WIPIP concurrent 3 (most of it)

Annemarie Bridy, Fearless Girl Meets Charging Bull:
Copyright and the Regulation of Intertextuality
DiModica (who made Charging Bull) complained that Fearless
Girl’s placement created an unauthorized derivative work and violated VARA by
being a material alteration that prejudiced his honor—Charging Bull was no
longer optimistic but transformed into a threat. Turning a semiotic dispute
into a legal one.
Can © be leveraged to prevent confrontational dialogue
w/preexisting works? What role does copyright play in regulating text to text and
author to author interactions? And what can literary theory tell us?
Existing scholarship on role of romantic author: presupposes/valorizes
creative genius and possessive individualism. But US © has important
differences from European law. Bahktin/Gerard Genette: intertextuality views
works relationally rather than as closed systems—dialogism within & between
texts. Monologic discourse is poetic; dialogic discourse is associated w/the
novel. Monologism privileges unitary voice of author as autonomous; dialogue
has mix of voices that are layered in the work. Work is more open and porous.
Genette’s hypertextuality: secondary author targets preexisting text &
rewrites & completes it in a way original author might not have liked—hypertext
as unfaithful continuation of its hypotext.
Dimoda embraces aesthetic monologism, which is encoded in
author centric European © law. Strong moral rights, limited
exceptions/limitations. US © is hospitable to intertextuality by design, even
assumes it. Less author-centric and more focused on public interest in
production of creative works. © protects second degree works such as
compilations and derivative work, and also excepts a range of second degree
uses, including fair use which is flexible/unfaithful/murderous (Genette’s
term) and also compulsory license for musical work covers (less flexible but appreciates
artistic impulse to remake/reengage the work). Very narrow moral rights that
delayed US accession to Berne.
He can’t prevail: derivative work claim requires physical
incorporation of elements of the protected work [but consider the case from
yesterday finding that embedding was infringement]. Not every modification of a
work creates a derivative work, Mass MOCA, and altering the viewer’s experience
of a work doesn’t create a derivative work, Lewis Galoob v. Nintendo. Even if
the placement did result in a derivative work, the semiotically confrontational
nature of its relationship to Charging Bull would mean that it’s a fair use.
Rosenblatt: maybe if juxtaposition is fair use, the fact it’s
juxtaposition forces us to go straight to fair use & concedes it’s w/in the
scope of the right.
A: but physical incorporation is still necessary.
Ann Bartow, The Economics of Race and Gender in Art Law
Ownership disputes w/racial subtext. Control of Barnes
Foundation stolen from Lincoln University, a HBU in Pa.; art now controlled by
wealthy mostly white people in Philadelphia—thought the art should be in the
hands of nice white guys. Georgia O’Keefe donated art to Fisk Univ., an HBU in
Nashville; art now 50% owned and controlled by museum in Bentonville, Ark. founded
by Walmart heiress. Leveraged highly contestable claims of financial
mismanagement/lack of sophistication.
Georgia O’Keefe lost art theft based on statute of
limitation grounds; in the vast majority of art theft cases, by contrast,
courts found all kinds of ways around SoLs: possession as continuing crime;
demand and refusal rules before SoL restarts; sales reboot the SoL; etc. Nude
posing as a career strategy for O’Keefe—it was one of the only ways she could
be accepted in the arts community. She didn’t feel it was voluntary. Hazards: sexual
harassment, sexual assault, nonconsensual pornography, low pay and labor
abuses, gawkers & creeps.
Another example: Barbara Kruger: appropriation art; Hoepker
was the foreigner who didn’t comply with 104(a) so wasn’t able to enforce his
restored (c). She might not have prevailed on fair use; museum used the art as
an ad for the Kruger show, and put it on mugs and the like—she was exploited as
she was being accused of exploitation.
Prince and Cariou’s Yes Rasta: both whites dealing in
pictures of bodies of black men (and white women from soft-core porn for
More women than men attend & graduate from art
schools/get art degrees. There’s no movement to get more men in art as women in
STEM; but men are at the top. Every artist in the top 100 sales in 2013 were
men. In 2014, no women in top 2104. Less than 4% of artists in Modern Art at
the Met are women, but 76% of the nudes are female. Don’t do as well at art fairs;
held only 24% of museum director positions and were underpaid compared to men. Art
galleries control value of art by manipulating two signals: price and who buys.
Too low and the perception is low quality and too high and the artists seem
overhyped. Manipulate the secondary market. Also try to sell to tastemakers. Control
value of art worldwide, b/c value is subjective and subject to signalling;
white men decide what’s good and valuable. Museums can make or break artists
with shows, deaccessioning, etc. Often in collusion with galleries, auction
houses and wealthy collectors. China has wealthy collectors in old, European
art which has also had an impact.
