Welcome to the third issue of Canvas, a newsletter dedicated to the art world and its intersections with law, finance, technology, and culture. If you are new here, like what you see and want to keep receiving this newsletter in the future, make sure to subscribe here.

Mark your calendar: the 2023 Berkeley Art, Finance, and Law Symposium is scheduled for Thursday, June 8 at SFMOMA. More details, including registration, will be coming soon.

Artificial intelligence and its implications for the arts continues to be at the forefront of the news. Meanwhile, important copyright and trademark issues are now in front of the US Supreme Court with implications for the kind of works that artists can create without incurring liability. FATF has released a new report on money laundering in the art market. Museums are struggling to evaluate the provenance of their collections. And a new museum of AI art has opened in San Francisco.

Delia Violante
Berkeley Center for Law and Business
MGP Andersen - Progress, 2022 - Oil on canvas
Berkeley Law Faculty Corner

Berkeley Law Professor Sonia Katyal has been cited in an amicus brief on the Supreme Court case Jack Daniel’s v. VIP Products. The case pits the venerable maker of Tennessee Whisky against a manufacturer of doggy chew toys. Read more> Katyal’s article Semiotic Disobedience discusses the ways in which appropriation of cultural symbols – a category that includes easily-recognized product branding – can be used as a powerful form of protest. Read more> 

When design patent protection was established in the early 1840s, it filled a gap by allowing protection of the decorative features of useful products -- think ornamental metal designs on stoves and print rugs -- that at the time were not protected by copyright and did not qualify for utility patent protection. Regional circuits once prevented designers from obtaining protection for functional attributes of articles of manufacture, but more recently the Federal Circuit has eroded that guard rail, as reflected most vividly in Apple’s victory over Samsung in the iPhone design controversy. In this chapter for a forthcoming book on IP harmonization, Berkeley Law Professor Peter Menell traces the development of the non-functionality doctrine on both sides of the Atlantic. He contends that notwithstanding ready solutions to the overprotection risk, the prospects for correction, clarification, and harmonization of design protection are inauspicious. Read More>

Professor Peter Menell will also speak on the topic of fair use, transformative use, and copyright at USC IP Institute next week where he will discuss his recent paper Misreading Campbell: Lessons for Warhol which suggests that the Court in Andy Warhol Foundation would benefit from a close reading of Campbell, which thoughtfully addressed the question of what consitutes fair use and transformative use in copyright. Read More>
The Ancient Link Between Art and Fashion

In this article, Berkeley Law first year law student Devyani Aggrawal's "Masterpiece Misplaced," explores the problems that can arise when fashion uses art for inspiration. Read More>
Prince: From Magazine Cover to the Supreme Court

The NYTimes recently reported on the fascinating and spirited debate over creativity and free expression that has been framed as a fight over the nature of art itself. While the Court is preparing to issue its opinion in Andy Warhol Foundation v. Lynn Goldsmith, it seems one question is on many minds: what will it mean for institutions and their collections? What kind of ripple effects will the ruling have on Museums? Read More>
First Ever Trial on NFTs and Intellectual Property

A federal jury returned a verdict against conceptual artist Mason Rothschild who sold “MetaBirkin” NFTs depicting faux fur Hermes Berkin handbags in what Hermès claimed was a violation of its trademark. US District Judge Jed S. Rakoff, who was overseeing this novel dispute, denied summary judgment and refused to allow the jury to hear testimony on the artistic nature of the images. Read More>

Judge Rakoff released an opinion on the fourth day of trial describing his reasons for sending the dispute before a jury. Read More>
Report Alert: Money Laundering in the Art Market

The global trade in art and antiquities is a billion dollar industry. A new report published by the global money laundering and terrorist financing watchdog Financial Action Task Force (FATF) explores how art and antiquities can be misused for money laundering and terrorist financing. It includes risk indicators to help identify suspicious activities as well as good practices that countries have implemented.

