Tushnet on Images in Design Patents

The 1937 design patent for the coke bottle

Rebecca Tushnet of Georgetown Law has an essay titled: "The Eye Alone is the Judge: Images and Design patents", 19 J. Intell. Prop. L. 409 (2012).

Design patents are an area of intellectual property law focused entirely on the visual, unlike copyright, patent, trademark, trade secret, or the various sui generis protections that have occasionally been enacted for specific types of innovation. Judges and lawyers in general are highly uncomfortable with images, yet design patents force direct legal engagement with images. This short piece offers an outsider’s view of what design patent law has to say about the use of images as legal tools, why tests for design patent infringement are likely to stay unsatisfactory, and what lessons other fields of intellectual property, specifically copyright, might take from design patent.

More on the Destruction in Syria

Destruction in Aleppo

Michael Danti, an archaeologist who has worked near Aleppo talks about the damage to the Souk there and elsewhere in Syria on PRI's the world. It is a 6 minute interview:
 

Rothko Vandalized at the Tate Modern

The defaced Rothko

On Sunday afternoon at the Tate Modern a man walked up to this untitled Mark Rothko mural and painted over the work. The man then left the building. The Guardian report has the reaction of a witness to the criminal act:

Tim Wright, who posted a picture on Twitter of the canvas after it was defaced, said that he saw the man sitting quietly in front of the painting beforehand. "Then we heard the sound of a pen, but by the time we turned around he was pretty much finished with his tag," said Wright, who was with his girlfriend on a weekend visit to London from Bristol. "The pen ink then just dripped down the painting. Once we realised what had happened, we went to find a member of staff. They were really shocked when they came and saw what he had done." The museum said in a statement: "Tate can confirm that at 15.25 this afternoon there was an incident at Tate Modern in which a visitor defaced one of Rothko's Seagram murals by applying a small area of black paint with a brush to the painting. The police are currently investigating the incident." The gallery was closed for a short time after the incident. The canvas, one of a number by Rothko owned by the Tate, was in a room with several other works painted by the Russian-born artist, who emigrated to the US at the age of 10 and went on to become one of America's most important postwar artists.

These incidents keep happening with alarming regularity. Proactive museum security may have been able to prevent this. The museum will certainly be taking a look at its own security, but the very small amount of time it probably takes to deface a work in this way makes the task difficult. Large museums which are very accessible to the public are a real challenge for security. Given the Menil tagging here in our neighborhood in Houston this summer, are we exaggerating too much to say the street art tagging movement is moving inside museums.

More Reports of Damaged Heritage in Syria

Aleppo's Souk in Better Days

The Souk on fire Saturday

There are more and more reports emerging from Syria which tell of destruction, looted museums, and smuggling salable objects. On Saturday Aleppo's souk was caught in the middle of fighting between rebels and government forces and the souk burned. The old city of Aleppo, where the souk is located is a UNESCO world heritage site. UNESCO Director-General Irina Bokova criticized the destruction over the weekend:

The human suffering caused by this situation is already extreme. That the fighting is now destroying cultural heritage that bears witness to the country’s millenary history - valued and admired the world over - makes it even more tragic. The Aleppo souks have been a thriving part of Syria’s economic and social life since the city’s beginnings. They stand as testimony to Aleppo’s importance as a cultural crossroads since the second millennium B.C.

The souk is situated underneath Aleppo's 13th century citadel. There are reports that government forces have taken up positions in the ancient building. Rodrigo Martin, an expert on Syrian sites said the Souk "was a unique example of medieval commercial architecture" because it offered a progression of hundreds of years of architectural periods, and had been well-preserved.

There have also been reports that items from the National Museum of Aleppo have been moved into the central bank in Damascus for safekeeping. But there have also been reports in Time that museums elsewhere in the country are being looted and arms are being traded for antiquities at the Syria/Lebanon border. In Cairo there will be an emergency meeting to discuss possible efforts the international community can take in response to the damage and looting according to a report in ahram.

