Dear Delia,

The Third Annual Art, Law, and Finance Symposium is scheduled for May 16, 2024 at SFMOMA. Confirmed speakers include: Erwin Chemerinsky, Professor and Dean of Berkeley Law who will discuss freedom of speech in the arts; Socrates Sourvinos, Consulate General of Greece in San Francisco who will share his perspective on issues of repatriation and cultural heritage; and Chung-Pei Ma, Professor of Astrophysics at UC Berkeley who will elaborate on the link between science and art. For further details and to register visit the Symposium website and check out our promo trailer.

This month we highlight news of copyright and the courts, fraud and the art market, activism and social justice, the impact of federal regulations on museums, and more.

Delia Violante

Berkeley Center for Law and Business

Charlie Milgrim - Accretion. Giclée print on archival paper 23" x 30"

Academic Corner



BERKELEY LAW PROFESSOR PAMELA SAMUELSON

In Regulating Technology Through Copyright Law: A Comparative Perspective, Berkeley Law Professor Pamela Samuelson takes a look at provisions of the EU's Directive on Copyright for the Digital Single Market (DSM) that address datamining, content hosting, and republication. The rules attempt to provide new income streams for authors and artists of all kinds by trying to force ISPs to make licensing arrangements -- an approach in line with Europe’s overarching goal of protecting the “moral rights” of content creators. Samuelson questions whether the new rules will have the desired effect, and doubts that this will influence changes to rules in the US where a fundamentally utilitarian view of copyright protection promotes a laissez faire approach.

BERKELEY LAW PROFESSOR PETER MENELL

In a pair of recent articles, Berkeley Law Professor Peter Menell examines the meaning and implications of the recent Supreme Court watershed fair use decision in Warhol v. Goldsmith. In Going ‘Beyond’ Mere Transformation: Warhol and Reconciliation of the Derivative Work Right and Fair Use, Professor Menell and Columbia Law Professor Shyamkrishna Balganesh explain how the Court rectified misapplication of its 1994 Campbell decision, providing a three-part blueprint for evaluating the purpose and character of the use: (1) a requirement of independent justification for copying, such as commentary, news reporting, educational use, or research, and not merely as raw material for a follow-on work; (2) articulation of a distinct purpose from that of the copied work; and (3) a determination that the secondary use’s transformativeness outweighs its commerciality.



In Exploring the Economic, Social, and Moral Justice Ramifications of the Warhol Decision, Professor Menell and Howard Law Professor Lateef Mtima explain how the Supreme Court’s decision faithfully applies the Copyright Act drafters’ text and intent to empower authors with broad exclusive rights and encourage licensing in conjunction with a limited fair use privilege as the best approach for promoting pioneering creativity, access, and cumulative creativity. They contend that this approach aligns with economic, social, and moral justice.

Student Corner

BERKELEY LAW 1L ELEANOR IRIS GARTSTEIN

In Operating on Good-Faith Enforcement: The Current State of International Legal Instruments in Art Repatriation, Berkeley Law 1L Eleanor Iris Gartstein presents an overview of current international treaties that provide the foundations for repatriation of misappropriated cultural objects. Though there has been much progress in raising awareness of the problem, the enforcement regime remains weak and wholly dependent on the good will of the parties involved. Garstein notes some ways in which the situation could be improved both in terms of identifying misappropriated works and in securing their return. Read more>

Miles Davis Leaves His Mark on Copyright

THE NEW YORK TIMES

Tattoo artist Kat Von D won a legal battle in federal court when a jury ruled unanimously that her reproduction of a photo of the celebrated jazz musician Miles Davis in a tattoo did not infringe the photographer's copyright. Plaintiff Jeffrey Sedlik, who took the photograph of Miles Davis in 1989, plans to appeal. Read more>

Mona Lisa in the Soup

THE ART NEWSPAPER

Riposte Alimentaire, a French environmentalist group, demanded the right to "healthy and sustainable food" after splattering pumpkin soup over Mona Lisa, one of the world's most viewed paintings. Read more>

Sotheby's Wins Art Fraud Law Suit

U.S. NEWS

Russian billionaire Dmitry Rybolovlev lost a legal fight with Sotheby’s. A US jury sided with the auction house in a lawsuit over claims that the businessman was ripped off while assembling a trove of works. Read more>

Museum Response to Federal Rules

THE NEW YORK TIMES

The American Museum of Natural History will close two major halls exhibiting Native American objects in a dramatic response to new federal regulations that require museums to obtain consent from tribes before displaying or performing research on cultural items. Read more>

Museums and the Problem of Ageism

THE ART NEWSPAPER

“[Our museums have become] more community conscious, seeking to serve populations that had previously felt unwelcome. Yet one large and growing audience segment has generally been overlooked: older people. The reason, simply, is ageism, an entrenched way of thinking and a form of discrimination to which we are only now waking up as a society." Read more>

Anti-Money Laundering Law Impact

ARTNET

A law enacted in 2021 to combat money laundering, tax fraud, and corruption went into effect on January 1, 2024, posing a legal risk for artists who do not comply, experts are warning. Read more>

Alert: Deloitte Art and Finance Report 2023

DELOITTE

Key insights from the Deloitte Art & Finance Report 2023 released this fall reveal a dynamic shift in perspectives among wealth managers, collectors, and art professionals. In particular, there has been an increased interest in fractional ownership, especially among younger collectors. Read more>

Fowler Museum at UCLA Returns Objects to Ghana

UCLA

The Fowler Museum has returned royal objects of the Asante Empire to Ghana where they originated. This marks a significant milestone in the Fowler's long history of restitution as its first international return. Read more>

The Recovery of Ancient Herculaneum Scrolls

THE GUARDIAN

The use of AI and advanced scanning has allowed scholars to read scrolls recovered from the ruins of Herculaneum. The scrolls were carbonized when the city was buried in the eruption of Mount Vesuvius in 79 AD, were excavated in the late nineteenth century, and have now been brought back to life. Read more>

Longstanding Criticism of Confederate Monuments

IJNET

Contrary to the claims of the defenders of Confederate monuments, criticism of these memorials is nothing new. A review of black newspapers going back to the 1870s shows that calls to tear them down began as soon as they were erected. Read more>

The Flawed Promise of Gemini

WIRED

Google says its powerful new chatbot Gemini can supercharge your productivity and creativity. Productivity is a slam dunk for an algorithm, but creativity is a bigger challenge, argues the author, because at bottom creativity is about establishing a connection with another human being. Read more>

Copyright in the Age of AI

THE WALL STREET JOURNAL

Thanks to generative AI systems like ChatGPT, GPT-4 and Dall-E 2, novels can now be generated in days, songs composed faster than you can play them and pictures drawn in seconds—all based on massive machine-learning models that have sampled and remixed the canon of published works. What do the readers think? Read more>

Meet the Artist

CHARLIE MILGRIM

Oakland-based artist Charlie Milgrim sees a world in flux, a world of perpetual change and transition, a constant building-up and a tearing down. She works with a wide range of materials: bowling balls, folded tar paper, and most recently has included photography in her practice. In this work, Accretion, dripping pallets over the stainless steel sink in Milgrim’s Alameda High School art classroom left behind colorful paint residue that built up layer after layer, forming abstract, amorphous imagery. Milgrim focuses her lens on these accretive and subtractive processes that mimic the way of nature and highlight its strange and random beauty. Learn more>

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