Emily Xiang is an IPilogue Writer, a Senior Fellow with the IP Innovation Clinic, and a 3L JD Candidate at Osgoode Hall Law School.

At last, the on the protectability of the subjects of ‘pop art’. In 1984, Vanity Fair magazine received a licence from photographer Lynn Goldsmith to use her 1981 portrait of Prince, which she had shot on assignment for Newsweek. Fast forward to 2017, when Vanity Fair published a special issue to pay homage to the recently deceased musician that featured ‘Orange Prince’ – Andy Warhol’s pop art depiction of Goldsmith’s photograph. The question of whether Warhol’s Prince silkscreens may be considered fair use has now made its way up to the US Supreme Court, and on October 12th of this year, . This is the outlining the arguments that were made in the matter of Andy Warhol Foundation for the Arts v Goldsmith.

In determining fair use according to the statute, one of the primary points of contention involved the meaning behind the of the alleged use. The Warhol Foundation contended that the purpose of ‘Orange Prince’ was to comment on modern society, thereby conveying unto the original an entirely different meaning and message. Lisa Blatt, representing Goldsmith, proposed that one may just as easily argue that the “purpose” of both uses was the commercial licensing of the works for publication. Blatt’s arguments were supported by Yaira Dubin, representing the Justice Department, who also highlighted the foundation’s commercial licensing of Warhol’s work, saying that “using another artist’s work as a starting point to turn around and compete directly with their original has never been considered fair.”

Of course, the magnitude of such a household name as Andy Warhol’s was not lost to the court. Justice Kagan questioned the influence such a name might have on the query: “Now we know who Andy Warhol was and what he was doing and what his works have been taken to mean. So it’s easy to say that there’s something importantly new in what he did with this image.” On the other hand, Justice Kagan also acknowledged that there must be a reason why Warhol’s art is hung up on the walls of museums: “[W]hy do museums show Andy Warhol? They show Andy Warhol because he was a transformative artist, because he took a bunch of photographs and he made them mean something completely different.”��

The Supreme Court judges addressed a statement made by the , which ruled in favour of Goldsmith. The Court of Appeals had warned that judges “should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue.” Justice Alito, in particular, seemed to disagree with the statement, pondering the kind of perspective that would be appropriate in determining such distinctions: “Well, suppose that [somebody]...made an almost exact copy [of the Mona Lisa]…If you showed [the two works] to most people today, they would say, well, all right, brown dress, blue dress, red dress, doesn’t make any difference, right?...But, if you called somebody who knows something about Renaissance art, the person would say that makes a big difference.”

The commentary strikes at the ambiguity often found in determining cases involving intellectual property, if only because there is an inherently subjective element to construing creations of the mind. However, though patent law has the “person of ordinary skill in the art” standard and trademark law has the “ordinary casual consumer somewhat in a hurry” standard, copyright law often relies on a judge’s evaluation of whether infringement has occurred.

There is much to be anticipated from the Supreme Court’s final decision, the kind of effect such a decision might have on the world of art and photography, as well as whether a ruling in favour of the foundation would indeed “decimate the art of photography by destroying the incentive to create the art in the first place,” as Blatt argues.

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Emily Xiang is an IPilogue Writer, a Senior Fellow with the IP Innovation Clinic, and a 3L JD Candidate at Osgoode Hall Law School.

Over 3 years have passed since New 91��ɫ’s District Court a ruling in the matter of Andy Warhol’s “Orange Prince”, and the ripples of the case have finally made their way up to the Supreme Court. On Wednesday, October 12th, 2022, the judges of the US Supreme Court heard from both sides, and considered whether Warhol’s , which he had based on a 1981 photograph of Prince by photographer Lynn Goldsmith, may be considered a use that is “fair”.��

The doctrine of fair dealing in Canada has long played an important role in balancing the scales of copyright law from leaning too far in favour of copyright holders. The fair dealing exceptions recognize certain uses of protected works as benefitting society, and thereby safeguard those uses from findings of infringement. The parallel doctrine in the US tracks along similar reasoning and is known as the ‘fair use’ doctrine. In determining whether a use of a copyrighted work is “fair,” courts consider numerous factors, including whether the use in question is “transformative” of the original material.

