Online markets may be doing more to reduce the looting of antiquities than the always feuding museum directors.

Archaeology reports on the unforeseen consequences of “the emergence of eBay, the Internet auction site that, among other things, lets people sell looted artifacts.” The looting of archaeological sites has always been a problem, but before the internet reduced the costs of showing, selling, and transporting the loot, archaeologists “could at least take some comfort that [the market in illegal artifacts] was largely confined to either high-end dealers on one end of the economic spectrum or rural flea markets on the other.” Thus, the new technology raised the specter the democratization of trafficking and, as a result, widespread looting. “This seemed a logical outcome of a system in which anyone could open up an eBay site and sell artifacts dug up by locals anywhere in the world. We feared that an unorganized but massive looting campaign was about to begin, with everything from potsherds to pieces of the Great Wall on the auction block for a few dollars.”

But instead, looting has diminished. Why? “The short answer is that many of the primary ‘producers’ of the objects have shifted from looting sites to faking antiquities.”

The economics of these transactions are quite simple. Because the eBay phenomenon has substantially reduced total costs by eliminating middlemen, brick-and-mortar stores, high-priced dealers, and other marginal expenses, the local eBayers and craftsmen can make more money cranking out cheap fakes than they can by spending days or weeks digging around looking for the real thing. It is true that many former and potential looters lack the skills to make their own artifacts. But the value of their illicit digging decreases every time someone buys a “genuine” Moche pot for $35, plus shipping and handling. In other words, because the low-end antiquities market has been flooded with fakes that people buy for a fraction of what a genuine object would cost, the value of the real artifacts has gone down as well, making old-fashioned looting less lucrative. The value of real antiquities is also impacted by the increased risk that the object for sale is a fake. The likelihood of reselling an authentic artifact for more money is diminished each year as more fakes are produced.

Another economic factor–risk of arrest–is also removed by eBay fakes, since you can’t be arrested for importing forgeries. Should you import what you think is an illegal antiquity but it turns out to be a fake, you run little risk of prosecution. The risk from lawsuits or criminal charges is effectively removed from the sale of antiquities when they are not really antiquities, a fact that reduces the cost and risk to both buyer and seller.

Transport cost is also dramatically reduced by commerce on the Web. One vendor on eBay advertises a Greek marble head dated to around 300 B.C. For this “rare artifact,” the shipping costs from Cyprus are a whopping $35 to anywhere in the United States. This is a far cry from the old days when a real illegal antiquity had to be couriered by a specialist who not only knew how to care for the piece, but how to doctor it up to avoid being arrested at customs. The same is true for objects from just about every well-known ancient culture in the world. Chinese, Bulgarian, Egyptian, Peruvian, and Mexican workshops are now producing fakes at a frenetic pace.

I have written previously of James Cuno’s Who Owns Antiquity? Museums and the Battle over our Ancient Heritage and the ongoing debate over the ownership of antiquities, particularly those antiquities housed far from their origins in the museums of the Western powers. Cuno has published another volume addressing the issues, Whose Culture? The Promise of Museums and the Debate Over Aniquities, a collection of essays by other art historians arguing in favor of housing these treasures in “Encyclopedic Museums” charged with the stewardship on behalf of all of humankind. Cuno would argue that, for example, artifacts produced by the Hittites belong no more to the Turks, in whose territory those artifacts are found, than they do to the entirety of humanity.

Hugh Eakin reviews both of Cuno’s books, discussing many of the issues I raised in my earlier post. But he also makes the important point that recent moves by U.S. museum directors make many of these difficult questions  far less important as a practical matter, despite the passions inevitable in the conflict between those who claim to be defending their national heritage against those who claim to stand up for the sanctity of art and its preservation.

Last year “the directors of the leading art museums of the United States agreed to limit their acquisitions of antiquities to works that have left their “country of probable modern discovery” before 1970, or that were exported legally after that date.” Eakins points out the importance of this agreement:

[I]n choosing 1970 as a cutoff date-the symbolic year of a UNESCO convention against the illicit circulation of material deemed by particular nations to be their cultural property-the museums have eliminated the possibility of acquiring most of the ancient art available for sale today. In effect, the museum directors have made it clear that, for American museums, collecting antiquities has largely come to an end; and with it the system of private collectors and dealers that has sustained it since the late nineteenth century. (emphasis added)

There are several implications to the end of large-scale collecting of antiquities by U.S. museums. First, many antiquities (most likely looted) are in the hands of wealthy private collectors, precisely the patrons on whom major museums depend for donations. “Now that museums have adopted rules that prevent the acquisition of many ancient objects still in private hands, they must find other ways of retaining that support.”

In addition, countries that have asserted ownership over any art found within their borders have to face the failures of those laws, which primarily have worked to drive the trade in looted antiquities even further underground.

And now we know too that the trade in antiquities is being squeezed by the trade in fakes.

Without borrowing, stealing, cribbing, remixing, mashing-up, collaging and compiling – without influences great and small, in other words – there is no “creating.”

From Jonathan Lethem, “The Ecstasy of Influence: A Plagiarism“:

In a courtroom scene from The Simpsons that has since entered into the television canon, an argument over the ownership of the animated characters Itchy and Scratchy rapidly escalates into an existential debate on the very nature of cartoons. “Animation is built on plagiarism!” declares the show’s hot-tempered cartoon-producer-within-a-cartoon, Roger Meyers Jr. “You take away our right to steal ideas, where are they going to come from?” If nostalgic cartoonists had never borrowed from Fritz the Cat, there would be no Ren & Stimpy Show; without the Rankin/Bass and Charlie Brown Christmas specials, there would be no South Park; and without The Flintstones-more or less The Honeymooners in cartoon loincloths-The Simpsons would cease to exist. If those don’t strike you as essential losses, then consider the remarkable series of “plagiarisms” that links Ovid’s “Pyramus and Thisbe” with Shakespeare’s Romeo and Juliet and Leonard Bernstein’s West Side Story, or Shakespeare’s description of Cleopatra, copied nearly verbatim from Plutarch’s life of Mark Antony and also later nicked by T. S. Eliot for The Waste Land. If these are examples of plagiarism, then we want more plagiarism.

From Open Source:

Nearly every word of [Lethem's] essay about cultural borrowing and reworking was stolen – er, appropriated – from some other source and then cobbled together with a big dose of Lethem magic to form a cohesive whole. Even the “I”s aren’t Jonathan Lethem; they’re Jonathan Rosen writing in The Talmud and the Internet about John Donne, or William Gibson in a Wired article about William Burroughs, or David Foster Wallace on a grad school seminar, or Brian Wilson in a Beach Boys song.

But this is more than a stunt. It’s a passionate salvo in the copyright wars, a crowd of voices coralled together to say, basically: without borrowing, stealing, cribbing, remixing, mashing-up, collaging and compiling – without influences great and small, in other words – there is no “creating.” No hip hop, sure, but also no blues, no Disney, no Shakespeare. No Lolita or “I have a dream.” We’d be reduced to staring at campfires and barking at one another.

So how to think about the joys, perils, and contradictions of influence in our intellectual property age? Lethem wonders himself:

“The dream of a perfect systematic remuneration is nonsense. I pay rent with the price my words bring when published in glossy magazines and at the same moment offer them for almost nothing to impoverished literary quarterlies, or speak them for free into the air in a radio interview. So what are they worth? What would they be worth if some future Dylan worked them into a song? Should I care to make such a thing impossible?”

