Legal Issues - October 2011

If anyone has any doubt why California is the economic mess that it is, this story should answer the question

Los Angeles Copyright laws - The Art Newspaper
Graffiti is on the rise in Los Angeles generally. According to a report in The New York Times, the city removed 35.4 million sq. ft of graffiti during the financial year ending 30 June 2011—a jump of 8.2% from last year. But the
city’s budget to remove graffiti was slashed in 2011 by 6.5% to $6.6m.While agencies such as Caltrans spend $2.5m to $2.7m each year removing graffiti from Los Angeles’ freeways, tagging on murals cannot be removed for fear of artists invoking copyright laws, particularly the Visual Artists Rights Act and the California Art Preservation Act, which forbid the defacing or destruction of public art without the permission of the artist. “There are two laws—one state and one federal—that specifically mandate that once an artist creates a piece, no one but the artist is allowed to touch it,” says Vincent Moreno from Caltrans District 7, which serves Los Angeles and Ventura counties. The one exception is if the tag contains profanity or obscenity in which case Caltrans will paint over it. Caltrans has been threatened with lawsuits by artists for painting over murals, “but we’ve worked out some of those problems”, says Moreno. Artists' copyright lawsuits have proved costly in the past—in 2008, the US government and contractors had to pay Kent Twitchell $1.1m after his famed Monument to Ed Ruscha, painted on the side of a building owned by the US Department of Labor, was painted over while the building was undergoing repairs. The artist was not given the 90-day notice as required by law should the owner of a building decide to paint over a mural.

2. .Social media plays an important part in the Park West case. In Park W. Galleries, Inc. v. Hochman, the defendant filed a counter-claim against the plaintiff-art gallery, alleging that an individual, acting on behalf of the gallery, posted defamatory statements about the gallery on his blog.  In response, the art gallery argued that there was no evidence to show that the individuals who made the statements were acting on the gallery’s behalf.  The gallery’s CEO testified that individual was not and had never been an agent or employee of the gallery and that the gallery had never authorized the individual to speak on its behalf. The test to determine whether there is an agency relationship such that an entity may be held liable for an individual’s actions or statements is whether the principal has a right to control the actions of the agent.  Under Michigan law, if there is any evidence to support the existence of an agency relationship, the question cannot be decided by the court but, instead, must be presented to the jury.
 The court determined that there was sufficient evidence to support the existence of an agency relationship between one of the individuals when he made the allegedly defamatory statement.  The evidence cited by the court was a posting on the individual’s LinkedIn profile, on which he had identified himself as a “Consultant/Writer at Park West Gallery.”  In the “Experience”
section of his profile, his profile included experience as a “Public Relations/Blogger/Writer” for the gallery.  And, according to the gallery’s website, the individual was editing a book to celebrate the gallery’s 40th anniversary. Based on this evidence, the court concluded that the individual could have been speaking on behalf at the behest of the gallery when he posted the allegedly defamatory statements on his blog. Tune in Friday to find out what you should do when you find a former employee’s LinkedIn account has wrong information about her time with your
company.
3. Conspiracy [Count] ... Defendants [Park West Galleries, et. al.] position is without merit. First, Royal Caribbean Cruises -- remains a party to this litigation, as the Court has denied its summary disposition motion contemporaneously with this ruling. Second, since Royal Caribbean remains a
party, there is nothing to prevent Plaintiffs from alleging that the individual Defendants [Scaglione, Shapiro, Molina] conspired not only with their own employer [Park West Galleries], but also with Royal Caribbean. Thus, the individual Defendants are not entitled to summary disposition on that basis. --The Honorable Nanci J. Grant, Judge of the Oakland County Circuit Court--Order and O pinion, dated 26 September 2011.