Software of Copyright to Artwork

Software of Copyright to Artwork

This text is an extract from The Artwork Legislation Evaluation, Version 2. Click on right here

This text is an extract from The Artwork Legislation Evaluation, Version 2. Click on right here for the complete information

Copyright is the first supply of authorized safety for all types of unique artistic endeavors. Whereas such protections have been engrained in US copyright legislation since 1909, the arrival of the digital age within the Nineteen Nineties, enlargement of social media, progress in appropriation artwork, and the latest surge in reputation and market worth for road artwork, have created a number of challenges for artists, the artwork market and people who search to use artistic endeavors.

This chapter serves as an introduction to the legislation of copyright in the US because it applies to artistic endeavors, reproductions and different spinoff makes use of.

I Historic context

When enacted in 1787, the US Structure empowered Congress ‘[t]o promote the Progress of Science and helpful Arts, by securing for restricted Instances to Authors and Inventors the unique Proper to their respective Writings and Discoveries . . . ‘. Thus was born the earliest US authorized protections for copyright (authors) and patents (inventors).

Leaping forward 233 years, the influence of copyright on artwork is ubiquitous. Copyright is essentially the most vital technique of defending unique artistic endeavors and incentivising others to create new artwork. However discovering this steadiness has persistently been difficult, particularly within the fashionable on-line, digital world. The intersection of artwork and copyright is now one of the crucial debated and controversial areas of mental property.

The US Copyright Act (the Act), which is the unique technique of defending and imposing copyright underneath federal legislation, pre-empts all different legal guidelines and claims that implicate any of the unique rights granted to copyright house owners underneath the Act. The primary model of the Act, enacted in 1790, granted copyright safety just for ‘any map, chart, guide or books already printed inside these United States’.2 Within the late eighteenth century, pictures in fact didn’t exist, and there was no technological means to create and distribute reproductions of artwork outdoors of photographs included in printed books. That modified 119 years later with the subsequent full revision of the Act in 1909. The 1909 Act outlined copyright-protectable works as ‘all of the writings of an creator’,3 which expressly included artistic endeavors, fashions or designs for artistic endeavors, artwork reproductions, images, and prints and pictorial illustrations.

As we speak’s model of the Act was enacted in 1976 and extends safety to all types of ‘pictorial, graphic, and sculptural works’.4 These broad classes, in flip, embrace ‘two-dimensional and three-dimensional works of advantageous, graphic, and utilized artwork, images, prints and artwork reproductions, maps, globes, charts, diagrams, fashions, and technical drawings, together with architectural plans’.5

ii Scope and limitations of copyright

To be protected by copyright, a piece of authorship should be unique; that’s, it can’t be within the public area or so missing in originality that it doesn’t rise to the extent of protected content material. In a seminal 1991 opinion, the Supreme Courtroom held that ‘originality’ requires solely minimal creativity, no matter how a lot bodily time and effort may go into a piece.6

However, frequent geometric shapes, and acquainted symbols and designs are usually not topic to copyright safety. The Copyright Workplace gives the next examples.7

  1. ‘Gloria Grimwald paints an image with a purple background and evenly spaced white circles.’ This isn’t protectable as a result of ‘the mix of the purple rectangle and the usual symmetrical association of the white circles doesn’t comprise a enough quantity of inventive expression to warrant registration’.
  2. ‘Gemma Grayson creates a wrapping paper design that features circles, triangles, and stars organized in an uncommon sample with every ingredient portrayed in a distinct colour.’ That is protectable as a result of ‘it combines a number of varieties of geometric shapes in quite a lot of sizes and colours, culminating in a inventive design that goes past the mere show of some geometric shapes in a preordained or apparent association’.

Equally, ‘[c]ommon patterns, equivalent to normal chevron, polka dot, checkerboard, or houndstooth designs’ are usually not protectable; nonetheless, ‘[a] work that features acquainted symbols or designs could also be registered if the registration specialist determines that the creator used these parts in a inventive method and that the work as a complete is eligible for copyright safety.’8 For instance, a sketch of the usual fleur-de-lys design utilized by the French monarchy wouldn’t be protected in and of itself; nonetheless, if an artist painted an unique silhouette of Marie Antoinette with a backdrop that includes a number of fleur-de-lys designs, the work could be protected as a result of it incorporates an unique, creative drawing along with the usual fleur-de-lys designs.

