Serendipity: Appropriation Art, An Awesome Louis Vuitton Bag, and SomeCopyright Law

About a year ago, I was looking for images of a couple of bags to give to my son so he could buy me a replica on a trip to NYC.  I quickly ditched that idea after reading a couple of articles on the sale of replicas and bootleg designer bags, but it was not a total waste of time because I came across an image of this bag by Louis Vuitton:

Pulp Weekender in Yellow

Pulp Weekender in Red

I love this bag.  Why?  I can't explain why I like it, I just do.  The size, shape, color, composition all come together, for me, to form a big bag of awesome sauce. The bag comes in red, as well, but I prefer the yellow.

The bag is the result of a collaboration on the Spring 2008 Louis Vuitton Collection between the designer, Marc Jacobs, and an artist named Richard Prince.

What does this have to do with copyright law?  Nothing, really.  But when I looked up Richard Prince to see what he was all about, I came across a behemoth of a copyright case that has the entire Art World in a total uproar.  Serendipity:  I was looking for information on a purse for my blog, and found an intellectual property topic as well.  

So, Richard Prince is an appropriation artist.  For a non-arty person like me, this means that he takes another artist's work and uses it to make his own.  I'm already not a big fan. Appropriation art at its core is not about original ideas, and the movement does not appear to be very concerned with giving the artist on whose base the appropriation work is built any credit at all. Obviously, that is a blanket generalization and there are artists out there who appropriate but give credit where it is due.  For a more academic, serious Art discussion on the topic of appropriation art, check out this link.

Cowboy by Richard Prince

Original 1983 Magazine Ad
Photographer Unknown

Prince started out with a series entitled Cowboys that spanned  from 1980-1992 in which he took mostly Marlboro ads and rephotographed them or incorporated them into paintings.  Yes, the picture to the right is a rephotograph.  I have to think the photographer that captured the original image (to the left) but remains largely uncredited for the awesome shot would like to stab Richard Prince in the eye with a rusty fork.  But, maybe that's just me.  After Cowboys, Prince did several series, most notably the Joke Paintings and the Nurse Paintings. Here's a link to a Google image search for the Joke Paintings, Nurse Paintings, and Cowboys. He also did some other series, but they are less relevant to the story, and frankly, there is one of a pre-pubescent Brooke Shields that skeeves me out.  So, google that at your own risk.  Your eyes will NEVER be the same;  some things just cannot be unseen.

BACK TO THE LOUIS VUITTON BAG.  The Joke Paintings and the Nurse Paintings are the two series most directly referenced in the Louis Vuitton collection.  The Nurse Paintings were all rephotographs or paintings of the covers of pulp fiction novels about nurses.   Marc Jacobs has said that Prince looked to the covers of cheap paperbacks set in exotic locales for inspiration for the Louis Vuitton collection.  

Louis Vuitton/Richard Prince
Spring 2008 Collection

So, around the same time that the Spring 2008 LV collection was being shown, Prince had a series of paintings entitled Canal Zone showing at the Gagosian Gallery in NYC.  The Canal Zone series borrowed rather heavily from a lesser known photographer, Patrick Cariou's book, Yes Rasta.  When I say borrowed here, I mean he took 35 photographs out of the book, drew dots over eyes, guitars in to hands, etc. and painted 28 paintings including images from Yes Rasta. To be fair, Prince did not just take the picture out of the photography book and hang it on the wall.  Prince is said to have scanned the images, did all kinds of things to them like blowing them up really big, and also he created paintings including the images.  But, depending on who you ask, Prince did little but enlarge the photos and make minor changes to them.

The image on the left is the original photo from Yes Rasta by Patrick Cariou
The image on the right is the Richard Prince work from Canal Zone

Cariou was not amused, and filed suit shortly after the exhibit against Prince, his art dealer, Gagosian, and the Gagosian Gallery for copyright infringement.  A defense to copyright infringement is a legal doctrine called "Fair Use."  Fair Use is intended to balance two concepts:  an indivdual's right to control (read here:  profit) their original expression and the rights of other individuals to comment (in this context, Prince's right --arguably-- to make art using someone else's art). The problems with the Fair Use Doctrine are too many to cover in a simple blog, and way over my pay grade when you get into the Academics of Art.  But the long and short of it is that the court must balance Cariou's right to profit off his work over Prince's "right" to create art, or comment,  using as his "medium" Cariou's art.  

In Cariou v. Prince, the federal court ruled that Prince's appropriation of Cariou's photos did not constitute fair use.  In March 2011, the court issued an injunction, ordered Prince and Gagosian to destroy any unsold infringing works and to notify any purchasers of the infringing works of the infringement, and that the works are not for public display or profit.  The decision is now on appeal, with amicus briefs from the likes of the Andy Warhol Foundation and a conglomerate of museums.  The unsold infringing works are in storage for now, even though Cariou could have hosted a giant bonfire based on the court's ruling.  

