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Art Law
University of North Carolina School of Law
Gasaway, Laura N.

Artists’ Rights – Freedom of Expression 10/23/11 1:47 PM

I. Government Regulation of Artistic Expression

A. Berry v. NY – NY restricted sales of vendors and issued only a limited number of licenses which were impossible to get unless you were a veteran

o 1. Artistic expression was protected speech, and even if the regulation is content-neutral, it has to be narrowly tailored to serve a significant government interest while leaving open alternative channels of communication

o 2. 1st Amendment protects more than political speech and verbal expression

§ protection extends to entertainment, film, theater, music, without regard to words, peaceful marches to express grievances to governmental authorities, sit-ins to protest racial discrimination, wearing arm bands to protest war, etc.

§ paintings, photographs, prints, and sculptures always communicate some idea or concept to those who view it, and are protected under 1st Amendment

o 3. Sale of protected materials is also protected

o 4. Level of Scrutiny – apply SST when the regulation discriminates on the basis of content and a more lenient analysis to content- neutral regulations

§ Content-neutral regulation may restrict:

ú Time. place, and manner of protected speech, provided it is narrowly tailored to serve a significant governmental interest leaves open alternative channels of and communication

· B. Close v. Lederle

o 1. States can ban and regulate obscene speech, but not non-obscene speech

· C. Piarowski v. Illinois Community College – university received a complaint about the art department chairman’s work so they ordered it removed and suggested an alternate location for it

o 1. Freedom of speech and the press protected by the 1st Amendment is interpreted to embrace purely artistic, as well as political, expression, unless the artistic expression is obscene in the legal sense

o 2. A college has more control over an employee’s activities than over a strangers, but it is not unlimited control

o 3. Sexually explicit though nonpornographic art can be regulated more broadly than political speech

o TEST to determine what constitutes obscenity:

§ A. Whether the ‘average person’ applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest

§ B. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law

§ C. and whether the work, take as a whole, lacks serious literary, artistic, political, or social value

II. Right of Publicity / Right of Privacy and the First Amendment

· A. Comedy III Productions v. Saderup – artist created a lithograph of “The Three Stooges” and used to it make T-shirts; company that owned the rights to the Stooges brought suit

o Balancing test between 1st Amendment and the right of publicity based on whether the work added significant creative elements to as to be transformed into something more than a mere celebrity likeness or imitation

§ A balancing test used to distinguish protected from unprotected appropriation of celebrity likeness is that an action for infringement of the right of publicity can be maintained only if the proprietary interests at issue clearly outweigh the value of free expression in this context

o When a work contains significant transformative elements, 1st Amendment protection applies

o The transformative elements or creative contributions that require 1st Amendment protection are not confined to parody and can take many forms

§ Transformative Test: whether the celebrity likeness is one of the “raw materials” from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question

ú Ask – whether a product containing a celebrity’s likeness is so transformed that it has become primarily the D’s own expression rather than the celebrity’s likeness

o Expressive activity does not lose its constitutional protection because it is undertaken for a profit

· B. Hoepker v. Kruger

o Copyright Infringement:

§ Infringement actions against reliance parties can be commenced

ú A. Only after the restored copyright owner has provided notice of intent to enforce the restored copyright, either by filing a notice with the US Copyright Office for publication in the Federal Register or by serving such notice on the reliance arty

ú B. AND only for those acts of infringement that either commence or continue 12 months or more after such notice is given

o Right to Privacy Claim (In NY – solely derived from statute): plaintiff must prove

§ A. use of Plaintiff’s name, portrait, picture or voice

§ B. for advertising purposes or for the purposes of trade

§ C. without consent

§ D. AND within the state of NY

o Free speech transcends privacy rights when the speech concerns newsworthy events or matters of public interest; when other types of speech are at issue (like when t

ation of the 1st Amendment, as

§ (1) the NEA has limited resources and must deny the majority of the grant applications that the NEA receives, including many applications that propose artistically excellent projects;

§ (2) the NEA may decide to fund particular projects for a wide variety of reasons;

§ (3) the assumption of the NEA is that grants will be awarded according to the artistic worth of competing applications; and

§ (4) absolute neutrality in the grant-making process is inconceivable.

· B. Brooklyn Institute of Arts & Science v. NY and Giuliani – Museum wanted to have an exhibition which featured religious figures negatively, with animal poop; Giuliani refused to allow it and threatened to cut funding in terminate the Museum’s lease

o A party seeking a preliminary injunction must ordinarily demonstrate

§ (a) irreparable harm and

§ (b) either

ú (1) likelihood of success on the merits or

ú (2) sufficiently serious questions going to the merits to make them a fair ground of litigation and a balance of hardships tipping decidedly in its favor.

o A loss of 1st Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury

o No government official can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion

§ 1st Amendment bars government officials from censoring works said to be offensive, sacrilegious, morally improper, or even dangerous

o Although the government is under no obligation to provide various kinds of benefits, it may not deny them if the reason for the denial would require a choice between exercising 1st Amendment rights and obtaining the benefit

o TEST for determining whether the government has endorsed a religious position looks to whether the government action

§ (1) has a secular purpose

§ (2) does not have the principal or primary effect of advancing or inhibiting religion

§ AND (3) does not foster an excessive entanglement