Here is a podcast (mp3) of a discussion between novelistJonathan Lethem, author Siva Vaidhyanathan, and musicians Mark Hosler (of Negativland) and Mike Doughty (of Soul Coughing) about the politics of plagiarism and originality.

There is nothing new under the sun.

From BestActEver.com:  The Long War: Music Piracy in 1897 (NYTimes):

You need to understand your teacher’s interests; a librarian’s job is necessarily one that requires a narrow view of copyright.

Lawyers know someone can be very clear and compelling — and even dead-on accurate about his client’s legitimate view of the world — without telling the whole truth.

A librarian sent the video available from the Copyright Clearance Center at this link to my colleague Carolyn Jack, explaining that it explains copyright in a “clear and engaging way.”  There’s no doubt she’s right about that.  It’s very well done.  But it is very much a librarian’s take on copyright.  Librarians control access to scholarship in print and behind subscription-only paywalls. They certainly can’t bypass those paywalls simply by re-posting material, which seems to be a practice the offending librarian is surprised to learn is a problem.  Moreover, a librarian’s job is to maintain and ease access to the material in the library.  There may be ways portions of the material are republished to create more useful means of finding and accessing them, but it would be difficult to imagine those methods would risk infringement.  Plainly, though, the sheer volume and value of the material in a librarian’s control and the need to educate a library’s users on not abusing it is going to make librarians very risk averse.

Therefore, this video leans heavily on the side of copyright holders. That’s not to say it’s inaccurate (and it’s very well done), but one has to walk away from it thinking using copyrighted works is rarely okay. It certainly doesn’t even allude to “transformative uses,” and, while accurate, it’s gloss on fair use is so cursory (and the subject
so complex) that one can’t walk away from it with an idea of what would be fair use. It definitely is a librarian’s piece — their interests are in making sure nothing is done wrong. I don’t blame them; I’m just not sure that the video in the end does much more than say, “Be careful, and when in any doubt don’t do it.” I’m not sure that’s useful to, say, artists or those who would comment on the laws of copyright, among others.

Thus, I don’t think this video does what the Copyright Clearance Center, according to the librarian who sent the video to Geniocity, claims it is doing: “CCC is making the video available for free for anyone who wants to use it for educational purposes. Since corporate librarians are so often called on to educate folks on copyright matters, we thought you’d be interested . . . .”

ADDENDUM: Context is everything, and I want to note the very valid comments a couple of librarians have added to this post.  Larisa points out that librarians are dedicated to providing, not restricting access to information, and suggests that my critique might be better aimed at “corporate” rather than public librarians.  Rob emphasizes both the quality of the video (it teaches someone with no knowledge of copyright an awful lot in 6 minutes) while acknowledging the issues such a brief introduction inevitably leaves hanging.  He’s worth quoting in his entirety:

Your comments are eminently reasonable in respect of this well-done video and its brevity. While incompletely exploring the issue of Fair Use, in the range of most modern-day attenition spans, it does provide a basic grounding in copyright for the unititated in organizations and institutions(i.e. most corporate executives and their respective staffs, a majority of faculty).

In addition, it engagingly presents an opportunity to raise questions such as those here: archivist? preservationist? public/academic/corporate librarian? Fair use? – and presents ample opportunity for informed and intelligent discussion among those suitably interested.

Finally, one cannot come away from the 6+ minutes of this charming video without being forever better informed than 6 minutes previously. How many things have we seen or heard lately about which we can say that? Too few, I’d wager.

I love good lawyers because you can disagree with them and they won’t take your disagreement as a personal attack.

In the New York Times, Maira Kalman’s “And May it Please the Court” is a wonderful graphic narrative of her musings on, among other things, law, a visit to the Supreme Court, and Ruth Bader Ginsburg.  One panel of the piece does not begin to do it justice, but the one below makes a wonderful point that I try all the time to get across to my students — when you and your adversary treat each other as professionals, practicing law is a joy. There is no point in doing it any other way.  You can’t take your adversary’s disagreement personally — she is paid to disagree with you, and it’s her professional duty to do so.  But when your adversary doesn’t treat you professionally, you have to fight back too.  Not by descending to her level, but by being tough, better prepared, and smarter.  At any rate, I am glad Ms. Kalman saw the legal practice at its best on that day she visited the Court. And I wish more people I know, especially those who have law degrees and consider themselves legal experts, would realize disagreement is not hostility. I guess I shouldn’t be surprised that Ms. Kalman wonders how people handle the idea that their adversaries are not their enemies.

New Orleans Jazz & Heritage Festival, Neil Young on May 3, and May 4, 1970

My colleague Carolyn Jack today is blogging about the New Orleans Jazz & Heritage Festival, a stirring example of art’s power to give vitality to a troubled city.  It isn’t easy to figure out an angle that ties the Jazz Fest to law, but I don’t need to.  One of my favorite lawyer/bloggers is Ray Ward, who blogs as Minor Wisdom (the name a paranomasia apparent to any lawyer). Ray lives in New Orleans, and for him the night before Jazz Fest is “Like Christmas Eve.” He’s my source for all things Jazz Fest, from the proper gear to all the performance schedules. I’m looking forward to his reports from the scene. He will be my link between law and Jazz Fest.  But, most of all, I wish I were there.

I would love to see Neil Young on May 3.  One amazing thing about that show on that date is its proximity to May 4. I’m not sure how many people think each year about May 4. I do.  I was 10 years old on May 4, 1970.  I remember coming home from school and hearing that Ohio National Guardsmen 45 minutes away from my house had shot students who had been protesting the Vietnam War.  I was young, but I was a dark kid, and I felt destroyed by the thought that in this land of free speech, where protest is considered an inalienable right, students could be shot dead for protesting a war, much less that war.  That Neil Young soon after gave voice to my utterly inarticulate despair forever made me devoted to him.

Wikipedia should know better/Addendum: it does, and the problem is solved, though Wikipedia really didn’t have to be quite so heavy-handed.

Determining whether the use of someone else’s trademark is a non-infringing fair use does not involve an analysis identical to determining whether the use of someone’s copyrighted work is a fair use, but there are significant similarities.  One is that the absence of any exploitation of the commercial value of the intellectual property is a significant reason to find that use of the trademark is not infringing.  Another is that the property interest one has in the intellectual property has to be balanced against the constitutional right to free speech. Thus, owning a trademark no more gives you total control over use of the trademark than owning a copyright gives you total control over the copyrighted work.

The Electronic Frontier Foundation therefore is disturbed that Wikipedia, whom the EFF has represented, is trying to stop a group of artists from using the name “wikipediaart.org” as the domain for a site that documents  a Wikepedia article they had established last year.  The article “was intended to comment on the nature of art and Wikipedia. But Wikipedia editors did not take kindly to the project, and it was shut down within fifteen hours for being insufficiently ‘encyclopaedic.’”

