A DISCUSSION OF LAW AND JOURNALISM

Tag: fair use

When Cultural Inspiration Crosses The Line

Victoria's Secret Native American Headdress

By Nicole Rowlands

In late October, the Fashion Institute at Fordham Law School sponsored an event that addressed the issue of cultural appropriation (or rather, misappropriation) in the fashion industry. More specifically, the event advertisement asked the following: “When it comes to culture, the world’s closets are filled with borrowed and reimagined finery – but when does inspiration shade into cultural appropriation?  And at what point should counsel comment?” The discussion was held at the De Buck Gallery in Chelsea, which showcased exhibitions of Zevs, a popular street artist similar to the infamous Banksy.

The gallery was cozy, so capacity was limited. Only New York’s best dressed “fashion attorneys” and a few lucky law students attended. The reception welcomed the small crowd with an assortment of sweets and a spot of bubbly champagne.

After some chit-chat and a drink (or two), everyone sat down to listen to the speakers – Professor Susan Scafidi, Academic Director of the Fashion Law Institute at Fordham; Katrin Zimmermann, designer of Ex Ovo jewelry; and Katherine E. Lewis, Attorney Advisor for the Smithsonian Institute.

First to speak was Ms. Zimmermann who described her jewelry line as, “modern high-end ‘bridge’ jewelry sold in museums of modern art in the U.S. and worldwide.”  Ms. Zimmermann discussed the cultural inspiration she uses in her jewelry making. Perhaps most enticing was Ms. Zimmermann’s answer to the question, “When searching the world for inspiration, where do you draw the line?” She responded, “There shouldn’t be a line,” and clarified that there was a stark difference between “inspiration and misappropriation.”

Next up was Professor Scafidi, who examined the controversy surrounding cultural inspiration and the fashion industry, and offered examples of the extreme cultural misappropriation that we often see on runways and product lines. For instance, Matthew Williamson’s Summer 2008 Collection included two Ethiopian dresses that were so similar to Ethiopia’s traditional national dress that the Ethiopian Ministry of Foreign Affairs took to investigating the matter.  But nothing came of the case after Mr. Williamson issued a formal apology and an explanation that the appropriation came from a deep “admiration… for the traditional dress of the Ethiopian people.”

In November 2012, the Victoria’s Secret Fashion Show featured one of its models in a Native American-style headdress, leopard print underwear, and high heels. After the outfit was condemned by many as a display of ignorance toward tribal culture and history, Victoria’s Secret publicly apologized and assured the public that it would not include the outfit in the show’s television broadcast or in any marketing materials.

It wasn’t even a year earlier that Urban Outfitters was in the soup over the same kind of transgression. But that time, a public apology was not enough to save the company from harsh criticism — and even a lawsuit.

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(Brain) Dead Intellectual Property Rights

Midnight in Paris

By Jonathan Eggers

Strong box office.  A critical darling. Nominated in 2012 for the Academy Awards for Best Picture; winner of the Best Original Screenplay. By any measure, Woody Allen’s 2011 film Midnight in Paris would be considered a cinematic success.

That is, until the film found itself in the center of some legal sound and fury.

The movie transports its hero, a struggling author played with panache by Owen Wilson, to the artistic mecca that was Paris in the early 20th century.

Pablo Picasso, F. Scott Fitzgerald and Ernest Hemingway all have memorable moments in the film. And in one scene, Mr. Wilson’s character says, in true Woody Allen-neurotic style: “The past is not dead! Actually, it’s not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party.”

The literati in the audience surely recognized the quote, and laughed. It’s a riff on a line from William. Faulkner’s “Requiem for a Nun”: “The past is never dead. It’s not even past.”

Other people who recognized the quote? Mr. Faulkner’s estate.

Faulkner Literary Rights, LLC (Faulkner LLC) has filed a copyright infringement lawsuit in federal district court against production studio Sony Pictures Classics.

Does the law protect use of quotes only ten words long? Or does it dismiss these types of actions as frivolous and use of such material as protected by fair use? Does it matter that the movie clearly attributes the quote to the original author? Or was it more damaging to have associated Faulkner with the film than not? The media didn’t say. LASIS investigates.

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Copyright Clash at the Cellular Level

patch2

 

By Dawn Mikulastik

James Joyce is thought by many to have revolutionized 20th century fiction, so it comes as no surprise that biologist Craig Venter decided to quote the writer when he revolutionized the science world and created the first cell with a synthetic genome in 2010.

The synthetic cell was copied from a natural genome, which contains all the hereditary information of an organism, and placed into a host cell. In order to differentiate between the synthetic genomes and the natural genomes, Mr. Venter and his team encoded different ”watermarks” into the new cells, including “To live, to err, to fall, to triumph, to recreate life out of life,” a passage from A Portrait of the Artist as a Young Man. To the delight of the scientific community the cells came to life, but the Joyce estate was not amused and tried to stop the experiment dead in its tracks.

This kind of “watermarking” is nothing new. In fact, according to The New Yorker, scientists have used quotations from sources ranging from the Bible to famous Disney songs to Virgil with no problems of note. But as Discover Magazine reported, Mr. Venter didn’t get off so easy, and received a cease-and-desist letter from the famously litigious estate of the Irish writer. It appears the estate thinks that Mr. Venter’s use of the passage without seeking permission constitutes copyright infringement. In a statement, Mr. Venter defended quoting the line in the synthetic genome and said that he and his team “thought it fell under fair use.” The article mulls over what a decision in favor of Mr. Joyce’s estate could mean if there were to be a lawsuit but doesn’t discuss the likelihood that the court will decide that way. (more…)

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