Mere colouration or mere variations in colouring alone are usually not eligible for copyright safety.9 If an artist merely provides only a few colors to a pre-existing design or creates a number of colourised variations of the identical primary current design, the work is not going to be protected. Nevertheless, a piece consisting of a digital picture of the Mona Lisa to which completely different hair color, nail polish, stylised clothes and darkened pores and skin are utilized, could be entitled to safety as a result of the modifications in color and different attributes are enough to represent a brand new work of authorship.10

i Merger doctrine/scènes à faire

Two different necessary associated ideas restrict copyright protectability. One is the thought/expression ‘merger’ doctrine and the opposite is scènes à faire.

Copyright doesn’t defend any thought, process, course of, system, methodology of operation, idea, precept or discovery.11 In line with this premise, the merger doctrine bars copyrightability when an thought merges with the expression; that’s, if an thought and the expression of the thought are so intently associated that the thought and expression are one, such that there’s just one means or an especially restricted variety of methods to precise and embody the thought in a piece. For instance, an infringement go well with by a photographer, whose {photograph} captured a mom mountain lion holding a cub in her mouth perched on a cliff, towards an artist who created a sculpture depicting an analogous scene, was dismissed as a result of the picture of a mom mountain lion perched on a rock with a kitten in her mouth was a naturally occurring pose that was created and displayed by nature.12

The associated precept of scènes à faire (or ‘scenes that should be finished’), applies the place the expressive parts of a piece are a product of the style of the subject material, which by its nature should embrace sure frequent parts. In a widely known case, a glass-in-glass sculpture depicting jellyfish swimming vertically was entitled solely to a ‘skinny’ copyright, which was protected solely towards just about equivalent copying (mixture of unprotected parts dictated by the glass-in-glass medium and by the jellyfish’s pure physiology).13

ii Fixation

One other elementary requirement for defense is {that a} work be ‘mounted’ in some tangible medium of expression, in order that it’s greater than of transitory length (equivalent to a sandcastle on a seaside). A number one case denied copyright safety to a wildflower backyard in Chicago as a result of the courtroom discovered the backyard too transitory because it stored altering all through the seasons.14

Take into account distinguished however non permanent artwork installations, equivalent to these by Christo, and whether or not they’re too transitory to warrant safety, a difficulty that has not been addressed instantly by US courts.15 Christo, nonetheless, documented and preserved all of his initiatives with images and video, which thereby mounted the artwork itself in a tangible medium.

iii Performance

Copyright precludes safety for ‘helpful articles’ except their included creative designs will be perceived individually from their useful parts and are independently copyrightable.16 For instance, sculptured creative belt buckles by the designer Barry Kieselstein-Wire had been discovered to be separable and thus protectable aside from the utilitarian belts to which they had been affixed.17 In 2017, the Supreme Courtroom held that two-dimensional designs (consisting of assorted strains, chevrons and vibrant shapes) positioned on cheerleader uniforms may very well be topic to copyright safety however the utilitarian nature of the uniforms themselves, which aren’t in any other case topic to safety underneath the 1976 Act.18

iv Human authorship

Works that aren’t created by human beings are usually not protected by copyright.19 However with the arrival of extra subtle synthetic intelligence, this elementary precept is being challenged. In 2016, Dutch pc scientists, along with Microsoft and others, created a ‘new’ Rembrandt portrait portray, utilizing complicated algorithms and intensive information from quite a few actual Rembrandt portraits, and a 3D printer for texture and depth. The ensuing portrait was startling in its authenticity.20

An Edmond de Belamy AI-created portrait, programmed by the Parisian group Apparent, offered at Christie’s in October 2018 for US$432,500. It was signed with a bit of the algorithm’s code: ‘min G max D x [log (D(x))] + z [log(1 – D (G(z)))]’. To ‘study’, the algorithm was fed 15,000 photographs of portraits from completely different time intervals.

III Copyright unique rights/first sale doctrine and show proper exceptions

The Act gives copyright house owners with a bundle of ‘unique’ rights, together with copy, preparation of spinoff works, adaptation, public distribution, public efficiency and public show.21

These unique rights, nonetheless, don’t stop the proprietor of a murals from reselling it or transferring title underneath the ‘first sale doctrine’, which gives that anybody who lawfully owns a selected copy of a piece ‘is entitled, with out the authority of the copyright proprietor, to promote or in any other case get rid of the possession of that duplicate’.22 The proprietor of an unique murals, nonetheless, can not grant to a gallery or public sale home to which such work is consigned on the market any rights better than the naked authorized title that proprietor has, with no proper to train any of the unique rights reserved to the copyright proprietor.