But since the site is non-commercial and is a critical commentary on Wikipedia, Wikipedia has no right to shut it down.  The artists are not attracting paying customers who stumble upon the site because they are looking for Wikipedia.  And you can’t shut someone down just because they are criticizing you.  As the EFF cogently sums up the issues:

Wikipedia should know better. There is no trademark or cybersquatting issue here. First, the site is entirely noncommercial, which puts it beyond the reach of U.S. trademark law. . . . Moreover, even if U.S. trademark laws somehow reached this noncommercial activity, the artists’ use of the mark is an obvious fair use. Wikipedia Art uses the “Wikipedia” mark to refer to the project: a critical comment on Wikipedia and creativity. The disputed site describes the project, provides links to media coverage of the project, and so on. It does not use any more of the Wikipedia mark than need be; for example, it doesn’t even use the Wikipedia logo. Simply put, the site does not purport to be, nor does it look anything like, Wikipedia and the artists have done nothing to suggest Wikipedia endorses their work. Finally, the creators are engaging in precisely the kind of critical speech sheltered by the First Amendment.

ADDENDUM: asdfghjk in the comments states that the “EFF’s description of events is somewhat incomplete at best,” and points to a post by Mike Godwin, General Counsel of Wikimedia Foundation, that explains that Wikipedia’s only concern was that wikipediaart.org would be mistaken by visitors as a site affiliated with Wikipedia and that, once the creators of wikipediaart.org have posted the prominent disclaimer now visible on the site, Wikipedia considered the matter resolved, and amicably so. I’m glad to hear it.  It’s dispute resolution, folks, and when people get upset and have disputes all you need to do is resolve them.  It’s just not so easy all the time.  Here’s to wikipediaart.org for responding with the disclaimer and to Wikipedia for backing off once its legitimate concern had been addressed. And thank you, asdfghjk, whoever you are and wherever you may be. But I’ll take exception to one point you made — I do not believe the EFF was “played” by a bunch of performance artists.  Even without the disclaimer, their non-affiliation with Wikipedia seemed clear.  And it does not seem far-fetched for EFF (or me) to have mistaken the meaning of communications, in which, Mr. Godwin now claims,  “no litigation [against wikepediaart.org] was threatened or commenced.”  On April 9, Doug Isenberg, a lawyer for Wikimedia, wrote Wikipedia Art a letter that sure sounds like it threatened litigation:

Wikimedia appreciates your offer to “explore an amicable resolution to this matter.” Accordingly, I think it would be helpful to draw your attention to a recent domain name dispute between Wikimedia and the registrant of the domain name <visualwikipedia.com>. The registrant of that domain name was using it in connection with a website that described itself as “a visual, intuitive, and interactive web interface to encyclopedic knowledge/information.” The registrant of that domain name refused to cooperate with Wikimedia, after which Wikimedia filed a complaint pursuant to the Uniform Domain Name Dispute Resolution Policy (“UDRP”), resulting in a published decision ordering the domain name transferred to Wikimedia. See WIPO Case No. D2009-0139, available at http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-0139.html. . .

In light of the above, Wikimedia suggests that Mr. Kildall select a domain name that does not include any of Wikimedia’s trademarks and that Mr. Kildall transfer the <wikipediaart.org> domain name to Wikimedia. Doing so would allow Mr. Kildall to continue to freely express himself without raising the same concerns that Wikimedia has asked me to investigate. If Mr. Kildall is willing to do so, please let me know by April 16, 2009.

But all is well that ends well.  The disclaimer removes any possible claim of visitors to wikipediaart.org would believe the site is affiliated with Wikipedia, and Wikipedia Art, despite Mr. Isenberg’s “suggestion,” keeps its domain name. Perhaps next time Mr. Godwin should not delegate to outside lawyers the writing of letters he does not intend to contain threats of litigation.

There still is nothing new under the sun. So what is originality?

Is Coldplay original? As Paste reports, “Back in December, . . . guitarist Joe Satriani was accusing Coldplay of plagiarizing his song, “If I Could Fly,” with their undeniably catchy, monster hit, “Viva La Vida.” Coldplay has now responded, claiming Satriani’s song is not original enough to be infringed. Of course, Satriani’s lawyer disputes the legitimacy of this defense:

Coldplay and its lawyers saying Satriani’s song doesn’t even deserve protection because it “lacks originality.” So, they’re basically saying that because the song blows in the first place, it doesn’t deserve shielding of the law. Fair enough.

But that’s a straw man’s argument, says Satriani’s lawyer Howard E. King, replying that this sort of response is “typical” in copyright infringement cases. According to King, Satriani would like this matter settled out of court, but Coldplay isn’t ready to budge.

It is not, of course, the first time Coldplay has been accused of stealing the tune to Viva la Vida, and it is not the first time Coldplay’s apparent plagiarism has been explained as the coincidental replication of a common pool of pop music moves. Because we so worship the creative artist, though, we tend to recoil from the idea that so much genuine artistry is merely the repackaging of formulas with which we are familiar and comfortable. The KLF, though, understood the formulaic foundation of pop music, publishing The Manual (How to have a Number One the Easy Way), a how to? guide to the method they used to construct British pop hits. As they explained:

Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality. In the past, most writers of songs spent months in their lonely rooms strumming their guitars or bands in rehearsals have ground their way through endless riffs before arriving at the song that takes them to the very top. Of course, most of them would be mortally upset to be told that all they were doing was leaving it to chance before they stumbled across the tried and tested.

Thus, they instructed the pop star wannabe:

The first of the component parts you are going to need to find is the irresistible dance floor groove.

Before we go any further we had better define “groove”. It is basically the drum and bass patterns and all the other musical sounds on the record that are neither hummable or singalongable to. . . .

Black American records have always been the most reliable source of dance groove. These records down through the years have inevitably laid so much emphasis on the altar of groove and so very little into fulfilling the other Golden Rules that they very rarely break through into the U.K. Top Ten, let alone making the Number One spot. A by-product of this situation is that gangsters of the groove from Bo Diddley on down believe they have been ripped off, not only by the business but by all the artists that have followed on from them. This is because the copyright laws that have grown over the past one hundred years have all been developed by whites of European descent and these laws state that fifty per cent of the copyright of any song should be for the lyrics, the other fifty per cent for the top line (sung) melody; groove doesn’t even get a look in. If the copyright laws had been in the hands of blacks of African descent, at least eighty per cent would have gone to the creators of the groove, the remainder split between the lyrics and the melody. If perchance you are reading this and you are both black and a lawyer, make a name for yourself. Right the wrongs.

As the Authorship Collective in the English Department at Case Western Reserve explains (footnotes omitted):

With its emphasis on originality and self-declaring creative genius, this notion of authorship has functioned to marginalize or deny the work of many creative people: women, non-Europeans, artists working in traditional forms and genres, and individuals engaged in group or collaborative projects, to name but a few. Exposure of these exclusions — the recovery of marginalized creators and underappreciated forms of creative production — has been a central occupation of cultural studies for several decades. But the same cannot be said for the law. Our intellectual property law evolved alongside of and to a surprising degree in conversation with Romantic literary theory. At the center — indeed, the linchpin — of Anglo-American copyright as well as of European “authors’ rights” is a thoroughly Romantic conception of authorship. Romantic ideology has also been absorbed by other branches of intellectual property law such as the law of patent and trademark; and it informs the international intellectual property regime. In patent it survives today both in figurations of the inventor and in the emphasis, which this body of law shares with copyright, on the “transformative” moment in the creative process.