Antidiscrimination as a moral right. Attribution can
facilitate discrimination, esp. for gender. Artworks can be racialized or
gendered in ways that are perceptible and signaling, as w/software that can discern
gender of text authors. Integrity: has multiple meanings, including the quality
of being sound moral principle, uprightness, honesty and sincerity. Galleries,
auction houses and museums as sites of resistance and reform.
Q: Internal splits in Fisk and Barnes led to majorities to
surrender [Bartow notes that they required board takeovers] and there were
reasons to see them not as central to the missions of the school. When the
institution did try to monetize the collection, the AG limited Fisk’s ability
to do so—it was accomplished in a number of different ways, including by using
institutional power to threaten [Bartow notes threat to funding]. The capacity
to divest the collection once the decision was made was also limited &
cabined. [Sounds to me like the expropriation of black wealth or wealth
foundation described in Richard Rosenstein’s and Ta-Nehisi Coates’ recent
Rosenblatt: Compare appropriation art. Some are seen as
legit and others aren’t. But when I dig in to these problems, they feel more
like antitrust problems than IP problems. Why is IP the lever here?
A: there could be other things. And antitrust has a role to
play around auctions. But moral rights is more empowering to individual
artists. [CRT’s rights claims.]
Q: what if art is a male display behavior of taking attention-grabbing
risks making a biological basis for male dominance in the field?
Chien: Uber pays men more than women per hour, but it seems
to be b/c men drive faster and more dangerous routes. Correlated w/things that
are correlated w/value. Are there ways to quantify what would be the legitimate
basis for one thing to be displayed more? What are the right criteria?
Raymond Ku, The First Amendment Implications of Copyright’s
Double Standards: It’s More than Just Entertainment
Touting the value of P2P for distributing creativity/access w/o
deadweight loss. Reaction of former Register: what’s the big deal? It’s just
entertainment.  Debate b/t Justices
Stevens & Blackmun about ability to time shift popular entertainment: who
cares about Honey Boo Boo?  Stevens
struggled to find a political or educational use.  Sony makes more sense when you connect it to
Bleistein: why are we judging the value of the programming that’s being watched? 
But we judge that all the time. We’ve been discussing how
much creativity is sufficient for © protection and fair use.  When we do this, entertainment essentially
always loses.  SAT/Seinfeld Aptitude Test
case is the key example.  Interesting
doctrine: Protection of creative facts—less need to copy them.  In Hoehling, by contrast, the movie studio didn’t
need to justify its copying of Hoehling’s theory.  Case law suggests that for fair use, when we’re
dealing with entertainment, for fair use no amount of added creativity is
sufficient—Blurred Lines, 60 Years Later, The Harry Potter Lexicon. Even in
Cariou v. Prince, court goes out of its way to say that its broad definition of
transformativeness doesn’t cover entertainment.
We’re mixing up the idea of results and repetition. With
factual works we do want people to reach the same results hopefully.  With fanciful works, the options are infinite
and reaching the same result is not inevitable; repetition of results means
repetition of expression. Independent contributions are not repetition. [  For factual and fanciful works,
repetition is part of the process for learning for both; researching and
performing respectively are similar in their contributions to understanding.
Retyping Holmes’ common law is meaningless, but a musician that is able to
replay or emulate Yo-Yo Ma or paint in Van Gogh’s style is doing something
dramatically different, yet we say that copying in the latter circumstance is
less justified. For both fanciful and factual, incremental contributions may
not be recognized or appreciated as such; also, someone may say it better.
Factual: financial stakes are small in litigation, while for
fanciful works the stakes can be significant. 
For fanciful works in litigations, the work speaks for itself and
everyone’s an expert; there are no standards/informal voluntary standards. Factual
works litigation: there’s a practice of framing for the jury, governed by
agreed on standards and guidelines (my article tells you the contribution it’s
making; general, disciplinary, and institutional standards) whereas Fearless Girl
and Charging Bull stand by themselves; courts may defer to professional/expert
RT: about results, what do you mean? I would have gone the other way, w/TS Eliot’s objective correlative—similar results can be achieved by multiple different expressions (compare romance novels or really any standardized genre, even the middle aged white male adultery novel).
A: When you’re trying to answer a Q, 2+2 has one answer but
literary Qs have multiple answers. [Like Barton Beebe on progress & Jeanne Fromer on problem finding.]
Rosenblatt: is this a problem of fictional works versus a
problem of ignoring SCt precedent in the form of Campbell’s dictate to consider
different meaning or message, not just purpose? Are courts ignoring this b/c
they disagree & think that entertainment is frivolous?
A: Easterbrook says he likes Cariou but it doesn’t explain
difference b/t me creating a derivative work and me making a fair use,
especially in entertainment where we often think it’s something the original
author should control. 

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