Log in or register
Share on LinkedInShare on LinkedIn

ARTICLE · 01 SEPTEMBER 2023

Second Circuit Rejects Claim That Obscuring Murals Violates VARA

Frankfurt Kurnit Klein & Selz PC
Frankfurt Kurnit Klein & Selz PC
Contributor
Frankfurt Kurnit Klein & Selz PC

Frankfurt Kurnit Klein & Selz PC

Founded more than 40 years ago as a boutique law firm servicing the entertainment and arts...

View firm profile
Explore more from Frankfurt Kurnit Klein & Selz PC

In this post from March 2022, I wrote about a case pending in the the Second Circuit that raised the question whether an institution's decision to obscure murals that many considered offensive infringed the rights of the artist who created the murals under the Visual Artists Rights Act.

United StatesIntellectual Property
Edward Rosenthal
Edward Rosenthal
Author LinkedIn connections

In thispost from March 2022, I wrote about a case pending in the the Second Circuit that raised the question whether an institution's decision to obscure murals that many considered offensive infringed the rights of the artist who created the murals under the Visual Artists Rights Act ("VARA"). Last week, the Second Circuit affirmed the District Court's grant of summary judgment dismissing the artist's claim in a decision that can be seen here.

The facts of the case are as follows: In 1993 an artist named Samuel Kerson painted two large murals on the walls of a Vermont Law School building. The works are described as depicting the evils of slavery and the efforts of abolitionists and Vermonters in helping enslaved persons seeking to escape. One panel of the mural depicts the violent capture of people in Africa, their forced sale at auction and the brutality of slave labor. The other panel depicts abolitionists and the role of Vermonters in sheltering escaped

We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.

Register for freeORLog in

www.fkks.com

This post first appeared in Frankfurt Kurnit's Focus on the Data blog (www.focusonthedata.com). It provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

Originally published by the New York Legal Ethics Reporter

www.fkks.com

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

www.fkks.com

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

View source

Related Articles

Legal Intelligence Newsletters: sign up for the latest legal and regulatory news on your chosen topics

Read more about

Related Comparative Guides

See more popular content from

Article

UMG v. DistroKid: When AI Becomes A Consumer Protection Issue

Universal Music Group's lawsuit against DistroKid raises a critical question about AI disclosure in consumer markets: when does the use of artificial intelligence become material information that must be disclosed to consumers? The case centers on allegations that DistroKid distributed mass-generated AI music while creating the impression it was created by legitimate human artists, potentially violating existing consumer protection laws even without specific AI disclosure requirements.
United StatesIntellectual Property
Frankfurt Kurnit Klein & Selz PC
Frankfurt Kurnit Klein & Selz PC
Article

U.S. Government Backs Fair Use For AI Training In OpenAI Copyright Litigation

The U.S. government has filed a Statement of Interest of the United States of America under 28 U.S.C. § 517 in the Southern District of New York multidistrict litigation over OpenAI’s use of copyrighted works to train large language models. The filing appears to be the federal government’s first direct intervention in the wave of artificial intelligence (AI) training copyright cases, and it advises the court to treat model training (separate from use of AI to generate outputs) on copyrighted text standing alone as a highly transformative fair use under current law.
United StatesIntellectual Property
Lowenstein Sandler LLP
Lowenstein Sandler LLP
Article

Is This Real? Navigating AI Impersonation Under New And Existing Laws

Is this AI-generated, or is it real? As generative AI tools have become increasingly capable of creating realistic images, videos, and audio, they have also made it easier to impersonate real people without their consent. In response, states are increasingly adopting laws that impose civil and criminal liability for certain AI-generated content that replicates an individual’s identity, likeness, voice, or other personal attributes.
United StatesIntellectual Property
Wiley Rein
Wiley Rein
Article

The Trademark Scam Field Guide: Look-Alike Filing Sites, Fake USPTO Notices, And How To Get Out If You’ve Been Caught

A business decides to file a trademark. Someone on the team searches for a familiar online legal-services brand, clicks the first result, and lands on a site with a similar-sounding name, a polished design, five-star reviews, and a low flat fee. The application gets filed. Months later the business learns the “service” was not who they thought it was, the filing was signed by someone with no authority to sign it, and the USPTO has suspended the application along with hundreds or thousands of others from the same shop.
United StatesIntellectual Property
Harness IP
Harness IP
Article