The Authorship Collective goes on to cite examples of “biopiracy,” the appropriation by pharmaceutical companies of native knowledge in medicinal plants. The companies then patent synthetic versions of the plants’ effective ingredients and profit from the sale of the “new” drug. For example:

The Hoodia cactus, native to South Africa, has recently come to the fore of the debate surrounding bioprospecting and intellectual property rights. The Hoodia cactus, native to the Kalahari Desert, has been used for centuries by the hunter-gatherer San speaking tribes of the region (in the past they were commonly referred to as “Bushmen”, although now this designation is recognized as being pejorative, inaccurate and outdated). The San peoples have long recognized the appetite suppressant qualities of the Hoodia cactus, and have traditionally chewed the stem to stave off hunger and thirst during long hunting expeditions in the desert. Scientists from the South African Council for Scientific and Industrial Affairs learned of the Hoodia’s properties and began to study the cactus. In scientific tests, animals given the cactus lost weight rapidly without any apparent negative side effects. According to scientists from the South African Council for Scientific and Industrial Affairs (CSIR), the Hoodia works by “mimicking the effect glucose has on the nerve cells in the brain, in effect telling us we’re full…thus curbing the appetite.” (http://news.bbc.co.uk/2/hi/programmes/correspondant/2947810.stm) Scientists at the CSIR dubbed the appetite suppressant molecule in the Hoodia “P57″. Recognizing the enormous potential market for the Hoodia outside South Africa, CSIR placed a patent on P57 and sold the licensing rights to an English biopharmaceutical firm, Phytopharm, in 1997. Phytopharm then sold the license to American pharmaceutical giant Pfizer for 25 million dollars. Throughout the whole process, however, the San peoples were completely unaware of what was occurring.

So, is Viva la Vida merely a reworking of old formulae? It sure seems it might be:

So maybe Coldplay is not a group of plagiarists; rather, it is a group of pop hacks working on tropes that the entire pop music industry since the 1950’s has stolen from elsewhere. Originality is a tricky thing. Just ask Shepard Fairey.

Good lawyers are not terrorists.

There is a pronounced tendency among non-lawyers to believe the best lawyer is the most belligerent lawyer, the one most willing to make things difficult for the other side. A certain segment too of beginning law students believe their professional role will be to make their adversaries’ lives as difficult as possible not by being smarter and more persuasive but, rather, by being more of a pain in the butt.

First, this attitude is very wrong-headed. Mindless aggression can be effective, but only when matched against mindlessness. A smart lawyer can calmly run circles around mindlessly aggressive lawyers. Fortunately, as well, the court system has its limits. The Blog of the Legal Times reports that a court ruled that Robert Fastov, a D.C. art dealer who also happens to be a Stanford Law School graduate, “must pay more than $630,000 in attorney fees and expenses to Christie’s for a suit a judge said only served to harrass the auction house after it refused to sell a painting . . . .”

Typically, and almost always, both plaintiffs and defendants in U.S. lawsuits pay their own costs of litigating, win or lose. In fact, this rule is known as the “American Rule.” The “English Rule” requires the losing party to pay the winning party’s costs. Thus, in England, far fewer individuals sue corporations because the individuals know the corporations can afford to pay the plaintiff’s costs, while the plaintiff cannot afford to pay the corporations’ costs of defense.

But, as the Fastov case indicates, someone can act so egregiously in U.S. courts that he will be charged with the costs of his adversary’s lawyers. The interesting part of the decision is that the court does not discuss the merits of the plaintiff’s lawsuit (which were plainly non-existent); rather, the decision affirmed a trial court decision that focused on the enormous size of the briefs and the enormous number of documents the plaintiff submitted in the case, making the point quite clearly that the mass of materials was useless merely because it was such a mass. As the trial court’s decision (pdf) explains:

In response to defendants’ motion for summary judgment, plaintiff has attempted to file a 59-page opposition, a 90- page declaration in support of his opposition, a 461-page statement of disputed and undisputed facts, and three volumes of exhibits totaling approximately 1,500 pages. A first-year law student is taught that a filing in support of or in opposition to any motion should be tailored to achieve the paramount goal of assisting the Court in rendering its decision. Plaintiff’s filing does the opposite. It is an abuse of the litigation process.

The crucial point: A first-year law student is taught that a filing in support of or in opposition to any motion should be tailored to achieve the paramount goal of assisting the Court in rendering its decision. A lawyer’s job is to give the judge the tools to rule in his client’s favor. Your job is not to give the court a bunch of information from which the court can derive its own decision and reasons. If you explain to a court in a convincing fashion why your client should win, the court is likely to adopt your reasoning and rule for your client. I have even had courts cut and paste my brief into their opinions. When they’ve done so I haven’t felt plagiarized; I’ve felt vindicated.

Neither is your job to so overwhelm the other side they want to give up. That, plainly, was Fastov’s intent. After Christie’s had refused to sell a painting Fastov owned, he sent Christie’s a 79-page letter, with hundreds of pages of attached exhibits, threatening to sue for damages “in excess of $265,000″ and “punitive damages in an amount to be determined, but considerably in excess of $1,000,000.” He also explained that “the cash outlays that Christie’s will, to a legal certainty, have to make (and will not recover, even if Christie’s wins) to defend the litigation will be approximately $221.3K (very conservatively understated) or (more realistically) well in excess of $300K.” He went on to threaten dire consequences if his demands weren’t met:

[I]f you decide for tactical purposes to delay your response beyond my three week deadline, Christie’s costs of settlement will increase appreciably. If you decide to wait to see if I actually file the suit before approaching me to discuss settlement, you will find that the chances of achieving settlement are virtually nil, unless Christie’s is prepared to reimburse me for all of my costs to date of settlement and pay all of my compensatory damages, which will be well in excess of $265K, and an extremely high percentage of the amount of punitive damages prayed for in the complaint, which shall be in the millions of dollars. . . . Do not bet against my inclination, will, ability, experience, and tenacity to file and successfully maintain [Fastov v. Chritie's] through to its successful conclusion. It will be the worst and most costly conclusion and bet of your life. The settlement proposals and the purposes of this letter are inherently pacific in nature. If you and Christie’s force me to go to war, those who have litigated for, with, and against me will tell you that I am extremely tough, intelligent, and tenacious. I give no quarter and ask none, and above all, I will take any and all actions, both within and without the courtroom, that do not violate the rules of professional conduct, necessary to achieve Christie’s unconditional surrender.

When Christie’s failed to give in to his threats, Fastov filed a 225 page (!) complaint. The complaint begins the lawsuit. The motion for summary judgment (in connection with which he filed approximately the 2,100 pages referred to above) is an effort to dispose of the case before trial. If you need that much paper to convince a court you’re right, you’re either inept or your merely engaged in terror. More likely, you’re both inept and engaging in terror, as was Mr. Fastov. Your job in a lawsuit is to get the court on your side, not to destroy the opposition. If clients and lawyers understood this was the purpose of litigation we all, lawyers and clients, would be better off.

Shepard Fairey, AP, and Dirty Hands

While here at Geniocity today I’m wishing my family had our own backyard wind turbine, Remix America asked me to weigh in as a guest blogger on the latest from the copyright and fair use dispute between Shepard Fairey and AP.

