If a shark is dead, is it still copyrighted?
December 4, 2008 7:38 AM   Subscribe

Damien Hirst is sueing a 16 year-old graffiti artist, Cartrain, who featured images of Hirst's For The Love of God in his collages. In September Hirst made 95.7m pounds from auctioning his wares. Hirst is demanding all the money Cartrain has made from his collages - £200.
posted by mippy (108 comments total) 1 user marked this as a favorite
 
Someone get Cory Doctorow on the line... quick!
posted by Joe Beese at 7:42 AM on December 4, 2008 [1 favorite]


This seems like a really lucky break for a 16-year old graffiti artist, who I'm sure will soon see his works worth more than 200 pounds.

Also, one would think that Damien Hirst has better things to do with his time/energy.
posted by billysumday at 7:44 AM on December 4, 2008


one would think that Damien Hirst has better things to do with his time/energy.


He is also known for "spin paintings," made on a spinning circular surface

I could swear I had a toy like that when I was in short pants.
posted by Joe Beese at 7:51 AM on December 4, 2008


He is also known for "spin paintings," made on a spinning circular surface

I could swear I had a toy like that when I was in short pants.


They used to have them at county fairs and such, but don't tell Hirst.
posted by tommasz at 7:54 AM on December 4, 2008 [1 favorite]


Its not as if Hirst hasn't used other peoples work as an influence before. Or copy it. Depends on how you look at it.

Perhaps he's just pissed because he had to lay off some staff recently.

Though if I was worth £200 million (thats around twenty eight trillion billion US dollars, or something) - I'm sure I'd be able to find more fun ways to spend my time.
posted by 13twelve at 7:55 AM on December 4, 2008




Christ, what an asshole.

Could someone please explain what it is about Damien Hirst? I mean, what's so 'artistic" about throwing "gross" stuff together (whether that be blood, hair, cows, sharks, or teeth)?
posted by notsnot at 7:55 AM on December 4, 2008 [1 favorite]


I bought a cat's eye Hirst made from two twigs and yarn. It's nice, but I'm not sure it was worth the $30k I spent for it. On the other hand, you should see what the guy can do with a wood burning kit.
posted by Astro Zombie at 7:56 AM on December 4, 2008 [4 favorites]


Hirst is a walking advertisement for philistinism.
posted by Navelgazer at 7:58 AM on December 4, 2008 [3 favorites]


So the dude is chasing a 16 year old for £200, and has laid off 17 of the 22 people who worked for him (actually making the art while he stood around and smoked or something) who he paid an average of £19k.

After his last auction made 111 million quid?

I'll repeat for emphasis:

Christ, what an asshole.
posted by Happy Dave at 7:59 AM on December 4, 2008 [5 favorites]


If a shark is dead, is it still copyrighted?

Who knows. But you can certainly jump it.
posted by munchingzombie at 8:01 AM on December 4, 2008 [13 favorites]


Yeah, I don't get it either. I mean, his stuff seems technically well made but it's like something 3rd graders would find cool "Woah, a rotting shark!" or "Woah, a skull covered with diamonds!"

I mean, you could look at it as sarcastic, but it just seems to be that there are some very rich people with the maturity of a third graders, or something.
posted by delmoi at 8:02 AM on December 4, 2008


This seems like a really lucky break for a 16-year old graffiti artist, who I'm sure will soon see his works worth more than 200 pounds.

My first thought as well. He ought to pay Hirst off then put out a press release about it. "Corporate Fatcat Demands His Thirty Pieces of Silver" or something over the top like than. Get a real feud going.
posted by Bookhouse at 8:04 AM on December 4, 2008 [2 favorites]


That's a lot of publicity for £200. Maybe he did it as a favor.
posted by pracowity at 8:04 AM on December 4, 2008 [3 favorites]


Well, I'm sure that Hirst is doing this as a well-reasoned, principled stand, as he clearly does nothing for publicity purposes.
posted by piratebowling at 8:06 AM on December 4, 2008 [2 favorites]


oh, PS: Psyche, psyche, double-psyche!
posted by piratebowling at 8:06 AM on December 4, 2008


Exactly.. this could be his subversive way of giving the kid a boost. You know, like musicians will throw work at their underlings.. Hirst is throwing some controversy to a young tyke. Controversy is his stock and trade.. so he is throwing some around. Chill out people. He's only one of the world's leading contemporary artists.
posted by ChickenringNYC at 8:07 AM on December 4, 2008


God I hate Damien Hirst, and I hate that he wants me to hate him, and I hate that he wants me to hate that he wants me to hate him.
posted by dirtdirt at 8:07 AM on December 4, 2008 [20 favorites]


Maybe he did it as a favor.

Yeah, they're probably as we speak having cocaine fueled art sex - in a bed of money - which will be sold at auction.
posted by fleetmouse at 8:08 AM on December 4, 2008 [3 favorites]


Christ, what an asshole.

Double. :-)
posted by Joe Beese at 8:09 AM on December 4, 2008


He's only one of the world's leading contemporary artists.

No need to be insulting.
posted by Brandon Blatcher at 8:11 AM on December 4, 2008 [8 favorites]


Christ, what a fuckface.
posted by Stonestock Relentless at 8:19 AM on December 4, 2008


I remember when Damien was a part of the whole Young British Artists scene, back in the 90s, I thought he was really pushing out in an interesting way.

