A Southfield, Mich. company named Park West has made a big business of conducting art auctions on cruise ships offshore, while leaving more than a few dissatisfied customers in its wake. Fine Art Registry, a subscriber website founded by Theresa Franks, has published some of those customer complaints as well as original articles warning of Park West’s practices. “In April the company sued Ms. Franks; Fine Art Registry’s lead writer, David Phillips; and a Dalí specialist that the site quoted, Bruce Hochman, for defamation.” And as so often proves to be the case when a business reacts to criticism by suing its critics, the suit has if anything stimulated further press curiosity about the business’s practices. (Jori Finkel, “Art Auctions on Cruise Ships Lead to Anger, Accusations and Lawsuits”, New York Times, Jul. 16). More: Donn Zaretsky, Art Law Blog.

An Italian pornographic movie star/politician who was formerly married to wealthy American artist Jeff Koons is back in court with a child support demand, a decade after the two carried out an extraordinarily acrimonious and hard-fought custody battle over their son, now 15. In the course of losing that battle Koons spent $4 million on legal fees, “some of which he later challenged unsuccessfully. Among Koons’ complaints was his lawyers charged him for time they spent watching his ex’s porn films, one of which famously includes” a scene rather too raw for description on this blog involving a reptilian co-star. (Dareh Gregorian, “Porn Star Sues Papa To Pay Up”, New York Post, Mar. 27).

Bowing to pressure from 32 state attorneys general to curb the depiction of smoking in movies, the Moving Picture Association of America has just conceded “the basic principle that public-health lobbyists and politicians should have a big role in deciding what people will see, instead of letting the industry merely cater to its audience.” But state governments “have no more business determining what appears on movie screens than they do in deciding what goes into Judy Blume’s next novel. …The MPAA’s response validates the politicians in their intrusions, and beckons them to find new ways to regulate art and other matters that are supposed to be exempt from their control.” (Steve Chapman, syndicated/Orlando Sentinel, May 21). More: Michael Siegel, May 11, May 16, May 17; Jacob Sullum, May 16. Earlier: Sept. 1, 2003.

Kevin Underhill at Lowering the Bar, a law/humor blog, has amusing live coverage (Oct. 27) of the appeal in a California court of Christoff v. Nestle USA, the $15.6 million award for using a model’s photo on a coffee label without ensuring that the proper permissions were in place (see Feb. 2, 2005).

Virginia Postrel says Marvel Comics did itself no favors recently by taking a tough negotiating stance over The Atlantic’s proposed cover use of one of its images. (Sept. 6). I had no idea anyone was asserting trademark rights over the word superhero. (Corrected Sept. 10 to fix error about how The Atlantic was going to use the image — see comments.)

We covered the case—where a hockey player complained that a comic-book character had the same name—on July 13, 2004. Todd MacFarlane still has the chance for discretionary review by the Missouri and U.S. Supreme Courts, though the former has already ruled against him once. Eugene Volokh will be sure to have insightful commentary on the First Amendment implications; here’s his earlier take, predicting a “good chance” of Supreme Court review and reversal. Beyond the First Amendment implications, the damages are ludicrous.

Why can’t you get a DVD of “Eyes on the Prize,” which Henry Louis Gates Jr., chairman of the department of African and African-American studies at Harvard, called “the most sophisticated and most poignant documentary of African-American history ever made”? Because there are 272 still photographs, scenes from eighty archives, and music—and if a single set of rights expire, fear of copyright litigation prevents the entire movie from being shown or distributed. “Today, anyone armed with a video camera and movie-editing software can make a documentary. But can everyone afford to make it legally?” (Nancy Ramsey, New York Times, Oct. 16). American University professors Pat Aufderheide and Peter Jaszi issue an extensive report describing the problem, but draw back from the obvious solution of liability reform, and thus make their recommendations toothless. “Educating gatekeepers about creators’ use rights” will have absolutely no effect so long as it will cost a documentary filmmaker less to pay for rights than to successfully defend a lawsuit against a rights-holder.

Comedian David Cross is learning this: he’s been sued by a nightclub owner who claims that Cross didn’t have permission to record him. Sub Pop Records, which distributed the Cross CD, claims that the permissions were granted.

See also Oct. 10 and links therein.

The United Kingdom has reluctantly joined 19 other EU countries “adopting the droit de suite, or artist’s resale right, which requires sellers to pay artists (or their heirs) as much as 4% of the price every time a piece is resold, for up to 70 years after an artist’s death. (The droit does not apply to sales between two collectors.)” The rule, which applies retroactively to art created in the past and already in collectors’ hands, is likely to harm British galleries and dealers — and perhaps artists as well — by driving the international art market to countries that do not enforce such rules. “The cream of the crop of important modern and contemporary art has already fled Europe and is beginning to leave London in anticipation of 2006,” says Dallas economist David Kusin, who conducted a study on the subject for the European Fine Art Foundation. (Susan Adams, Forbes, Jun. 20).

Due in part to expansions of copyright law lobbied for by Disney and other giants, a huge volume of writing, art and music which would otherwise by now have entered the public domain is still under copyright, even though the rights to much of it — things like picture postcards, ephemeral commercial illustration and sheet music issued by long-defunct publishers or with no identifying marks at all — cannot be traced to any particular current successor-owner even by good faith efforts. Per Wired News:

According to comments submitted to the copyright office, one married couple couldn’t get a wedding photograph repaired: The photography shop would not scan and reprint the photo because it was taken by a professional and the shop was afraid of violating copyright, even though the photographer was out of business.