Wind of Change: Forget the jet pack! I want a wind turbine in my backyard instead.

“Small wind” is a concept with which I was unfamiliar until beginning to do reading in connection with the the “Wind of Change” series Geniocity’s bloggers are now engaged upon. Small wind refers to turbines individual turbines, typically producing fewer than 100 KW, that — as described by the Ontario Ministry of Agriculture, Foord, and Rural Affairs – are installed “at homes, farms and small businesses either as a source of backup electricity, or to offset use of utility power and reduce electricity bills.” The New York Times one year ago reported that wind turbines, remarkably, “are becoming more common in heavily populated residential areas as homeowners are attracted to ease of use, financial incentives and low environmental effects.” Because new technology allows homeowners who generate more electricity than they use to sell the excess back into “the grid,” the systems use the electricity from utilities as backup power, removing the need for large and expensive battery-based backup systems. The ability to switch between turbine and utility-generated power is also effortless. For all of these reasons, there has been an explosion in these home systems over the past four years. The American Wind Energy Association publishes several small wind “success stories.” I am amazed to learn too that small wind was invented by and is still dominated by the U.S.:

America pioneered this renewable technology in the 1920s when farmers not connected to the power grid attached generators to what used to be simple water-pumping windmills. Unlike utility-scale large wind turbines or solar photovoltaic panels, small wind turbines are the one renewable energy technology that the US still dominates.

Perhaps the biggest problem facing more widespread use of “plug-and-play” home turbines, however, is local opposition. As Joe Schwartz, editor of Home Power magazine, explained to the New York Times (and as my post on Friday pointed out), few people who haven’t lived next door to a wind turbine want to:

“Turbines work in rural areas with strong wind,” Mr. Schwartz said. “But in urban and suburban areas, neighbors are never happy to see a 60- to 120-foot tower going up across the street.”

Thus, local zoning laws pose one of the biggest legal barriers to real growth in home-based small wind. These local laws could be prevented by legal action at either the state or the federal level. State laws “pre-empt” local laws. That is, if a municipality’s laws conflict with the laws of the municipality’s state, the state’s laws control. And federal laws pre-empt state law, so that, if state law conflicts with federal law, federal law controls.

It is almost inevitable that if our states and the federal government do not step in to this area, local zoning laws will prevent huge growth in small wind. Until a majority of homeowners want their own wind turbines or, at least, most homeowners have had experience living near small wind turbines, most homeowners will not want home turbines in their own neighborhoods. Local zoning laws are enacted by people concerned purely with their own neighborhoods — city council members are legislating only for, literally, their own neighborhood. Larger legislative bodies, on the other hand, naturally have larger visions, and are much more likely to balance state and national policies and interests into any judgment over whether to even allow home-based small wind. It seems necessary, therefore, that if one is interested in a future that includes home-based small wind, that states or the federal government act to prevent local governments from using their zoning laws to stop home-based small wind.

Wind of Change Music Club: Donovan, 1964 — Catch the Wind

Wind of Change: Education and democracy are the ways to wind power.

Legal disputes may be arguments over the meaning of laws, but they are even more importantly disputes over different views of what is right, what is just, what is fair.  And the practice of law is, above all else, the practice of problem solving and dispute resolution.  The laws and the procedures are really only vehicles for solving the problems created by those disagreements about values.  There may be no more concise a way to sum up why yesterday I wrote that the most difficult part of practicing law isn’t learning the laws and the procedures but,  rather, learning how to apply the law in an infinitely complex world.

So I could pretend that there’s some deep significance in the fact that four weeks ago an appellate court in New York rejected the lawsuit instituted by the Wind Power Ethics Group (WPEG) — a citizens’ organization based in upstate New York — in an effort to stop the proposed construction of a series of wind-powered generators by St. Lawrence Windpower, LLC.  According to WPEG, the project is one of a four wind projects that, if completed, will “create a continuous swath approximately 25-30 miles east to west . . . where wind turbines will be ubiquitous.”  The result, WPEG continues, “amounts to an unacceptable sudden and uncontrolled environmental transformation of an entire region of New York State driven by corporate greed and questionable ethics.”  The court rejected WPEG’s claim (opinion, pdf)  that the local zoning board had been mistaken in ruling that St. Lawrence Windpower’s project “qualified as a utility and that the project therefore was a permitted site plan use in that district.”

More specifically, the court ruled “that the classification by the [zoning board] of the series of wind-powered generators as a utility within the meaning of section 315 of its Zoning Law is neither irrational nor unreasonable, and that the determination is supported by substantial evidence.”  But if you think that the important parts of this court case were the meaning of the word “utility,” how courts distinguish between rational and irrational classifications, and how much evidence is “substantial” evidence, you’re sadly mistaken.  I’m not at all suggesting that lawyers don’t need to understand these matters; rather, what I’m suggesting is that these legal issues are merely vehicles in which what really is being decided is the justice of placing a series of wind power projects in an area extending 30 miles in one of the most beautiful parts of our continent. In short, the real issue (which might have been, but likely was not, most readily shown through the events leading up to and resulting in the zoning board’s decision) is whether the opponents of the wind power projects should (as a matter of justice) prevail over the proponents of the projects.

It is plain that one source of opposition is the NIMBY syndrome.  People will protest — and sue — to keep whatever they fear and loathe away from where they live.  But they will also protest and use the law to fight whatever is imposed on them without any consideration of their views.

The Danish Wind Industry Association has looked closely at attitudes to wind power, observing, in a paper entitled “Public Attitudes Towards Wind Power” (pdf), that in general opposition to wind power comes from people who do not think it is a practical solution to our energy problems because it is too expensive and unreliable (because of its dependence on the wind) and because wind turbines are ugly and noisy.  Supporters of wind power, on the other hand, believe it is a practical solution to our energy needs, that climate change poses risks that must be addressed, and that wind power is limitless, non-polluting, and safe.

But when confronted with the prospect of wind turbines in their own neighborhood, supporters tend to lose their enthusiasm:

There is a great difference between wind energy as an idea and wind turbines as acceptable structures in the landscape. As we have seen people support the general idea of renewables and wind power. But when it comes to actual projects in a local area, the acceptance of wind power seems to vanish. This pattern is called the “Not In My Back Yard” syndrome or in short just the NIMBY syndrome (Paul Gipe, 1995). The basic theory is that people support wind energy on an abstract level but object to specific local projects because of the expected consequences concerning primarily noise and visual impact. The NIMBY syndrome is not a special feature for wind power. It can be detected in many other situations. New highways, bridges, tunnels, hospitals, airports, nuclear power plants, and other energy generating plants all face resistance at the local community level.

Nevertheless, the support returns among people who actually do live with wind turbines in their back yards.  The “latest study done in Denmark (Andersen et al., 1997) . . . shows “some interesting results.”  The study was conducted in the town of Sydthy, which has a population of 12,000.  98% of Sydthey’s energy iis provided by wind power.  Many of Sydthey’s turbines date from the early 1980’s and therefore are smaller and noisier than more modern turbines.  The study shows “that people with a high degree of knowledge about energy generation and renewables tend to be more positive about wind power than people with little knowledge.”