This seems like an incredible dick move, far more than normal publicity-dickery. If this isn't a stunt to give the new artist a bump, it is despicable, and if it is, it is still a dick way to do it.
posted by paisley henosis at 8:27 AM on December 4, 2008


In an unrelated story, sharks worldwide have expressed an interest in collecting an unspecified sum from Hirst for the profits that he has made at their expense. A shark lawyer was quoted as saying "All we are asking him to do is wade out a couple of hundred feet into tigershark habitat, while holding a chum bag. What's the worst that could happen?"
posted by quin at 8:30 AM on December 4, 2008 [7 favorites]


Fuck, what a sonofabitch.
posted by owtytrof at 8:33 AM on December 4, 2008


Yeah, I don't get it either. I mean, his stuff seems technically well made but it's like something 3rd graders would find cool "Woah, a rotting shark!" or "Woah, a skull covered with diamonds!"

I took my older daughter to SFMoMA when she was not quite two, expecting her to be really into the Murakami mural. But no, her favorite thing was the Hirst cow head, which she stood in front of for several minutes shouting "MOO! MOO! Hey, MOO!".
posted by padraigin at 8:34 AM on December 4, 2008 [11 favorites]


Since we're on about graffiti:

Subway Graffiti

Contrarian Graffiti
posted by netbros at 8:40 AM on December 4, 2008 [3 favorites]


This seems like an incredible dick move

Or a standard cover-your-ass move to prevent his work becoming a copyright free-for-all.
posted by Artw at 8:44 AM on December 4, 2008 [1 favorite]


Quick rule of all things intellectual property: if rights are not asserted over something, future rights can be waived.

Once you get past a generalized objection to the idea of intellectual property, this particular application is unimpressive and will succed or fail on the ability of the owner to show infringement and rebut any defenses.

That famous Owner is worth X dollars and unknown Infringer is worth Y dollars does not really have anything to do with why this is being done.
posted by dios at 8:45 AM on December 4, 2008 [3 favorites]


I think the "dickhead publicity stunt" angle is an interesting take. Successful artist, bemused by his own popularity, helps shine spotlight on young struggling artist. Has sort of a redemptive quality to it, doesn't it? Sacrificing his own public good will, because he can afford to.

Ironically, the corporate executives who can afford to pay for the trite crap the successful artist creates worship just exactly this kind of "swim with the sharks" mentality, and will fawn all over Hirst in sycophantic adulation, wishing they themselves had the balls to fuck over 16 year old kids. In the evenings they go home to their toxic trophy wives who will soon be filing divorce papers because the five million a year allowance is being cut to only three.

You know, I couldn't get past the first chapter or so of Bonfire of the Vanities because this kind of petty drama amplified only by ephemeral money and power just does not appeal to me at all.

If that sounds like resentment, it is, but not because I resent people who have money. I resent people who have money and think that it matters.
posted by Xoebe at 8:50 AM on December 4, 2008


I really like Hirst's Charity sculptures, just because I've always liked those collection boxes and like the ide of them becoming art. I also thought the skull looked really happy/
posted by mippy at 8:56 AM on December 4, 2008 [1 favorite]


1. The plaintiff is surely aware that appropriation as exhibited here, i.e. in collage, has been an integral part of twentieth century art, that and appropriation in general has been integral to art throughout its entire history.

2. The plaintiff, a very wealthy man, surely realizes that his suing a teenager over two hundred pounds is petty at best.

3. The plaintiff has yet to prove the actual existence of the defendant, who has hitherto remained conveniently anonymous, as a separate entity from himself.

Nthing publicity stunt/performance art/general shenanigans.
posted by Sys Rq at 9:01 AM on December 4, 2008


lets continue the
Christ what a ... theme
Mine is
Christ what a bunny fucker
posted by dprs75 at 9:07 AM on December 4, 2008


This kind of art has always looked like a con, or a publicity stunt to me. My usual response is to ignore it altogether --- if turns out I was wrong, I will claim my ignorance is a work of truly conceptual Art.
posted by ghost of a past number at 9:12 AM on December 4, 2008


Christ what a beautiful revolving sphincter.
posted by kuujjuarapik at 9:20 AM on December 4, 2008 [1 favorite]


Why don't people understand the difference between copyright law and trademark law? Yes, failing to assert your copyright makes you look like an easy mark, but you don't lose copyright by not exercising it. You CAN lose a trademark that way.
posted by mkb at 9:25 AM on December 4, 2008 [2 favorites]


Christ, what a brown painting.
posted by mkb at 9:27 AM on December 4, 2008


Christ what a [noun] [adjectival noun]
posted by spicynuts at 9:29 AM on December 4, 2008


Christ what a derivitive work of Serrano's Piss Christ
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 9:35 AM on December 4, 2008 [2 favorites]


This will only serve to inspire young mister catrain. His next piece, I predict will be "Damian Hirst is a christing cunt".
posted by boo_radley at 9:38 AM on December 4, 2008


Why don't people understand the difference between copyright law and trademark law?