Countries and the arts and antiquities sector can do more to stop criminals and terrorists from misusing this billion dollar industry to launder and raise funds. Read More>
Changing Attributions: Art Buyers' Shaky Warranty

When art collectors purchase pieces, they do so under the impression that the piece is what the seller claims it to be, and value it accordingly. Dealers stake their reputation on warranties of authenticity. But what happens when the dealer makes what at the time is an accepted claim about the art and then art scholars change their minds? To what extent should the dealer be held accountable for new information on an art piece they have already sold? In this article, Ronald Spencer, Chairman and CEO of the Pollock-Krasner Foundation, dives into these legal issues and confronts the complexities that come with the way we choose to value art. Read More>
When Forgery Becomes an Art

In perhaps the most elaborate forgery scandal of modern times, Wolfgang and Helen Beltracchi were arrested in 2011 for selling possibly hundreds of forged paintings over the course of thirty years. Over a decade later, psychoanalyst Jeanette Fischer has brought the couple back into the spotlight through a thorough examination of the dynamics at play in this extravagant thirty year scheme, and examines what brought a talented painter to assume the identity of others and bury his own. Read More>
The Value of Art Through Uncertainty

In the art world, there is often a push towards the binary. Something either is or isn't authentic and the specifics of art attribution can drastically alter the value of a given work. This case study written by UC Berkeley Ph.D Art Historian Sharon Hecker, shows the importance of allowing more openness and discussion on the nature of an art piece, rather than grasping at absolutes in a cloud of uncertainty. Read More>
The Enduring Value of Human-Made Art in an AI World

WIRED recently published a thought-provoking essay on the differences -- or better yet the similarities -- between human creativity and AI. Says Vivian Lam, "Repetition and predictability are not what devalues art. Rather, what devalues art is the negation of the artist and community that imbue a work with significance beyond its mere existence. The value of art is what we give it—no object has inherent worth. Indistinguishable or not, to claim equivalency between AI- and human-made works is to reject what makes them worth anything more than their exchange value." Read More>
The Future of Digital Art

Many artists have already struggled to adapt and find their place in the digital world, and the rise of artificial intelligence has only made things more difficult. AI art generators offer on-demand text-to-image pieces to their users, generating substantial revenue for AI companies, often at the expense of the digital artists whose work the AI uses as raw material. But some artists are starting to fight back; a current lawsuit by a group of illustrators against AI art companies could help determine the future of digital art and define the boundaries of copyright and fair use laws. Read More>
The [current] role of Museums: Between the Devil and the Deep Blue Sea

Large museums are often treasured for their large, historic, and global art collections. But as discourse increases on the role of theft, looting, and colonial seizures in acquiring these collections, museums must confront the past in order to move into the future. Museums are currently caught between the devil and the deep blue sea. Review of provenance may demand the return of artifacts to places where their preservation and availability for study may be in doubt. Read More>
Interpreting Art during Sensitive Times

The NYTimes recently reported yet another case around art and racism. Murals created to depict the brutality of enslavement took center stage at a small law school in the Eastern United States. Some have found the works offensive and asked the institution to permanently cover them. The artist says they are historically important. This case has provoked a lively argument among legal scholars. One fundamental question remains: Should we cover art because it might be painful for some to view or should we treat these artifacts as a tool for teaching the progress we have made thus far and to illuminate road ahead? Read More>
Welcome to the Museum of the Future AI Apocalypse

There is a new kid in town. The Misalignment Museum, a temporary exhibition about the future of artificial intelligence recently opened in San Francisco, ground zero for recent excitement about generative AI and chatbots like OpenAI’s ChatGPT Read More>
Meet the Artist: MGP Andersen

MGP Andersen is fascinated by what we guess at; the stories we don’t tell.  The ways we perceive and deceive ourselves.  Her haunting, surreal work questions society, and our relationship with ourselves and each other.  Violence, alienation, addiction, secrets, obsession, desire, as well as love and courage are frequent themes.  This San Francisco artist often starts work with an old photo. She then layers paint until form and color evoke deep, nameless feelings.  Her paintings are half-forgotten dreams. Read More>
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