March 22, 2009

VARA Lawsuit Filed over Destruction of Burning Man Art Car

The creators of Burning Man art car “La Contessa” have filed a lawsuit under the Visual Artists’ Rights Act (one of my favorite corners of Title 17) against the Nevada farmer who torched the car.

It had been left on the rancher’s land for several years due to a broken axle, with the permission of one of the land’s tenants. But that turns out not to matter — the claim is under the VARA, which would preempt state laws about what you can and can’t do with things left on your property. 

The relevant section of the statute, 17 U.S.C. 106A(a)(3)(B), states in pertinent part:

Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art . . . subject to the limitations set forth in section 113 (d), shall have the rightsubject to the limitations set forth in section 113 (d), shall have the right . . . to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

So we’re left with two questions: (1) is La Contessa “a work of visual art” under the statutory definition of that term, and (2) is La Contessa “a work of recognized stature”?

The first question is pretty straightforward. “Work of visual art” is a defined term in Section 101, and the definition includes “a painting, drawing, print, or sculpture, existing in a single copy.”  There’s only one Contessa, and I think it can fairly be termed a “sculpture,” so that requirement is satisfied.

But is it “a work of recognized stature”? There’s no statutory definition for that term. In Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303 (S.D.N.Y. 1994), the court held that the term called for a (rather obvious) two-pronged analysis: Does the work have “stature” (i.e., is it viewed as being meritorious)? If so, is that stature “recognized” (i.e., is there evidence that some relevant group of people viewed it as being meritorious)?  Good facts include the broad knowledge and admiration of La Contessa in the Burning Man art community.  The key bad fact: if it was a work of such recognized stature, why didn’t anybody go fix the axle and retrieve it in the several years it was sitting there?

There’s also a strong sense of “What was I supposed to do with it?” emanating from the land owner.  The statute’s prohibition on destruction, the land owner would argue, is premised on the idea that someone who owns a work of recognized stature won’t just leave it lying around.

This doesn’t strike me as an issue amenable to determination on summary judgment, so I think if this is fully litigated the case ends up being determined by a battle of the experts before the jury on the question of whether La Contessa was a “work of recognized stature.”

February 3, 2009

Big News: I’m Joining Durie Tangri Lemley Roberts & Kent LLP

My friends and colleagues Daralyn Durie, Ragesh Tangri, Mark Lemley, Clem Roberts, and Ryan Kent have formed a new law firm — and I’m joining them as their first (and, for the moment, only) associate.  The press release follows.


Google, Genentech and Ticketmaster Choose New Firm As Counsel

SAN FRANCISCO, Feb. 2, 2009 – The partners of Durie Tangri Lemley Roberts & Kent LLP are pleased to announce the formation of their new firm, effective today.

Durie Tangri focuses on diverse areas of complex civil litigation, including intellectual property (patent, trademark and copyright), complex contract and commercial matters, antitrust and unfair competition, class actions, appellate practice and professional liability.

Durie Tangri’s founding members were formerly with San Francisco’s litigation boutique Keker & Van Nest, LLP, and maintain a strong relationship with their former firm. “Ragesh, Daralyn, Mark, Clem and Ryan are great lawyers and we wish their new firm success,” Keker & Van Nest managing partner Chris Kearney said.

The respect is mutual. “John Keker and Bob Van Nest have been tremendously generous as mentors and leaders,” said Ragesh Tangri. “We hope to maintain that spirit, as well as the firm’s standard of excellence in law practice, in our new venture.” Daralyn Durie echoed those sentiments: “I couldn’t have been more fortunate than to have John [Keker] to teach me how to try cases. After more than 15 years, I will miss practicing with him and everyone else at the firm enormously, but I am very excited by the prospect of founding a new firm.”

Clients such as Google, Genentech and Ticketmaster have recognized the firm’s promise and chosen the firm as their counsel in several matters.