I'm quite certain that I know the difference. And I'm also quite certain that I referenced intellectual property law in toto.

but you don't lose copyright by not exercising it

This is not always true. Concepts of waiver and abandonment absolutely can apply in the copyright context. I can certainly cite you to caselaw from US courts indicating such if you would like. And that is not to say anything of international copyright treaties and their "moral rights" which also embrace similar concepts.
posted by dios at 9:42 AM on December 4, 2008


I always thought Damian Hirst was a performance artist. I guess I was right...
posted by infinitewindow at 9:46 AM on December 4, 2008


Or a standard cover-your-ass move to prevent his work becoming a copyright free-for-all.
That's not how copyrights work.
Quick rule of all things intellectual property: if rights are not asserted over something, future rights can be waived. -- dios
Wow, dios. I havn't seen you here in forever. But anyway, you're totally wrong. Copyrights and patents lose no value if they're not protected. Look at the Unisys GIF patent, for example. They let their compression algorithm be used all over the place until a couple years before the patent was set to expire, at which point they tried to cash in. Copyright is the same. You have to explicitly wave your copyright in order to lose it. An example would be the film It's a wonderful life. For years it was believed to be in the public domain, and shown on TV all the time. Then later someone made a claim based on the copyright of the underlying story, and now license fees are charged (which is a little different then how I remembered it, but the point stands)

Only trademarks lose their value if they are not guarded. And Trade Secrets obviously, if you consider those a form of IP.
posted by delmoi at 9:47 AM on December 4, 2008


Damien Hirst is an asshole. Damien Hirst is a bad lover. Damien Hirst is hated by his own parents.

Every morning Damien Hirst gets out of bed, looks at the mirror, and says to himself, "you are the world's biggest asshole." He lights a cigarette and thinks about ways he could be worse. On his nightstand are framed pictures: Hitler, Stalin, Jones, Gacy. "I can be worse than you," he mutters to them fiercely. "I know I could be worse than you. If only I knew how to kill."

He pauses, thinking. Then he picks up the phone, and calls Christo.
posted by phooky at 9:55 AM on December 4, 2008 [12 favorites]


delmoi, the point is that they can be waived, not that they get waived automatically through public opinion. But Unisys made their licensing terms so low -- no fees from users/ content producers if gifs were made using graphic software and a small dollar fee -- that nobody would take them up to challenge the dilution (?) of their rights.

The choice comes down to "$7,500 to license or a protracted court battle?", and for the companies Unisys pursued, that was pretty small change.
posted by boo_radley at 10:05 AM on December 4, 2008


If it is a stunt, I find it kind of annoying. Questioning of ownership and appropriation are not new things in art. A stunt like this, as a demonstration of those ideas, seems to be propping up the old system of ownership expressly for the purpose of exposing its flaws. This might have been provocative 50 years ago, but art has very much moved on. IP law is the confused old uncle at the art opening.
posted by roll truck roll at 10:06 AM on December 4, 2008


Wow, dios. I haven't seen you here in forever. But anyway, you're totally wrong.

No, I'm not. Just like I was correct when you piped up about HIPAA awhile back and tried to improperly correct me there, too.

Waiver and abandonment principles can apply in copyright contexts. And because they can, prudential owners of intellectual property will diligently protect them.
posted by dios at 10:11 AM on December 4, 2008 [1 favorite]


No, I'm not.
Earlier in the thread...
I can certainly cite you to caselaw from US courts indicating such if you would like.
Yes, lets see that case law.
posted by delmoi at 10:24 AM on December 4, 2008 [1 favorite]


When people pay millions for your work they expect you to protect their investment by protecting your own IP. Why is that hard to understand? I'm sure Damien Hirst doesn't give a shit personally, but I bet his rich ass collectors do.

And yes if you show a precedent of not protecting your copyright then that can be used against you in the future.


I vote publicity stunt.
posted by bradbane at 10:27 AM on December 4, 2008


And yes if you show a precedent of not protecting your copyright then that can be used against you in the future.

Again, let's see the evidence for this claim.
posted by delmoi at 10:32 AM on December 4, 2008


And yes if you show a precedent of not protecting your copyright then that can be used against you in the future.

That's trademark, not copyright.
posted by Pope Guilty at 10:33 AM on December 4, 2008


I'll be a jerk and ask, did anyone find Cartrain's graffitti interesting? Because I didn't. It's like an awkward collage tribute to Banksy and others who make interesting stencil graffiti, by way of refrigerator magnet poetry.

If I had the nerve to tag, I'd be a contrarian tagger. Because it's like being a MeFite on walls.
posted by filthy light thief at 10:39 AM on December 4, 2008


Huh. I just saw For the Love of God in Amsterdam.
It's a really beautiful object but that's about it.
This seems the height of hypocrisy from him.
posted by chococat at 10:41 AM on December 4, 2008


Seconding "shit banksy".
posted by Artw at 10:46 AM on December 4, 2008 [1 favorite]


Ass, what a Christhole.
posted by Mintyblonde at 10:50 AM on December 4, 2008


I might be being cynical, but I'd slap a fiver down on the counter and say this is Hirst backing Cartrain rather than a genuine legal dispute going on. Street art being sold as urban art in galleries is massive right now and has eclipsed anything Hirst's generation is now producing - especially in the London art circles. This is a good way of getting both their names in the media gaze without either of them losing their reputation. I expect to see Cartrain hyped from this point on. Whether he deserves it or not, that's down to the general public.
posted by saturnine at 10:59 AM on December 4, 2008


Hirst is obviously making a point with the added bonus of helping this kid out. About the skull and stuff... you do realize that's the point right? The skull was made in order to be both ludicrously expensive for no real reason and banal.

