Bare Bottoms, Bubbly, Benelux And Beyond

One cannot resist alliteration, can one?

This past week, the most interesting copyright-related legal blogs centered on art, artists' moral rights, and the rights of those whose trademarks were depicted in commercial art.

Starting at the bare bottom, legal bloggers Annick Mottet Haugaard,  Olivia Santantonio, and Ruben Van Breugel discuss --with illustrations-- the legal objections brought by a maker of one of the world's finest Champagnes to an artist's repeated commercial use of their trademark in his works.

Lexology Link (which at the time of this writing is displaying the pointillismish bottom)
https://www.lexology.com/library/detail.aspx?g=e66edcf1-d801-4444-804b-8ac28db7d19a

Original Link (which unfortunately has broken links for the illustrations)
https://www.lydian.be/news/which-extent-can-artists-use-trademarks-their-works-0

The bare-bottom-with-bubbly case has not been settled, but for any author who is considering using someone else's trademark in her cover art... beware.


Beware, also, what you re-tweet. Defamation laws around the world are different, as J. Alexander Lawrence blogging for Morrison & Foerster LLP's Socially Aware blog explains.

Lexology Link:
https://www.lexology.com/library/detail.aspx?g=55aed4c8-51e2-43c2-a4cf-cc7d529609b1

Original Link:
https://www.sociallyawareblog.com/2019/11/12/the-joys-and-dangers-of-tweeting-a-cda-immunity-update/#page=1

Even if you have the right to express yourself in 120 characters or more, someone else may have the right to sue you.


Talking of being sued, Susan Okin Goldsmith  writing for McCarter & English LLP has an inconvenient warning for owners of websites or blogs that allow third parties to comment or upload material (presumably or links) that might infringe on the copyrights of others.

Register your agent with the Copyright Office, or risk liability for whatever your visitors may post. The article is well worth reading, and gives detailed instructions on how to register and what it will cost.

Lexology link:
https://www.lexology.com/library/detail.aspx?g=2c03a3d0-4085-4419-aed1-afc8b0c2e0eb

Original Link:
https://www.mccarter.com/insights/renew-or-register-your-websites-copyright-agent-now/


Finally, and quite startlingly, Aysha Alawi-Azam  blogging for Clyde & Co LLP  reveals that an owner of a work of art may have difficulties if they change even the frame, let alone if they heavily restore the art, and the still-living artist objects.

Lexology Link:
https://www.lexology.com/library/detail.aspx?g=747eca5a-cd5f-4795-9a8d-06c5f8077837

Original Link:
https://www.clydeco.com/insight/article/artists-moral-rights-in-the-frame

Sometimes we buy art at an estate sale, for instance, and it never dawns on us that it might be unwise to switch out one frame for another. It's worth reading the original... there are some glorious illustrations.

All the best,

Rowena Cherry 

SPACE SNARK™ http://www.spacesnark.com/  http://www.rowenacherry.com

The Trouble With Memes

This week, this writer noticed that at least two legal blogs are warning about Memes.

For the purpose of this discussion, a meme is an image or short clip of video, to which a caption is added by someone other than the copyright owner of the image or short clip, and it is forwarded across social media by thousands with no regard to the copyrights of the copyright owner, or the moral rights of the subject of the image.

Meme enthusiasts would probably say that the use of the image is "transformative", or that the use is "fair", because the image is only half the work, and the text is the other half --which is not a definition of Fair Use-- or that it is commentary, or parody, or being used to disseminate news or opinion, or to educate.

Memes are like emoticons. They are a quick, convenient way for the inarticulate to spread someone else's expression of an opinion without having to think for themselves. To date, the re-tweeter has also been able to share the meme without any liability or responsibility.  That may change, even if copyright law explicitly protects parody, criticism, and pastiche.

Legal blogger Georgia Shriane for Boyes Turner LLP (specializing in European Law and UK law) warns that meme law is coming....

Lexology link:
https://www.lexology.com/library/detail.aspx?g=1191618e-8200-49db-b9d7-c89d494d5546&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2019-03-29&utm_term=

The original article can be found here:
https://www.boyesturner.com/article/article-13-meme-law-is-coming

Even if the meme is protected, if content platforms use automation to filter out copyrighted images, the bots may not perceive the difference between "a good meme" and copyright infringement. That's not all.

See also, from 2017, commentary on a weeping athlete, with a question about the consequences if this meme is used for commercial advertising
https://www.internetandtechnologylaw.com/unauthorized-meme-crying-jordon/#page=1

Also, see the commentary by Claire Jones of  Novagraaf  for when memes are used gratuitously, with the sole apparent purpose of tormenting a public figure:
https://s3.amazonaws.com/documents.lexology.com/78503cc7-93e3-470e-8a7d-37ffcbee9a56.pdf

Or read it on Lexology...
https://www.lexology.com/library/detail.aspx?g=c470fc1e-d61e-4f98-a3b3-d113233998db

The most ominous shot across the bows for meme sharers comes from legal blogger  Jordyn Eisenpress  writing for the law firm Frankfurt Kurnit Klein& Seltz PC  "Popular Meme Account Sued For Copyright Infringement And Other Claims.   

Read it on Lexology  (but beware, gentle readers: there is a very vulgar word as part of the defendant's twitter handle.)
https://www.lexology.com/library/detail.aspx?g=33280fc3-a77a-41c2-b429-f998d6f22556&utm_source=lexology+daily+newsfeed&utm_medium=html+email&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2019-03-28&utm_term=

Or find the very recent original here, (also including the shocking handle).
https://advertisinglaw.fkks.com/post/102fh6p/popular-meme-account-sued-for-copyright-infringement-and-other-claims

Apparently, meme enthusiasts in New York should take note, and be very careful going forward.

All the best,
Rowena Cherry