This additionally highlights the necessary distinction between the copyright in a murals and authorized title in the identical work that’s bought or in any other case acquired. An artist (or some other creator) who creates an unique work and sells it doesn’t switch his or her copyright within the work absent a written settlement to take action.

There’s one other necessary statutory exception to the unique show proper that allows house owners of artistic endeavors, or anybody authorised by such house owners, to show these works publicly, ‘both instantly or by the projection of no multiple picture at a time, to viewers current on the place the place the [work] is positioned’.23 This provision is answerable for lawfully allowing all shows of copyright-protected artwork by galleries, public sale homes and museums.

IV Time period of copyright

The time period of copyright for a person artist who created a piece on or after 1 January 1978 is the lifetime of that creator plus one other 70 years. Works created previous to that date are topic to a distinct time period underneath the 1909 Act, which was an preliminary time period of 28 years and a second renewal time period of 28 years, however there are particular exceptions which are past the scope of this chapter.

The place an artist is commissioned to create a piece for use along with different unique content material in one other work, equivalent to a compilation or collective work, the artist’s work can be deemed a ‘work made for rent’, which mechanically locations copyright possession within the get together that commissions the work, offered a written settlement with the creator specifies it’s a ‘work made for rent’. The copyright time period for a piece made for rent underneath the 1976 Act is 95 years from the date of first publication or 120 years from the yr of creation, whichever expires first.24

V Registration and infringement

Beneath US copyright legislation, registration for an unique work is non-compulsory, however gives vital advantages in reference to any declare for infringement. First, registration is a precondition to submitting a copyright infringement motion within the US, except the work is a international work that was created by a non-US creator.25 That is required by the Berne Conference, a treaty to which the US and 178 different international locations are events.26

Second, a piece that’s registered is presumed to be legitimate as to its possession and copyrightability. Third, the copyright proprietor of a piece that’s registered previous to graduation of an act of infringement is entitled to hunt different financial aid within the type of statutory damages, which usually vary from US$750 to US$30,000 per work infringed, however will be as excessive as US$150,000 for a wilful infringement and as little as US$250 for an harmless infringement.

Fourth, the copyright proprietor of a piece that’s registered earlier than an infringement begins might, if profitable in proving infringement, additionally search an award of authorized charges within the courtroom’s discretion.27

Though a international work underneath the Berne Conference needn’t be registered earlier than an infringement motion will be introduced, it should nonetheless be well timed registered for statutory damages and authorized charges to be sought. The absence of registration additionally locations the preliminary burden of proof on a international copyright proprietor to ascertain possession and validity of the copyright.

Whereas an in depth dialogue on copyright infringement is past the scope of this chapter, usually, to ascertain infringement, a copyright proprietor should show that (1) his or her work is unique and protectable by copyright (which is presumed if a registration has been issued), and (2) an alleged infringing work is considerably much like the protected work, as to these parts of the protected work which are entitled to safety. Some instances additionally look at whether or not an alleged infringing work has copied the general ‘appear and feel’ of a protected work.28 Within the case of artwork works, substantial similarity is assessed from the angle of a hypothetical ‘bizarre observer’.29

VI Influence of honest use on the humanities

Maybe essentially the most controversial problem impacting copyright and artwork at the moment is the statutory defence of ‘honest use’, notably because it applies to appropriation artwork.

Over 117 years in the past, Supreme Courtroom Justice Oliver Wendell Holmes Jr cautioned: ‘It will be a harmful endeavor for individuals educated solely to the legislation to represent themselves ultimate judges of the value of pictorial illustrations, outdoors of the narrowest and most blatant limits.’30 That warning nonetheless impacts honest use artwork choices at the moment.

Truthful use is a defence to copyright infringement that was initially supposed to guard sure varieties of makes use of of a copyright-protected work as ‘honest’. Among the many statutory makes use of which are usually permitted are information reporting, analysis, and criticism and commentary on an unique work, together with parody, the place copy of the work is critical for such functions. Courts should contemplate 4 non-exclusive statutory components in assessing a good use:

  1. the aim and character of the use, together with whether or not such use is of a industrial nature or is for non-profit academic functions;
  2. the character of the copyrighted work;
  3. the quantity and substantiality of the portion utilized in relation to the copyrighted work as a complete; and
  4. the impact of the use upon the potential marketplace for or worth of the copyrighted work.