You people probably complain about Koons too.
posted by cmoj at 11:34 AM on December 4, 2008 [1 favorite]


The infamous shark, it may be interesting to note, was captured by a Aussie shark hunter, Vic Hislop who recieved $200 from Hirst, for his services. Hirst later sold the work for $21 million. Hislop said he was honored to catch the shark for Damien Hirst and didn't mind that he had made such a profit.
posted by troubles at 11:36 AM on December 4, 2008


Yes, lets see that case law.
posted by delmoi at 12:24 PM on December 4


And then, unlike the HIPAA incident, will you concede that you were calling out someone without the requisite knowledge to call them wrong?

Let's see from the first result from Westlaw:
Alternatively, Jalbert waived his right to pursue an infringement action against LeBlanc. A copyright holder can waive an infringement claim by acting in a way that can be “construed as a relinquishment of [his] rights under the Copyright Act.” Dream Dealers Music v. Parker, 924 F.Supp. 1146, 1152 (S.D.Ala.1996). “Waiver may occur by an express and affirmative act, or may be inferred by a party's conduct, where the conduct is consistent with and indicative of an intent to relinquish voluntarily a particular right such that no other reasonable explanation of the conduct is possible.” KACT, Inc., v. Rubin, 62 Mass.App.Ct. 689, 695, 819 N.E.2d 610 (2004); see also Irons v. F.B.I, 880 F.2d 1446, 1452 (1st Cir.1989) (“Courts sometimes infer from an individual's statements or conduct that the individual wishes to forego a protection.”). It is undisputed that Jalbert's mother not only did not tell LeBlanc that she had done anything wrong, but that she hoped LeBlanc's son enjoyed the print and told his friends about it. The only reasonable inference from Mrs. Jalbert's conduct is that she approved of LeBlanc's actions, and intended to waive any claim Jalbert may have had against LeBlanc for taking the print home.
Jalbert v. Gratuski, 554 F. Supp. 2d 57, 70 (D. Mass 2008).

I can go on; that's just the first result from the Westlaw search. And that is to say nothing of the concept of abandonment and the effect of non-enforcement on the fourth factor of the "fair use" affirmative defense. Of course, this is referring to US law. But international copyright treaties with their emphasis on moral rights also allow for concepts of waiver and abandonment

All of intellectual property law, like all property law from common law countries, contains equitable limitations on parties seeking to enforce ownership over the property. Some have more limited grounds upon which waiver can be found; some have more expansive. Trademark law obviously has more expansive grounds upon which to find waiver. Copyright law, like adverse possession of real property, has more limited grounds upon which waiver can be found.

When a legal right can be waived, a prudential person will be rigorous in assuring that the right is not waived.
posted by dios at 11:40 AM on December 4, 2008 [2 favorites]


Next time I go postering, I'm bringing along numerous images of The Crystal Skull For the Love of God.

Uh oh, I just mentioned it. Am I going to get sued? I've only made $7.75 from this comment so far, and I was going to spend that on taffy. I really like taffy.
posted by regicide is good for you at 11:50 AM on December 4, 2008


Hirst is demanding all the money Cartrain has made from his collages - £200.

gosh, this is such an easy pr victory for catrain. first claim the actual money made after costs was 56 pence (look to warner brothers accounting if you don't know how to do that) and then print a really really large check and present it -with photographer and news teams in tow- to hirst.

I would love to be sued by hirst were I a starving young artist. that's a ticket to instant fame.

(seriously kid, mefi mail me. this could be awesome.)
posted by krautland at 11:50 AM on December 4, 2008


1. Citing to a MA district court? Really?

2. Do you not see how the language you quoted is different from what we're talking about? ("relinquish voluntarily a particular right such that no other reasonable explanation of the conduct is possible.")

3. There's murky caselaw you can dig up, and it may be a factor in some weak equitable remedies, but this is simply not black letter law in copyright the way it is in trademark law. And let's not even get into patent law.
posted by naju at 12:02 PM on December 4, 2008


If it's not a stunt, I'm perplexed by the dickishness of it all. In interviews I've read, Hirst always seems amused by his own fame and fully aware of just how stupid the art world is.

Those spin art paintings - he does realize that they're the same stupid paintings you would get at a county fair, but he can sell them for millions. That's the joke.

Why he would give a shit about a graffiti kid, or even copyright law in general, I have no idea.
posted by fungible at 12:03 PM on December 4, 2008


1. Citing to a MA district court? Really?

Yes. And? It was the first result on Westlaw insofar as it was the most recent case on the point. Do you think there is something incorrect about the ruling of the federal district court in Massachusetts? In other words, do you have some legitimate criticism beyond just saying the word "really"?

Do you happen to have a case which disagrees with the case I just cited? Thought so.