Flea market Renoir really was a steal

Paysage Bords de Seine, Renoir

Every time I hear the story of a flea market sale where some lucky buyer with a good eye purchased a work by a well-known artist, I always think that chances are good that work was stolen at some point. How does a Renoir make it to a flea market, really. And that's the story of this Renoir purchased at a flea market in West Virginia for $7. It was scheduled for auction this week, but now it looks likely to have been stolen some time before 1951 from the Baltimore Museum of Art.

The painting has not it seems been reported to art loss databases. The Washington Post notes that its own reporters conducted research and found the painting was missing from the Baltimore Museum of Art:

Museum officials then searched their archives, where they found paperwork showing that the Impressionist work, “Paysage Bords de Seine,” or “Landscape on the Banks of the Seine,” was pilfered from their building nearly 61 years ago. The museum had the painting on loan from one of its famous benefactors, Saidie A. May, a Baltimore native who died in May 1951. Museum records show that the Renoir was stolen on Nov. 17, 1951, just as May’s art collection was being bequeathed to the museum for permanent ownership. The revelations put on hold Saturday’s much-ballyhooed auction of the Renoir at the Potomack Company in Alexandria. Elizabeth Wainstein, Potomack’s president, said the Virginia woman who made the flea market find was disappointed. But she immediately agreed to halt the sale until the FBI determines the rightful ownership of the painting, which the auction house estimated is worth $75,000 to $100,000. It will remain at the auction house until then, Wainstein said.

The case reveals the importance of reporting a theft, even decades into the future. There is no word on whether the doll and plastic cow the anonymous flea market art buyer also bought with the this $7 painting are stolen as well. But the buyer should get credit for reportedly cooperating fully with the FBI.

1. Ian Shapira, Flea market Renoir was allegedly stolen from Baltimore Museum of Art, auction canceled, The Washington Post, September 27, 2012.

Miller on "The Visual and the Law of Cities"

Stephen Miller, of the University of Idaho College of Law has posted "The Visual and the Law of Cities", forthcoming in the Pace Law Review, on SSRN. From the abstract:

This experimental article will attempt to explore, through brief sketches, or “tableaus,” four ways in which the visual interplays with the law of cities, and how a deeper understanding of this intersection can assist in the development of these laws and their underlying policies. For the purposes of this article, the “law of cities” is defined as those allied fields of law that deal with building, construction, architecture, planning, developing, preserving, and otherwise creating the places where we live. First, the article explores the law’s longstanding adverse relationship to the visual, as well as contemporary efforts to change that relationship. The article then turns to the four tableaus that explore the law of cities and the visual. In the first tableau, the article discusses the question of the cultural value of a hand-drawn map by reviewing the U.S. Supreme Court’s nineteenth century jurisprudence on Spanish era diseños, or property maps, which were part of Spanish and Mexican California-era land grants. In the second tableau, the article discusses the question of whether aesthetics is a proper domain of the law of cities by comparing the U.S. Supreme Court’s decision in Berman v. Parker, its progeny, and Daniel Burnham’s 1909 Plan of Chicago, which was the first, and perhaps most important, comprehensive plan drafted for an American city in the “City Beautiful” tradition. The third tableau explores the production of space and the philosophy of Henri Lefebvre in the context of the visual as law, most notably, in the rise of visual zoning codes. The fourth tableau extends the law and literature movement to the visual arts through the philosophy of Edward Casey as applied to the painter Edward Hopper. By presenting these four approaches in which the visual complicates and assists the law of cities, and sometimes even acts as the law of cities, the article intends to spur a dialogue on the complicated relationship of the visual to the law of cities.

$1.7 Million Reward Offered for Art Recovery

Composition en rouge et blanc, 

Piet Mondrian, one of the stolen works

Jeffrey Gundlach is apparently one of "the world's top bond gurus". Unfortunately his financial expertise does not seemed to have carried over to safeguarding his stuff. Gundlach returned from a trip to his home in Santa Monica on Sep. 14 to discover that his art collection, some of his rare wine, and his 2010 porsche. There are scant details of the theft, but the collection of stolen art is considerable, with the stolen works from Mondrian, Franz Kline, Jasper Johns, and others.