In an necessary 1992 appellate case, Jeff Koons’s sculpture of a pair holding a litter of puppies was held to have intentionally infringed photographer Artwork Rogers’s copyright in a photograph depicting the identical scene, and was not a ‘honest use’ parody as a result of Koons’s sculpture was industrial and never a critique of the unique, however merely a distortion of it.31

Subsequent to 1994, nonetheless, most federal courts have additionally assessed whether or not the challenged use is ‘transformative’ underneath the primary honest use issue. Transformative use was first talked about by the Supreme Courtroom in a seminal 1994 honest use case involving a music parody.32 The Courtroom urged that the transformative nature of a challenged work – ‘whether or not the brand new work merely “supersede[s] the objects” of the unique creation . . . or as a substitute provides one thing new, with an extra function or completely different character, altering the primary with new expression, that means, or message’ – was a helpful assemble in assessing the primary honest use issue, and that ‘the extra transformative the brand new work, the much less would be the significance of different components, like commercialism, that will weigh towards a discovering of honest use’.33

The influence of transformative use on appropriation artwork was highlighted in a subsequent case the place Koons was sued for adapting a part of {a photograph} (depicting a girl’s legs, toes and sneakers with ornate sandals) to be used in a parodic collage that included three different units of ladies’s legs and disparate parts. This time Koons gained a good use determination in his favour as a result of the copying was deemed moderately restricted to conveying the actual fact of the {photograph} in a parody and was due to this fact discovered to be transformative.34

Software of transformative use has since expanded significantly and develop into a litmus check for honest use, notably in addressing appropriation artwork. Nowhere is that this enlargement extra distinguished than within the Second Circuit’s controversial 2013 honest use determination in Cariou v. Prince.35 There, the courtroom discovered that 25 of 30 works created by the well-known appropriation artist Richard Prince had been entitled to a good use defence as a matter of legislation as a result of they had been transformative, regardless of there being no commentary on the unique images he copied. Commercialism was additionally relegated to a minor honest use issue as a result of any work that’s offered has a industrial ingredient to it.

Prince altered photographer Cariou’s Sure Rasta images and included them right into a collection of work and collages. 5 of them displayed solely minimal alterations or additions, and the remaining had been so ‘closely obscured and altered to the purpose that Cariou’s unique [was] barely recognizable’.36 With respect to the latter group, the courtroom discovered they had been transformative and entitled to a good use defence, however that the opposite 5 had been a better case the place the courtroom couldn’t determine the honest use problem with out additional decrease courtroom proceedings. The case then settled confidentially.

Considerably, Cariou held {that a} work needn’t touch upon the unique copyrighted work to be entitled to a good use defence. The 25 photographs discovered to be transformative, mentioned the courtroom, ‘have a distinct character, give Cariou’s images a brand new expression, and make use of new aesthetics with inventive and communicative outcomes distinct from Cariou’s. Our conclusion shouldn’t be taken to recommend, nonetheless, that any beauty modifications to the images would essentially represent honest use.’37

Most not too long ago, a federal appeals courtroom in New York discovered that industrial reproductions by The Andy Warhol Basis of sure Warhol silkscreen work and drawings, which had utilised as an artist’s reference a portrait of the musician Prince by the well-known rock music photographer Lynn Goldsmith, didn’t represent honest use as a result of they weren’t transformative and negatively impacted the marketplace for Goldsmith’s works.38 The courtroom additionally took the chance to make clear its determination in Cariou, which had obtained significant criticism respecting the courtroom’s software of ‘transformative use’. In Warhol, the courtroom emphasised that ‘transformative’ use is not going to be discovered ‘the place a secondary work doesn’t clearly touch upon or relate again to the unique or use the unique for a function aside from that for which it was created’, and in such case, ‘the naked assertion of a “greater or completely different creative use” is not going to suffice . . . to render a piece transformative. Fairly, the secondary work itself should moderately be perceived as embodying a definite creative function, one which conveys a brand new that means or message separate from its supply materials.’39 Thus, ‘works that merely alter or recast a single work with a brand new aesthetic’ is not going to qualify as ‘transformative’.40

VII Ethical rights

Traditionally, ethical rights, which defend the integrity and attribution of artists and authors, didn’t exist within the US. At present, artists possess two restricted types of ethical rights which were codified underneath the Visible Artists Rights Act (VARA) and sure provisions of the Digital Millennium Copyright Act (DMCA), each a part of the Act.