An example of a Nurse Painting exhibited

with a different bag from the LV collection, 

with a joke written on the bag  as in the

Joke Paintings.

Appropriation art is supposedly different from pop art, although the distinction is one that requires a much finer eye than I possess.  The question that bothers me is this:  without Patrick Cariou, the nameless artists of the pulp fiction novel covers, the Marlboro photographers, the authors of the jokes, would any of Prince's series even exist?  Probably not.  Prince admits that all of his work uses as its medium someone else's art;  in fact, that is Prince's point.  To his fans, Prince is the ultimate commentator on modern life:  

"He is absolutely essential to what's going on today, he figured out before anyone else...how thoroughly pervasive the media is...."  


Maria Morris Hamburg, Curator of Photography, New York Metropolitan Museum of Art

To his detractors, Prince is an unoriginal hack, stealing other artists' work and profiting wildly in the process.  But really, is that fair?  When debating this topic, it is very easy to devolve into migraine inducing philosophical rhetoric such as "isn't all art derivative?"

In a sweet piece of irony, Prince himself recognized the conundrum that is appropriation art in an interview about an exhibit that was not a huge success:  

 "The problem with art is, it's not like the game of golf, where you put the ball in the hole or you don't put the ball in the hole.  There's no umpire. There's no judge.   There are no rules.  It's one of the problems, but it's also one of the great things about art:  it becomes a question of what lasts."

Well, he got the last part right;  however,  I bet he would speak differently about judges and rules now.

For an overview of Prince and his body of work, check out his wikipedia page.  For a very informative and entertaining read on the Prince v. Cariou case, check out this article and this article both by Cat Weaver at Hyperallergic .

Enjoy!

Julie

My Website

Copyright 2012 All Rights Reserved Julie Ann Sombathy

Friday Five

So, by the time you read this, I will be on my way to Tampa, for Gasparilla.  Have I mentioned my love of all things pirate?  We are going to hit the parade, and have some fun.  In the meantime, here's five pirate themed shoes to ponder.


First, when it comes to piratey skull and cross bone inspired shoes, all the other designers just need to step off and let the late, great Alexander McQueen be the Boss.

I'll give a nod to Betsy Johnson, with these cuties:

Betsey Johnson

However, McQueen was the Captain of all pirate shoes:  just look at this pair, they are a work of art.

 And then there's snakeskin:

And electric blue:

And he didn't forget the flats:

But these are my favorites because they are skull, without a skull.  Divine.

Enjoy!

Julie

My Website

Copyright 2012 All Rights Reserved Julie Ann Sombathy

Estate and Gift Tax 2012....Reunited, and It Feels So Good

The impact of the 2010 Tax Relief Act passed on December 17, 2010 with respect to estate taxes is significant. In 2010, there was no estate tax. What this meant, quite literally, is that any estate of any size could pass without any estate tax. The downside to this absence of tax is the corresponding absence of an increase of basis. What this means is that inheritances received from decedents’ estates in 2010 (with limited exceptions) received carryover basis instead of stepped up basis.

Basis is another term for “starting point” in tax lingo. What it means for the taxpayer is what a thing was worth when that thing was acquired by the taxpayer. For example, if you paid $10 for a widget in 2010, your basis is $10 (obviously, this is a simplified example). A carryover basis is a basis that “carries over” from the prior owner (in this discussion, the decedent). The new owner (beneficiary or heir) just gets the decedent’s basis. Basis goes up when taxes are “paid.” So, when no taxes are paid as in 2010 estates, the basis “carries over” with no change.

In estates where taxes are “paid” either by literal payment or by use of the exemption equivalent, basis goes up because taxes have been paid. This is called a “stepped up” basis. For example, an estate in 2011 with $4.0 million in assets will distribute to the beneficiaries tax free (the exemption equivalent is $5.0 million). The beneficiaries will receive a stepped up basis of $4.0 million.

The effect of receiving a carryover basis as opposed to a stepped up basis is felt by the recipient when the recipient liquidates the asset and has to pay income tax based on the presumably lower carry over basis (resulting in a much higher gain and therefore, much bigger tax). While in 2010 there was a $1 million dollar basis allocation allowed, otherwise your basis remained the same and while there was no estate tax, there was certainly anticipated future income tax on a much larger portion of the appreciation in the asset.

For 2011 and 2012, the exemption equivalent is 5 million dollars per person. The exemption equivalent is portable between spouses as long as the surviving spouse does not remarry. Thus, for couples having estates worth a combined net of $10 million or less, so long as the surviving spouse does not remarry, there is no estate tax at the death of either spouse. In addition, the recipient of the assets receives a stepped up basis in value which thereafter results in lower income taxes on a subsequent sale of the assets.