In , the Supreme Court was invited to assess whether a work was “transformative” when it conveys a different meaning or message from its source material, or whether, in cases where the accused work “recognizably derives” from its source material, judges are forbidden from deriving or considering such meanings. It was an engaging proceeding with an abundance of references to pop culture icons and current affairs, and was punctuated at times by laughter in the courtroom at an amusing hypothetical posited by one of the judges.����

Roman Martinez appeared on behalf of the Andy Warhol Foundation, and clarified the issue at hand, as well as the Foundation’s position: “[b]oth courts below agreed, and Goldsmith doesn’t dispute, that Warhol’s Prince Series can reasonably be perceived to convey a fundamentally different meaning or message from Goldsmith’s photograph. The question in this case is whether that different meaning or message should play a role, any role, in the fair use analysis. Our answer is yes.” Martinez argued that while Goldsmith’s original photograph captured a “vulnerable-looking Prince,” Warhol’s depiction turned it into a commentary on celebrity and fame – an entirely different meaning and message.��

The judges somewhat pushed back against this argument. Justice Elena Kagan suggested that in Hollywood, while a movie adaptation of a book might introduce plenty of new elements that may make a derivative work “transformative” under Martinez’s proposed test (“...new dialogue, sometimes new plot points, new settings, new characters, new themes”), one would still expect some sort of licensing agreement to be required.

Chief Justice John Roberts and Justice Clarence Thomas also commented on Martinez’s arguments, albeit in more lighthearted terms. The Chief Justice wondered whether a claimant who depicted Prince with “a little smile on his face” may advance the argument that the “meaning or message” of the work was fundamentally changed to convey that “Prince can be happy” or that “Prince should be happy.” Justice Thomas in turn asked Martinez to imagine the Justice at a Syracuse football game as a Prince fan, “which [he] was in the ‘80s.” Justice Kagan interjected, “No longer?,” to which Justice Thomas replied, “Well…so only on Thursday night.” This elicited some laughter in the courtroom. Justice Thomas continued, “And I decide to make one of those big blowup posters of ‘Orange Prince’ and change the colours a little bit around the edges and put ‘Go Orange’ underneath. Would you sue me for infringement?,” insinuating that the changes and add-ons may be considered to convey a new “message” to Warhol’s work, under the Foundation’s proposed test. In response, Martinez emphasized that the verdict in both scenarios would largely depend on the degree of transformation in meaning or message, as well as the other factors in the ‘fair use’ analysis, such that a holistic assessment may be applied.

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Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

A high-tech solarpunk utopia in the Amazon rainforest, a Pikachu fine dining with a view to the Eiffel Tower, a mecha robot in a favela in expressionist style – if you are struggling to visualize any of these descriptions, an AI art generator could most likely help you out. All of the prompts are suggestions by , an open-source AI art generator launched in 2022 by startup .

As its name suggests, AI-generated art refers to art generated with the help of artificial intelligence. I like to use AI art generators to help visualize environments, such as where I would rather be writing this blog as the weather gets chillier in Toronto.

An AI-generated image of the prompt “a laptop and bubble tea on a table under a parasol at a Hawaiian beach during sunset, photorealistic” by Stable Diffusion.

Aside from being a fun tool for curious users to play around with, AI art generators serve as a for visualizing concept art and automating repetitive tasks. Furthermore, in more recent years, AI art has enabled artists to explore previously uncharted territory. For example, Lynn Hershman Leeson’s “uses algorithms, performance, and projections to draw attention to the inherent biases in private systems like predictive policing, which are increasingly used by law enforcement”.

Understanding “Open-source” AI-Generated Art

Similar to previous models, Stable Diffusion is a text-to-image generator (similar to and ). It differs from these models in that it is open-source, meaning that its underlying code and model has been trained on publicly available data. The motive stems from Emad Monstaque’s (Founder of Stability AI) that we will only realize AI’s potential to solve humanity’s biggest challenges “if the technology is open and accessible to all”. Stable Diffusion’s open model equips anybody with a web browser to generate images (including violent and pornographic ones) according to their prompts, including for commercial use.