The Ninth Circuit Affirms Dismissal Of DMCA CMI Removal Claim Against AI Code Generator – Output Is A New Work Not A Copy Of Training Data

There was a significant ruling in the Doe v. Github case involving training of AI code generator models on open source. The United States Court of Appeals for The Ninth Circuit affirmed the district court ruling dismissing part of an action brought under the Digital Millennium Copyright Act (“DMCA”) by programmers against GitHub, Inc., and other defendants. The issues centered on whether defendants removed copyright management information (CMI) from content used to train the AI code generator models.
United StatesIntellectual Property
Sheppard
Sheppard
Article

AI Learning Or AI Copying? Ninth Circuit Weighs In

The Ninth Circuit held that GitHub Copilot's AI-generated code did not violate DMCA's copyright management information (CMI) removal provisions, even when output resembled source code, because the system generated new works through probabilistic patterns rather than retrieving and stripping information from existing copies. This decision establishes a critical distinction between AI systems that learn and generate versus those that retrieve and reproduce, with significant implications for how courts evaluat
United StatesIntellectual Property
Ballard Spahr LLP
Ballard Spahr LLP
Article

Amway To Pay $225 Million Over Alleged False Earnings Claims And Fabricated Sales

The FTC and Washington state secured a record $225 million settlement from Amway and affiliated groups over allegations they misled recruits about earnings potential while pressuring them to buy products with little retail opportunity. The complaint reveals that over three-quarters of U.S. product volume was sold to IBOs themselves rather than retail customers, with fabricated sales reporting masking the recruitment-driven model. The settlement's injunctive provisions establish new standards for earnings cl
United StatesConsumer Protection
Frankfurt Kurnit Klein & Selz PC
Frankfurt Kurnit Klein & Selz PC
Article

UMG v. DistroKid: When AI Becomes A Consumer Protection Issue

Universal Music Group's lawsuit against DistroKid raises a critical question about AI disclosure in consumer markets: when does the use of artificial intelligence become material information that must be disclosed to consumers? The case centers on allegations that DistroKid distributed mass-generated AI music while creating the impression it was created by legitimate human artists, potentially violating existing consumer protection laws even without specific AI disclosure requirements.
United StatesIntellectual Property
Frankfurt Kurnit Klein & Selz PC
Frankfurt Kurnit Klein & Selz PC
Article

California Legislation: End-Of-Session Check-In

California's legislature has sent a comprehensive package of privacy, AI, and advertising bills to Governor Newsom's desk, with decisions due by September 30, 2026. The legislation addresses sensitive personal information protections, data broker obligations, AI-powered chatbot regulations, and digital replica rights, potentially reshaping how businesses handle consumer data and automated decision-making systems. Will these bills become law and set new national standards for technology regulation?
United StatesPrivacy
Frankfurt Kurnit Klein & Selz PC
Frankfurt Kurnit Klein & Selz PC
Article

Selling Company Data For AI Training: What To Know Before You Say Yes

AI developers are seeking new sources of training data, including internal operational data like Slack messages, emails, and company documents. Companies are now receiving offers to sell their workplace data, but such transactions raise complex legal questions around data rights, privacy commitments, employee protections, and long-term competitive risks that require careful evaluation before proceeding.
United StatesPrivacy
Frankfurt Kurnit Klein & Selz PC
Frankfurt Kurnit Klein & Selz PC
Article

Update Your App (Again): California's Digital Age Assurance Act Takes Effect January 1, 2027

California's Digital Age Assurance Act (DAAA) is set to fundamentally reshape how operating system providers and app developers handle age verification, with its January 1, 2027 effective date rapidly approaching. The law creates a comprehensive system where operating systems collect age information and provide age-band signals to developers, effectively eliminating the ability for companies to claim ignorance about whether their users are children.
United StatesPrivacy
Frankfurt Kurnit Klein & Selz PC
Frankfurt Kurnit Klein & Selz PC
Article

Sonoma County DA Reaches $5.1M Settlement Over Greenwashing And Other Claims

Sonoma County and four other California District Attorney's Offices reached a $5.1 million settlement with Tractor Supply West over allegations of price accuracy violations, unlicensed pesticide sales, and misleading biodegradability claims. The case highlights California's strict enforcement of consumer protection laws and environmental marketing standards, particularly regarding biodegradability claims that are generally prohibited unless products meet narrow legal exceptions.
United StatesConsumer Protection
Frankfurt Kurnit Klein & Selz PC
Frankfurt Kurnit Klein & Selz PC