Category: Legal

Banana Fanna Faux

Google Velvet

It’s complicated.

In 1966, when, then producer and manager, Andy Warhol created and signed the now famous banana graphic for the Velvet Underground’s debut album, copyright laws were different. An unregistered copyright could result in a loss of copy rights. Apparently by the time the album, The Velvet Underground & Nico appeared in 1977, Andy Warhol who never did register the logo, did not hold intellectual property rights to it.

What is more, he was paid for the design by the record label, which can mean that the banana was actually a work for hire. In that case, the copyright would have belonged to the Velvet Undergound’s label. But they never registered it either.

Although they disbanded in 1972, Lou Reed and John Cale say they have continuously used Warhol’s banana in marketing and promotion for various VU brand items and to promote their 1989 re-union tour and record, Songs for Drella, (their tribute to Warhol). This means that they may hold a common law trademark.

Indeed, Reed/Cale claim the image is indelibly attached to the band’s brand and is instantly recognized by the public to be an imprimatur of the Velvet Underground.
According to the band:

“The symbol has become so identified with The Velvet Underground … that members of the public, particularly those who listen to rock music, immediately recognize the banana design as the symbol of The Velvet Underground”

Their current trademark and unfair competition lawsuit against the Andy Warhol Foundation for the Arts (AWF), filed on Jan 11, 2012, accuses them of illegally leveraging copy rights to the image by licensing it to third parties (Apple, for one) “in a manner likely to cause confusion or mistake as to the association of Velvet Underground with the goods sold in commerce by such third parties.”

The AWF never registered the banana either. And since they have published the image many times without any official right to it, Reed/Cale claim that the AWF have “no copyright interest” in the banana, and that it is, in fact, in the public domain.

Suggesting that, with so many graphics to choose from, The Andy Warhol Foundation can only be using the banana to capitalize on its association with The Velvet Underground, the band is seeking an injunction against the AWF, to force them to cease licensing it to third parties. Reed/Cale are also demanding “unspecified damages” and a share of the profits made by the AWF from any past or ongoing licensing deals.

The suit also demands a declaration that the Warhol Foundation has no copyright interest in the banana.

Banana Fanna Faux answers questions first asked by TAM in When Is a Banana Not a Banana?

When is a Banana Not a Banana?

When it’s a trademark.

On January 13, 1966, Andy Warhol pulled out all the stops for his debut of The Exploding Plastic Inevitable, a series of events featuring his films, and performances from Factory Super Stars. Performing at “Uptight” the opening event which took place at the New York Society of Clinical Psychiatry, a new band, The Velvet Underground were instantly made by the Warhol star-maker machinery.

Taking the band under his wing, Andy Warhol produced their first album pressed in 1967, The Velvet Underground & Nico, for which he also created and signed the now famous banana graphic. Though the band broke up in 1972, Lou Reed and John Cale have, they say, continuously used this image in marketing and promotion for 25 years, most recently to promote a1989 re-union tour and record, Songs for Drella, which they made in tribute to Warhol.

Is this The Velvet Underground's trademark.

On Jan 11, 2012, The Velvet Underground filed a suit against the Andy Warhol Foundation for the Arts (AWF), essentially the Warhol estate, accusing them of illegally leveraging copy rights to the image which they never registered officially, and of licensing it to third parties “in a manner likely to cause confusion or mistake as to the association of Velvet Underground with the goods sold in commerce by such third parties.”

Suggesting that, with so many graphics to choose from, The Andy Warhol Foundation can only be using the banana to capitalize on its association with The Velvet Underground, the band seeks an injunction against the AWF, to make them stop licensing the banana to third parties. They also demand a declaration that the Warhol Foundation has no copyright interest in the design, are demanding “unspecified damages”, and a share of the profits made by the Warhol Foundation from any licensing deals.

“The symbol has become so identified with The Velvet Underground … that members of the public, particularly those who listen to rock music, immediately recognize the banana design as the symbol of The Velvet Underground,” say the plaintiffs who are claiming a trademark on the image.

A pop-culture savvy friend of mine begs to differ. Social media consultant, Nichelle Stephens says, “There are two whole generations that would disagree. Gen Ys and Millennials don’t even think about album art anymore. They’d just think it’s a Warhol.