Why Visual Artists are Concerned

Open-source AI-generated art can be seen as a threat to commercial artists in practically every industry. In , Greg Rutkowski, a Polish digital artist, spoke about the difficulties that have come with his artwork’s popularity in the world of text-to-image AI generators. Known for his distinctive ethereal style, Rutkowski found his style becoming one of the most commonly used prompts in Stable Diffusion. Initially, the artist thought this was an effective way to gain publicity until he realized through some Google searches that his name was becoming associated with work that was not his.

Rutkowski is not alone - more artists are beginning to see their artworks gain popularity with similar models and have . Others have raised concerns about data protection and privacy due to their artwork being either personal or linked closely to an existing person. These concerns have consequently about the potential for artists to opt out of the data training process. However, some say this would be impossible as it would involve throwing out the whole model “built around nonconsensual data usage”. Moreover, with the source code out in public, some are under the impression that it will be like “putting toothpaste back in the tube”.

While some companies and artists have been optimistic in their beliefs that AI will ultimately benefit humanity and generate new ideas for their careers, other artists are finding it necessary to build a coalition to fight back with proper regulations and protect the future of their professions.

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Michelle Mao is an IPilogue Writer and an incoming 2L JD candidate at Osgoode Hall Law School.

Imagine you are a new artist, who sells your art for $500 dollars, which is enough to cover the cost of supplies and your time spent on the piece. Then you find out ten years later that your original piece was resold for over $50,000 dollars while you are destitute. This situation is why artists around the world advocate for .

An Artist Resale Right (ARR) allows the artist or the artist’s estate to profit or financially benefit from the sale of the artist’s work in secondary markets after the original sale. Artists and advocates consider this right as a part of the wage artists should receive for their profession and livelihood. As of May 2022, Canada does not have a policy towards ARR in place.

Supporters have several arguments in favour of implementing ARR in Canada. First, artists as a group are more vulnerable to financial instability or more likely to take on additional jobs to achieve financial stability. ARR can provide a that can help artists improve their financial stability. Second, other artistic professionals, such as and writers, already have systems in place to continuously profit from the downstream payments made in relation to their original work.

Those opposing resale rights raise concerns regarding the possible on art sellers, and art resellers may not feel properly compensated for the risk they incur when collecting pieces for galleries and resale. regarding compliance with proper payment and the lack of global ARR standardization can complicate many logistics.

While the law of ARR is no longer a novel idea in the legal world, the importance of protections for an artist’s fair share of profits is ever-increasing as Non-Fungible Tokens (NFTs) become mainstream. Currently, the specific wording creates for NFT transactions to forego payment to the original artist. This is because NFTs are a “one-time copy” of original art, and thus resale of the NFT does not activate ARR entitlements, which only apply to the original work.

Overall, profits made from the sale (and resale) of art must be balanced between artists, art professionals, art curators, auction houses, etc. sWith the value of artworks having the potential to increase so exponentially over time, it may be proportional for artists to make a percentage of resale revenue. The secondary income would acknowledge the artist’s mastery and skill, while properly compensating them for the value of the art that they created. Now, as NFTs become increasingly tied to , future artist compensation is increasingly important. Future ARR advocacy should consider how ARR can and should be adapted to not only address logistical complexities but also NFT loopholes.

The post Should Artists Make Money Off Future Sales of their Work? An Argument For and Against appeared first on IPOsgoode.

Tanzim Rashid is an IP Innovation Clinic Fellow and a 2L JD/MBA Student at Osgoode Hall Law School & the Schulich School of Business. This article was written as a requirement for Prof. Pina D’Agostino’s Directed Reading: IP Innovation Program course.

Taylor Swift’s dispute with Big Machine Records shines a spotlight on the legal and business considerations artists should keep in mind when making decisions about how to manage their catalogue.��

Sparks Fly

In , Ithaca Holdings acquired Big Machine Records for an estimated $300 million, including the master recordings for one of the most popular and successful musicians in the world:��Taylor Swift. Swift, in being denied an opportunity to bid for her masters, in late 2020 that she would re-record her entire pre-2019 catalogue in order to regain control of her music and limit the profitability of Ithaca’s asset. Over the next year, Swift released re-recorded versions of both her Fearless (2008) and Red (2012) albums, receiving widespread commercial and critical success.

