The Hoffman Law Firm

Adam Pendelton, Who is Queen? paired with Shigeko Kubota Liquid Reality could not have a more appropriate energy to begin the fall art season. At the opening on September 18, below, see me, Sergio, and Adam Pendleton. This is a period of renewal and rebirth. The day after Yom Kippur, the Jewish holiday of new beginning, these two artists of different generations and backgrounds share important and related messages as we immerge afresh from this period of trauma and transfor...mation. Pendleton teaches us empathy and to understand the power of dialogue and politics to bring about positive change. We need to learn to experience the other and embrace it in this new era. Similarly, Shigeko embraces the latest technology and how it can be used to transform old ways of seeing and doing. Both teach us that embracing the new and unknown with empathy and energy are powerful steps to enable us to move forward as a society. See more

Barbara T Hoffman, an art lawyer, who led ASMPNY's "Know Your Rights: Copyright Law For Photographers" provides us with her reaction regarding recent court ru...lings and the ongoing saga of Instagram and copyright! A SOCIAL MEDIA VICTORY IN THE COURTS FOR PHOTOJOURNALISTS by Barbara T Hoffman June 25th, 2020 The original finding in the 2018 case Sinclair v. Ziff Davis, LLC, and Mashable, Inc was a blow to photographers. In 2016, Mashable republished National Geographic photographer Stephanie Sinclair's photograph without her consent and permission in an article by embedding the photo on from Instagram. SDNY Judge Kimby Wood previously dismissed Sinclair's Second Amended Complaint, finding that Mashable had used Sinclair's photograph pursuant to a valid sublicense from Instagram, and that using Instagram’s embedding API was not infringement. In a similar case brought in 2020, McGucken v. Newsweek LLC, a photographer posted on his Instagram account a photograph of an ephemeral lake that had appeared in Death Valley, California. The following day, Newsweek published an article about the ephemeral lake, embedding the photographer's Instagram post of the lake as part of the article. The photographer sued Newsweek for copyright infringement. Judge Failla found on June 4, 2020 that though Instagram's various terms and policies clearly foresee the possibility of entities such as Newsweek using web embeds to share other users' content, none of them expressly grants a sublicense to those who embed publicly posted content. Ars Tecnica, in an article with the headline "Instagram just threw users of its embedding API under the bus," reported that in answer to an email it sent following Judge Failla’s decision, a company spokesperson for Facebook (which owns Instagram) has stated, on the record, that Instagram's terms of use do not grant permission to users of its embedding API to display embedded images on their websites without additional permissions from the copyright owners. On June 24th, Judge Kimba Wood granted Sinclair’s motion to have the Court reconsider and reverse the motion to dismiss her Second Amended Complaint for copyright infringement. On the basis of Judge Failla’s decision, Judge Wood found insufficient evidence that Instagram exercised its right to grant a sublicense to Mashable. Judge Wood found that while the platform’s policy might be interpreted to grant API users the right to use the API to embed the public content of other Instagram users, that is not the only interpretation to which that term is susceptible, quoting Judge Failla in McGucken v. Newsweek. The Court then relied on Agence France Press v. Morel (2010), a case litigated by Barbara Hoffman, for the proposition that the platform’s policy terms are not sufficiently clear to warrant dismissal of Sinclair’s claims on a motion to dismiss. While the good news is that Instagram’s Terms of Service are no longer seen as granting rights to an embedded image, it is still unfortunate that the status of embedding in the Second Circuit remains unclear, with Judge Wood and Judge Failla finding no infringement for embedding, and Judge Forrest finding that embedding itself constitutes copyright infringement (Goldman v. Breitbart News Network, LLC).

Highlights from my June 12th's The Art Lawyer's Diary newsletter, Witness to Murder, a Movement, and Democracy on the Brink, a cornucopia of suggestions, reactions, and artistic responses to this historical moment, in which we must not forget to be silent is to be complicit. See the full newsletter on our website: https://www.hoffmanlawfirm.org//the-art-lawyers-diary-jun/ This Art Lawyer's Diary is inspired to speak out by the recent events regarding systemic racism and ...Continue reading

It took a global pandemic, and sheltering at home in my Zoom room, to learn how the boundaries that I thought were fixed between my worlds are in fact quite porous. On the Explorers Club livestream today (www.explorers.org) Exploring Isolation with Kathy Sullivan, Bertrand Piccard, and Børge Ousland, the speakers made me realize how my worlds of meditation, exploration, and art combine. Dr. Sullivan, the first woman to walk in space, talked about the importance of "be here ...now" - a book written by my friend Ram Dass from India, celebrating its 50th anniversary this year. The world in which I exist is one with artists whose passion equals that of explorers in answering seeking answers to problems throughout the world with innovation, creativity, and imagination. In this video: Dr. Sullivan's powerful message and inspiration for these times, and views from space, showing the interconnectedness of our world and the space-eye view of it. https://www.ramdass.org/about-love-serve-remember-foundat/ https://www.dharma.org/

The Art Lawyer's Diary - March 3, 2020 Art is Not a Toilet Seat: A Tale of Moral Rights and Wrongs - Stunning Affirmation by the Second Circuit Court of Appeals in the Case of Castillo v. G&M Realty L.P. Slightly more than two years ago, I wrote an Art Lawyer’s Diary post on what is known as the 5-Pointz case:... On November 7, a six person federal jury in Brooklyn found after trial, primarily in favor a group of graffiti artists in a case brought by 21 artists in Cohen et al. v. G&M Realty et al. 1:13-cv-05612-FB-RLM, 2017 U.S. Dist LEXIS against the property owners of the 5 Pointz buildings. Because the attorneys agreed that the jury opinion would be advisory, Judge Frederic Block was to issue an opinion. He issued his opinion on February 12, 2018 finding that graffiti art was protected as a work of visual art of recognized stature and awarding the 21 artists the maximum in statutory damages, $150,000, for a violation of VARA rights in 45 works for a total of $6.7 million. On February 20, 2020, the Second Circuit Court of Appeals found no abuse of discretion, the standard applied when reviewing a lower court judge’s decision. The court stated: We hold that the district court correctly determined that temporary artwork may achieve recognized stature so as to be protected from destruction by [the Visual Artists Rights Act] VARA and that [the artists’] work had achieved that stature. Stay tuned for more in-depth analysis in future Art Lawyer’s Diary posts. For more background information now, take a look at my past articles at the following links: https://www.sculpture.org//sc/may_05/hoffman/hoffman.shtml https://www.worldipreview.com//bubbling-to-the-surface-cop