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Week in Review

By Martha Nimmer

Prince Prevails

In what is being called a decision that could influence the future of art and "the nature of art," artist Richard Prince has prevailed against photographer Patrick Cariou. Two years ago, Prince was found by a federal court to have violated U.S. copyright law when he used Cariou's photographs of Rastafarians in Jamaica to create a series of collages and paintings. These photos appeared in Cariou's book, Yes Rasta, which featured a series of portraits from Cariou's travels in Jamaica. The book was published in 2000. Prince admitted using the photos, incorporating them into a series of works called Canal Zone, which he exhibited in 2007 and 2008. The works have generated over $10 million in sales.

Surprisingly, when questioned during depositions, Prince did not rely on the fair use exception to the Copyright Act, an argument that "probably could have defended his appropriation better. . . ." Instead, Prince merely said that his art "doesn't really have a message." This somewhat nonchalant approach to copyright law and fair use likely led the lower court to rule against Prince in 2011. Last week, however, the Second Circuit found that 25 of Prince's 30 works actually did qualify as protected fair use because "they "have a different character" from Mr. Cariou's work, give it a "new expression" and employ "new aesthetics with creative and communicative results distinct" from the work that Mr. Prince utilized. In that regard, Judge Barrington Parker, Jr. wrote, "[w]hat is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince's work could be transformative even without commenting on Cariou's work or on culture, and even without Prince's stated intention to do so."



Read the decision here: http://www.ca2.uscourts.gov/decisions/isysquery/5da8dc66-179e-4dc0-94cc-09e213bfffe3/1/doc/11-1197_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5da8dc66-179e-4dc0-94cc-09e213bfffe3/1/hilite/


Devin Ebanks is better known for being a forward on the Los Angeles Lakers, but found himself at the center of a rape investigation in September 2011. Three months later, Ebanks was cleared of the charges. As to be expected, TMZ published a story on the matter, including "some crazy details" about the alleged incident. That, however, is not where the story ends. After learning that he was cleared of the charges, Ebanks went straight to the World Wide Web and "took some delight" in the TMZ story on Twitter. Later, a Twitter followed named Junior, who, according to The Hollywood Reporter, introduced Ebanks to his female accuser, tweeted at Ebanks, "glad you got cleared...." To this, Ebanks responded, "thanks bro next time u wanna hook me up, dnt lol."

Ebanks' accuser later anonymously sued Ebanks for sexual assault. What set this case apart from other actions involving sports starts, however, is that the plaintiff "included a claim for defamation for what was said by [Ebanks] on Twitter." The Laker responded with an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion to strike the defamation claim, stating that Ebanks' tweet was protected free speech. That argument opened the door to a strange and unexpected argument by the plaintiff's attorneys:

"When Defendant responded to the Twitter message, 'I'm glad you got cleared on that incident,' Defendant Ebanks adopted the false statements included in the TMZ article, thus defaming Plaintiff Jane Doe. While the issue of rape and violence against women are very well issues of public interest, the TMZ article was nothing more than a salacious article to spread gossip and intrigue. More to the point, the Twitter messages [were] not about rape, or even about a Laker member being cleared, but about Defendant Ebanks' personal, private desire not to be 'hooked up' with women who would actually dare to report a rape to law enforcement. His hook-ups and personal, private preferences serve no issue of public interest. His comments served only to 'gather ammunition' for his private and self-serving interests."

Essentially, what the plaintiff's attorneys claimed was that a Twitter user who refers, even indirectly, to a possibly untrue news account "attaches" himself to the "inaccuracies inherent." As The Hollywood Reporter further stated, "because the tweet happened on the same day as the TMZ article, the woman's lawyers say that he [Ebanks] 'adopted' the inaccuracies" -- and that readers "reasonably interpreted the Twitter messages as referring to the TMZ article."

Last week, Los Angeles Superior Court judge Samantha Jessner moved to strike the defamation claim. Applying the two-prong analysis under which a special motion to strike is considered, Judge Jessner ruled that the first prong weighed in the defendant's favor. The first prong requires the defendant to show that the "act or acts of which the plaintiff complains were taken 'in furtherance of the defendant's right of petition or free speech under the United States or California Constitution in connection with a public issue.'" Referring to that burden, Judge Jessner wrote that a public issue existed here because of the defendant's celebrity and the "gravity of the rape charge." Additionally, Ebanks' actions on Twitter were in furtherance of his right to free speech. Weighing the second prong--the likelihood of the plaintiff's prevailing on the claim--Judge Jessner wrote "[t]he use of the words 'clear' or 'cleared' by Junior does not amount to an adoption of the content of the TMZ article, as plaintiff argues, because these words are quite common when speaking of the dropping of criminal charges. It is reasonable to infer that Junior saw the TMZ article, but it is not reasonable to then conclude that defendant adopted the contents..." As it was not reasonable to conclude that Ebanks adopted the contents of the article, the plaintiff could not demonstrate a likely possibility of prevailing on her claim.


Read the ruling here: http://www.scribd.com/doc/137766448/EBANKS-Jane-Doe-Ruling

Suing Hungary

A minor victory for the heirs of a deceased Hungarian art collector: the nation of Hungary is amenable to a lawsuit brought by the heirs of a deceased art collector for Hungary's alleged collaboration with Nazi Germany for the plunder of Baron Mor Lipot Herzog's art collection. Baron Herzog was a Budapest banker and a passionate art collector who collected over 2,000 paintings, sculptures and other works of art. Some of the pieces in the collection included works by El Greco, Velazquez, Renoir and Monet. Herzog passed away in 1934, shortly before Nazi Germany and the Hungarian government began stealing Jewish-owned property and assets. Fearing the confiscation of their father's priceless art collection, the Herzog children tried to hide the pieces in one of the family's factories. Eventually, however, the artworks were discovered and taken to Adolf Eichmann's headquarters in Budapest. Eichmann picked out many of the pieces for display near Gestapo headquarters. The works that were not chosen became part of the Hungarian National Gallery and the Budapest Museum of Fine Arts.

According to the heirs' complaint, the Herzog descendants tried on numerous occasions to secure the return of the pieces, stating that the family had agreed to let the government of Hungary display the art after the war, while still retaining the right to demand their return. An appellate court in Hungary dismissed the family's claim in 2008, citing the Peace Treaty between Hungary and the Allied Powers and a later agreement between the U.S, and Hungary concerning the settlement of war-related claims. The Herzog descendants then sought relief from the American courts.

Last week, a three-judge panel of the D.C. Circuit Court affirmed a 2011 ruling of a U.S. District Court Judge, and revived claims that she had previously dismissed. According to the D.C. Circuit, "Hungary's argument falters for the simple reason that the Herzog family's claims fall outside the treaty's scope," Judge David Tatel wrote. "Article 27 concerns property discriminatorily expropriated during World War II. As we have explained, however, the family's claims rest not on war-time expropriation, but rather, on breaches of bailment agreements formed and repudiated after the war's end. Accordingly, the Peace Treaty presents no conflict with Hungary's amenability to suit under the FSIA [Foreign Sovereign Immunities Act]."

So, at least for now, it appears that the Herzog family will get their day in court.


Read the decision here: http://www.courthousenews.com/2013/04/23/herzog.pdf

Read the FSIA here: http://uscode.house.gov/download/pls/28C97.txt

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This page contains a single entry from the blog posted on April 25, 2013 4:29 PM.

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