First, proximity to turbines has no significant correlation to support or opposition to them (though, surprisingly, the people with wind turbines almost literally in their back yards are more positive about wind power than people living further away):

The distance to the nearest turbine has no effect on people’s attitudes towards wind turbines in general. This indicates that people living close to wind turbines do not consider noise and visual impact to be significant problems. As a matter of fact people living closer to the nearest wind turbine than 500 meters tend to be more positive about wind turbines than people sited further away from the turbines.

In addition, the visibility of turbines seemed to have no effect on attitudes toward wind power (but  increased numbers of turbines seem as surprisingly attractive as turbines next door: “people who could see between 20 and 29 turbines tended to be more positive about wind energy than people being able to see only a smaller number of turbines.”)  Perhaps confirming the stereotypical rural contempt for the tendency of city dwellers to romanticize nature, “people living in a city zone (defined by speed limits) tend to be more negative than those living in a country zone.”   Four out of five Sydthey residents “do not feel bothered at all by noise made by turbines,” and “[a]s expected, the longer people live near the turbines the fewer experience noise inconveniences.”  Finally, middle-aged people are most sensitive to the noise of turbines, men perceive the noise to be louder than do women, and people who have a more favorable view of the utility of wind power feel less inconvenience.

One might conclude that the solution to the NIMBY problem, then, is increased information, but the Danish Wind Industry Association recognizes that inference may be too simplistic or, at least, incomplete.  As is apparent from WPEG’s assertion, mentioned above, that its opposition to the wind power projects in the Thousand Island region is based on its opposition to “corporate greed and questionable ethics,”

people in areas with significant public resistance to wind projects are not against the turbines themselves, they are primarily against the people who want to build the turbines. Often the local people are kept out of the decision making process. Some have hostile attitudes against the developers, the bureaucracy or the politicians on beforehand. Those factors have a significant effect on public attitudes in a specific area. Attitudes towards concrete projects are site specific. They are primarily formed by the interaction with central actors and the extent of involvement of local interests are a major explanatory factor.

So the answer is no merely to educate people on the practicality, aesthetic quality, and relative quiet of wind turbines.  It is to get people involved.  Another recent study shows that “85 per cent of the population wants to be kept informed about plans for new windpower. . . . 49 per cent said they would definitely go to public meetings if such meetings were arranged.”

Unfortunately, wind power developers may not have yet gotten the message.  “[I]n less than 50 percent of German wind power projects local inhabitants were given opportunities to articulate their opinion during planning phase. And in only 8 per cent of the cases where people were actually heard, did the developers hold information meetings. In one out of three cases the public had actual influence on the siting process typically through legally prescribed access to present formal objections.”

As Steffan Damborg, the author of the Danish Wind Industry Association’s article concludes, “Decision making over the heads of the local people is the direct way to protests.”  I would add only this: decision making over the heads of people affected by the decisions is the direct way to lawsuits.  The lawyers representing the parties to the lawsuits probably don’t mind, but the rest of us should.

Wind of Change: new problems require new laws and new political alignments.

One consistent theme in this blog is that law is not a fixed set of rules applied to new situations as those new situations come up. Rather, as new situations arise, the law changes. This relationship between change and the law is frustrating to a lot of people. Politicians decry the activism of judges who don’t merely “apply the law as it is written.” And my students feel sometimes as if I’m trying to trick them. Most come to law school thinking that what will be really hard is that they’ll have to spend so much time learning so many rules. I tell them over and over again that it is indeed hard to spend so much time reading law. But that’s the easy part. The hard part is when you realize how open-ended and fluid the rules are and begin to understand that the really, really hard part is developing the creatvity and expressive powers necessary to effectively deal with law in an infinitely complex and ever-changing world.

So, for example, I have tried again and again to make clear that there is nothing in our copyright laws that is a necessary and immutable part of treating creators fairly. Rather, what is fair changes as the underlying material reality of creation changes. Our copyright laws our the product of a particular time, including the technologies of creation, the means of disseminating created products, and the intellectual fashions of that time. Since we have experienced and continue to experience a revolution in information technology, our copyright laws are bound to change. So an artist who claims he has “control over any use” of her images is not only wrong; she is also fighting a fight she may not be able to win without the sacrifice of the benefits of our new technologies — benefits we never had before and that we’d really prefer not to sacrifice for the sake of her exclusive control.

So we should not be surprised that changing energy technologies are beginning to realign our entrenched expectations. Ted Kennedy, of course, has long been known as the liberals’ most effective liberal, not least because, in the words of the Nation, he has “been his remarkable capacity to form warm, genuine friendships–more than mere working alliances–with GOP senators.”

But two years ago, when Kennedy worked in the Senate to block Cape Wind, a windmill farm in Nantucket Sound, environmental groups “launched an aggressive advertising and lobbying campaign to persuade Democrats to abandon Kennedy” and called Kennedy’s maneuver a “backroom deal.” The premise of the attacks, of course, was that Kennedy’s maneuver was motivated by the location of the legendary Kennedy compound on Hyannis Port, just 8 miles from the Cape Wind project. Kennedy counter-attacked, arguing that his position was the environmentally sound one. He also asserted that the wind farm would “hurt tourism, one of the area’s key industries.”

Putting aside the merits of Kennedy’s position, it seems plain that developing wind power will create rifts between environmentalists. On the one hand, of course, wind farms are “clean,” generating no waste as a direct result of energy production. On the other hand, wind turbines of sufficient size and sufficient number to make a real impact on energy production cannot help but have effects that not everyone will accept willingly.

I would not necessarily have guessed, however, that wind farms would already and directly be coming into conflict with laws established specifically to protect the environment. But that conflict is quite real in connection with migratory birds, as detailed by John Arnold McKinsey, a lawyer in Sacramento and former nuclear power plant operator on submarines in the U.S. Navy, in “Regulating Avian Impacts under the Migratory Bird Treaty Act and Other Laws: the Wind Industry Collides with One of its Own, the Environmental Protection Movement,” 28 Energy L.J. 71 (2007) (pdf).

As McKinsey explains, his article “explores the complexity, and perhaps irony, of the avian impacts facing the wind industry.” The impact, current and potential, of wind turbines on birds (and bats) is not only “an awkward issue for the environmental protectors that promoted wind energy, but is also subject to a number of “federal laws . . . [that] have created a growing issue with no resolution in sight.” Thus, McKinsey believes, “[h]ow well the wind industry deals with avian impacts may determine the ability of the industry to continue its amazing success.”

Unfortunately, while there is a growing recognition that fatal collisions between birds and wind turbines seem inevitable, according to McKinsey, it is not “well understood how many birds or bats collide with wind turbines” and it is “[e]ven less understood how many birds or bats will collide with a future wind project that exists only on paper.” And until recently no one has even considered avian impacts in determining where to place wind farms. I’m no expert on wind farms, but I am a litigator trained to see risks where no one else does, and it never occurred to me in thinking about a wind farm in Lake Erie just off the Cleveland’s coast that such a facility might, as now seems plain, have a big effect on birds.

