Utah App. 1991) aff‟d, 860 P.2d 929 (Utah 1993)
• Def. charged with violating St. George City Obscenity Ordinance. Jury found Turner guilty. Now appeals his conviction on the grounds that (1) the obscenity ordinance was unconstitutional as applied to him and (2) the ordinance is unconstitutionally vague and overbroad.

City of St. George v. Turner 813 P.2d 1188 (Utah App. 1991) aff‟d, 860 P.2d 929 (Utah 1993)
Ct cites Miller test: a) whether the average person, applying community stds. would find that work, taken as a whole, appeals to prurient interest; b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

City of St. George v. Turner 813 P.2d 1188 (Utah App. 1991) aff‟d, 860 P.2d 929 (Utah 1993)
• Ct. notes that statute or ordinance must be constitutionally explicit, and that the trial court has the responsibility to make a threshold determination as to whether the work depicts hard-core sexual conduct. • Ct. finds as a matter of law that these renderings are not “public portrayal(s) of hard-core sexual conduct for its own sake and for the ensuring commercial gain.” • Ct. also states that it cannot judge the drawings in isolation, but must view collage “taken as a whole.”(Miller)

City of St. George v. Turner 813 P.2d 1188 (Utah App. 1991) aff‟d, 860 P.2d 929 (Utah 1993)
• Ct. concludes as a matter of law that the drawings themselves do not appeal to prurient interest and are not patently offensive, and because the drawings rationally relate to the rest of collage, which taken as a whole is not patently offensive and does not appeal to prurient interest, drawings are not in violation of St. George ordinance.

Ashcroft v. Free Speech Coalition 122 S. Ct. 1389 (2002)
• Sup. Ct considers whether the Child Pornography Prevention Act of 1996 (CPPA) abridges the freedom of speech. Specifically, whether CPAA is constitutional where it proscribes a significant universe of speech that is neither obscene under Miller nor child pornography under Ferber.

Ashcroft v. Free Speech Coalition 122 S. Ct. 1389 (2002)
• Dist. Ct granted summary judgment to Govn., dismissing the overbreadth claim b/c it was “highly unlikely” that any “adaptations of sexual work like „Romeo and Juliet‟ will be treated as “criminal contraband.” • App. Ct reversed. Ct reasoned 1) Govn. could not prohibit speech b/c of tendency to persu. viewers to commit illegal acts. CPPA substantially overbroad- b/c it bans materials that are neither obscene nor produced by the exploitation of children re Ferber.

Ashcroft v. Free Speech Coalition 122 S. Ct. 1389 (2002)
• Ct notes that freedom of speech has its limits, but while these categories can be prohibited without violating 1st Am., none of them include speech prohibited by CPPA. Under CPPA, work need not appeal to prurient interest, be patently offensive, or lack serious literary, artistic, political or scientific value to be prohibited.

Ashcroft v. Free Speech Coalition 122 S. Ct. 1389 (2002)


				
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