An Artistic Deduction

Who wants to take on the IRS?? Not too many want to tangle with those folks.? But one artist did just that, and she won a battle that could be a significant victory for all artist taxpayers in the U.S.

Visual artist Susan Crile found herself in the IRS's crosshairs when it said Ms. Crile owed tens of thousands of dollars in back taxes because her deductions involving her paintings didn't stand up to the IRS's test for an actual business expense.? Because Ms. Crile made relatively little money from the sale of her art, while she drew the bulk of her earnings from her position as a college professor, the IRS contended that her artwork was a hobby, and, therefore, the outlay of cash related to the creation of her art didn't qualify as deductible business expenses.

However, the U.S. Tax Court doesn't see it the IRS's way.? In a ruling handed down last week, a judge on that court said Ms. Crile met her burden of proving she created art "with an actual and honest expectation of profiting from it."? The fact that she actually didn't earn all that much didn't disuade the judge from ruling in her favor.

That ruling should come as a big relief to many artists who, try as they might to sell their works for a profit, have never really hit the big time with their art -- this despite the fact that they might be investing a significant amount of money in the attempt.? For the time being, those artistic business investments might be deductible.

Copyright Office Won't Monkey Around

You may have heard that the U.S. Copyright Office has laid down the law, as it sees it, regarding the copyrightability of a photograph taken by a monkey.? The office says it won't register a copyright in a work created by anyone who isn't a human.

In its latest Compendium on copyright, the office states that only human beings can be the creators of copyrightable works, and it "will not register works produced by nature, animals, or plants."? You can read the official language in Section 306 of the Compendium.

This, of course, was all prompted by the battle waged by a photographer whose camera was swiped by a monkey that then went about snapping a bunch of photos, including some "selfies" that went viral on the Internet.? The photographer objected to the images being published on the web without his permission (or a fee being paid to him), and litigation was possible.

However, if the Copyright Office says only a human can obtain a copyright -- and it cites two 19th century cases as precedent for the justification of that contention -- then it would appear the monkey photos are in the public domain.

Oh, and one other thing the Copyright Office says it won't register art "purportedly created by divine or supernatural beings."? So no gods, ghosts, or witches need apply.

Estate of Master Sleuth's Creator Ordered to Pay Up

A follow up to the story about the author who won his battle to have the character of Sherlock Holmes declared a public domain property.  The Seventh Circuit Court of Appeals ordered the Estate of Arthur Conan Doyle to pay the plaintiff's legal fees of more than $30,000.  Appellate Judge Richard Posner reasoned that it was the only way to make a successful copyright challenge a true success.

The Estate had been charging people a fee to utilize the Holmes and Dr. Watson characters, despite the fact that they were created in the 19th century, well beyond the oldest date in which a copyright remains current.  The probable reason that hasn't been challenged before is that it costs much more to bring the case to court than to just pay the fee.  (It's the old "Pay the man the two dollars" philosophy.)

However, now that legal fees were assessed against the Estate as the losing litigant, it might open the door to other legal challenges of debatable copyright claims.

Anyone else thinking about that 19th century cash cow song, "Happy Birthday to You"?

Monkey Business Over Copyright

Yet another dispute over copyright ownership of a photograph arises -- only, this time, the photog is a monkey.

British photographer David Slater had his camera swiped by a crested black macaque that then went about snapping several photos with the equipment.  Among the photos was a "selfie" of the monkey's face appearing to be grinning at the camera.  That snapshot has since gone viral on the Internet.

That's good for Mr. Slater, right?  Not so, says he.  The image is being distributed as a public domain photo for free on the Wikimedia Commons website.  So Mr. Slater's not making any money on that distribution, and he's demanded that the images be taken down because, as he sees it, the distribution infringes his copyright on the photos.

But wait, responds a disagreeing Wikimedia.  It says Mr. Slater isn't the author of the photos.  The monkey actually took the shots and, therefore, Wikimedia claims the monkey is the actual author as defined by the copyright laws.  However, since an animal can't own a copyright, Wikimedia says that puts the photos squarely in the realm of the public domain.

Mr. Slater and Wikimedia are definitely at odds over this one, and it could result in a lawsuit.  Don't expect the monkey to be called as a witness.

7th Circuit Upholds the Public Domain of Holmes

The U.S. Court of Appeals for the 7th Circuit upheld a lower court's ruling that the characters of Sherlock Holmes and Dr. Watson -- two of literature's most iconic and enduring fictional crime fighters -- are in the public domain, and the estate of their creator cannot legally claim the exclusive licensing rights to them.

As was blogged on an earlier date, the case came up as a result of the estate of Arthur Conan Doyle demanding licensing fees from a contemporary author of a book featuring new stories involving Holmes and Watson.  The author, Leslie Klinger, challenged the estate in federal court, claiming the characters were creations of the 19th century, and any copyright on them long since expired.  The lower court ruled in Mr. Klinger's favor, but the estate appealed the decision.

In its opinion, the 7th Circuit agreed that the copyrights on the characters of Holmes and Watson exist no more.  Just as I opined in my earlier blog post, the court noted that it could not accept the estate's claim that stories written by A.C. Doyle after 1922 reinvigorated the copyright on the characters and started the clock ticking all over again.  If that were the case, then characters' copyrights could be maintained in perpetuity simply by writing a new story every so many years.  And that's not what Congress intended by creating a limited copyright duration.