Also curious is the claim that the AWF have “no copyright interest” in the banana. Apparently the claim by Reed/Cale is that since Warhol never obtained a formal copyright got the graphic, and subsequently the AWF published the image many times, it is “in the public domain.”

Now, I’m left with many questions which I plan to answer in a follow up…

Doesn’t the artist own the copyright whether they registered it or not?
And doesn’t a copyright hold for the lifetime of the artist +75 years?
And wouldn’t that copyright go to the artist’s heirs, again, whether registered or not?
And if the heirs were using the image simultaneously with someone else, couldn’t they retain trademark rights if their use were equal to the others?

On the other hand, if a copyright is never claimed but the art has been gifted to a record company or a band, or, maybe was a ‘work for hire’ then wouldn’t the copyright belong to the beneficiary or employer?

And one more question: can one claim a trademark on an image they never registered, and that has been in the public domain?

I’m confused as to why no reports thus far address these questions. I plan to.

Some Answers: Banana Fanna Faux

Will Round Two of Cariou v Prince Change Art Law Forever?


You're going to see a lot of this guy -from Patrick Cariou's Yes Rasta

Go ahead, expect more of these sweaty headlines with question marks in them. Because, with the now rather infamous Cariou v Prince case up for appeal sometime this year, we are facing another deluge of half-informed, and angrily contentious, punditry which will wash over the raw, dry, factual sands of more professional reports like a tsunami of histrionics.

Drowning in the madness will be all those bleeding hearts who root for the little guy, and the sundry art world know-it-alls who root for controversy, along with the fastidious fence straddlers like myself who can’t do right by anyone — and, let us not forget, the stalwart naifs who insist on seeing appropriation as flat out theft.

In the background, lawyers toil away, building sand castles of the driest, rawest, facts they can muster.

It is no wonder that the case has captured the attention of so many. It involves a lot of money, after all, and it pits an underdog, Patrick Cariou, against an art star, Richard Prince, and his giant posse of star-makers and lawyers. It also comes after artists had become cocky, with most copyright infringement cases settling without trial, and often to the mutual benefit of defendants and plaintiffs.

At base the issue is this: Richard Prince’s team must prove that district court judge Deborah A. Batts ruled in error when she decided against Prince’s fair use claim. Patrick Cariou’s lawyer, Dan Brooks, must argue that the ruling did, in fact, use the correct legal standard.

Brooks will file his opening brief by January 25th. Faced with the formidable 135 page appeal filed on Oct. 26, 2011 by big guns Boies, Schiller & Flexner, and a nearly 50 page amicus brief filed on behalf of Richard Prince by the Andy Warhol foundation, plus similar briefs from Google and a consortium of museums (including The Metropolitan Museum of Art, The Museum of Modern Art and The Art Institute of Chicago), Brooks will have to answer five newly refined points of contention.

  1. That contrary to the first circuit court’s decision, the Canal Zone works that use Cariou’s photos are indeed transformative in every sense established by art history and accepted artistic practice and constitute a fair use of those images.
  2. That Prince’s “intentions” do not factor into the meaning that his work may or may not have since it is the viewer and the context of a work that give it its meaning.
  3. That contrary to testimony, Cariou did not lose any marketing opportunities due to Prince’s use of his images; indeed, his lawyers argue, his book prices soared after the initial bout of litigation.
  4. That the first circuit decision, if upheld, will create a “chilling effect” on future creative work, and thereby will override the very purpose of the fair use exception which is intended to protect free speech and works of social value.
  5. That, in the Batts decision to protect the copyright holder, Patrick Cariou, the rights of the appropriation artist, Richard Prince were unduly impeded, as her ruling overreached in lumping all of the thirty paintings under one ruling.

In Part One of this Three Part series, I set up a virtual dialogue between Dan Brooks (Schnader Harrison Segal & Lewis LLP.), Patrick Cariou’s lawyer and Anthony Falzone, executive director of the Fair Use Project and a Lecturer in Law at Stanford Law School.

In Part Two, I will discuss the five points above in greater detail. In Part 3, I will part the waters.

Read the rest and look forward to Parts TWO and THREE on Hyperallergic

IP Law and the Art of Analogy?

