Future of Tribal Internet Gaming Subject of Oversight Hearing

On November 17, 2011, the Senate Committee on Indian Affairs is conducting an oversight hearing to discuss the future of tribal Internet gaming. There are several witnesses from government regulatory agencies, tribal governments and gaming associations, and the gaming industry who will offer testimony regarding the use of the Internet to serve tribal gaming operations in the future. The Internet is a largely unregulated medium which has seen increased use by commercial interests to conduct business operations and exchanges. Recently, in the case of Comcast v. FCC, the federal Court has held that the FCC lacks the ability under the FCC’s ancillary authority in the Communications Act,to regulate Internet Service Providers like Comcast. In the Comcast case, the FCC attempted to prevent Comcast from using network management operations which allegedly excluded non-Comcast applications from its Internet network. Comcast challenged the assertion of FCC authority in regard to regulating the Internet under the Communications Act. Prior to this case, the FCC classified the Internet as an informational service as opposed to a common carrier like a traditional telephone company. Under the Communications Act and FCC regulations, a common carrier is subject to a wider range of FCC regulation than is an informational service. The decision by the Court in Comcast upheld the classification of the Internet as an informational service and as a result, the Court determined that the FCC had no authority to regulate the Internet, such that it could impose punitive action against an Internet Service Provider such as Comcast.On a similar front, states are generally allowed a minimal role in regulation of the Internet. States are permitted to regulate the Internet only so far as the action to be regulated occurs entirely within the state and the action does not involve interstate commerce. Thus, many tribes are not subject to state regulatory jurisdiction when it comes to the Internet. A question which may be raised as a part of the discussion about to occur in the Senate this week should involve the ability of the states to regulate gaming if it occurs over the Internet on an Indian Reservation or gaming facility. The push to regulate Internet gaming may also raise questions about the Communications Act and whether it will have to be amended to allow federal agencies an expanded role in regulating the Internet. There are no Internet Service Providers who appear to be testifying at the upcoming Senate hearing and it would likely be prudent at some point to include them in future discussions. After all, it is the Internet Service Providers who will provide gaming operations with the connectivity to the Internet, service the Internet connections to ensure reliability and speed, and most importantly, provide the necessary Internet security to prevent cyber attacks or the loss of customer personally identifiable information.

© 2002-2011 by Williams Kastner ALL RIGHTS RESERVED

Strategic Marketing in the Modern Law Firm 2.0 – Value at the Intersection of Communication & Collaboration – Sep 21st NYC

Strategic Marketing in the Modern Law Firm 2.0 – Value at the Intersection of Communication & Collaboration- September 21, New York, NY presented by ARK Group :

As clients push for greater value in legal services, the role of law firm marketing is shifting from simply chronicling the firm’s success—to engaging with clients to understand and deliver value. Clients want direct access to a firm’s knowledge assets—both to assess the firm’s expertise and to obtain legal information that will address their basic legal needs—almost as a precursor to determining whether a firm can meet their higher-value needs.  The world is changing and law will “normalize” to look more and more like other industries. Fortunately clients are sharing information about themselves in a variety of new and different ways. And legal marketers with insight and gumption will help their firms deliver superior value at the intersection of communication and collaboration.

Ark Group/Managing Partner’s Strategic Marketing in the Modern Law Firm 2.0—Value at the Intersection of Communication & Collaboration will provide a unique platform for legal marketers to discuss and better understand the value of content and collaboration in creating a “marketing culture” that can help the firm leverage its intellectual capital effectively.

Discussion topics and focal points of the forum include:

  • Identifying the link between Marketing and Knowledge Management to energize client development
  • Actionable business intelligence as a byproduct of Knowledge Management
  • Social CRM & Web 2.0 Collaboration: Elevating the conversation with clients and prospects
  • Strategic alignment and cross-functional efforts that contribute to value creation for the client
  • The role of knowledge in developing and retaining clients: Why fresh content will make your attorneys better business developers
  • Why lawyers and marketers must demonstrate—through their own engagement—that they are worthy of knowledge sharing
  • Positioning your CRM platform as the lifeline between the various departmental silos, enabling access and an opportunity (across the organization) to contribute to client data
  • The integration of law firm functions—such as Marketing, Business Development, Client Relationship Management and Knowledge Management
  • Assessing client relationship-building initiatives: keys to success and seeds of failure

For More Information and to Register:

This event is held on September 21st at the AMA Executive Conference Center ~ New York, NY.  Please click  HERE  for more information.