Look What You Made Me Do

At the heart of Taylor’s decision was an often overlooked but significant legal distinction in the copyright law governing the music industry. All music can be subdivided into categories of copyright: lyrical, compositional, and sound.��The former (‘recording rights’) are generally retained by an artist, while the (‘master rights’) – as part of a record contract signed by musicians in the formative stages of their career – is owned by the record company (including prohibitions on re-recordings for a set number of years) with certain vetoes the artist can assert with respect to how they are licensed.��Swift, in deciding to re-record her albums, ensured that her new (Taylor’s) versions gave her all three types of intellectual property right over her catalogue, guaranteeing full ownership.

While many artists both past and present have record contracts that follow this same structure (and provide for a legal avenue by which to circumvent the record company’s ownership of the master recordings), it was Swift, at the height of her popularity, who decided to invest the time, energy, and cash in order to take advantage of this technicality. These circumstances are noteworthy: artists in similar positions to Swift often either lack the time, the financial resources, or the industry power to pull off a move like this. It is in Swift’s confidence in her fans adopting the newer versions of her recordings, and thus giving effect to the technicality she is leveraging, that her decision was made and her temporal and financial investment was put forward.

Everything Has Changed

Shamrock Investments, who acquired Swift’s master recordings from Ithaca in 2020, are in an increasingly tenuous position: Swift has them from licensing to ad agencies, films, and tv shows, and where they do license, Swift receives royalties in those cases. On top of all that, their investment in the original recordings depreciates in value every time Swift releases another one of her re-recordings or a company licenses them instead of the originals.

Major players in the music industry (including Swift’s own Universal Music Group) have responded in light of Taylor’s shrewd business moves, doubling or tripling the length of re-recording prohibitions in their most recently signed record .��Artists are now for up to ten years after commercial release before re-recording their music, which also happens to be the period when their works are at their highest monetization potential. The music industry is now acutely aware of how digital streaming platforms provide artists with a never-before-seen ability to sidestep large traditional record companies when attempting to publish their re-recordings, creating a much-heightened potential for Swift’s precedent setting move to be seized upon by other successful artists looking to take back control of their creative output. From a legal perspective, Swift’s ability to resolve this dispute without reliance on costly, time intensive litigation or a protracted negotiations process has also put the music industry on notice, including their in-house counsel, who will be much more meticulous in drafting new agreements to best protect their company’s investment.

End Game

Looking to the future, it appears that beyond her personal dispute with the owners of her original masters, Swift is looking to inaugurate a major shift in the music industry at large, relocating bargaining power to artists from record companies. However, in capitalizing on the legal technicality available hitherto her dispute, with the unique power she wields in the industry, it may be the case that Swift’s maneuver may end up disempowering less powerful artists, who will now face stricter terms on their freshman record deals and an army of legal counsel prepared to respond to strategies similar to those deployed by Swift. As record companies fortify their defences, most upcoming artists may not be in a position to fight back against The Man.

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Tetyana Yablonska, (1967)

Claire Wortsman is an IPilogue Senior Editor and a 2L JD Candidate at Osgoode Hall Law School.

On International Women’s Day in Odessa, Ukraine, soldiers friends and family flowers despite the fear of an imminent Russian attack. Soldier Dmitriy pink and yellow tulips for female soldiers, while flower vendor Alena tied a bouquet of blue and yellow tulips in honour of the Ukrainian colours. Flowers hold a special place in Ukrainian cultural heritage, which now faces of destruction.

On March 1, invading Russian forces shelled (Babyn Yar)—a Nazi killing ground where thousands of Jews, Romani people, psychiatric patients, and war prisoners were massacred. The shelling killed at five people, and injured another five. While the Babyn Yar Holocaust Memorial Center was not directly , the center had plans to expand to a nearby building that suffered damage in the bombing.