Left to right: Claudia Ray (Goose), Virgina Rutledge (Egg), Anthony Falzone; Center bottom image: "Smokin’ Joe Ain’t Jemama" in Hank Willis Thomas's "Unbranded,'' (1978/2006) from the book ''Pitch Blackness'' (Aperture, 2008) (graphic by the author for Hyperallergic)

The New York City Bar Association’s “What We Talk About When We Talk About Appropriation: Contemporary Art After Cariou v. Prince” was, as billed, “a frank discussion of fair use and artistic practice.” And it was, indeed, frank, with all six panelists speaking plainly and tough audience questions encouraged. But it was also, clouded and meandering, the way that all intellectual property discussions are.

For those who may need a refresher, Cariou v Prince, involved photographer Patrick Cariou who sued Richard Prince (the grandaddy of appropriation art, most famous for his re-photographs of cowboys and cigarette ads) for copping a wanton number of photographs from Cariou’s published collection, Yes, Rasta. Prince lost the first round and an appeal is pending.

What captured the art world’s attention, and sharpened thee focus of intellectual property (IP) law experts was the tsunami of speculation that followed the court’s very harsh decision against Prince in which he was ordered to hand over the contentious works to Cariou and to notify all current owners of the essentially cancelled series.

Was this a turning point? Would it have a chilling effect on appropriation art? What was governing these decisions? Were they out of control?

Read More on Hyperallergic

Olek’s Appeal Verified by My Interview with Jonathan LeVine

JON_LEVINE_120_FPAGE-590x258

“The charges are not that serious. In NY it would have been a really minor incident.”

When I decided to phone the Jonathan LeVine gallery which represents Olek, I knew that they would have been fielding calls all day. Since word had gone live via the Jerry Saltz page on Facebook, three or four articles, including my own, had hit the air overnight. But Jonathan LeVine took my call. It felt good to have an opportunity once and for all to clear up all the doubt, and also to learn where Olek’s representation was in all this.

What follows is a transcript of our phone conversation:

TAM: Did Olek call you right away after the incident happened?
JL: I think I learned about it pretty quickly after it happened. After she got out of jail.

TAM: So when she called you, was she distraught?
JL: No I haven’t spoken to her on the phone. It’s all through e-mail.

TAM: Oh. Hmmm. I see. So you’ve never spoken to her on the phone.
JL: No, I haven’t spoken to her on the phone.But we’re in contact with her all the time. We just represented her in a fair. I mean, she just signed a bunch of prints for us so it’s — it’s definitely her that I’m in contact with if that’s the question.

TAM: [Laughing]Yeah, well that is DEFinitely the question.”
JL: [Laughing] Well it’s definitely her.

TAM: It’s the question that’s on top of everybody’s minds.
JL: This isn’t a hoax. I mean it’s legitimate. And she doesn’t have money and it’s very expensive to deal with the attorney.

TAM: Right. But people are confused, like about how she was able to set up that page which they think looks very elaborate — it has a bunch of links for PayPal and stuff like that— Did anyone advise her that this might not look good?
JL: Well, initially — this conversation was going on for a while– and her attorney was saying that maybe — she shouldn’t say much about it. So her attorney advised her not to  do it. But she didn’t have any other way so her attorney said okay you can do this.

TAM: Do you have any details of her case that she’s not put online?
JL: No. I mean I can’t say anything. I can’ t say anything more than she said about it.

TAM: So you KNOW more you just can’t SAY more.
JL: That’s correct.

TAM: So you are clear about the incident and how it linked to her arrest.
JL: Yes. Yes I am. As a matter of fact I helped her find her attorney through some of my contacts in England.

TAM: So is there a fundraiser maybe coming up?
JL: You know hadn’t actually thought about that. Because this thing initially–we weren’t supposed to talk about it so– it wasn’t even until last night that she posted it.

She was debating about whether she was going to make it live or not. So I guess it went live last night. I come in today and have a whole bunch of people calling me.

TAM: Well it went live last night because it kind of went live on Jerry Saltz’s page.
JL: Yes. That’s right.

I think we’re probably going to give it a couple more days. You know. See what goes on   before I start talking about that–because it just went live and I want to see what happens. And also we need time for a little organization to put togther a fundrasier. I’m not opposed to it at all. Someone asked about it on Facebook and I hadn’t really thouhyt about it all because this all just happened [snaps fingrs] just like that.