“For heaven’s sake, this is a photograph of me and my wife, and I can’t have it legally repaired!!! Wrong, wrong, wrong!” wrote William Haynes.

(Katie Dean, “Copyright Reform to Free Orphans?”, Apr. 12).

“An online group of self-described ‘literary watchdogs’ is threatening a class-action lawsuit against the UI Press, alleging that recent awards for poetry were unfairly given to writers with ‘illicit’ ties to the program. Postings at foetry.com demand a return of $20 reading fees after the 2004 Iowa Poetry Awards — open to anyone inside or outside the university — were given to people with ties to the UI. University officials note that the contest employs blind judging, in which the authors’ names are removed from the manuscripts.” (Drew Kerr, “Two allege bias in UI Press poetry awards”, Daily Iowan, Feb. 28)(via Schaeffer who got it from Maud Newton).

In 1986 California model Russell Christoff was paid a modest sum for doing a photo shoot with a photographer working for Nestlé but assumed nothing had come of it. Years later, Christoff happened to glance at a jar of the company’s Taster’s Choice instant coffee and realized that the tiny “satisfied coffee drinker” face on its label was his, it having appeared there for years. And now a jury in Glendale, outside Los Angeles, has ordered the Swiss-based food company to pay Christoff $15.6 million for using his picture without adequate permission. “The jurors determined that Glendale-based Nestle should have paid Christoff $330,000 for the use of his likeness. They also voted to hand Christoff damages equal to 5% of the profit from Taster’s Choice sales during the six-year period, or $15.3 million,” invoking a California law intended to protect celebrities’ image. A company lawyer says the employee who pulled the photo for use thought the requisite permissions had been obtained on it. So now if you notice Legal being really, really prickly about signing off on any proposed use of photos picturing people, you’ll know why. (Meg James, “Verdict Creates Instant Millionaire”, Los Angeles Times, Feb. 1; James Bone, “The tiny face on this jar of coffee has just cost Nestlé 15m”, The Times (UK), Feb. 2).

From this August:

Yankee Pot Roast: Which do you prefer (to munch on, not to adorn book covers): Pepperidge Farm Goldfish or chocolate-chip cookies?

Tom Perrotta: I prefer chocolate chip cookies. They don’t have as many lawyers.

Background detail: Malcolm Jones, “Fiction: New Snack Attack”, Newsweek, May 24; before-and-after book covers; Perrotta’s Little Children.

That’s Eugene Volokh’s capsule summary (Jul. 12) of the jury result reported by the St. Louis Post-Dispatch: “Tony Twist, the former rock ‘em-sock ‘em Blues hockey player, was awarded $15 million Friday by a jury that concluded comic book artist Todd McFarlane had profited by using Twist’s name without his permission. McFarlane, formerly the principal artist and writer of Spiderman comics, gave the name Tony Twist to a violent New York mob boss in McFarlane’s Spawn comics in the early 1990s.” (Peter Shinkle, “Tony Twist wins $15 million verdict”, Jul. 10). Brian J. Noggle also comments.

Merits of loser-pays: Five years ago, the Mattel toy company sued artist/photographer Tom Forsythe for copyright and trademark infringement over “a series of 78 photographic images of the wildly famous doll showing her nude, and sometimes posed provocatively, in or around various household appliances. … After a lengthy legal tussle, which included a series of appeals, a federal judge late last week instructed Mattel to pay Mr. Forsythe legal fees of more than $1.8 million.” (Bill Werde, New York Times, Jun. 28).

One reason not to commission a mural for your building: the federal Visual Artists Rights Act of 1990, which with some exceptions “prohibits the intentional alteration, mutilation or destruction of artworks without the consent of the artists” and gives the offended artist a right to sue. Lawsuits under VARA have not been numerous, but have raised questions of fairness to art owners as well as of unintended consequences. (Daniel Grant, Wall Street Journal Leisure & Arts/OpinionJournal.com, May 27; Cynthia Esworthy, “A Guide to the Visual Artists Rights Act”, NYArtsAlive.com, undated; IvanHoffman.com.

“‘I don’t think censorship is a bad word, but it has become a bad word because everybody associates it with some kind of restriction on liberty,’ said Mr. [Pat] Boone, who is in Washington making the rounds as the national spokesman for the 60-Plus Association, a conservative senior citizen lobby.” (Steve Miller, “Censorship in arts ‘healthy,’ Boone says”, Washington Times, Apr. 21)(via TMFTML).

Reader William Dyer (BeldarBlog) writes that he “was disappointed to see your brief entry today on Overlawyered regarding the Jesus Castillo obscenity case. The stories you linked today are filled with factual errors and generally overblow the story.”

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“Earlier this [month], the U.S. Supreme Court refused to hear an appeal of Jesus Castillo’s 2000 obscenity conviction for selling a comic book. … In September 1999, Castillo, manager of Keith’s Comics in Dallas, sold a copy of ‘Demon Beast Invasion: The Fallen’ No. 2 to an undercover police officer. The adults-only comic (an English translation of a Japanese manga) was labeled as such and was stocked in an adults-only section of the shop. The police officer was an adult. … ‘I don’t care what kind of testimony is out there,’ the prosecuting attorney said. ‘Comic books, traditionally what we think of, are for kids.’” (Franklin Harris, Pulp Culture Online, Aug. 7) (via Unqualified Offerings)(Comic Book Legal Defense Fund). More: reader William Dyer (BeldarBlog) writes taking issue with the linked stories.