The Sad and Untimely Demise of the Art Car “La Contessa”

This is a bit old but remains one of my favorite copyright cases.

Artists Simon Cheffins and Gregory Jones brought an action against Michael Stewart, land owner near the area where the Burning Man Festival takes place. The action stems from the destruction of the plaintiffs beloved “sculpture” known to patrons of the Burning Man Festival as “La Contessa”. La Contessa is an “art ship” built around the frame of an old bus and made to be a replica of Spanish ships of yesteryear. The plaintiffs are two artists that conceived of the idea of creating a land roaming ship. The artists received a $15,000 grant to design and build the magnificent vessel. Cheffins v. Stewart, 2011 WL 196932. It took several months and over seventy volunteers to construct the large replica. The ship had several decks, room for dozens of people, two bars, and was beautifully decorated.

The La Contessa was indeed a gem of the Burning Man Festival and had no equal among other roaming “art cars”. Sadly, after several years of use at the festival the ship sustained damage during a battle with wayward sand dune (to its credit, it survived a battle with a whale art ship before it met the dune).  The damage, perhaps, could have been avoided had the driver been able to see. You see, there was no way for the driver to see, so a navigator sat above decks and relayed directions via radio communications. Crippled and immovable, the derelict vessel was left on the property of Michael Stewart. Stewart was known locally for his angst against the attendees (hipsters) of the Burning Man Festival (probably, because they left giant pirate ships on his property). Stewart, annoyed at the presence of the sailing ship, decided to burn it to the ground.  The result was the destruction of the La Contessa, the art ship lay in ruins, sadly, it would never sail again.

Cheffins and Jones filed suit under 17 U.S.C. §106A and an action in conversion for the destruction of their ship. Unfortunately for them, § 106A of the copyright act is usually a losing battle and almost never enforced.

Visual Artists Rights Act

The opinion notes “[N]ot every artist has rights under VARA, and not everything called “art” is protected by such rights” Cheffins v. Stewart, 2011 WL 196932. “VARA protected only things defined as ‘works of visual art,’ a definition that is a ‘critical underpinning of the limited scope of the Act.’” Id.

The issue for the court was whether the ship was a work of art that fell under the protection of VARA. The plaintiffs contended that the ship was protected because it was a sort of “applied art” and therefore sculpture. Applied Art is defined as “[T]wo-and [T]hee-dimensional ornamentation or decoration that is affixed to otherwise utilitarian objects.” Carter v. Helmsley-Spear. 861 F.Supp 303, 315. (2nd Cir. 1995). The problem here was that the ship was not a traditional sculpture and VARA does not define “applied art” in any of its provisions. However, the legislative history of the Copyright Act defines works of applied art as “all original pictorial, graphic, and sculptural works that are intended to be or have been embodied in useful articles”, for example, a piece of furniture that could be called a sculpture. Cheffins v. Stewart, 2011 WL 196932.

The court ruled that the ship was a utilitarian object with the purpose of transporting people. Because the ship could transport people, accommodate bars, concerts, and house dozens of people, it was not considered art subject to protection by VARA. The unique functionality of the art barred its protection and therefore the plaintiff could not sue Stewart under VARA. The court granted summary judgment for the defendant on the VARA claim but allowed the conversation claim to remain.

Apparently karma caught up with Mr. Stewart as his Yacht mysteriously sank to the bottom of a lake shortly after the verdict.

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Soft IP News for Week of April 29th

Another example of trademark bullying, Washington D.C. restaurant “Rogue 24” is being sued by Oregon Brewing Co., one of the country’s largest breweries, for trademark infringement, trademark counterfeiting, and cybersquatting. Full Story

The maker of Sam Adams Beer files Trademark for “Boston Strong” beer. All profits from the Boston Strong beer will be donated to Boston bombing related charities. Furthermore, the company said that if the trademark application is successful it will allow others to use the mark if profits are donated to charities. Full Story

I’ve never heard of this, the government seeks to seize control as biker gang’s trademark using its asset forfeiture power. The government claims the gang is responsible for crimes ranging from selling iPods to murder. Full story

Craigslist had its copyright claims thrown out after it attempts to sue third party for indexing its material. Craigslist claimed copyright in user’s posts; judge disagreed. Full Story

Warner Brothers, copyright enforcement GURU and supporter of SOPA, has come into its own bit of infringing troubles. The media giant is being used for the use of cat memes “Nyan Cat” and Keyboard Cat. Full Story

Eminent author Harper Lee sues former agent of breach of fiduciary duty for failing for properly protect the copyright of “To Kill a Mocking Bird”. Full Story

Facebook and Timelines Inc. settle dispute before any quality time is spent in court. Facebook was sued by the company of its use of “Timeline” on the social networking site. Full Story

Ukraine gets a bad grade from the U.S. Trade Representative’s office for failing to protect copyrights. This mark on the Ukraine can lead to serious consequences in international trading with the country. Full Story.

Wholesale retailer “Costco” and fine jeweler “Tiffany & Co.” square off in court. It seems Costco has been selling “Tiffany” Jewelry in its stores which are not actually authentic. Costco claim the Tiffany name has become generic term for “a mount common on engagement rings”. Good luck with that, Costco. Full Story