In the wake of destruction and killing at the symbolic site, President Zelenskyy , “[the Russian invaders] all have orders to erase our history, erase our country, erase us all.” It is important to understand and Ukrainian history and culture more than ever. Every day, especially during , it is also essential to understand and celebrate women’s contributions to the foundations of history and culture.

Flowers and Female Ukrainian Artists

The United Nations Educational, Scientific and Cultural Organization (UNESCO) has recognized the decorative painting as a valuable part of humanity’s intangible cultural heritage. Petrykivka is named for Petrykivka village, where the Ukrainian Zaporizhian Cossack practice of decorating living quarters and belongings with fantastic flowers and natural elements was preserved despite the brutal Soviet regime. A local non-governmental organization, Agency for Regional Development of Dnipropetrovsk Region, the Petrykivka trademark.

Believed to protect the wearer from sorrow and evil, flower ornaments in the Petrykivka style were applied by women . Tetiana Pata, Nadia Bilokin, Paraska Pavlenko, Iryna Pylypenko, and Pelaheia Hlushchenko are known as the of the transformative period of Petrykivka art where local artists integrated the style to their traditional mediums following its re-discovery. The many talented Ukrainian female artists that have emerged throughout history have carved out their unique styles. Still, many have integrated uniquely Ukrainian elements of Petrykivka into their work, whether in the form of vibrant flora or fantastical fauna.

Petrykivka can transform everyday objects into art. During summers spent with her great-grandmother in Poltava, a Ukrainian village north of Petrykivka, Victoria dishes, vases, and kettles adorned with clusters of red guelder rose berries and orange flowers. Like Petrykivka artists, Odessa-born does not restrict herself to canvass. She is known for her wall paintings and has also created reminiscent of Petrykivka—accessories like handbags and wallets adorned with lively flora. Energetic florals are also alive in , whose work also features the poignant .

, an original member of —the first artist-run, not-for-profit gallery dedicated to women and non-binary artists in the USA—is another Ukrainian artist whose work features flowers. Dorosh fabric and textile work, a traditionally female craft, to explore complex topics such as the slippage of play between childhood and adulthood. Textile work was an important feature of art.�� For example, is a fabric sample where overlapping oblong shapes of varying blues, greens, and yellows resemble a collection of flower petals.

A discussion of flowers and female Ukrainian artists would be incomplete without , the self-taught painter of floral scenes who made Picasso , “if we had an artist of this level of skill, we would make the whole world talk about her.” Bilokur’s Happiness, Storks brought the baby (1950) features sunflowers. As Ukraine’s national flower, the has quickly become a symbol of resistance. Sunflowers have inspired Ukrainian artists from to to , each in their unique way.

The magical and bright flora featured in Ukrainian female artists’ work throughout history provides a stark contrast to the images coming out of Ukraine in recent weeks. As Ukraine’s humanitarian crisis continues during Women’s History Month, the comments of European Parliament President Roberta Metsola remain on my mind. He the “incredibly brave women of Ukraine who are fighting, forced to shelter their loved ones in bunkers, giving birth in metro stations and leading on the frontline.” On my mind, too, are the Ukrainian women who have built up the intangible cultural heritage of humanity and their images of strength, hope, and peace.

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Maria Prymachenko, (1982)

Claire Wortsman is an IPilogue Senior Editor and a 2L JD Candidate at Osgoode Hall Law School.

On February 25, invading Russian forces the Ivankiv Historical and Local Museum, and the many culturally and historically significant pieces it housed, to the ground. The Museum’s collection included 25 paintings by Maria Prymachenko, the celebrated Ukrainian artist world-famous for her colourful folk art style. Prymachenko’s great-granddaughter that a local man ran into the burning building and was able to save some of the precious works. Yet many more pieces were lost, and millions of artworks and monuments at risk from Russia’s military onslaught. These those dating back to the Byzantine and Baroque periods, as well as UNESCO World Heritage sites.

