The Artful Jurist

Okay, I admit this may be stretching things a bit.  But I’ve been hearing about the case in Pennsylvania, where a woman is suing her former high school for violating her free speech rights when it confiscated her cell phone and allowed school officials and law enforcement people to view the nude photos of the woman that she had stored on the phone, and it raises a question for me.

In a technical sense, the photos of the woman, who was a minor at the time of the incident, fell into the kiddie porn quagmire that makes it illegal to distribute or even to possess material deemed to be child pornography.  The laws don’t distinguish even when the person possessing the material is also the willing subject and creator of it.  That’s how kids are getting into trouble these days over the so-called “sexting,” sharing nude or semi-nude digital photos of themselves through cell phone transmissions, and the Pennsylvania woman (then a high school girl) was facing potential child pornography charges even though there apparently was no evidence she had shared her photos with anyone else.  At the time, she opted for the “re-education” class that was offered in lieu of criminal charges.

So how does this figure into the law as it relates to art?  Well, I remember there was a time when it was a fairly typical thing to photograph a bare baby on a bearskin rug.  There’s a whole industry devoted to child photography, and the bearskin rug pose was (maybe still is) so common as to be a cliché.  But, if you shared that photo with a friend on your cell phone, would that constitute sexting?

Now I know your adorable infant on a rug isn’t pornography.  It’s a tasteful, classic, non-sexual pose.  But would the Pennsylvania high school girl have fared any better had her nude photos been tasteful, classic, and non-sexual?  For that matter, who’s to say they weren’t?  Perhaps her photos were as tasteful as “Venus Rising from the Sea.”  But the kiddie porn laws don’t have absolutes to guide those who must enforce them.  And that’s the problem with all of the laws regulating what’s deemed to be “obscene” material.  Who’s to say what’s obscene?  Even the U.S. Supreme Court couldn’t answer that one with anything more helpful than “I know it when I see it.”  And, as far as cracking down on sexting goes, it seems from what I’ve heard that officials aren’t having artistic debates over the nudity of minors that pops up on kid’s cell phones.

It has been a while since the days when actor Sean Penn typically made the news as much for his bad-boy behavior as for his professional work.  But the two-time Oscar winner got into legal trouble again when he got into a tussle with a celebrity photographer.  And last week he pleaded no contest to a vandalism charge stemming from that incident in which Mr. Penn was videotaped kicking the photog.

Mr. Penn was sentenced to three years informal probation and 300 hours of community service, and he’s also been ordered to undergo 36 hours of anger management counseling.  But, even successfully completing that, it doesn’t necessarily put an end to the legal issues.  You see, that’s just the criminal case.  The photographer has a civil case against him still pending.

The MTV reality show, Jersey Shore, which has already stirred up controversy by ticking off Italian Americans, a state legislature, and pretty much the entire state of New Jersey, has a brand new issue to contend with.  A woman in south Florida is accsuing one of the show's cast members, Sammi "Sweetheart" Giancola, of attacking her in a nightclub.  And she's threatening to sue both Ms. Giancola and MTV over it.

According to reports, potential plaintiff Kristen DeMinco says she was having a conversation with a man (who, apparently, is Ms. Giancola's boyfriend) when Ms. Giancolo approached.  In Ms. DeMinco's description of the incident, there was an exchange of "bad words" followed by Ms. Giancola striking Ms. DeMinco in the face twice.

Okay, barroom brawls are a dime a dozen, and sometimes they lead to litigation.  But why is MTV a potential defendant over Ms. Giancola's actions?  Well, it seems this happened while MTV was shooting episodes of Jersey Shore in Florida.  It's not clear to me from the news reports whether the incident took place with MTV actually shooting it (or overseeing/prompting it?), or whether MTV's people were off somewhere else when this was going on.  But, hey...when there's potential litigation, people always look around to see who has the deepest pockets.

A federal court in New Jersey has cited the First Amendment as a rationale for dismissing a defamation lawsuit filed against a stand-up comedian by her in-laws whom the comedian, in her act, had called "racist" and "dumb."

Sundra Croonquist, who is of African-American and Swedish descent, has used her interactions with her Jewish husband's relatives as fodder for her comedy routine.  To say Ms. Croonquist does not paint a flattering portrait of some of her in-laws, is an understatement.  Her comedy bits include such statements as the assertion that her mother-in-law is a racist and her sister-in-law is dumb—comments which the in-laws charged in their lawsuit as being defamation and false light.

The court disagreed, saying in its ruling dismissing the case, that these portrayals of the in-laws constituted obvious opinions rather than facts.  An opinion is protected by the First Amendment's freedom of speech clause and is not actionable as a defamatory statement.

There's a new reigning king among works of fine art...at least, from a purely economic standpoint.  Pablo Picasso's 1932 painting, “Nude, Green Leaves and Bust,” has broken the record as the most expensive single piece of art ever sold at auction.  The winning bid was $106.5 million.

The last time the painting was sold, the purchase price was less than $20,000.  Now that's what you call a big time capital gain.

So what will the people who sold the Picasso be paying in income taxes on that gain?  Well, it all depends on what the IRS calls the "tax basis."  That is, what is the dollar figure deducted from the sale price that determines the actual taxable gain?  Does that seem like an easy bit of math?  Well, it would be if all you had to do was subtract $20,000 from $106.5 million.

But, as with most of the American tax system, it's not that simple.  You see, the former owner of the painting died, and, if that former owner bequeathed that, upon the owner's death, the painting passed to an heir, then the heir would inherit the property with a newly adjusted tax basis that would be equal to the fair market value of the property at the time of the deceased's death.

What's "fair market value" for a Picasso?  Well, that's a question better posed to people who know a bit more about appraising art than I.