UW School of Law > LTA Journal

Washington Journal of Law, Technology & Arts

Volume 10  | Fall 2014  | Number 2

Framing the Issue: Avoiding a Substantial Similarity Finding in Reproduced Visual Art

Rachael Wallace
10 Wash. J.L. Tech. & Arts  89

12/9/2014

Litigation

Copyright issues are litigated in the United States every day. Yet attorneys representing visual artists settle suits more often when those suits involve the potential of a copyright infringement, partly because of the relatively few decisions on the matter. In Harney v. Sony Pictures, Inc., the First Circuit found that a copyrighted photograph could be copied to look nearly the same as the original because the copied elements were each unprotectable under the copyright. The copyright protected only those elements of the photo that were the result of the photographer’s choices in depicting the subject. The court held that the placement of the subjects in the frame of the photo was the only protected feature shared by the recreation, and this was insufficient to establish “substantial similarity” necessary for the court to find a copyright violation. This Article puts forth an organizational scheme based on existing cases to help attorneys defend their clients’ work. By explaining how attorneys have avoided substantial similarity findings in the past and how courts treat different approaches, this Article will provide attorneys with guidance on avoiding a substantial similarity finding in their clients’ works, focusing specifically on photographs.

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Hologram Images and the Entertainment Industry: New Legal Territory?

Stephen Anson
10 Wash. J.L. Tech. & Arts  109

12/9/2014

Intellectual Property

Modern technology allows for the holographic reproduction of a dead artist’s likeness, with the ability to perform past classic works or new original artistic works. The Coachella Valley Music and Arts Festival performance by the “holographic” Tupac Shakur in April 2012 dazzled an excited crowd and made the idea of bringing back deceased musical celebrities or other public personalities a reality. The use of such holographic performances is in its infancy, but the potential for possible intellectual property infringement is real and concerns the areas of copyright, trademark, and–most importantly–the right of publicity, which protects a celebrity’s name, likeness, voice and mannerisms. This new technology also creates the possibility of re-creating a past celebrity for nefarious purposes, but it is unclear what legal protections are available to the decedent’s estate to challenge such potentially damaging uses. The right of publicity is a matter of state law, is granted in thirty-one states, and is extended post-mortem in only twenty of those states. Therefore, understanding what legal protections are available requires a complex examination of all relevant jurisdictions’ intellectual property laws. Celebrities, public figures, and estate planners should be mindful of these new technologies, establish domicile in states with robust rights of publicity, and draft wills accordingly to ensure greatest posthumous protection.

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Consignment Catastrophes: Lessons from New York’s Art Gallery Fraud

Megan Haslach
10 Wash. J.L. Tech. & Arts  125

12/9/2014

Constitutional & Regulatory

The 2007 collapse of Salander O’Reilly Gallery in New York City caught the attention of New York’s state lawmakers after artists and their heirs lost nearly $120 million in gallery owner Lawrence Salander’s schemes. This scandal ultimately led lawmakers to enact major changes in the state’s art consignment statute. The changes bolstered existing protections while adding additional safeguards for artists who choose to consign their works through galleries rather than selling them wholesale.

This Article will examine the relationship between consignors and consignees, highlighting major vulnerabilities that current consignment statutes create for artist consignors. In Section I, this Article will examine the benefits of consignment to both artists and dealers. In Section II, this Article will discuss the most common provisions in art consignment statutes that tend to leave artists unprotected in consignment deals. In Section III, this Article will examine New York’s amended consignment statute, which alleviates all major concerns for artists, and will argue that New York has provided a model statute that all states should implement in order to provide a fairer balance in the relationship between artists and art dealers. Finally, Section IV will briefly examine the potential benefits the statute can provide for artists asserting claims to protect their consigned works.

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Getting Beyond Abstract Confusion: How the United Kingdom’s Jurisprudence Can Aid in Developing an Analytic Framework for Patent-Eligibility in Light of Alice v. CLS Bank

Brendon Beheshti
10 Wash. J.L. Tech. & Arts  137

12/9/2014

Intellectual Property

This Article advocates consideration of the United Kingdom’s jurisprudence as persuasive authority for implementation of a new framework for analysis of subject matter eligibility of computer-implemented inventions in light of the United States Supreme Court’s ruling in Alice Corp. v. CLS Bank International. The U.K.’s patent jurisprudence provides a more developed and clear analytic framework that conforms to the policy objectives of Alice, while also avoiding the conceptual problem of determining what is “abstract.” The result is a more useful and concrete analytic framework that also reduces conflicts of laws, and thus can help spur innovation across the Atlantic.

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