iVARA

VARA, which was enacted in 1990, grants to authors of ‘visible artwork’ the rights of attribution and integrity.41 ‘Visible artwork’, for functions of VARA, consists of solely work, drawings, prints and sculptures that exist in a single copy or restricted version. VARA excludes ‘works made for rent’ and works of ‘utilized artwork’. A latest instance of utilized artwork denied safety was the design of a sixteenth-century galleon ship constructed over the physique of an previous bus that was displayed on the Burning Man pageant. When the sculptural work was destroyed, the artists sued underneath VARA, however the courtroom held that as a result of the work was ‘utilized artwork’ affixed to a useful bus, it was not entitled to VARA safety.42

VARA additionally prevents using an artist’s identify because the creator of a piece of visible artwork within the occasion of a distortion, mutilation or different modification of the work that will be prejudicial to his or her honour or repute. Associated to this proper, VARA empowers an artist to (1) stop any intentional distortion, mutilation or different modification of a piece that will be prejudicial to his or her honour or repute, and any intentional distortion, mutilation or modification of that work is a violation of that proper, and (2) stop any destruction of a piece of ‘acknowledged stature’, and any intentional or grossly negligent destruction of that work is a violation of that proper. VARA permits a property proprietor to take away a murals affixed to a constructing with out its destruction, distortion, mutilation or different modification, offered 90 days’ discover is first given to the artist, who’s then given the correct to both take away the artwork or pay for its removing.

Till not too long ago, few courts had grappled with the VARA idea of ‘acknowledged stature’ and no case had utilized VARA to road artwork. This all modified dramatically in 2018 when a courtroom awarded a bunch of road aerosol artists US$6.75 million after their high-profile 5Pointz curated murals and exterior constructing wall artwork had been deliberately whitewashed over after which destroyed by a developer.43 Based mostly on skilled witness artwork market testimony, the courtroom discovered that many of the aerosol artworks had achieved ‘acknowledged stature’. The choice was not too long ago upheld on enchantment and the Supreme Courtroom declined to listen to it.44

A really latest VARA case was filed in June 2021 as a category motion, on behalf of different equally located road artists, by a distinguished visible artist towards the NYC Police Division and the Metropolis of New York for portray over a road mural that he had created with permission of the property proprietor, such that it was not unlawful graffiti.45

ii DMCA

The DMCA was added to the Act in 1998 to deal with varied points tied to digital know-how and on-line use of copyright-protected works. One a part of the DMCA addresses the integrity and removing of ‘copyright administration info’, which is outlined to incorporate a copyright-protected work’s title, the identify of its creator and different figuring out details about the copyright proprietor, together with a discover of copyright.46 The intentional removing or alternation of such info is a DMCA violation, with statutory damages starting from US$2,500 to US$25,000 per violation.

The statute has been utilized lately to seek out legal responsibility the place somebody copies and makes use of with out permission {a photograph} or different picture discovered on the web, and in doing so strips out all attribution credit figuring out the creator of the unique work. Courts have held that removing of a copyright proprietor’s attribution credit score in a gutter credit score is a DMCA violation. This gives one other treatment for artists and, notably, photographers, to guard their ethical proper of attribution.

VIII Avenue artwork

Up to now couple of years, road artists have began suing corporations that use their artwork for industrial advertising and marketing functions. A high-profile case was filed in California in 2018 by a graffiti muralist (Smash 137) towards Basic Motors for utilizing his mural in an unauthorised photograph as a part of an commercial. The mural had been painted on the outside degree of a parking storage. The case arises underneath one other distinctive portion of the Act referred to as the Architectural Works Copyright Safety Act of 1990 (AWCPA), which gives that anybody can reproduce a picture of a constructing that’s liveable by people and viewable from public locations.47 The courtroom refused to dismiss the case, discovering there was a ‘lack of a related connection between the mural and the parking storage’.48 The case then settled.

An analogous case was filed in Detroit by 4 road artists towards Mercedes Benz, which posted photographs of its automobiles on social media with buildings seen within the background that included murals painted by the artists. After the artists demanded that Mercedes stop utilizing the pictures, Mercedes filed go well with to declare that its conduct was protected by AWCPA. The artists moved to dismiss the case however, opposite to the GM case, this courtroom discovered that Mercedes had a believable declare and allowed the case to proceed.49

A declare filed in New York by a road artist towards H&M for utilizing his road artwork in an commercial was shortly resolved when H&M agreed to stop utilizing the advert and issued an apologetic press launch.50

A number of different comparable claims have been filed by distinguished road artists lately, however till appellate courts begin ruling on these points, road artwork will stay a burgeoning space of copyright legislation impacting artists.