Embracing Technology of Tomorrow

Posted in the National Law Review an article by Kristyn J. Sornat of Much Shelist Denenberg Ament & Rubenstein P.C.  on what innovative technology will be available in the next five years or by the end of the decade. 


Think of what new platforms have become available for marketing in the past ten years —social media sites (including YouTube, Facebook and LinkedIn) and the smartphone/tablet with mobile applications and paid search tools, such as Google AdWords. It makes it hard to imagine what innovative technology will be available in the next five years, let alone by the end of the decade. Plenty of gimmicky technology with a significant “cool” factor will be developed by the year 2020; however, the more important trends to watch involve the transformation of legal marketing staples.

CRMs Will Be Easier to Use

Not only will CRMs be more useful, attorneys will be required to use them! By the year 2020, there will be no more excuses as to why attorneys cannot use their firm’s client relationship management (CRM) system to support business development efforts. The most common complaints I hear about our CRM are the following: “It’s too hard to use;” “The process of entering and maintaining my information is too cumbersome;” or “I don’t have time to learn it.” However, I’ve noticed that since the economic downturn (which necessitates working smarter and harder on business development) it has been a lot easier to get the late adopters on board. However, these users still struggle with the functionality of the product.

Over the past decade, software providers have made great strides in improving the user interface of CRM products, and they have gotten smarter by incorporating it into what attorneys do every day — check email. The leading CRM providers in the legal market now allow attorneys to access their products via their email client. Companies like CRM4Legal developed their product with this in mind while others, such as LexisNexis InterAction (with version 6.0), have finally integrated the majority of their main product functionality into Outlook. This integration will make future CRM versions much easier to use. Over the next decade, these companies will take this trend a step further. Not only will using the product be more intuitive for attorneys, but the amount of information automatically pulled into the system will be greater than ever before. In addition to looking up who at your firm “knows” a client, you’ll be able to see what the client was billed in the last year, what practice groups were utilized, where the growth opportunities are and which of your other non-internal contacts have a connection to the client. There may even be access to “personal” preferences for the client (like music and food), and best of all, attorneys will not have to enter this information into the database themselves. Firms have used portal technology to facilitate bringing information into one place, but CRMs will differ from portals by tapping into third-party resources, such as LinkedIn, Facebook and news sources, to deliver unprecedented, one-step access to information that can be useful in pitching a prospect or servicing a client.

The Demise of Email Marketing

In the year 2020, firms will have shifted their efforts from mass email marketing campaigns to other online distribution channels. The effectiveness of email marketing is already on the decline, and over the next decade email clients will become even stricter about the types of information they allow through their spam filters. Compounding this issue, users are now relying on tools like social media, RSS feeds, blogs, search engines and other resources, rather than email, to find the information they need. Firms will no longer have the luxury of knowing they can inform their clients of emerging legal issues just by sending a monthly newsletter or weekly alert. They will need to find new ways to get this information to clients and prospects, preferably through a myriad of distribution channels. To prepare, firms should concentrate on using search engine optimization (SEO) for their websites (especially on pages that tend to get a majority of visitors from email distributions) and encourage attorneys to use social media to proactively share their articles and experience in specific practice areas.