2. Do you not see how the language you quoted is different from what we're talking about? ("relinquish voluntarily a particular right such that no other reasonable explanation of the conduct is possible.")


No. I'd love for you to explain it to me with your unique factual insight. I, on the other hand, when speaking about a general rule in intellectual property law as I did, was referencing a rule--a rule that is obviously entirely fact dependent in each case. Where there is not a brightline rule, it is prudent to err on the side of caution.

3. There's murky caselaw you can dig up, and it may be a factor in some weak equitable remedies, but this is simply not black letter law in copyright the way it is in trademark law.


I'm sorry. Please reference for me where I said it was "black letter law in copyright the way it is in trademark law." I'm pretty sure I never said that. In fact, I just distinguish the two in my prior comment.

Next time don't call someone wrong unless you know what you are talking about first.
posted by dios at 12:11 PM on December 4, 2008


(I apologize for the last sentence/snipe naju. You did not explicitly call me wrong. That was someone earlier that I got you confused with. The rest of my comment stands, but that last sentence was not appropriately addressed to you and should not have been written).
posted by dios at 12:17 PM on December 4, 2008


BTW, is there any indication naywhere that Dmaine Hirst IS actually suing this guy, rather than just having the Design and Artists Copyright Society send a legalise form-letter per the article?
posted by Artw at 12:21 PM on December 4, 2008


The skull was made in order to be both ludicrously expensive for no real reason and banal.

So inaccessible, though. As a supporter of artwork for the masses, I will make conceptual artworks for $10 a piece. Who wants to fund some art at bargain prices?
posted by TheOnlyCoolTim at 12:25 PM on December 4, 2008


Dios - when you make huge blanket statements about areas of law, you need to back it up. "Quick rule of all things intellectual property: if rights are not asserted over something, future rights can be waived." If you're going to claim this is generally true for all IP throughout the US (it is a quick rule, right?), you're going to need something better than a single MA district court opinion. There could be 100 wildly different opinions on this subject throughout the country in various little courts. It's not about whether this one court is "incorrect" or not.

Black letter law - yeah, I thought we were talking about generally accepted principles of IP in the US. Like your statements that started this whole thing.

I'm really not sure if there are general rules that apply to all intellectual property, other than this: all areas of IP are quite different from each other. Including this area. Anyway, I don't mean to get into a big fight or anything here.
posted by naju at 12:30 PM on December 4, 2008


When people pay millions for your work they expect you to protect their investment by protecting your own IP

I'm not really sure --- when people pay you millions for this kind of crap, they might be even happier if you set it on fire and then snort the ashes in the name of Art.
posted by ghost of a past number at 12:30 PM on December 4, 2008


You know, Hirst does, in fact, seem like an asshole, but any action against graffiti parasites is a good one, so

GO HIRST!!!!
posted by signal at 12:31 PM on December 4, 2008


If you're going to claim this is generally true for all IP throughout the US (it is a quick rule, right?), you're going to need something better than a single MA district court opinion. There could be 100 wildly different opinions on this subject throughout the country in various little courts. It's not about whether this one court is "incorrect" or not.

Why is this? I'm really struggling to understand your point of view here. (Incidentally, it's federal court decision from the federal district court; this is not your local county judge. Also, if you notice, there are three other courts cited internally in the quote, so it is a little callow to be so dismissive of the case.). I made a general statement indicating that there were some circumstances "waiver" can apply (implying that there are some circumstances it does not). I was told that my general statement is completely wrong and no such rule applies in copyright under any circumstance. I provided an example showing my claim was correct. Why is that example not enough to support my claim? Would one more case do it? Two more? Why would two cases prove my statement to be correct that waiver "can" apply when one does not?

I'm really not sure if there are general rules that apply to all intellectual property


There are. Factors of originality apply in all IP areas. Or, for instance, rules of limitations and equitable rules apply in all IP law.

In fact, the rules I stated applies to even broader areas than just IP law: in all property law--IP, real, or otherwise--principles of waiver and abandonment apply. And I still have yet to see authority which indicates any basis to be critical of my original statement.
posted by dios at 12:48 PM on December 4, 2008


The infamous shark, it may be interesting to note, was captured by a Aussie shark hunter, Vic Hislop who recieved $200 from Hirst, for his services. Hirst later sold the work for $21 million. Hislop said he was honored to catch the shark for Damien Hirst and didn't mind that he had made such a profit.

What he was selling wasn't a dead shark. It was an idea, involving a dead shark.
posted by mippy at 12:52 PM on December 4, 2008 [1 favorite]


I think the idea was this: "Rich people understand fuck all about art"
posted by ghost of a past number at 12:57 PM on December 4, 2008 [1 favorite]


I'm not going to explain the details of citing legal precedent, just trust me that citing to one of tqhe 94 US district courts is lame. Find stuff from an appeals court or the Supreme Court itself. If your argument is that this principle of law exists somewhere, anywhere, OK. You can say that about almost any conceivable legal rule, it's not even worth talking about.

Limitations and equity apply in vastly different ways to each area of IP.

Hirst sucks.
posted by naju at 1:04 PM on December 4, 2008 [1 favorite]


posted by ghost of a past number I think the idea was this: "Rich people understand fuck all about art"

Actually, I think it's Andy Warhol's idea: "Art is whatever you can get away with."
posted by mattdidthat at 1:12 PM on December 4, 2008


I'm not going to explain the details of citing legal precedent, just trust me that citing to one of tqhe 94 US district courts is lame.