The “portability” aspect of the exemption equivalent between spouses is a major improvement in the estate tax code. In addition, gift and estate tax is unified again which means that an individual may either leave an estate of $5 million or during their lifetime give away up to 5 million dollars in assets, without incurring any tax. This is in addition to any gifts which qualify for the annual exclusion. The annual exclusion for 2011 and 2012 is $13,000, thereafter, the annual exclusion is tied to inflation and set to increase annually.

Lastly, for estates of individuals dying in 2010, a provision was included which allows the estate to elect to be treated under the 2011 tax code. This is beneficial for estates between $1 million dollars and $5 million dollars since the 2011 tax code will provide a stepped-up basis for all of the assets (whereas the 2010 tax code would provide a stepped-up basis for only the first $1 million in assets). The law is in effect until December 31, 2012. Thereafter the law reverts to year 2000 law with an exemption equivalent of $1,000,000.

This is a good example of why it is important to review your estate plan every two to three years: the laws change very frequently and not always to your advantage.

Julie

My Website

Copyright 2012 All Rights Reserved Julie Ann Sombathy

Landmark Decision by U. S. Supreme Court in U.S. v. Jones

Today, the U. S. Supreme Court issued an opinion finding the attachment of a GPS tracking device to the underside of a car a violation of the Fourth Amendment.  Read the full opinion here.

Justice Alito

In U. S. v. Jones, a combined task force of D.C. cops and the FBI attached a GPS device to the underside of a car driven exclusively by the target of a drug investigation. The task force obtained a warrant, but failed to install the GPS device within the geographical and time limitations of the warrant. The defendant moved to exclude the 28 days' worth of tracking information obtained from the vehicle (the task force even had to change the batteries out once during the 28 days it was on the car). Ultimately, the case made its way to the Supreme Court where Justice Scalia, writing for the court in a unanimous opinion, held the search violated the Fourth Amendment.Two concurring opinions were written by Justices Sotomayor and Alito.  If you are like me, you remember vaguely what Scalia looks like, and you know that Sotomayor is a woman, but you draw a total blank on Alito.

The GPS device used in U.S. v. Jones

The idea that law enforcement cannot just walk up to your car in a public parking lot and attach a GPS tracker without a warrant may seem like a no-brainer to most people;  however, until today, it was an issue of much debate amongst legal scholars and in the courts. The Fourth Amendment provides that

“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”  

Basically, "Come back with a warrant!"  Seriously, search and seizure law is much more complicated than that, but the law as it has developed through Supreme Court rulings at its core is simple:   the government must get a warrant to access your person, your house, your papers or effects in which you have a reasonable expectation of privacy.  A good example is your trash.  Once you put your garbage can to the street for pickup, the police can "pull" it, because you no longer have a reasonable expectation of privacy to your trash.  Conversely, the police cannot search your home without a warrant because you do have a reasonable expectation of privacy to your home.

 The interesting part of the opinion today is not Scalia and Alito's back and forth about strict construction, a carriage and a coachman.  Really, we all get it:  there's been a few technological advances since the Fourth Amendment was adopted.  The point is that when the government's actions intrude on a person's "reasonable expectation of privacy," a Fourth Amendment violation has occurred.
For me, the best part of this opinion is concurring Justice Sotomayor's ruminations about the train wreck of epic proportions looming just over the horizon in our jurisprudence:  the inevitable clash of privacy rights and the ever decreasing privacy to which those of us who live "on the grid" consent in our everyday lives.

Justice Sotomayor writes that 

Justice Sotomayor

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on....More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties....This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.  People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.  Perhaps, as Justice Alito notes, some people may find the “tradeoff ” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year.  

Now, that's something to think about.

Julie

My Website

All rights reserved. Julie Ann Sombathy
Copyright 2012

If I Have a Will, Do I Avoid Probate (and Other Frequently Asked Questions)

1.         What is a will, and why do I need one?  

A Will is nothing more than a letter to the probate Judge, telling the court who you want to be in control of your estate (your Personal Representative) and how you want your estate to be distributed.  A person is intestate when they have no Will.  The intestate statute may call for distribution of your estate which is in contradiction to your wishes. 

2.         Does a will avoid probate?

No.  A Will requires probate because a Will is like a letter to the probate Judge.  If you write a Will there is a good chance that your estate will have to be probated. 

3.         Why do I want to avoid probate?

Probate prices in Florida are considered high.  Average shrinkage of an estate in Florida caused by probate expense is between 3%-10% of the value of all the assets going through probate.  Florida statutes provide that the attorney may be paid 3%of the first million dollars of assets in the probate estate.  Thereafter, there is a decreasing percentage payment.  This percentage fee is in addition to an hourly rate for any “extraordinary” expenses such as assisting the Personal Representative in a real estate closing.  The Personal Representative is also entitled to a fee which is usually equal to the attorney’s percentage fee under the statute.  For this reason, as well as the time involved in the average estate, most people wish to avoid probate, or at least minimize their exposure to the probate process.       