Also, targeted online advertising, such as on LinkedIn and paid search, can be used to promote practice groups and help supplement the lack of exposure for these groups through email alerts. For example, firms can advertise their healthcare practice group to LinkedIn users in the healthcare industry, who have General Counsel as a title and live within 50 miles of the geographic area to which that practice group targets. Another paid search tool that may be useful is Google Remarketing, which allows firms to target ads to users who’ve previously visited their websites. Through this technology, users that find healthcare articles on a firm’s website through Google would later see an ad for the firm’s healthcare practice as they visit other websites or check their Gmail accounts. Legal alerts will still be written, but firms will rely more heavily on searchable syndication services, such as Martindale.com’s Legal Library or The National Law Review’s searchable database. Firms would be wise to prepare themselves for the inevitable by scaling back now on the amount of information they send to contacts through mass email messages. They should start tracking article clicks, opens and other performance data and use it to eliminate contacts from mailing lists. For example, if a contact only opens healthcare alerts or clicks on healthcare articles, a firm should only send them email distributions having to do with healthcare. In the future, if a firm wants anyone to open their email messages, they will need to condition their recipients to expect relevant information in every distribution.

Design for Mobile First

Mobile devices are everywhere, and they are fast becoming people’s primary access point to the Internet and email. In the past five years, although mobile devices have been a consideration when firms design websites and email messages, it hasn’t been a necessity to design for them first. By 2020, mobile devices (including tablets) will play the role which PCs do today. It’s important that firms start preparing for that shift now by creating a pared-down mobile version of their websites if all the pages of the site are not already mobile-friendly. Firms working on a website redesign should make sure they are giving mobile devices and PCs equal consideration. For example, if there is a search section for articles, more search buckets with dropdown choices should be created so that mobile users will have to rely less on typing in search terms. If Flash is utilized to emphasize important information on the website, there should be an alternative way to get that information across to iPhone users, who cannot view Flash animation. Although designing for mobile may inhibit creativity, it is better for mobile users to be able to see and use a highly functional website than to become frustrated by (or unable to view) a beautifully designed website. Mobile apps (currently a hot topic in legal marketing circles) will also be important, just not the way we think of them today. Many firms that have taken advantage of this new technology have focused on providing information that is already accessible on their websites and in other places. In the future, successful law firm apps will have two purposes: to aid users in things they are doing every day and to provide better service to clients. For example, Latham & Watkins has already realized this trend and released a useful app that allows people to search a glossary of legal, business and financial terms. How will apps help firms better service their clients in the future? They may allow clients to view hours billed and balances due, or search a firm’s attorney experience database based on specific criteria for a new matter. As firms develop ideas for apps, they should keep usability in mind so they don’t end up with an app that clients download out of curiosity, but then fails to entice them to come back again.

Website Overhauls

Websites will be vastly different by the end of the decade —not only will they be designed with mobile devices in mind, but they also may incorporate technology that delivers a different homepage experience to each user based on past visits. For example, tailored article and event feeds might display, based on previous visits to practice group descriptions, attorney bios or the user’s past site searches. Other website areas that will be affected will be attorney bios, practice group descriptions and resource centers. Firms should begin thinking about attorney bios more like social media profiles (maybe even connecting LinkedIn profiles with attorney pages), because the lines between websites and social media will be even more blurred. Video will be as important as text in getting marketing messages across on practice group pages, and firms will use articles and descriptions of experience to show practice group expertise rather than just “say”they have it in a lengthy practice group description. In the resource area of the website, firms will add more information that is useful to visitors. CLE webcasts may be a way to drive users to the website, much as articles do today. However, the trick to adding CLE resources will be figuring out how to give people their credit and comply with ethics rules for each state. Firms need to start preparing for what is to come in marketing technology — by 2020, tactics and processes will have evolved into a connected, mobile machine. To embrace this technology of tomorrow, firms should keep an eye on trends involving CRM systems, email marketing, mobile technology and websites, while maintaining caution from being distracted by a high “cool” factor that may not deliver real value to the firm or its clients.

This article was first published in ILTA’s June 2011 issue of Peer to Peer titled “Law2020TM: One Year In” and is reprinted here with permission. For more information about ILTA, visit their website at www.iltanet.org.

© 2011 Much Shelist Denenberg Ament & Rubenstein, P.C.