No, no. Please do explain it. It would be useful when I take my board certification test in civil appellate law next year. I'd hate to think that in the briefs I filed and oral arguments I made before the intermediate state courts of appeals, the Texas Supreme Court, and the Fifth Circuit Court of Appeals were all done wrong.

Find stuff from an appeals court or the Supreme Court itself.


An appeals court? Would that possibly be something like the Irons case that is cited internally for the rule that indicates it is from some court called "1st Cir"?

Incidentally, if I go back to Westlaw and pull a Court of Appeals or a Supreme Court care, would you respond, "Ok, clearly I was being petty and obnoxious. Sorry."?
posted by dios at 1:16 PM on December 4, 2008 [2 favorites]


Dude, that Irons case is not even about copyright.

If it's compelling enough, sure. I personally don't think I'm being obnoxious, but hey.
posted by naju at 1:26 PM on December 4, 2008


Hey, don't blame Hirst--cocaine prices in London are through the roof.
posted by Joseph Gurl at 1:35 PM on December 4, 2008


Hmm. Would US law really have that much relevance to an (entirely hypothetical) UK case revolving around Hirst failing to send “get off my lawn” letters to people who use his works?
posted by Artw at 1:37 PM on December 4, 2008 [3 favorites]


That's a good ass point, Artw.

(Though I'm basically with dios on this one. naju---what kind of world do you live and/or practice in where citing Federal District Courts is somehow shady or less-than? The brief I'm writing right now cites about thirty of them, and I'm pretty sure that the Second Circuit will look at each one. So no, I don't "trust you" that it's lame.)
posted by kosem at 1:41 PM on December 4, 2008


Now on to my next scheme: Selling “ironic” Boing Boing T-Shirts on Café Press until I get a form letter from Cory Doctrow telling me to stop, then sending out press releases until it gets some minor press coverage in a gossip column and someone misrepresents it on the interwebs as “EVIL CORY SUES HARMLESS ARTIST FOR 50p!!!!!!”

I will then sell said letter for $$$$$.
posted by Artw at 1:51 PM on December 4, 2008


This doesn't apply much to Hirst, it's just a dumb internet spat :)

Kosem, to clarify my point, it's certainly fine to cite to them in briefs, when the situation calls for it. But this is in the context of dios talking about general principles of IP law that supposedly apply throughout the US. At least he was talking about general principles for a while.

Trademark law has this stuff set in stone. Codified, Supreme Court precedent, the whole works. Copyright law doesn't. If he were arguing before the Mass Ct of Appeals or something, this would be fine, but he was citing only this one case for support about all US copyright law. I need more than that. (And copyright abandonment is a principle, but not in the way Kosem is talking about.) So I hope this sounds reasonable.
posted by naju at 1:53 PM on December 4, 2008


Er, dios, not kosem
posted by naju at 1:54 PM on December 4, 2008


Cartrain 'George and mickey 1' Signed Graffiti Urban Art Canvas £250.00

Clearly he's gotten a taste for this kind of thing.
posted by Artw at 1:54 PM on December 4, 2008


Funny, I find them both wankers.
posted by Eekacat at 1:55 PM on December 4, 2008


Would US law really have that much relevance to an (entirely hypothetical) UK case revolving around Hirst failing to send “get off my lawn” letters to people who use his works?
posted by Artw


No. As I addressed above on at least two occasions. But that's the sidetrack we got on when someone tried to tell me that there is no such thing as waiver in copyright law. There certainly is in the US which generally are inline with international copyright treaties. I relying on my assumption--that I'm readily prepared to be disabused of--that there is little to no divergence on British and US property/IP law equitable concepts.
___________

For naju, who does not believe anything a federal district court says, here are some cases which apply equitable waiver/estoppel/abandonment arguments for copyright holders who lose protection based on their actions:

HGI Associates, Inc. v. Wetmore Printing Co., 427 F.3d 867 (11th Cir. 2005); Carson v. Dynegy, Inc., 344 F.3d 446, 453 (5th Cir. 2003); Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960); AM Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001); Micro Star v. Formgen, Inc., 154 F.3d 1107, 1114 (9th Cir. 1998); Universal Pictures Co. v. Harold Lloyd Corp., 162 F.2d 354, 372 (9th Cir.1947)... oh, and because you did not like the district court case from this year, how about a Supreme Court case from 1899?
"If an author permit his intellectual production to be published either serially or collectively, his right to a copyright is lost as effectually as the right of an inventor to a patent upon an invention which he deliberately abandons to the public, and this, too, irrespective of his actual intention not to make such abandonment."
Holmes v. Hurst, 174 U.S. 82 (1899).

Now... what is wrong with the following statement again?