4.         What is probate?

Probate is the process of changing title of your assets after your death from your ownership to your beneficiaries or heirs. During this process, all of the assets that you owned during your lifetime in your individual name and outside of any trust or beneficiary designated asset will be retitled and distributed to your beneficiaries or heirs, after payment of your creditors. 

5.         What is a living trust, and why do I need one?

A living trust is a document which creates an entity that will survive your death.  The primary purpose of a living trust is to avoid probate.  A secondary purpose and the driving force behind the desire to have a living trust is the avoidance of estate tax.  A third purpose in creating a living trust is to consolidate your assets and prepare for administration of your assets during your lifetime but in a time where you are not able to care for yourself.  A living trust can avoid probate after your death and in many cases guardianship during your lifetime.  The decision of whether or not to declare a living trust should be made with the advice of an attorney.   

6.         Does a trust avoid probate?

In most cases, yes;  however, even though many people establish a living trust, some do not follow through with funding the living trust.  For this reason, beneficiaries of a  living trust end up having to probate assets which were never transferred to the decedent’s trust.  In addition, most people choose not transfer their homestead into their living trust and after their death the homestead must also be transferred through a probate. 

7.         What is a Durable Power of Attorney, and why do I need one?

A Durable Power of Attorney is a document in which you give someone else the right to be you.  This person, depending upon the scope of powers you confer upon them, may do any number of things as if they were you including closing bank accounts, taking out loans, selling real estate and the like.  A Durable Power of Attorney can be invaluable in protecting your assets and maintaining your lifestyle in a time of incapacity not only in your old age but at any time during your life.   

8.         What is a Designation of Healthcare Surrogate, and why do I need one?

A Designation of Healthcare Surrogate is a document created by Florida statute.  In this document you name a surrogate to act for you in your health care decisions when you are unable to do so for yourself.  To be clear, no one needs a Designation of Healthcare Surrogate unless they have a clear desire regarding their care in the instance of a serious injury or illness.    

9.         What is a Living Will, and why do I need one?

A Living Will is a document in which you state your desires for life support and other treatments such as the withholding of food and water.  I recommend that my clients execute a Living Will in addition to a Designation of Healthcare Surrogate so that if the Designation of Healthcare Surrogate is ever deemed an invalid document in a court of law or though a statutory repeal, your desires for your healthcare will be known.  To be clear, no one needs a Living Will unless they have a clear desire regarding their care in the instance of a serious injury or illness.    

10.       What other documents are there that I might need to complete my estate plan?

There are several other documents which could make up your complete estate plan in addition to a Will or Trust, Durable Power of Attorney and Designation of Healthcare Surrogate.  Many times my clients wish to execute a Designation of Preneed Guardian.  This document is like a letter to the probate Judge stating who you wish to act as your guardian in your incapacity.  You can designate separate persons to act as guardian of your person (the person in charge of making decisions for you such as where you would live and who your doctor will be) and your property (the person in charge of your assets).  Another document which my clients find useful is an Appointment of Agent to Dispose of Bodily Remains.  Basically this document allows you to name someone to be in charge of your funeral and disposition of your remains.  Both of these documents are used most often in second marriages or in family situations where there is strife between the parents and children or among the children. 

For more information, visit my website.

Julie

Copyright All Rights Reserved Julie Ann Sombathy 2012

Disco Ball Pumps

These shoes are killer!  You are not having blurry vision:   the platform is divided into two distinct sections.  

How cool is that?  The designer, Gianmarco Lorenzi, lists them at around  $3,000 a pair. Whew.  I cannot even imagine spending $3,000 on one pair of shoes.  They are pretty awesome, though.  I especially like the raspberry.

Enjoy!

Julie

My Website

Hello World!

Hello world! At the advice of my web guru, I have started this blog in an act of shameless self promotion. With that disclaimer out of the way, I am looking forward to blogging about a variety of legal issues, and as the name of this blog implies, shoes.

Why shoes? Because I love them. Shoes are fantastic. Who doesn't love a pair of well made shoes? If your feet are not happy, is the rest of you ever truly content? I say no. Fair warning: my love of shoes is surpassed only by my love of a good handbag. Expect discussion of purses as well.

Along with purses and shoes, I'll probably occasionally chime in on topics on which I have some personal experience: owning your own business and motherhood.

Last but not least, I plan to blog about the law in three main areas:

1.Wills, trusts, and estate tax;
2.Probate and probate litigation; and
3.Trade secrets, noncompetition agreements, and business torts.

So, welcome to my blog! Follow it, love it, join it and comment. Above all, enjoy. You can also follow me on Twitter @LawOnHighHeels as well if you are into that kind of thing.

Julie