Federal Authorities Warn of Terrorism: Three Steps Toward Comprehensive Risk Management for the Hotel Industry

Recently posted at the National Law Review by Richard J. Fildes of Lowndes, Drosdick, Doster, Kantor & Reed, P.A. – news about a recent federal government terror alert involving hotels and resort properties: 

Quality service, prime amenities, ideal locations and excellent accommodations are the repertoire of successful hotels. In light of a recent warning issued by federal authorities to the U.S. hotel industry, that checklist may need to expand, according to the American Hotel & Lodging Educational Institute. Though Mumbai-style attacks have thankfully not come to fruition on American soil in recent years, the need for vigilance is ever-present. Based on intelligence reports gathered by the U.S. government, terror plots on the hotel industry are a looming threat;however, a panic-free plan for potentially devastating crises can easily be developed.

Attacks of terrorism and natural disasters can often share the same elements of surprise, chaos, structural destruction and health-related concerns. Just as hotels should plan for before, during, and after a storm (more details), there should be a similarly structured program for staff and guests when dealing with terrorist attacks. Combining the consideration of both events can streamline the process of training employees and increasing familiarity with risk management in the aftermath of such events. Some considerations are as follows:

 Lobbies tend to be the most dangerous part of hotels because they are typically unsecured open areas where guests congregate. If finances permit, have plain clothed security personnel in the lobby. The presence of uniformed security guards can create a perception of safety; however, non-uniformed guards can be more attuned as the eyes and ears of hotel security.

• Staff should be trained to spot potentially dangerous activities. All employees who may have contact with guests, including housekeeping, maintenance, front desk, guest services, food and beverage, transportation, and parking should be given detailed instructions on what types of activity should be reported to hotel security.

 Staff should also have equally detailed instructions on panic control and ways to manage the turmoil of natural disasters.

 Record keeping is also vital, especially with health related issues. Knowing which employees have medical ailments or potential concerns will help reduce health risks stemming from natural disasters and terrorist attacks. Though some guests may not want to disclose such information, consider asking guests whether they have any heart conditions, diabetes or other issues that would be necessary for the staff to know in case of an emergency. Such inquiries should be phrased “as non-intrusive” inquiries geared toward providing the best possible customer care and service in the rare chance that something may happen.

• Keeping both paper and electronic copies of records, including which guests are checked into the hotel at any given time, is also key to minimizing confusion and chaos when responding to an emergency.

• Develop specific evacuation plans. The standard “in-case-of-a-fire” evacuation route may not be helpful during a chemical weapon attack, bombing or hurricane.

• Have designated evacuation areas equipped (or readily able to be equipped) with vital supplies. Back up energy sources, medical supplies and non-perishable foods, and bottled waters are all necessary to keep guests safe and calm.

• Make the evacuation routes easy to follow, and ensure that the staff knows exactly where guests should be located during the different emergencies.

Being vigilant, heightening security efforts, and ensuring staff preparedness will help reduce the stress, commotion and devastating aftermath of natural disasters and terrorist related incidents.

* Tara L. Tedrow is co-author of this article. She is a rising third year law student and has not been admitted to the Florida Bar.

To read the press release issued by the American Hotel & Lodging Association, please click on the following : AHLEI PR_TerrorWarningReinforcesNeedVigilanceTraining.pdf

© Lowndes, Drosdick, Doster, Kantor & Reed, PA, 2011. All rights reserved.

2nd Social Media Legal Risk and Strategy Conference Jul 19-21 SanFrancisco

The National Law Review would like you all to know about the upcoming 2nd Social Media Legal Risk and Strategy Conference:  Minimizing Legal Risk for Corporations Engaged in Social Media July 19-21 in San Francisco, CA.  

Key Conference Topics Include:

  • Insights and updates on the changing legal landscape for social media
  • Practical strategies to develop robust and compliant social media strategies
  • The role and involvement of legal in the social media initiatives
  • Overcoming the various legal risk from IP, Employment Law to Privacy when organizations engage in social media engagement
  • Analyzing emerging trends and potential legal risk in social media

Key Conference Features Include:

  • Pre-Conference Workshop A (July 19th): Uncovering Current and Emerging Social Media Trends and Applications To Forecast and Minimize Potential Legal Liabilities
  • Pre-Conference Workshop B (July 19th): Monitoring And Tracking Online Activities To Mitigate Legal Risk
  • For More information and to Register Please Click Here:

Attendees are eligible to receive up to 20 CLE credits!