Daralyn Durie has been named one of the top 50 litigators under 45 in the United States by American Lawyer and the top 100 lawyers in California by the Daily Journal. Ragesh Tangri has been recognized as a leader in intellectual property law by Chambers and Partners and has been included in Best Lawyers in America’s commercial litigation section. Mark Lemley is the William H. Neukom Professor of Law at Stanford Law School and the Director of the Stanford Program in Law, Science and Technology. He has been named one of the top 50 litigators under 45 in the United States by American Lawyer and California Lawyer’s Attorney of the Year in intellectual property. Clement Roberts and Ryan Kent have achieved success at all levels of complex civil litigation, from winning summary judgment to obtaining successful jury verdicts.

Durie Tangri serves clients nationally from its offices in San Francisco, California. For more information, please visit

# # #

Keker & Van Nest is an amazing law firm filled with great lawyers who are also really good and interesting people.  I’m excited to take on the new challenges and rewards that the new firm will bring, but sad to leave Keker.

November 1, 2008

USF Fair Use Symposium: Panel 1 — Real Lawyers, Real Cases

I’m liveblogging today from the University of San Francisco School of Law Fair Use Symposium. The first panel is called “Real Lawyers, Real Cases.”  The panelists:

  • J. Thomas McCarthy (USF, Moderator)
  • Annette Hurst (Orrick)
  • Jason Schultz (Berkeley)
  • Corynne McSherry (EFF)
  • Bill Coats (White & Case)
  • Ray Nimmer (University of Houston Law Center)

First, Bill Coats:

User Generated Content and Copyright Issues from the Entertainment Industry Point of View.

He represents many content owners, including one Japanese anime producer whose Japanese-broadcast shows appear on the internet, with English subtitles, before they have a chance to subtitle them and show them on Cartoon Network themselves.

[He does a very good presentation on the latest issues in online copyright law, including inducement and the "making available" question. Unfortunately, he runs out of time before going into depth on issues of fair use.]

LucasFilm, his client, sponsors interesting UGC contests.

Next, Annette Hurst:

The parody branch of the fair use defense, focusing on Mattel v. Walking Mountain.

The client was Tom Forsythe. He took photos of Barbie in “compromising positions with vintage kitchen appliances.”  Most of his sales of art prints were to Mattel’s private investigators. He also had a postcard for sale. He also had it on his business card. The precipitating factor for the lawsuit was going up on the web.

Mattel brought copyright claims based on its sculptural work (“the head of the doll without adornment”), trade dress claims (the appearance of the doll with adornment), and trademark claims for the word mark “BARBIE.”

One key issue was whether the works were satire or whether they were parody. (This was spun out in the Dr. Seuss case.) For example, the Barbie Enchiladas photo, Forsythe said, embodied his view that Barbieis being sold to us as a consumer food concoction that we are to blindly internalize. It helped atmospherically that the work had been lauded in a competition by Guggenheim curators.

Mattel struggled to argue that it’s simply a doll, not a symbol with social importance. The struggle they had with this is porrayed best in connection with Cutting Board Barbie. Mattel argued that this was a distrubing image, but was forced to concede that there’s more to the doll than a hunk of plastic. Once the photos stop being about just the doll, the parody case is close to being won.

Is satire/parody a specrum or a binary? From whose perspective — the artist’s, the public’s? Message evaluation is more often seen in trademark cases. Indeed, Mattel put in a survey. But if you’ve got a survey, you’re gonna beat summary judgment. So they argued that parody is a question of law — and the Ninth Circuit agreed.

And how do you prove a negative to win on summary judgment on the fourth factor? They put in an economic expert based on Mattel’s existing works and licensed derivatives. The economist said they’re not in the same market. Mattel responded that they have licensed high-end photographic works in the form of coffee table books.

Lucasfilm has realized that if they harness the market for UGC, even for parodic works, they will have a very good case for defeating the fourth factor even for parodic works.

Next, Ray Nimmer:

“Fair Use: Major Markets or Small Victories”

There are several views of fair use — should you protect small incursions, or is this an exercise in information market engineering? That is, is it “no harm, no foul” or a market allocation principle that allocates part of the market to non-owners?

There is a divide between “global” arguments — that a given clas of conduct should always be immune from copyright liability — and individual arguments that are much more specific to the facts of the particular case.

The “market harm” prong can be tantamount to saying “I’m not there yet — steal it from me.”