Ukrainian Minister of Culture Olexandr Tkachenko has that Russia lose its UNESCO membership. The destruction of Ukrainian cultural heritage at the hands of Russia is not a novel occurrence -�� the 2014 annexation of Crimea and the conflicts in Donetsk and Luhansk to the loss of dozens of archaeological, historical, and artistic collections. James Cuno, President of the J. Paul Getty Trust, released a condemning the cultural atrocities taking place in Ukraine alongside the unfathomable human and environmental losses. Cuno identifies that cultural heritage has the power to unite us, and is critical for achieving peace, making it a common target in war; a means of destroying a society by erasing its memory. Officials preserving and protecting cultural legacies in times of conflict has the power to bind local people and foster peace, once the shooting stops.

The importance of safeguarding cultural property extends beyond the borders of Ukraine. The preamble of the recognizes that “… any damage to cultural property, irrespective of the people it belongs to, is a damage to the cultural property of all humanity, because every people contributes to the world’s culture.” Putin’s continued violation of international law is a blow to the international legal order – one that Yale Law School’s Oona Hathaway and Scott Shapiro must be met with an aggressive and resolute response.

Uncertainty and crisis in Ukraine have left many fleeing their homes, while museum employees remain behind to look out for their collections in whatever way they can – whether by standing guard, hiding art in basements, or (for those farther away from the war zones) transforming into a place of temporary respite for those who have fled. Fedir Androshchuk, the director of the National Museum of the History of Ukraine, is standing alongside two colleagues in an to safeguard the museum from attack or looting. He that “the museum is located in the middle of a rich cultural heritage area near three fine churches, but also close to some possible targets (the Ukrainian security service and border forces).” This proximity to potential military targets is significant from an international law perspective, [1], as the carves a “military necessity” exception out of its protections for cultural property. As by Captain Joshua E. Kastenberg, “Where a defender state harbors items of military value… in or near cultural property, the property loses its legal protections.”[2]

Androshchuk also , “there is no guarantee that the Ukrainian cultural heritage will not be plundered and transferred to Russian museums, especially given that Kyiv has a special place in Putin’s interpretation of Russian history and its roots.” The destruction of Ukraine’s cultural heritage serves the narrative of Vladimir Putin, who that Ukraine is a nation and that Ukrainians are a people. Perpetrators of the intentional destruction of cultural heritage seek to destroy the communities for which the heritage is perceived as an essential element of their own life, cultural identity, and distinctiveness.[3] Yet Putin’s assault has backfired – Ukraine itself, the West against Russia, and images of Prymachenko’s uniquely Ukrainian style around the world.

[1] Captain Joshua E. Kastenberg, “The Legal Regime for Protecting Cultural Property During Armed Conflict,” Air Force Law Review 42 A.F.L Rev. (1997)

[2] Ibid

[3] Federico Lenzerini, “Intentional Destruction of Cultural Heritage,” The Oxford Handbook of International Cultural Heritage Law (2020)

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Photo by Ståle Grut ()

Claire Wortsman is an IPilogue Senior Editor and a 2L JD Candidate at Osgoode Hall Law School.

As Toronto museums once again, their only option to stay “open” is to turn towards the digital. Toronto museums are not alone, although perhaps their struggles are more drawn-out; museums and art galleries . have also faced physical closures due to lockdown restrictions. According to , more than 85,000 museums worldwide (nearly 90% of museums surveyed) have closed their doors. In 2020, visitor figures for the world’s top 100 art museums by 77%.

In staying “open” virtually, museums and galleries have their online presence by producing virtual tours and immersive experiences for remote viewing. Many museums have made high-resolution images of their collections available online, including the Victoria and Albert Museum, whose hit a level of audience engagement in 2020. New 91��ɫ art attorney Amelia K. Brankov that museums can ensure compliance with copyright legislation while protecting against the risk of liability resulting from third-party actions by providing an appropriate “terms of use” section on their website.

For North American museums with works still under copyright, the 2017 Guidelines for the Use of Copyrighted Materials and Works of Art by Art Museums by the Association of Art Museum Directors will come in handy. However, many of the masterpieces housed by museums are in the public domain. Copyright subsists in until 50 years after the creator’s death and in the . and . until 70 years after the creator’s death (although, per the terms of the Canada-greement, Canada will bridge that 20-year gap). Yet, in many cases, museums continue to profit off of and control these works.