NLRB A 'Twitter Over Employers' Social Media Policies

Recently posed at the National Law Review by Laura M. Lawless Robertson of Greenberg Traurig, LLP – updates of the National Labor Relation Board’s (NLRB’s) recent recent scrutiny of  employer’s social media policies for compliance with the National Labor Relations Act (NLRA):  

The National Labor Relations Board’s (NLRB) recent scrutiny of social media policies for compliance with the National Labor Relations Act (NLRA) has alarmed many employers – including non-union employers. Two recent developments in this area add fuel to an already heated debate over employer actions based on employees’ use of social media.

The first case is Lee Enterprises, Inc. d/b/a Arizona Daily Star. The Daily Star newspaper did not have a social media policy, but urged its reporters to use social media, including Twitter, to disseminate information to the public. After deciding that its crime/public safety reporter had gone too far with his unprofessional, sexually inappropriate, and pro-violence tweets, including one in which he called the reporters on a local television station “stupid,” the newspaper’s managing editor admonished him to refrain from engaging in any further social media postings. The reporter was later terminated, after which he filed a charge with the NLRB, contending that his termination violated the NLRA.

The NLRB General Counsel’s Office acknowledged that, “in warning the Charging Party to cease his inappropriate tweets, and then discharging him for continuing to post inappropriate tweets, the Employer made statements that could be interpreted to prohibit activities protected by Section 7 [of the NLRA],” but nevertheless concluded that the newspaper terminated him for violating workplace policies and disregarding its repeated warnings to cease his unprofessional tweets. The General Counsel’s Office concluded that “it would not effectuate the purposes and policies of the [NLRA] to issue a complaint where the statements were directed to a single employee who was lawfully discharged,” and recommended dismissal of the charge.

If employers presumed, based on the Arizona Daily Star outcome, that the NLRB had backed down from its aggressive stance regarding employers’ social media policies, they would be mistaken. On May 9, 2011, the NLRB issued a complaint alleging that Hispanics United of Buffalo, a nonprofit social service agency, unlawfully discharged five employees who complained about their working conditions on their Facebook accounts. After one employee questioned how hard the staff worked to help the agency’s clients, several employees chimed in on her Facebook status, defending their job performance and blaming workload and staffing issues for any unmet client needs. After learning about the posts, Hispanics United fired all of the employees who participated in the flame war. The NLRB issued a complaint, alleging that the Facebook dialogue was protected concerted activity under the NLRA – a discussion among coworkers about the terms and conditions of their employment and undertaken for mutual aid and protection. The case is set for a hearing before an administrative law judge on June 22, 2011, absent settlement (which seems to be the trend in these sort of cases).

These two cases illustrate that employers may discipline employees for social media misconduct, such as disclosing confidential and proprietary information, engaging in “textual harassment,” or libeling competitors, but must scrupulously avoid instituting or enforcing social media policies that impinge on employees’ rights to discuss the terms and conditions of their employment, e.g., wages and working conditions. One thing is for certain…we haven’t heard the last of this topic from the NLRB.

©2011 Greenberg Traurig, LLP. All rights reserved.

Notions of the Transformative in Law and the Visual Arts

The National Law Review is proud to announce that Aimée Scala of Brooklyn Law School  is one of our Student Legal Writing Contest Winners for March of 2011.  Aimee’s article focuses on what constitutes a “transformative” work for purposes of fair use under copyright law

In January 2011, artist Shepard Fairey and the Associated Press reached a settlement out of court regarding Fairey’s ubiquitous Hope poster (now in the collection of the National Portrait Gallery in Washington, D.C.), created and used during Barack Obama’s presidential campaign. Fairey’s image was based on a photograph of Obama, then an Illinois senator, taken by photographer Manny Garcia for the Associated Press. The A.P. accused him of copyright infringement because of the substantial similarity between the two images. In response, Fairey brought suit seeking a declaration that his use of the photograph was not infringement, but instead a fair use of the copyrighted image, a statutory exception to the exclusive grants given to authors and creators under federal copyright law. Because the parties settled their dispute, the merits of Fairey’s fair use claim were not addressed. Some commentators, however, have argued that the case would have turned primarily on whether Fairey’s use of the photograph was “transformative.” Though this case made headlines, another fair use case, one whose holding has far-reaching implications for artists and others that rely on the doctrine, fell largely under the radar of popular media.