I’m just going on the advice of what she tells me to do and what her attorney is telling her to do.

TAM: Right. Well, just now I e-mailed her and she just said I’m tired of this and if people don’t believe me then they can’t help me. But I really think that people are so used to being scammed and this sounds so much like a million of them.
JL: Sure.

TAM: Really and people can’t help but want the details.
JL: Sure….

TAM: And they also want to know who they’re defending.  I mean if the charges are that serious…you know then—
JL: I don’t think that the charges are that serious…but I just think that she was just treated in a certain way.

And in New York, I feel that it would have been a really minor incident. And for whatever reason it turned into something bigger than maybe it should have.

TAM: Wow. That’s horrible for her.
JL: It is. It is pretty horrible. It’s kind of a messed up situation. I really — I don’t  want to say too much because I can’t.

TAM: Right okay… is there anything else, when I write this story up, that you’d like to put out there to clear things up?
JL: “I would just say that it’s legitimate. And she’s just in a situation that’s unfortunate. I guess what happened is she didn’t have any contacts there and so she didn’t have an attorney to call and she didn’t have money for that either so I guess she just ended up with just what was given to her.

TAM: So why didn’t she have any contacts? Is Olek that much of a loner?
JL: Well, if you’re in England and you get arrested…and she lives in the US she’s Polish. I don’t even know if she’s been there before. She doesn’t know a lot of people there. And at first maybe she thought is wasn’t going to be that serious either.

TAM: Right. And did they take her cell phone away?”
JL:  I don’ know what they did. I don’t know anything about getting arrested in England.

I can’t really speak for her because I didn’t ask her any of these questions. I didn’t like interrogate her to see what the hell happened. You know it’s more like ‘this is what happened, this is the situation’  ‘oh okay ’ —So I immediately contacted somebody that I know that helped her find a suitable attorney.

TAM: Right I see.
JL: And that’s where she’s at right now

TAM: Well, Jonathan, thank you so much. This has actually cleared up — well, a LITTLE bit …[laughing] it’s still a mystery.
JL: I’m sorry I can’t give you any more information. But I can say that it s legitimate. I can say that here it would have been something minor but –you know– she got a bad attorney and now she is in a situation.

TAM: And is it safe to say that you’re still talking to her about this and about when you can release information?
JL: Yes. Absolutely.

++++++++++++++++++++++++++++++++++++
Postscripts:

The Jonathan LeVine Gallery has posted Olek’s appeal on its site

Updates Regarding Charges and Trial Date

New York artist, Olek detained in U.K.

An Olek installation; it is featured at the top of her Appeal page

On Sunday, December 11th, I, and many other people, got a message on Facebook from the artist, Olek. Famed for her crocheted art, she has recently become very well known for covering the Wall Street Bull and the Astor Place cubes in her signature pink and purple loops. I had friended her a while back and subsequently have shown a video of her Working Woman in Red performance piece in two shows.

In a characteristically bland way, Olek wished us all a happy holiday and also requested that we help her “fight for her freedom.”

Here’s what she wrote

I wish you a great Holiday season this year. I will be spending it in the Crown Court in London fighting for my freedom. here are the details: http://www.olekappeal.com/
password:london

I wish I could explain more… but my lawyer gave me an advice not to say too much at this point. I tried everything… public solicitors, US embassy, friends of friends and this is the best solution. To fight it, i need your help. Buck after buck will rescue me from this misery. Pls, consider supporting me…. I do need help from every single person who ever seen my work… to be able to produce even more.

thank you and I do appreciate your help

buzi buzi
Olek

ps. do not post it anywhere

Olek’s appeal | Olek needs your help
www.olekappeal.com

I had, a few days prior received a similar e-mail but had dismissed it as obvious spam. We’ve all seen those badly written notes from “friends” of ours who suddenly need help. I simply trashed it.

But I have to admit, it stayed on my mind.

It had only been a week since I’d gotten an e-mail from her asking me to hang on to a piece of art she’d had in one of my shows. She asked if I could keep it for “two months” –a request that is not usual at all. Usually artists are eager to have their work back after a show.

I’d found it odd but shrugged it off.

