A recent decision by the Second Circuit Court of Appeals adds further complexity to the ever-evolving body of case law discussing the difficult concept of the “fair use” defense in copyright law. The case will likely be of interest to the art world because of the importance of fair use to many forms of art, from parody to appropriation art.

Earlier this month, retail chain H&M filed a lawsuit that seemed poised to address a central question about how copyright law applies to illegal graffiti.  But following a public-relations backlash, H&M has apparently abandoned the suit, leaving these legal waters uncharted for now.

This week, artist Lina Iris Victor filed a federal lawsuit in the Southern District of New York alleging that her copyrights in three original artworks were infringed in the music video (link here) of a new song, “All the Stars,” which is featured on the soundtrack of the new Marvel movie Black Panther.

​This week, a federal judge awarded a total of $6.75m to the 21 graffiti-artist plaintiffs whose works were destroyed in the now-famous 5Pointz case.

Even when it comes to parodies, fair use litigation is rarely a cut-and-dried slam-dunk.

A new lawsuit by a tattoo artist against the makers of a popular video game series may explore some interesting questions about how U.S. copyright law applies to tattoos.

In a new lawsuit, the estate of American artist James Castle is suing publisher Scholastic and author/illustrator Allen Say over a forthcoming book about the artist, which the estate claims infringes on the copyrights of dozens of Castle works. 

If you rode the New York City subway’s Flushing-bound Number 7 Line before 2013, you probably recall the elevated train snaking through 5Pointz, a group of Long Island City warehouses emblazoned with colorful graffiti.  After years of protracted litigation, a trial is now underway in Brooklyn federal district court that will determine whether federal law affords the artists who created 5Pointz a legal right to the graffiti.    

As the holiday season approaches, a federal court in New York has issued an opinion regarding a parody of Dr. Seuss’s classic children’s book, How the Grinch Stole Christmas—and in the process, has reaffirmed how the fair-use doctrine in copyright law relates to parodies of copyrighted works.

Famed artist Richard Prince is no stranger to litigation; over the years, he’s been sued by multiple plaintiffs whose art he has incorporated into his own “appropriation art” works.  A few years ago, he was the defendant in the Cariou v. Prince case, which resulted in an important Second Circuit Opinion about the fair-use defense to copyright infringement.

The Andy Warhol Foundation for the Visual Arts filed a preemptive lawsuit regarding Warhol’s appropriation of a photograph of the late musician Prince Rogers Nelson, also known as Prince. The Foundation’s counterparty is Colorado-based photographer Lynn Goldsmith, who, in 1981, took a photograph of Prince.

In April, another group of graffiti artists sent a demand letter to McDonald’s, this time threatening legal action in connection with a promotional video produced by McDonald’s to advertise a new product in the Netherlands. This dispute is yet another example of the curious place that graffiti art occupies in the copyright arena.

This long-running dispute revolves around a piece of property in Queens, known as 5Pointz, which once served as a remarkable repository of a huge amount of graffiti art. Gerald Wolkoff, who co-owns the site along with other related entities, allowed artists to create works on the site’s old industrial buildings; indeed, one artist, Jonathan Cohen, was even appointed as a volunteer “curator,” selecting artists and setting community standards. 5Pointz attracted nationally and internationally renowned graffiti artists, tourists, and fans for years, until, in 2013, the owners announced plans to demolish the existing structures at the site to make way for a residential complex.

This blog follows important legal developments in the copyright arena, including cases regarding “copyrightability,” i.e., the threshold question of whether a work is entitled to copyright. Last summer, we wrote about a copyrightability case that had advanced all the way to the Supreme Court. Last week, the Supreme Court issued its decision in that case, and in the process provided some clarity on an issue of interest to those in the art, fashion, and design arenas.

Earlier this month, the Ninth Circuit Court of Appeals upheld a $450,000 jury award in a case against a businessman who commissioned knockoff copies of several of the artist’s sculptures. The plaintiff in the case, California artist Donald Wakefield, is known for his large-scale stone and metal sculptural works, each of which is one-of-a-kind.  According to court filings, in 2004 he contacted a handful of real-estate developers whom he believed might be interested in purchasing some of his sculptures.  Hprovided these prospective buyers with information about his work, and he pointed them toward his website displaying photographs of his creations.  One of the businesses he solicited was Olen Properties, owned by billionaire Igor Olenicoff.

Recent months have seen a number of lawsuits or threatened suits by independent artists seeking to protect their work from alleged unauthorized copying by retailers and other consumer brands.  Another similar suit has been filed, this time against clothing and accessories chain Francesca’s, as well as two of Francesca’s suppliers, plus various “Doe Defendants” (i.e., defendants that will be named after discovery) involved in the design, manufacture, distribution, and marketing of the allegedly infringing products.

As we reported recently, the Second Circuit sided with parody-handbag producer My Other Bag in a trademark-infringement suit launched by high-end fashion brand Louis Vuitton.   The Second Circuit had upheld a district court finding that the use of the Louis Vuitton mark on inexpensive canvas tote bags was transformative parody and protected as fair use.

We’ve written before about conceptual artist Cady Noland, whose works command huge prices in the market, but who has a history of being highly particular about how her creations are installed, maintained, exhibited, and sold on the secondary market.  This tendency has resulted, on at least two recent occasions, in litigation over her disavowal of previous works.  Now, both cases have been resolved, but without significant judicial examination of the contours of an artist’s right to disavow her own creations.

High-end fashion brand Louis Vuitton has lost its trademark suit against a tote-bag company My Other Bag, which markets canvas bags decorated with cartoonish reproductions of bags from high-end fashion lines (such as Chanel and Louis Vuitton), accompanied by the text “My Other Bag….”   This decision is notable, among other reasons, because it reaffirms the contours of the sometimes murky fair-use defense.

In the fast-moving and often-opaque art market, information is power—as seen in a recent lawsuit between rival auction houses over allegedly pilfered sales data. A complaint was filed last week in Texas federal district court by Heritage Auctions, a major U.S.-based auction house. The defendants are auction giant Christie’s and its subsidiary Collectrium (which Christie’s acquired in 2015).