He’s involved in Scientology v. Leterese, in which he’s suing Scientology for using a sales book. They said it was de minimis, fair use, and asserted laches.

He thinks fair use should be about personal beefs, not about allocating markets among large companies. It’s meant to create a safety valve for claims that are stupid.

Corynne McSherry and Jason Schultz:

“From Due Process To No Process?: The Role of Fair Use in DMCA Takedowns”


Not all fair use questions are impossibly vague. It can be fairly straightforward. Also, what does “fair” mean? Well, one of the things “fair” means is “due process.”

Before the DMCA, you had to file a lawsuit — and comply with Rule 11.

[He describes 512.]

[He discusses the Michael Crook, Electric Slide, Geller, and Truthiness/Falsiness cases.]


[She discusses the Dancing Baby case quite compellingly.]

Her proposal: OSPs should do human review when there is a counternotice, and immediately restore in the case of clear fair uses.

March 26, 2007

UW – Milwaukee follows UW – Madison’s Lead, Will Not Forward RIAA Letters

The University of Wisconsin – Milwaukee sent the email reproduced below to all students, faculty, and staff this morning. Like the letter sent by UW – Madison a few weeks ago, it indicates that the university won’t forward letters it receives offering to “settle” file sharing cases brought by the recording industry, though it will comply with a lawful subpoena.

SUBJECT: Illegal File Sharing at UWM

This announcement is being sent to all known UWM faculty, staff and student e-mail addresses.

The Recording Industry Association of America (RIAA) has recently increased its threat of lawsuits against students and others who engage in illegal digital file sharing. This is in response to perceived violations of the Digital Millennium Copyright Act of 1998, which specifically addresses copyright infringement of digital materials such as music, movies and software.

As you may know from recent press reports, the RIAA is now targeting individuals who live in university residence halls or use university computing resources. Because the RIAA can only identify violators by their ISP (Internet Service Provider) identifier, they are sending letters to universities requesting that these letters be forwarded to students, faculty and staff.

The RIAA notified UWM of its plans to send settlement proposal letters for individuals on the UWM campus whom they believe are guilty of violating federal copyright laws. These letters request that a monetary settlement be made by the violator in lieu of court action by the RIAA.

After consultation with UW System, our own legal counsel and with our understanding of federal law, UWM has decided that these letters will not be passed on to individuals. However, should RIAA send UWM a lawful subpoena for users’ account information, UWM will comply.

It is important to be aware of copyright law and avoid illegal P2P (peer-to-peer) file sharing.

For more information, visit the UWM Information Security Web Site at

If you have questions, please e-mail

November 18, 2006

. . . and we’re back!

I’m back from my 80-day trip around the world. You can read about my last two and a half months on my travel blog.

There have been some fascinating developments while I’ve been away, and I’m hoping to write about a few of them in the coming days.

February 23, 2006


I got an email this morning from a local company called Schmap — presumably as in “map, schmap.” I live in San Francisco and ocasionally post photos from my city wanderings to Flickr, licensing them under a Creative Commons Attribution-NonCommercial license. They’re putting together an electronic city guide and are selecting photos from Flickr to include. Seeking permission to include a cameraphone photo I took at a diner while studying for the bar exam, they wrote:

Your photo(s) shown below have been short-listed for inclusion in our Schmap San Francisco Guide, to be published March 2006.
The creative commons license that you’ve assigned your photo(s) provides for non-commercial use. While all our Schmap destination guides will be FREE to download, some photographers might nevertheless consider these to be commercial (advertising revenue will support free distribution to our readers) . . . .

This strikes me as an exceedingly smart way to develop a pool of free urban photography. Rather than plunging forward and planning to brush off infringement claims from small-time Creative Commons licensors, they decided to ask permission, trusting that photographers’ egos will lead them to grant it. And the license agreement they proffer is really quite fair:


June 23, 2005

Mossberg on Cell Phones and e2e

Walt Mossberg has this column on how wireless phone service providers are developing an iron grip on the wireless data communications equipment consumers use. The carriers are crippling the equipment and services provided to the public in order to pump up short-term profits at the expense of long-term acceptance of the technology.