The Facebook message gave me pause. So I wrote to her, not at the address she gave in the FB message, but to the address I regularly use to communicate with her. She told me it was all true. She also said she could not tell me any more details than the suspiciously sketchy ones she supplied on her linked page “Olek’s Appeal”. On that page she supplies a statement that was approved by her attorney.

Here is the statement:

“Olek recently arrived in London in order to fulfill a variety of professional engagements; the first of which was to donate a piece of art work to a charitable organization. On October 6th after donating a piece of her art to the charity at a show in London, Olek was involved in an incident with a drunk and aggressive male who behaved reprehensibly.

The incident happened extremely quickly and not knowing anyone in London or able to access her cell phone for numbers she was swept up into the legal system and treated very poorly. This has resulted in very serious charges being leveled against her which she strenuously denies. She has not even had the chance to state her case before a Court and she must await a statutory timetable before she can present her case properly.

She has now been fortunate enough to be referred on to an appropriate lawyer to defend her against these entirely false allegations, but effective legal representation in cases like this comes at a cost. Today, she needs your help to assist her to get through this terrible and unfair ordeal. At the moment she is facing serious charges with a risk of custody if she is not represented properly and able to expose the untruths and falsehoods in the allegations made against her.”

Worried that if I, myself,  had doubted the validity of this story, others would as well, I wrote back encouraging Olek to reach out to the press. And in order to assure her that I wasn’t just trying to clambor after a scoop, I told her mentioned several other avenues she could take to publish her story. I assured her that by doing so, she could legitimize her story and reach more people and get more support. But she told me that there was a lot I did not understand and that this was impossible right now.

One of the people I’d mentioned to her was Jerry Saltz. I don’t know if this is why Olek wrote to Jerry to ask for his support, but she did and he posted her link. Out of the Jerry Saltz string, came some support when fellow artist, Savanah Spirit shared Olek’s link on her own page, urging support.

Olek commented stating:
“It happened two months ago and I had a public solicitor who put me into bigger troubles. now, i have a proper representation and i need to find money to pay the bills. once i win it, i want to create an emergency grant for artists that actually really works.”

Asked about the American Embassy, she said only that they “said that they will visit me once I am imprisoned. they also told me i can crochet there…”

Olek has become known for the soft-heartedness that is belied by her steely outward demeanor. When some youths in Poland burned some of her artwork, she did not press charges but told them to crochet clothes for the needy. She says that in future she wants to visit prisons and ” teach crocheting with ladies who are trapped there.

Doubters came on board Savannah’s page and voiced their qualms about the artist’s strange story, one of them challenged her to call someone to verify her voice and her situation, so she asked me to call her.

I did and we chatted very briefly via Skype. She was very tired and needed to go to bed but she thanked me very much for making the call and asked me to write on Savanah’s page. So I did.

And now I’ve written here as well.

Stay tuned, Olek has her first court date Dec 22 and has promised to let all her friends, old and new, know what will follow.

On Derivative Art and Law

Robert J. Lang's creation takes a munch break at MoMA

In my latest on Hyperallergic,  I gave Robert J. Lang the mic and he gave us a lesson in the history, diversity, and multiple uses of origami! He also comments very briefly on his current lawsuit against artist Sarah Morris whom he accuses of copyright infringement.

I have been following copyright infringement cases for a while now and find it very interesting that people tend to predict case outcomes based on their personal opinions about copyrights, or the individual artists, or the genres of art involved. Rarely do I see discussions about derivative art, copyrights, and lawsuits that actually deal with the legal issues that are involved.

The Lang v Sarah Morris case is a very good example. People who have taken a strong position in favor of derivative art are predicting that Morris cannot lose. Others see this as clear case of infringement and are rooting for the origami artists. But few seem to understand the legal terms they are using to support their emotional arguments. And fewer still seem to understand that the courts don’t care what sort of art you like.

The fact is, it can be pretty hard to predict the outcomes of these cases without a good look at the depositions and the court records. And arguments about the court’s decisions look pretty silly when they misunderstand terms like “transformative” or mistake the word “derivative” for an insult. These legal terms are too often reacted to in a naive and emotional way even by some who set themselves up as experts on the subject.

I will follow up here in a week or so, with an essay about the legal issues involved in these cases, and how they are misunderstood by the public.

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