Thus, of course, we not only will have laws and political alignments we never expected, we will also have new jobs we never expected. It is only in the course of my professional career that the representation of waste management companies has become a major area of legal specialization. Now we have the beginnings of an “avian impact assessment industry,” as McKinsey explains:

Companies exist that are nearly exclusively studying avian impacts for wind projects. Businesses have started up solely to provide radar survey services for wind projects. Evaluating avian impact risk has become an accepted practice in developing wind energy projects. Such efforts can be very expensive, depending in part on what level of effort is required. In general, avian impact risk evaluation is people-intensive. The various activities all involve individuals watching, catching, and/or counting birds or inspecting the ground for clues as to what birds or bats might utilize the project location. Night time surveys are also costly. Radar surveys alone, must factor in the cost of radar equipment as well as the operator or operators.

And now the impact on birds, even if it is not yet accurately measurable, is beginning to have an effect on the design and placement of wind turbines. Some think “newer and larger wind turbines, with their slower more visible motions, might reduce collisions.” Studies suggest “using radar to steer off birds or placing lights at selected locations to avoid impacts.” But we’re still working largely in the dark. It’s been thought that the use of echo-location by bats would allow them to avoid impacts, but “[b]ats continue to puzzle researchers. Some projects have a very large bat kill whereas others have minimal bat kill.”

There are many federal laws on the books that could affect the wind industry precisely because of bird kills. The most important of them, according to McKinsey, is the Migratory Bird Treaty Act (MBTA), which was originally enacted in 1918 and provides that “it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill . . . any migratory bird . . . .” The MBTA protects more than 800 species of birds. Intent to kill a bird is not required to violate the act, which imposes criminal penalties. Unknowing violations of the MBTA can receive fines up to $15,000 per violation and prison terms up to six months. Knowing violations are felonies and receive fines of $250,000 to $500,000 per violation and up to two years in prison.

Interestingly, though, McKinsey highlights the conflicts that can arise not only with respect to what the law is but with also with respect to how the law is enforced. He suggests that the MBTA’s potential impact is managed largely by “being ignored,” the approach the U.S. Fish and Wildlife Service adopted as official policy in 2003 in a policy memorandum euphemistically describing its approach as “selective enforcement.”

But the federal agencies that administer our regulatory system largely abandoned their jobs under the Bush administration. I have been unable to determine whether the Obama administration has reversed this policy in connection with enforcement of the MBTA, though it quite plainly has been called upon to do so. Already we’ve seen a shift away from “selective enforcement” of our laws governing workplace safety. But simply returning to strict enforcement of the MBTA might create conflicts no one considered before.

What seems plain, however, is that former allies in the environmental movement will be opposing one another on wind power projects. Altamount Pass, east of San Francisco, was developed as a wind farm in the early 1980’s. At the time, locating wind turbines was a function almost exclusively of wind availability. That can no longer be the case:

Altamont Pass, it turned out, while an excellent wind resource area, was also a challenging location to avoid avian impacts. Worse, this area of rolling hills was a primary hunting ground for large birds of prey, raptors. The end result was numerous dead raptors. Actual numbers have never been agreed upon by the various sides in the Altamont Pass confrontations, but a significant number of study efforts have taken place. Estimates often claim that more than 1000 eagles, hawks, and owls are killed each year.

Germany: we’ll still return art stolen by the Nazis.

In connection with yesterday’s post regarding art looted by the Nazis, the Art Law Blog announces “that Germany has rejected Sir Norman Rosenthal’s call for an end to Nazi restitution cases.”

Is it time to get on from where we are and stop returning art stolen by the Nazis to the heirs of its original owners?

My friend and former student John Kelley — who now is Compliance Manager for Baystate Health but has had extensive experience in the art market — points me to an article in the German magazine Spiegel Online, which discusses British art connoisseur Sir Norman Rosenthal’s call for an end to the return of artworks looted by the Nazis to the heirs of the original owners. Although it was not until the late 1990’s that an international consensus was reached that artworks should be restored to the families of the people from whom the Nazis had stolen them, since then, according to the article, the idea has ” seemed undisputed”; after all, “[w]ho would challenge the legitimacy of the claims of the heirs of Nazi victims to their family property?”

But, as the article points out, Museums have at times disputed their obligation to return such works on the grounds that “they acquired the works in question legally and in good faith.” Individual owners have made the same argument. More recently, though, at least one prominent German member of the art world has argued that the practice of returning the art to the families of the original owners should stop because the families have been motivated by money, not by their love of the artworks:

The best-known opponent of restitution in Germany is Bernd Schultz, 67, the director of the Berlin auction house Villa Grisebach. In a speech at the Chancellery two years ago, Schultz accused the heirs of having a purely financial interest in looted art: “They say Holocaust, but they mean money.” He has never retracted the statement.

That argument seems on its face, to me, a bit disingenuous. The works that are fought over, of course, are works that are worth an enormous amount of money. If they weren’t, the issue would not be the huge one it’s been. Why shouldn’t a family who, but for the Nazis, would have had a work of art or the right to dispose of it as they had seen fit not have a better claim to it than someone who succeeded to the claim of someone who succeeded to the claim of the original thieves and murderers?

But Sir Norman’s argument is different: “[h]is motives include the desire for reconciliation” and the desire to settle issues that leave current owners who have no reason to doubt the legitimacy of their ownership rights subject to claims. It does indeed seem that at some point the sheer passage of time ought to settle one’s rights. But have we reached that point? And are we really at a point at which the vast majority of current owners have no reason to doubt the legitimacy of their rights?

The fact Sir Norman, who is himself the child of survivors and has no desire to downplay the importance of Nazi crimes, may well mean where getting closer to the day when, in his words, we must get on from where we are and “[w]e can no longer wipe history clean.”

Requiring McDonalds to disclose the calories in the Big Mac: good for consumers, or treating customers like idiots?

Today’s Wall Street Journal Law Blog has a post that nicely summarizes the varyious views on the impact of individual lawsuits on corporate behavior.  Referring to an article in the Wall Street Journal by Nathan Koppel (subscription only), the blog explains that “a surge in litigation against food companies for allegedly selling unhealthy products and for misrepresenting their products’ nutritional value” has led the food companies to adopt “a host of health-promoting steps, like reducing their use of trans fats, limiting marketing of sugary products to children, and toning down boasts about their products’ nutritional value.”

Thus, for example, in New York Restaurant Association v. New York City Board of Health (pdf), the United States Court of Appeals for the Second Circuit upheld a New York City law requiring restaurant chains to post calorie information on their menus.  In doing so, the court rejected the argument that the fact the restaurants already satisfied the federal regulations on required disclosures issued by the FDA meant that the city’s regulations were “pre-empted.”

As I mentioned last month, the U.S. Supreme Court recently rejected arguments by a pharmaceutical company that having satisfied FDA labeling requirements, it should not also be subject to state law that imposed even stricter requirements on the company regarding what it must warn about in selling its drugs.  The Supreme Court in that case emphasized the important role litigation plays in supplementing federal regulation, pointing out that regulatory agencies are limited in what they can do and should not be relied upon to alone police an industry unless Congress makes it clear that the agency is supposed to have that exclusive authority:

The FDA traditionally regarded state law as a complementary form of drug regulation. The FDA has limited resources to monitor the 11,000 drugs on the market, and manufacturers have superior access to information about their drugs, especially in the postmarketing phase as new risks emerge.

A lawyer in the New York Restaurant Association case argues, though, that such lawsuits are “part of a larger ‘paternalization of society,’ adding that such litigation ‘in effect, says the masses aren’t intelligent enough to understand what they are buying.’” He is not alone in his sentiments, even if he lost his most recent case.  Michael Doyle, a reporter for McClatchy’s Washington Bureau, wrote in the aftermath of the decision that the “calorie police have won another one.”