Today at a brief press conference Gundlach announced he would be offering a reward of $1 million for this Mondrian, and $700,000 for the return of the other paintings. The details of the theft can only be speculated at, but some reports indicate the thieves drove away with the paintings in Gundlach's very own porsche.

Austerity, Sponsorship and Preservation in Italy

A structure in Pompeii in 2011

There is a report in the Daily Beast about the difficulty Italy may be having in preserving its considerable heritage:

For the last several months, chunks of marble have been plummeting from the Colosseum, ancient walls have been reduced to rubble and even bits of the baroque Trevi Fountain have crumbled, changing forever the face of that illustrious monument. And that’s just in Rome. In Naples, the Royal Palace has fractures in its façade and once-glorious fountains in the city’s squares are covered in graffiti. Pompeii is at risk of becoming a wasteland as its ruins disintegrate to dust due to lack of maintenance. In Emilia Romagna, important churches and clock towers damaged in a series of springtime earthquakes will never be repaired. There simply is no money left in Italy’s tightened budget to take care of the country’s cultural heritage. Austerity measures to combat Italy’s stifling public debt and save the country from default has meant there is little money left over for anything but the bare necessities. But the bigger problem is that basic maintenance on many of the country’s cultural gems has been neglected for years. Recent budget cuts are just the last nail in the sarcophagus. In reality, the culture budget has been the first to be cut for the last several years. A full third—€1.42 billion—has been slashed from the culture budget in the last three years, meaning vital maintenance on some of the country’s most important monuments was never carried out.

I'm always skeptical of English language reporting of ways in which Italians aren't caring for their heritage. But cutting a culture budget by 1/3 is a drastic step. Of course cuts of all kinds are taking place, it was recently announced that the Georgia State archives will be closed after Nov. 1. I for one won't shed a tear for a bit of the gaudy Trevi fountain crumbling, and the pressures on Pompeii are nothing new. But so many cuts to heritage protection by a nation that respects and values its past is a sad sign of the difficulty facing culture ministries all over the world. It is no surprise that asking for sponsorship from the private sector may be a viable alternative. Selling the buildings may appear to be a drastic step, but there are historic preservation rules in place in Italy which would largely preserve the appearance of the protected buildings, if not the public access.

1. Barbie Latza Nadeau, Italy’s Culture Falling to Ruins Amid Austerity Cuts, The Daily Beast (Sep 19, 2012).

Renoir added to FBI's Top Ten Art Crimes List

Madeleine Leaning on Her Elbow
with Flowers in Her Hair

On September 8, 2011 this work by Renoir was stolen by an armed man wearing a ski mask. The owner of the painting was upstairs and discovered the thief downstairs. Today the FBI's art crime team has added it to their list of ten art crimes list, giving the theft and the work considerable exposure which substantially increases the likelihood of a recovery. The FBI notes that since the creation of the list in 2005 six paintings and one sculpture have been recovered. A reward of $50,000 is offered for information leading to a return. Information can be submitted online at fbi.gov.

Footnotes

Art and Soup

Mike Madison wonders what the new agreement between the Warhol foundation and Campbell's is really about:

It’s unclear to me what, exactly, is being licensed. . . . "The starting point, said [Michael Hermann, Director of Licensing for the Foundation], was to review all of Warhol’s Colored Soup Can paintings to find four images that worked well as a group and translated well as packaging. Then Campbell’s created labels derived from the original works.” That makes a little more sense. But the cans themselves (pictured above, from the LA Times) seem “Warholian” to me, rather than “Warhol.” 