Quick rule of all things intellectual property: if rights are not asserted over something, future rights can be waived.
posted by dios at 10:45 AM on December 4

posted by dios at 2:20 PM on December 4, 2008


Actively permitting something to be published (i.e. "This is OK, you can do this") makes you lost your copyright assertions against that work. This is separate from passively not acting on a violation, which is what you're talking about. Also, yeah the 1899 supreme court case is probably not compelling for me, though I didn't read it. I mean, this would be going by the Copyright Act of 1790, and it was a lot easier to lose your copyright protection back then.
posted by naju at 2:38 PM on December 4, 2008


I don't even know what you are arguing with me about, and I highly suspect that you do not either. So I am going to quit responding to you.
posted by dios at 3:10 PM on December 4, 2008


Christ, what a cock-faced turd-strangler™®
© 2008 justasitsounds
posted by JustAsItSounds at 3:37 PM on December 4, 2008


a) I don't know which one of them wins at irritating self promotion

b) I'm wondering if the Banksy bores have started name-dropping Cartrain yet (I mean, aside from the Guardian)

c) People born in 1991 are making and doing things like this?

d) Cartrain is a really nifty name, though.
posted by carbide at 4:00 PM on December 4, 2008


People allegedly born circa 1991.
posted by Sys Rq at 5:11 PM on December 4, 2008


I can go on; that's just the first result from the Westlaw search.
Hahah, no kidding. I find this absolutely hilarious. You either didn't even bother to read the abstract you posted or don't understand the topic at all. It's ought to be obvious to anyone that you can voluntarily give up rights under copyrights. That's the legal basis for all Creative Commons type licenses and the billion-dollar Open Source software industry. of course you can wave your copyrights.
But that's the sidetrack we got on when someone tried to tell me that there is no such thing as waiver in copyright law.
No one said that, you tried to sidetrack the argument into something irrelevant in order to avoid admitting mistake in your first comment. You first said that if you don't take steps to protect your copyright, you would lose it.

You clearly have no idea what you're talking about. Contrary to your general rule, the general rule on copyright is clear. You don't need to do anything to protect your copyright. Copyright protection is automatic, and has to be voluntarily and explicitly waved. There may or may not be some edge cases (you haven't shown any), but the idea that you have to pro-actively sue people or lose your copyright is absurd.

You posted something completely counterfactual, and then spouted a bunch of legal jargon in order to back up your argument.
"If an author permit his intellectual production to be published either serially or collectively, his right to a copyright is lost as effectually as the right of an inventor to a patent upon an invention which he deliberately abandons to the public, and this, too, irrespective of his actual intention not to make such abandonment."

Holmes v. Hurst, 174 U.S. 82 (1899).
Now... what is wrong with the following statement again?


Quick rule of all things intellectual property: if rights are not asserted over something, future rights can be waived.
posted by dios at 10:45 AM on December 4
Now, you've said some pretty dumb things in your time dios, but that is simply breathtaking. 1899? Are you even aware that copyright law has changed since then?

In summary: Rather then argue the actual point: whether or not a failure to sue would result in losing copyright, you've tried to use misdirection to change the argument into one you thought you could win: whether or not copyright can be waived at all. But of course it can. Like most of your arguments, it's intellectually dishonest and obnoxious.
posted by delmoi at 5:19 PM on December 4, 2008 [4 favorites]


I don't know why Hirst would want to promote this guy. His work is crap. It's all slight variations on the same 5 or 6 crappy stencils of George Bush, Mickey Mouse, Ronald McDonald, Gordon Brown and Queen Elizabeth. The collages are a bit more interesting, but still nothing that impressive. He's just a low-talent Banksy wannabe with a lot of time on his hands.
posted by DecemberBoy at 6:05 PM on December 4, 2008


Is purchasing Hirst's work a convenient way to launder money?

How else to explain the purchase of a rotting shark?
posted by five fresh fish at 7:25 PM on December 4, 2008


Actively permitting something to be published (i.e. "This is OK, you can do this") makes you lost your copyright assertions against that work.

That's ridiculous. Giving permission to do something with a work is itself one of the rights granted by copyright protection. That's like saying that if you let someone come over and watch your TV, you lose your property right to your TV.
posted by Pope Guilty at 8:11 PM on December 4, 2008


Cartrain is quite uniquely untalented. One of many terrible Banksy copyists putting awful stencils up on the streets claiming it's their right as artists to show their work!

I remember having a good laugh at this piece: http://tinyurl.com/6ea7uk sadly it's only in Google cache now, but the comments were priceless: Cartain appeared there to defend himself and ended up looking like an even bigger tool - the best bit was him saying that Pepsi is Coke's rival and he's Banksy's.
posted by debord at 8:22 PM on December 4, 2008


Dear god, this is like the dumbest thing that ever rolled over and vomited dumb all over its dumb self.
posted by tehloki at 11:45 PM on December 4, 2008 [2 favorites]


This probably makes three comments too many in this thread, but debord's link above is just comedy gold. Here are some choice Cartrain quotes for your artistic edification:
But I got hold of a copy of computer graphics software Photoshop and my stencils have improved. It's very hard cutting out large stencils as it takes a lot of time and hurts your wrist.
WAAAH! Modern art is hurting my wrist! Come to think of it, the art I do sometimes gives me tennis elbow, do you think someone might want to buy my artworks?
I consider my work artistic and creative, not mindless rubbish designed to annoy people.
YOU'RE DOING IT WRONG
posted by ghost of a past number at 3:48 AM on December 5, 2008


I hesitate to step into this one, but dios, you've cited exactly one case and it doesn't say anything like what you claim it does. It's dripping with caveats, but the one which completely ruins it for you as a source is here:
“Waiver may occur by an express and affirmative act, or may be inferred by a party's conduct, where the conduct is consistent with and indicative of an intent to relinquish voluntarily a particular right such that no other reasonable explanation of the conduct is possible.” (My emphasis)
Are you really not reading what you copied and pasted into this thread, or do you genuinely not understand what a fucking enormous hurdle that is, or what?
posted by genghis at 5:26 AM on December 5, 2008


you've cited exactly one case

Actually, I cited six more. But the one is enough.