The case of Gaylord v. United Statesi addressed and refined some of the blurry borders surrounding the fair use doctrine, particularly what constitutes a “transformative” work for purposes of fair use. Because the judicial determination of whether use of a copyrighted work in another work is “fair” requires balancing both law and fact, predicting the outcome in a specific set of circumstances is difficult, if not outright impossible. Indeed, the fair use doctrine has been described as “the most troublesome in the whole law of copyright.”ii Accordingly, artists who incorporate copyrighted material into their works often don’t know until a suit arises whether their use will be labeled infringement or protected artistic expression. The uncertainty surrounding the doctrine necessarily increases the risk of using any copyrighted material and artists are beginning to express concern. In Gaylord, the Center for Internet & Society filed an amicus brief on behalf of the Warhol Foundation, the Warhol Museum, Barbara Kruger, Thomas Lawson, Jonathan Monk, Allan Ruppersberg, and eleven law professors urging the court to affirm the lower court’s finding of fair use and reject the standard for “transformative” that it subsequently adopted.

The case involved the Korean War Memorial in Washington DC, in particular a sculpture by artist Frank Gaylord known as The Column, consisting of nineteen stainless steel statues of foot soldiers in staggered formation. Dedicated in 1995, the Memorial was commissioned and funded by the United States and constructed by Cooper-Leckey Architects. Shortly thereafter, amateur photographer and military officer John Alli photographed the monument as a retirement gift for his father, a Korean War veteran. Alli took hundreds of photographs of the sculpture using different angles, lighting, shutter speeds, varying both the time of the year and time of day. The photograph he ultimately chose for his father, which he titled Real Life, captured the monument at dawn during a snowstorm

Alli explained at trial that the he felt the subdued early morning light and falling snow evoked a surreal sensation, drawing the viewer into the photograph and communicating the harsh, freezing conditions soldiers in the Korean conflict were forced to endure. Before Alli began selling prints of his photograph, he reached out to Cooper-Leckey for permission. Though Cooper-Leckey granted a license in exchange for royalties, Gaylord sued him in 2006. Alli settled the dispute by agreeing to give Gaylord 10% of any net sales.

 The photograph was selected in 2002 by the United States Postal Service for use on a stamp to commemorate the Korean War. The Postal Service contacted Alli for the image, and he sold it to them for $1500. Alli suggested that the Postal Service contact both Cooper-Leckey and Gaylord for permission, but they did not contact anyone about licensing. They altered Real Life so as to make it monochromatic and grey, and sold the stamps until 2005 when they decided to retire it.

 In 2006 Gaylord sued the United States for copyright infringement in Federal Claims Court. The court found the United States’ use of the copyrighted material in the stamp qualified as fair use, and Gaylord appealed. The Court of Appeals for the Federal Circuit reversed and remanded the case for an assessment of damages.

 The decision largely turned on whether the Postal Service’s use of the copyrighted sculpture in the stamp was “transformative.” Fair use is determined by balancing four non-exclusive factors that are weighed together with an eye towards the fundamental purposes of copyright.iii The first factor, the purpose and character of the use,iv asks, among other things, whether the second work is “transformative.”vIf it is indeed found to be a transformation of the copyrighted material, the factor will weigh in favor of a finding of fair use.