Of course, there are ways around this.

Just today, I indulged in a bit of e2e-enabling wireless tinkering. I’m a happy and loyal T-Mobile customer, but the $4.95 T-Zones Internet plan I subscribe to along with my monthly cell phone service is extremely limited. Almost all ports are blocked, leaving open only ports for mail checking and WAP (not web) browsing.

Port-blocked internet connections offend my little e2e-loving heart. So how do we get around port-blocked internet connections? By judicious use of proxies!

(Warning: Geekery ahead.)


May 24, 2005

D.C. Cir.: Congress May Grant Copyrights On Public Domain Materials

The D.C. Circuit today released its opinion in Luck’s Music Library v. Gonzales, holding that the Uruguay Round Agreements Act, which granted new copyrights to foreign works which were in the public domain due (primarily) to failure to adhere to notice, registration, and deposit requirements, is constitutional.

The plaintiffs’ argument was twofold. First, that the Constitution, by directing Congress to provide incentives for creation of works, forbade the enactment of copyright laws that fail to provide such incentive, and that the law at issue here, by granting rights only to works that have already been created, violates that limitation. Second, they argued that both historical practice and Supreme Court precedents indicated that once a work enters the public domain, that status cannot be changed.

The D.C. Circuit rejected both of these arguments. The court found just a sliver of incentive for the creation of new works, in observing that since copyright protections tend to grow and grow, an author, for example, writing in Peru in 1932 might have decided to create a work because he knew that some day the United States might retroactively grant it copyright protection. This, said the court, is enough; Eldred requires only the barest hint of an incentive, and while the incentive here is minimal, it nonetheless, argues the court, exists.

The court rejected the historical and precedential arguments almost without considering their merits. The plaintiffs argued that never before had retroactive copyright protection been extended; the government argued that it had. Without careful analysis of the difference between previous laws and the URAA, the court concluded at least that the historical record was indecisive. And plaintiffs’ most direct argument — that Graham v. John Deere clearly states that “Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available” — was rejected as an irrelevant dictum. The court simply stated, rather unsatisfyingly, that copyright and patent doctrines were not always the same, and that this was one case where they were different.

I wish the plaintiffs good luck before the Supreme Court. One wonders how different this opinion might have looked if the Golan case, which was filed around the same time as Eldred, had gone up on appeal first.

(Full disclosure: I worked on Golan, a challenge to the same law, while I was at the Stanford CIS; because of that work, I have corresponded with counsel to Luck’s Music and assisted once or twice with their research.)

January 24, 2005

Google, the Phone Company?

This article in today’s Times of London predicts that Google will offer Voice over IP telephone service to consumers in the near future. The source of this story, a UK telecom analyst, bases her prediction on this job ad seeking a person skilled in negotiating contracts for large international IP networks.

I rarely set forth firm predictions on this blog, but here’s one I’m sure about: Google will not offer VoIP-to-PSTN calling to consumers within the next two years. This supposed “clue” to Google’s future service offerings is nothing of the sort. Google needs lots of colocation space and lots of bandwidth all over the world just to scale the services they already offer to a worldwide customer base. That Google is buying some dark fiber doesn’t mean they’re about to start offering telephone calls or broadband lines or anything else; it means they need gobs of bandwidth between a handful of large data centers worldwide, to keep synchronized copies of their databases in multiple places at once. As they scale the Gmail service, the need for fast sync will become greater, so it’s natural that they’ll need someone skilled in buying the inputs they’ll need to make their product.

You want a Google employment announcement that really means something? They hired Ben Goodger, the Firefox project lead.

(Via Gizmodo, who aren’t as skeptical as I’d expect)

December 4, 2004

A New Crop of Prisoner Abuse Photos — Courtesy of Google

The AP reports that a new crop of photos depicting abuse of American detainees during home raids in Iraq was discovered by an AP reporter doing a Google image search. The photos were posted on a commercial photo-sharing site, and the AP was able to obtain copies… by ordering them for $0.29 each from the site.

Military authorities are investigating.

Via boingboing. I read the boingboing post with my mouth literally agape. Personal media changes everything — especially unexpected things.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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