Deep cuts to funding heritage in Greece in USA Today

The Ministry of Culture's budget has been cut by 50% over the past two years, and deputy minister of culture Kostas Tzavaras says another 50% cut looms. But many here say that even if the cuts are a long time coming, they do not have to result in a reduction in care for Greece's architectural treasures. The Ministry of Culture has been renowned more for its spending sprees and ineptitude than its protection of monuments, analysts say. Former Culture minister Pavlos Geroulanos said he would resign after robbers stole dozens of priceless artifacts in February from a museum. Some of the bronze and pottery pieces dated from the ninth century B.C. and were protected by a single guard at the Archaeological Museum of the history of the Ancient Olympic Games. Still, the Culture Ministry says it has no choice but to pare back on things like paid security guards. "I didn't come like Santa Claus," Tzavaras said. "I don't have money to give away, like other ministers did."

ART LAW SCHOOL « Clancco Yes, something called the art law school exists. Terrific idea:

 The focus of the ART LAW SCHOOL is to introduce the artist to the “must-know” legal and business issues that arise when making art.

The Art Law Blog wonders about the big sale of Warhol's by the Warhol foundation: If it's not the tax exemptions, what is it?

No one would suggest that what the Warhol Foundation is doing is "unethical" or "repulsive" or "Stalinist." Nobody questions the right of artist-endowed foundations to sell work. Nobody claims those works are held in the public trust, to be accessible to present and future generations. But why? Why are works owned by, say, the Warhol Museum held in the public trust, while works owned by, say, the Warhol Foundation are not?

The Daily Pennsylvanian : Turkish 'Troy gold' at Penn Museum stirs up controversy

The 24 pieces of “Troy gold” jewelry that the Penn Museum of Archaeology and Anthropology lent to the Turkish government in a landmark agreement announced Sept. 4 may have a more complicated history than meets the eye. Archaeology professor Brian Rose, a curator in the museum’s Mediterranean section, believes the artifacts arrived at Penn after they had been previously stolen. “I’m virtually certain they were looted,” said Rose, who has spent time studying the jewelry. “The question is from which region were they looted.” Penn had originally purchased the jewelry legally in 1966 from an antiquities dealer in Philadelphia without knowing all the details surrounding the artifacts’ history. “We bought it because it looked very like the gold that was excavated at Troy,” Penn Museum Director Julian Siggers said.

Victims of forgery are "left in limbo" - The Art Newspaper

Art forgeries are once again in the news and getting more attention from law-enforcement agencies worldwide. But recent cases, including those of the German forger Wolfgang Beltracchi, the FBI investigation into art sold through the defunct New York-based Knoedler gallery, and the forgery of Indian Progressive pieces by the UK faker William Mumford, are leaving victims unsure of the legal position of works not examined in a court of law. The problem is that few of the fakes identified in forgery cases are ever recovered, and if they are, may not be considered by a judge as part of a trial. In the case of Mumford, just 40 of the 900 forgeries thought to have been made were brought before the court. Only 12 of the 58 fakes that police believe were made by Beltracchi were examined in his trial in Cologne in 2011. So what about the rest? And what can you do if you think you have a forged painting? At the moment, it seems it is up to the victims to try to extract reparations.

Growth in Online Art Market Brings More Fraud - NYTimes.com 

Over the last few years the Internet has broadened the art market far beyond the exclusivity and opaque jargon of its moneyed enclaves and has helped turn the slogan “art for everyone” into reality. But it has also become a sort of bazaar, where shoppers of varying sophistication routinely encounter all degrees of flimflammery, from the schemes of experienced grifters to the innocent mistakes of the unwitting and naïve. A recent study by statisticians at George Washington University and the University of California, Irvine, estimated that as many as 91 percent of the drawings and small sculptures sold online through eBay as the work of the artist Henry Moore were fake. 

Abu Dhabi Police foils illegal sale of Dh2.5 million antique coins - The National

Abu Dhabi Police have thwarted the illegal Dh2.5m sale of four antique gold coins and a fake.And while four of the five coins were genuine, the fifth - also made of gold - appeared to be from the time of the 7th-century Umayyad caliph Abdul Malik ibn Marouan, but was a fake, Maj Gen Mohammed Al Menhali, the head of police operations at Abu Dhabi Police, told the Arabic-language daily Al Ittihad. A real coin from that period would have been worth around US$3m (Dh11m), he noted.