By ultimately concluding that the Postal Service’s use of Alli’s image of The Column was not fair use, the Court of Appeals narrowed what constitutes a transformative work in the fair use context. The court explained that the use was not transformative because “the stamp did not use The Column as part of a commentary or criticism.”vi This understanding of the meaning of “transformative” poses severe limits on what may now be considered fair use of copyrighted materials. Unlike the Court of Appeals for the Second Circuit in Blanch v. Koonswhich explained that a subsequent work could use copyrighted works as “raw materials” to further creative or communicative objectives and still be considered transformative,vii the Federal Circuit—by narrowing transformative to include only comment or criticism of the copyrighted work—dismisses wholesale a broad range of established artistic practices and ignores the constitutional mandate that grounds U.S. copyright law, namely that exclusive intellectual property rights be granted to authors and inventors for limited times “to promote the progress of science and the useful arts.”viii The intent behind the intellectual property clause is to benefit society and encourage a flourishing of artistic practice by creating incentives. The holding of Gaylord may strangle creative energy and stifle previously protected artistic expression with the ominous threat of legal repercussions while rejecting important and established artistic practices

The idea that by changing context one can radically change the meaning of an object is a well-established notion in modern and contemporary art. Indeed, one landmark work that aptly illustrates the point is Marcel Duchamp’s 1917 workFountain. Probably his most famous readymade, replicas of Fountain (the original was lost) are housed in museum collections the world over. Fountain consists only of a found object the artist installed with no changes apart from his scrawling of “R. Mutt” onto the side. As Duchamp biographer and art critic Calvin Tomkins notes, “it does not take much stretching of the imagination to see in the upside-down urinal’s gently flowing curves the veiled head of a classic Renaissance madonna or a seated Buddha or, perhaps more to the point, one of Brâncuşi’s polished erotic forms.”ix Once the object was placed in an art exhibition, it ceased to be a functional item and was transformed into an object of beauty.

Further, appropriation art, a movement that gained popular ground in the late 1970s, makes broad uses of found images (or photographs of them). Sometimes incorporating images wholesale with little or no alteration, this type of practice again emphasizes that changing the context of an image, from being seen on a billboard to the wall of a gallery, is transformative because the image becomes a work of art. Artist Richard Prince’s work Spiritual America, 1983, appropriated a photograph of a young Brooke Shields, originally the work of commercial photographer Gary Gross, while the work’s title is borrowed from a 1923 photograph by Alfred Stieglitz. The subject of a retrospective at the Guggenheim Museum in 2007, Richard Prince’s influence on art history is undisputed. Unfortunately, because this work and others like it do not explicitly comment on or criticize the incorporated copyrighted material, they could very well be considered infringing under the standard the Federal Circuit has adopted.

Renowned jurist Oliver Wendell Holmes Jr. once stated that:

“[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations.”x

Though oft-quoted, his candid and self-aware remark seems to have lost its footing within contemporary copyright jurisprudence. As the boundaries of the copyright “monopoly” continuously expand like a snowball rolling down a mountain, a broad conception of fair use becomes increasingly important to promoting artistic expression. Our contemporary jurists should take heed of Holmes’s remarks as well as consider the constitutional principles on which copyright law is grounded—not exclusively to protect authors and creators, but instead to provide an incentive for individuals to make creative works for the benefit the public.

 This delicate balance requires an interpretation of fair use that allows artists to feel free to “quote” from other works, and it requires judges to acknowledge that perhaps it is the place of art historians, viewers, or artists themselves, to determine whether the intent behind work is transformative. Indeed, art history has long recognized that changing the context of a work changes its meaning: something largely worthless, once altered to become an art object, becomes invaluable. Though no explicit comment or criticism is made about the original work, a new work is created whose transformative nature has been acknowledged by art historians for almost a century. Courts must recognize that people draw creative inspiration from the world around them to make new works that benefit our society, and that world includes other people’s creative endeavors.

i 595 F.3d 1364 (Fed. Cir. 2010).

ii Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661,662 (2nd Cir. 1939).

iii Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577-78 (1994).

iv 17 U.S.C. § 107 (1) (2006).

v Campbell 510 U.S. at 578-79.

vi Gaylord 595 F.3d at 1373 (Fed. Cir. 2010).

vii Blanch v. Koons 467 F.3d 244, 253 (2nd Cir. 2006) (internal quotation marks and citations omitted).

viii U.S. Const., Art. I, § 8, cl. 8.

ix Calvin Tompkins, Duchamp: A Biography (New York: Henry Holt, 1998). 186

x Bleistein v. Donaldson Lithographing Co. 188 U.S. 239, 251 (1903).

Aimée Scala © Copyright 2011