On the one hand, licensing deals made possible by control over artistic works offer an important source of revenue for museums struggling during, or in the wake of, mandated closures. On the other hand, some museums’ practice of reappropriating works in the public domain by claiming copyright protection for their reproductions, thereby artificially extending the duration of copyright protection. Further, museums risk being “hypocritical” when they promote the commercialisation of their collections while banning usage by others.��

In 1972, art critic John Berger , “For the first time ever, images of art have become ephemeral, ubiquitous, insubstantial, available, valueless, free.” Taco Dibbits, director of collections at the Rijksmuseum in Amsterdam, that the museum allows audiences to download high-resolution photos of its collections: “If they want to have a Vermeer on their toilet paper, I’d rather have a very high-quality image … than a very bad reproduction.”

The question remains whether Vermeer-covered toilet paper marks a problem. The debate of who, if anyone, should have control over cultural artefacts in the public domain was recently reinvigorated when the Louvre museum and Uffizi Gallery to sue Pornhub for turning works by painters Titian and Courbet into pornography without authorization. As , it is worth noting that Pornhub is at the center of of hosting and profiting off videos of rape, incest, and child abuse. Those who criticize the company, and any association with it, may have better grounds to stand on than moral outrage over pornography.����������������

Moral rights the right to the integrity of the work and attribution in reasonable circumstances. Museums in France claim perpetual moral rights of an author’s work. In Italy, the museums’ permission to use images from their collections for commercial purposes. On these bases, the Louvre museum and Uffizi Gallery, based in France and Italy respectively, threatened to bring legal action against Pornhub. This is the same Louvre that launched “a flurry of brand partnerships” in 2021 with brands ranging from to . This is also the same Uffizi that has taken to to depict scenes ���dzٳپ����������’s Venus running away from tourists attempting to take selfies with her. Would Botticelli approve more of his works appearing on TikToks, phone cases, and graphic tees than pornography? And the ultimate question: Who’s to say?

So, what can we expect as the COVID-19 pandemic enters its third year? The best answer I have found is : the only certainty is that nothing is certain. Despite this, the museum directors and head curators that Cheshire spoke to are confident in their ability to adapt to the changes that 2022 will bring. Director of the UCCA Center for Contemporary Art Philip Tinari , “It’s a question of pricing in some uncertainty to your planning.” Another explanation for the confidence of directors and curators going into the new year is the and the of global sales of licensed goods and services, particularly in art.

The post When Doors Close, A Market Grows: Museums, COVID-19, and Cultural Digitisation appeared first on IPOsgoode.

The original Lynn Goldsmith photograph (left) and Andy Warhol's Prince portrait (right), as reproduced in court documents. Photo Credit:

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Tianchu Gao is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

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On March 26, 2021, the found that the famed artist Andy Warhol violated photographer Lynn Goldsmith’s copyright by using her photo of the singer Prince to create his “Prince Series.” The series was originally commissioned by Vanity Fair after it bought the license of the photo portrait from Goldsmith. until Tribute magazine featured the image, without crediting her, when Prince passed away in 2016.

The legal question at the center of the dispute is whether Warhol’s series is of Goldsmith’s original photograph. A permissible derivative creation, or fair use, requires transformative changes made to the original. The that Warhol’s works were fair because they transformed a “vulnerable, uncomfortable person” in Goldsmith’s original photograph into “an iconic, larger-than-life figure.” Judge Gerald Lynch overturned this analysis in the appellate court, claiming that Warhol’s changes—including shallower depth, brighter hues, and larger size—were mere visual flourishes. “It does not follow…that any secondary work that adds a new aesthetic or new expression to its source material is necessarily transformative,” .

This is not the first time Andy Warhol was sued for IP infringement. In fact, nearly all creations by Andy Warhol are derivatives of existing images—celebrity photos, advertisements, magazine illustrations, etc.—to the extent where one could argue that the essence of Warhol’s art is . As a pioneer of , Warhol was one of the first artists to appropriate low-brow commercial imagery to challenge the notion of art as the products of geniuses’ inspirations. Following Warhol’s footsteps, artists in the pop art movement, as a form of cultural critique, deliberately mimicked machines and performed mechanic labor in their creations. In this sense, the originality of Andy Warhol’s art largely lies in the concept of appropriation, rather than any aesthetic quality. Yet, this conceptual innovation is not part of the legal test for the transformative nature of visual art.

