3 Count: Burning, Man

Is that a visual work? It VARA-ies...

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1: Burning Man Bus Not a Protected Work of Visual Art Under Visual Artists Rights Act

First off today, The National Law Review reports that the US Court of Appeals for the for the Ninth Circuit has ruled that replica Spanish galleon built for Burning Man festivals is not a work of visual art as per the Visual Artists Rights Act and its destruction was not an infringement of the creator’s rights.

The creation, entitled La Contessa was a mobile replica of a large ship that was created by converting a large school bus. For four years, the ship travelled to the Burning Man festival, where it provided a variety of functions including being a means of transport, a stage for performances and hosting at least two weddings.

However, defendant Michael Stewart bought the property on which the ship rested and, after a year of waiting, burned wooden structure so that a the underlying bus could be removed by a scrap dealer. Angered by the ship’s destruction, it’s creators sued claiming it was a violation of their rights under VARA, which forbids the destruction of certain works of visual art. The Ninth Circuit upheld a lower court ruling that found that, since the ship was utilitarian in nature, it didn’t qualify as a visual work under VARA and, thus, there was no infringement.

2: Court Orders News Site Blocked Following Article Piracy

Next up today,  Andy at Torrentfreak writes that, in Russia, the Moscow City Court has ordered ISPs in the country to block access to Story-media.ru after a major news site in the country complained about article piracy.

In March, the Russian news site Gazeta published an article about Azerbaijani tourism that they allege was copied wholesale by Story-media. Gazeta’s owners, Rambler & Co., then took the matter to the courts in an attempt to use the same Russian law that’s widely used to block BitTorrent and other pirate websites to block Story-media.

The court sided with Rambler & Co. and has ordered the site to be blocked by ISPs in the country. The site is currently offline and has not responded to the complaint. Regardless, this is likely the first time that the law has been used in a case of article infringement, though the same plaintiffs did use the law successfully against a site that copied an infographic without permission.

3: Why Donald Trump Should Have Gotten Song Permission from The Rolling Stones (But Not Queen)

Finally today, Eriq Gardner at The Hollywood Reporter Esquire reports that, with the recent controversies over the music played at the Republican National Convention, it appears that most of the songs were likely covered by blanket licenses provided by performing rights organizations ASCAP and BMI, however, some of the older works may not be. 

Over the course of the convention, several musicians including The Rolling Stones, The Turtles, Queen and George Harrison objected to their music being used at the event. However, the licenses provided by ASCAP and BMI likely made it legal to perform those compositions, even without direct permission from the songwriters.

With claims of false endorsement also unlikely to succeed, attention has since turned to the issue of pre-1972 sound recordings. Those recordings are protected under state common law, not federal copyright law, and courts have recently upheld a performance rights for them. This includes one court in Ohio, where the convention was held. This means there is at least one legal theory where the Rolling Stones could get what they want.


That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

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