You need to go back and read what I said. And by this, I mean you should go back and read what I said. Not what you think I said. Apparently you think I made the claim that if there is ever a single infringement un-prosecuted, then the copyright is null and void. I made no such claim, so you ought to quit acting like I did.

What I did say--and which has not been refuted by a single source--is that like all IP law, copyright contains limitations including waiver, equitable/copyright estoppel and abandonment. These ideas can under certain facts rise up to preclude future enforcement of a copyright.

I suppose the problem here is the word "can." Some of you apparently think "can" is defined "will in every circumstance." I suggest you reconsider the meaning of the word.

Here are two statements; which is correct:
1. A copyright holder needs to never worry about infringement because no matter what one will always have the capacity to enforce the copyright later; or
2. A copyright holder can waive, abandon, or be equitablly estopped from enforcing a copyright in the future in certain limited circumstances.

The answer is unquestionably No. 2. I provided cases indicating such.

Hence my point, which is the only point I was really making in this thread:

When a legal right can be waived, a prudential person will be rigorous in assuring that the right is not waived.


Perhaps you disagree with that statement. But if you want to argue with me, argue with what I am saying and not something else.
posted by dios at 5:49 AM on December 5, 2008 [1 favorite]


Actively permitting something to be published (i.e. "This is OK, you can do this") makes you lost your copyright assertions against that work.

That's ridiculous. Giving permission to do something with a work is itself one of the rights granted by copyright protection.


I'm not saying you would lose all of your copyright, I'm saying you would lose the right to assert infringement with respect to that third party's work you allowed. So to go by your analogy, you wouldn't lose your TV, but you'd lose the right to sue the guy for watching it. But anyway, that was a response to dios's previous comment, and I was clarifying the language he was citing.
posted by naju at 6:44 AM on December 5, 2008


Here are some choice Cartrain quotes for your artistic edification

I think the words of any of us at age 16 would make some pretty dumb quotes. I'm old and experienced enough to know a lot of things I didn't back then - he seems a savvy kid who's doing something about his ideas, and if they change with age, so be it.
posted by mippy at 7:31 AM on December 5, 2008 [1 favorite]


ghost of a past number, what are you trying to say about the Photoshop quote? I can't seem to parse your comment in any way that doesn't imply you just being mean for no reason.
posted by roll truck roll at 9:35 AM on December 5, 2008


he seems a savvy kid who's doing something about his ideas, and if they change with age, so be it.

He’s lucked onto this nastygram as a means of getting attention, and as this thread shows there’s a lot of mileage in “OMG HIRST IS A MONSTER” (which is what prevents it being an utter non story), but I’m not sure he’s actually got anything to sell – certainly not much in original ideas or talent.

He should have become a dodgy antiques expert and then swapped gender instead – that’s the true way to celebrity.
posted by Artw at 9:43 AM on December 5, 2008


You need to go back and read what I said. And by this, I mean you should go back and read what I said. Not what you think I said.
Well, this is what you actually said.
Quick rule of all things intellectual property: if rights are not asserted over something, future rights can be waived.
I think most people would read that, in the context of the news story as claiming that IP not actively protected, such as through a lawsuit, could be lost. Now you're saying that it was simply a declarative sentence that future rights can be waived, which isn't even relevant.
When a legal right can be waived, a prudential person will be rigorous in assuring that the right is not waived.

Perhaps you disagree with that statement. But if you want to argue with me, argue with what I am saying and not something else.
Ah, I see. If he hadn't sued the kid, people might get confused and think he slapped a creative commons license on his work or through some other means explicitly relinquished copyright.

Yeah that makes sense. Perhaps Hirst's lawyers are as bad as his artwork. That doesn't make proactively suing people a "Quick law of Intellectual property"
posted by delmoi at 8:37 PM on December 5, 2008


He isn't during the kid, and almost certainly never will be siding the kid. Someone acting on his behalf has sent a sternly worded letter to the kid asking him to stop selling rip offs of his stuff on the Internet.
posted by Artw at 9:34 PM on December 5, 2008


I think the words of any of us at age 16 would make some pretty dumb quotes.

This is one of the main reasons they did not grace the pages of newspapers --- maybe we knew we still have a lot to learn. In this way, we do not have to defend ourselves from our temporary stupidity when we get older and know better.

I can't seem to parse your comment in any way that doesn't imply you just being mean for no reason.

Yeah I do that sometimes, hope anybody isn't unduly offended.
posted by ghost of a past number at 6:01 AM on December 6, 2008


So inaccessible, though.

accessibility =/ affordability
posted by cmoj at 12:42 PM on December 6, 2008


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