Footnotes

1 Barry Werbin is counsel at Herrick, Feinstein LLP.

2 Copyright Act of 1790, 1 Statutes At Massive, 124.

3 Part 4.

4 17 U.S.C. § 102(a).

5 17 U.S.C. § 101.

6 See Feist Publications, Inc. v. Rural Phone Service Co., 499 U.S. 340 (1991).

7 Copyright Workplace Compendium third §906.1.

8 37 C.F.R. §202.1; Compendium third, §906.2 and likewise § 313.4(J).

9 37 C.F.R. § 202.1(a).

10 See Compendium third, §906.3.

11 17 U.S.C. §102(b).

12 Dyer v. Napier, 2006 WL 2730747 (D. Ariz. 2006).

13 Satava v. Lowry, 323 F. 3d 805 (ninth Cir. 2003).

14 Kelley v. Chicago Park Dist., 635 F. 3d 290 (seventh Cir. 2011).

15 In 1985, Christo sued media corporations in France after they tried to breed and distribute images of his Pont Neuf material wrap set up. In 1986, a Parisian courtroom dominated for Christo, discovering the set up was an unique work of authorship that was entitled to copyright safety underneath French legislation; Paris Courtroom of Attraction, 13 March 1986, Gaz. Pal. JP, p. 239.

16 Star Athletica, LLC v. Varsity Manufacturers, Inc., 137 S. Ct. 1002 (2017).

17 Kieselstein-Wire v. Equipment by Pearl, Inc., 632 F. 2nd 989 (2nd Cir. 1980).

18 Star Athletica, LLC (footnote 16).

19 See Copyright Workplace Compendium (III) §306: ‘As a result of copyright legislation is proscribed to “unique mental conceptions of the creator,” the Workplace will refuse to register a declare if it determines {that a} human being didn’t create the work.’ Naruto v. Slater, 888 F. 3d 418 (ninth Cir. 2018) (self-portrait {photograph} taken by a monkey (represented by PETA as its surrogate) was not entitled to copyright safety and the monkey lacked standing to sue for infringement).

20 www.nextrembrandt.com.

21 17 U.S.C. §106.

22 17 U.S.C. §109.

23 17 U.S.C. §109(c).

24 17 U.S.C. § 302(c).

25 Fourth Property Public Profit v. Wall-Avenue.com, LLC, 139 S. Ct. 881 (S. Ct. 4 March 2019).

26 www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15.

27 The US follows the ‘American rule’, underneath which authorized charges can solely be awarded if authorised by statute or contract.

28 Peter F. Gaito Structure, LLC v. Simone Dev. Corp., 602 F. 3d 57, 66 (2nd Cir. 2010).

29 See Yurman Design, Inc. v. PAJ, Inc., 262 F. 3d 101, 111 (2nd Cir. 2001).

30 Bleistein v. Donaldson Lithographing Firm, 188 U.S. 239, 251 (1903).

31 Rogers v. Koons, 960 F. 2nd 301 (2nd Cir. 1992).

32 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

33 id., at 579.

34 Blanch v. Koons, 467 F. 3d 244 (2nd Cir. 2006).

35 Cariou v. Prince, 714 F. 3d 694 (2nd Cir. 2013).

36 id., at 710.

37 id., at 708.

38 The Andy Warhol Basis v. Goldsmith, 11 F.4th 26 (2nd Cir. 2021). The creator was counsel to the photographer, Lynn Goldsmith, within the district (trial) courtroom proceedings.

39 id., at 41.

40 ibid.

41 17 U.S.C. § 106A, usually.

42 Cheffins v. Stewart, 825 F. 3d 588 (ninth Cir. 2016).

43 Cohen v. G&M Realty, 320 F. Supp. 3d 421 (E.D.N.Y. 2018).

44 Castillo v. G&M Realty, 950 F. 3d 155 (2nd Cir. 2020), cert. denied 141 S. Ct. 363 (2020).

45 McLeer v. New York Metropolis Police Division et al., Case No. 2:21-cv-03093 (E.D.N.Y. filed 1 June 2021).

46 17 U.S.C. § 1202.

47 17 U.S.C. §102(8); 37 C.F.R § 202.11.

48 Falkner v. Basic Motors LLC, 393 F. Supp. 3d 927 (C.D. Cal. 2018).

49 Mercedes Benz, USA, LLC v. Lewis, 2019 WL 4302769 (E.D. Mich. 11 September 2019).

50 H&M v. Jason ‘Revok’ Williams, No. 1:18-cv-01490 (E.D.N.Y. filed 9 March 2018).