Richard Prince, Patrick Cariou, and Appropriation Art

Back in January photographer Patrick Cariou sued Richard Prince, alleging that the collages Prince had exhibited at the Gagosian Gallery in 2008 because they had appropriated photographs of Rastafarians Cariou had taken and published in his book Yes Rasta in 2001.  A few days ago Prince filed his answer, claiming his use of the photographs constituted fair use.

As Brian Sherwin explained at myartspace.com last January, if the case is not settled, the court decision in it could have a profound impact on the art world, either clarifying that the widespread acceptance in the art world of appropriation art is legally legitimate or opening the door to an increased number of lawsuits by copyright holders against artists engaged in collage, sampling, satire, and any  number of other genres that have become increasingly easy to engage in with the digitalization of media and the rise of the internet:

[Cariou's] case could be groundbreaking in that it will establish some order concerning fair use– either for or against it. If the court sides with Cariou and his demands are honored it would mean that there will be drastic changes in the art world. Gallerists, curators, and publishers may think twice before promoting an artist with a history of copyright infringement allegations.

Prince has been engaged in a particularly confrontational style of appropriation since the 1970’s.  As Randy Kennedy has written:

“Since the late 1970s, when Richard Prince became known as a pioneer of appropriation art – photographing other photographs, usually from magazine ads, then enlarging and exhibiting them in galleries – the question has always hovered just outside the frames: “What do the photographers who took the original pictures think of these pictures of their pictures, apotheosized into art but without their names anywhere in sight?”

Most civil lawsuits — the vast, vast majority (over 90%) — settle, of course.  And it seems likely Cariou’s lawsuit will settle too.  Prince is very, very succesful, and there likely will be some amount of money he is willing to pay and Cariou is willing to take for them both to avoid a decision that, if it goes against Prince, almost undoubtedly would be appealed and the outcome of which may be very much debatable.  So it’s unlikely we’ll end up with the legal clarification the art world might desire.  The fact the development of judge-made law is entirely dependent on the outcomes of individual lawsuits is precisely why such questions can remain so long unresolved.  The fact such questions remain unresolved, however, may not be a problem.  It is, perhaps, a better thing for artists who appropriate and artists whose work is appropriated — as well as the world of critics, museums, galleries, collectors and patrons that exists as a result of those artists — to slowly work to a solution of these questions themselves.

Fix the law, but don’t forget what the law has already tried to fix.

Opinions about law tend to focus on its defects, and there are plenty of those.  What too many of those opinions ignore, however, is that law is rarely arbitrary or one-sided.  There are imperfections, but those imperfections are flaws in an effort to address real problems.  To fix the flaws in existing law without attending to the problems that law addresses is to trade one set of problems for another, often bigger, one.

The U.S. legal system is an immensely complex product of decisions made in courts, legislatures, and administrative agencies at the federal level as well as the state and local level.  When one considers the monumental number of individual decisions that make up the workings of those tens of thousands of jurisdictions and the fact that law persists over time until it is changed, it is plain that the “law” is the product of a massive collective wisdom.

That is not to say the system is perfect — it is far from perfect, and its complexity is in no small part directed at perpetually refining the defects that perpetually appear as new problems arise in new contexts that include new ways of looking at things.  Not only do we continually face new facts, but what we think and feel about those facts always changes.  As Nicholas Kristoff points out this morning, for example, new industrial farming methods and new ideas about the morality of ignoring the suffering of animals is has produced “a broad push in Europe and America alike to grant increasing legal protections to animals.”

But my point today isn’t about new law — it’s about the efforts to fix existing law.  If one is going to do so in an effective way, it is not enough to identify a problem and eliminate it.  One must also figure out what the existing law is trying to do.  Medical malpractice is a lottery, giving big awards to certain injured plaintiffs while leaving most uncompensated.  It also does a less than optimal job at distinguishing between negligent doctors and non-negligent doctors who, after all, practice a profession in which perfect performance will not necessarily lead to a good outcome.  It also likely increases the costs of health care by forcing doctors to practice “defensive medicine.”

But if one produces a solution that merely solves these problems without recognizing the problems the system is trying to address, one is merely serving one set of interests.

There are two major reasons the medical malpractice system operates the way it does.  Patients suffer major harm from medical procedures, and they can’t afford to pay for the care that harm requires.  In addition, the threat of liability has made the standard of care in U.S. health care the highest in the world.  (It’s an interesting instance of selective vision, I think, that political opposition to medical malpractice and to universal health care come from the same political sector and the opposition to universal health care is based on a promotion of the superior quality of U.S. health care, as if that quality has nothing to do with the incentives imposed by the threat of medical malpractice.)

Thus, I wrote recently in connection with Philip K. Howard’s Life Without Lawyers: Liberating Americans from Too Much Law, that if “doctors really want to reduce malpractice problems in a way that will satisfy everyone . . . [they should] create a patients’ compensation law that provides relief to patients injured by adverse medical outcomes.”  I am gratified to realize I am not alone in my thinking.  Writing today in the New York Times in response to Mr. Howard’s one-sided solution to the problems of the malpractice system, Clifford Allo points out that the biggest problem — the one the existing system is an imperfect remedy for and that Mr. Howard ignores — is that patients who suffer hard resulting from medical procedures (a risk we all face all the time no matter how perfect our doctors might be) are not provided the financial means to live with that harm:

The biggest reason for bringing the most expensive malpractice claims – for example, adverse incidents at birth – is to find some source to pay for long-term care. A single-payer system would provide that care without threatening any doctor’s personal wealth.

We use the courts to allocate yesterday’s fault so that tomorrow’s bills may be paid. If tomorrow’s care were assured, care review could focus on quality assurance rather than on fault. We need to overcome the ideology that prefers private profit to universal security.

And Jerry Frankel, a doctor, writes that Sweden already has a system like the one I described:

The problem with the proposal advocated by Philip K. Howard is that it’s very difficult in most injuries to discern negligence from an unfortunate complication or complications.

Honest, objective medical experts often can’t agree about what is the standard of care, much less whether a complication was negligence or not.

In Scandinavia, anyone who suffers a major medical injury is compensated by a no-fault system where the compensation has been set based on the type and severity of injury. This eliminates our lottery system, where few patients are compensated at all.

Physician report cards are maintained to protect the public from bad doctors, but no-fault liability payments are not part of doctors’ evaluations.

Patients in this system have the ability to opt out and sue, but if they lose in court, they lose their no-fault option. Few, if any, opt out.

How creative does a work need to be to win the Brit Insurance Design Award?

The British Design Museum gave its Brit Insurance Design Award 2009 to Shepard Fairey for his Obama Hope poster. Nominations for the award were made by “a group of internationally respected design experts, curators, critics, practitioners, enthusiasts.”

Do you think the Design Museum considered Fairey’s poster a sufficiently creative transformation of the photograph from which it was derived to be a non-infringing fair use of the photograph? Do you think AP is spending its money wisely in challenging Fairey’s right to use the photograph?

Edward Morris: “Fairey is not plagarizing or stealing! Get with the program on appropriation art, ok!”