The appellate court’s decision partly considered Goldsmith’s weakened ability to license and profit from her work used by the Warhol series. As one of the world’s most commercially successful artists, Andy Warhol had amassed tremendous fortune by making simple and repetitive changes to existing images created by other less-known artists. A great imbalance in power and wealth exists between the two parties in this case. On the other hand, Warhol’s great commercial success was the choice of the market. After all, Vanity Fair commissioned an Andy Warhol print, his signature silkscreen, instead of a creative portrait of Prince.

The Warhol Foundation plans to appeal the ruling, according to an The implication of the result will be far-reaching. If Goldsmith wins, the Warhol Foundation will probably face floods of litigations after years of diligent copying and printing by Warhol. The decision may even change the practice of many contemporary artists.��

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Photo Credit: Banksy (https://www.flickr.com/photos/major_clanger/4894673199)

Tugce Kucukali is an IPilogue Writer and incoming LL.M Candidate at University of British Columbia.

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Under , a trademark registration filed in bad faith may be subject to a request to invalidate the trademark. However, since the term “bad faith” is not precisely defined in EU law, bad faith is identified by assessing the facts of each case. In several decisions released in April, the Court of Justice of the European Union (CJEU) and the European Union Intellectual Property Office (EUIPO) made evidentiary assessments regarding bad faith and the purpose of interfering with the registration of famous persons’ names and works.

France Agro v EUIPO - Chafay (Choumicha Saveurs)

The trademark registration for the “Choumicha Saveurs” mark was by the General Court of the CJEU in light of the reputation of Choumicha Chafay, better known as Choumicha. When assessing bad faith, the Court considered Choumicha's line of business, the goods covered by the application, and the fact that the applicant company's manager is Moroccan.

Choumicha argued that while she does not possess rights to her brand or trade name in the EU, she is well-recognized in France and commercially uses her brand, the Choumicha mark, and her image in Morocco. Specifically, the Moroccan community in Belgium and France have known Choumicha as a chef since the 2000s. The applicant, who used an Arabic word in the trademark to target the Arab-speaking community in Europe, undoubtedly knew her reputation ��at the time of application. Even the goods under the impugned trademark relate to the culinary industry.

Banksy’s Laugh Now Trademark

One of Banksy’s works, registered as a figurative trademark, was subject to an . As emphasized in , a known example of trademark filing in bad faith is to file an application without intending to use the trademark.

Banksy's anonymity hinders the copyright protection for his works of art. The trademark owner, the company presumed to be Banksy’s legal representative, argued that the filing has the legitimate objective of securing the rights granted through copyright protection. However, the applications filed lacked the necessary purpose of using the trademarked goods and services and additionally, trademark law is not meant to substitute copyright protection. Banksy's attitude towards intellectual property rights is well-known; the ruling cited a quote from Banksy’s book, ‘Wall and Piece’, where he remarked “copyright is for losers.” Although the EUIPO stated that his attitude does not preclude Banksy of claiming his rights, it is relevant by showing Banksy’s intention for filing the trademark.

In recent years, Banksy has permitted third parties to use his works for non-commercial purposes. However, the EUIPO disagreed with the trademark owner that Banksy reserved the right to use his works for commercial purposes. In addition, Banksy has not taken any legal action against such uses by giving consent or negotiating licenses, and no serious trademark use by him was identified prior to the application date.

',” Banksy said in 2019 in a notable UK publication, as quoted by the decision. Even though a trademark application may be deemed as an indication of a will to use the trademark, statements like these undermine that intention. Thus, the EUIPO concluded that the trademark registration was made to circumvent the law rather than to use it for commercial purposes.

The Future of Bad Faith

In both decisions, the assessments concerning the trademark applicant’s intent were made by the factual evaluation of the statements and circumstances relevant to the application. A statement made years ago or the applicant’s background could form the basis for the bad faith assessment. Although each assertion of bad faith is decided on a case-by-case basis, these recent decisions can instruct the EU Member States as they navigate EU trademark law.

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