#art

The Art of Deception: Should Art Forgeries Be Met with Litigation or Leniency?

/ Washington Journal of Law, Technology & Arts / Leave a comment
Photo by Yigithan Bal on Pexels.com

By: Olivia Bravo

Intro

Art forgery is a crime, but should it be met with such harsh penalties? If some art forgeries are so good that they are never discovered and enjoyed the same as the original work, does this argument deserve a more nuanced approach? More importantly, is the cost of litigation worth the hassle?

Art Forgery Defined   

There are many arguments for and against authenticity in art. Is it the artist that creates a work that gives it its value? Or is a work’s value derived from its innate qualities? Because of the subjectivity of the art world, it has long since been a landmine for conmen and fraudsters to exploit. An art “forgery,” or art “fake” is when an artwork is presented by one artist, despite being created by another. Although used interchangeably, an art fake is a copy or replica made and circulated on the market while the original is hanging in a museum or in a private collection, whereas a forgery is made with the intention to deceive an audience. 

Art forgeries undermine the integrity of the art world, but in order to understand the full scope of the issue, it is important to recognize that a forger’s motivations are often more nuanced. Similarly, while psychological factors drive forgers to create their works, the allure of counterfeit works is not driven by the forger, but by societal demand. This recognition is crucial for transparency and for enforcing authenticity in the art market. 

The Case for Litigation

Art has a universal cultural impact, and as a society, we have placed a high value on the protection and cultivation of art and artists. A harsh reality of today’s art world is that more fakes and forgeries are offered for sale than legitimate works, to the point that 20% of the pieces in the world’s most prestigious museums and galleries could be potential forgeries. Many leading art experts and authenticators are even refusing their services to avoid liability, leaving authentication of works to scientists to use instrumental analysis and imaging to determine age and material composition of works. Art forgeries have had a significant impact on the fine art world: creating an economic burden for private buyers, galleries, and art museums who have the sole responsibility of litigating against forgers. 

Art forgeries also create a significant economic deficit when sold to consumers. It is estimated that counterfeit goods cost the US economy between $200- $250 billion per year. The US government suffers significant tax implications from the presence of counterfeit goods in the marketplace. With respect to art forgeries, an individual buyer suffers economic hardship because they are assumed to have purchased an art piece found to be a forgery at an inflated price, which saturates the art market and affects the valuation of other artist’s price point. 

The United States does not have any federal art forgery laws. Federal prosecutions have been successful under the Racketeer Influence and Corrupt Organizations Act (RICO), and independent federal charges are authorized by the Federal Trade Commission under the FTC Act. Even so, criminal prosecutions are rarely brought due to the high burden of proof, and only pursued in extreme cases. Many states require a high burden of proof of intent to defraud in order to bring criminal charges, and only protect the victims of forgeries through consumer protection statutes. 

An arguably more effective means of litigation, through the application of intellectual property laws, would protect artists rights and fill gaps left by criminal and civil protections due to the lower standard of proof needed to bring an infringement claim. Copyright and trademark law can be advantageous in litigating art forgery, assuming the work is not in the public domain and the copyright has been registered. Both have limited reach due to their specific authorship and publication requirements, but can be attached to federal criminal laws to be more effective. However, overall stricter regulation and harsher punishments in the U.S. and globally might better confront the circulation of fake art and deter future perpetrators.

Is There a Case For Leniency?

Art forgers are the talented creators of their art and own copyright protection to their original works. Should this be considered in the art forgery debate? For example, there is a psychological effect on how we perceive art that is disrupted by the knowledge that a work is a forgery. When the monetary value of a work is assigned according to the art market based on “fair market value,” but that value is tied to the artist and the perceived knowledge of their innate talent, what are we really valuing? Is it the art or the artist?  

Substantial resources are being invested into the prevention of art forgeries to the extent that art experts, authenticators, and foundations—dedicated to preserving the legacy of great artists—are becoming extinct for fear of litigation. This burden of authenticity has led to a situation where prosecution is the only recourse once a forger has already been found guilty. But lawsuits are so expensive that there might be room for a nuanced approach that either includes more protections for all parties involved or for a rethinking of art forgery litigation. 

So, what is the solution to a problem that clearly has many ethical and theoretical considerations? Should forgers be met with harsh punishments that will further shape the legal landscape of art fraud prosecution? Or is there a case for potential leniency depending on the intent of the artist and the subsequent impact their forgery has on the viewer and the world? Authenticity remains an elusive judicial concept, and as courts evaluate how to assign losses for victims as well as fair sentences for art forgers, a critical rethinking on how we view art and art litigation might be in order.

Graffiti Art and Related Legal Issues in Washington

/ Washington Journal of Law, Technology & Arts / 1 Comment
Photo by Tobias Bju00f8rkli on Pexels.com

By: Yixin Bao

Graffiti is a type of visual communication that is written or painted on a kind of surface. This usually happens without permission from the surface’s property owner, with the resulting work often in public view. Some understand graffiti as antisocial behavior which is used to gain public attention, especially when graffiti is created by a member of a street gang. Others, however, treat graffiti as a type of expression and an art form.

Starting in the 1960s, graffiti became a popular form of art in the United States. In New York, young people started to use spray paint to leave their signatures on public spaces, mostly on city walls and subway cars. For example, artists like TAKI 183, became famous for his frequent illegal tagging and was eventually known to be one of the “forefathers” of graffiti. While TAKI 183, whose real name is Demetrius, never considered himself an artist, he left his name and street number on hundreds of surfaces in New York City, making him a part of the history of American graffiti. Demetrius said: “I think a lot of what the graffiti movement spawned, early on, was just vandalism and defacement. But later on, real artists started doing it, and it did become a true art form.” As the art form grew, graffiti became more than lettering. Accompanying the text, abstract and complex compositions were incorporated, with additional color and lines. Such change also brought commercial success for these artists. 

Some graffiti artworks might be qualified to be protected as a visual work under copyright law. Copyright is a form of intellectual property that protects original works of authorship. The work must be original and fixed in a tangible medium of expression. The fundamental exclusive rights that a copyright owner has are the right to reproduce, the right to prepare derivative works, the right to distribute, and the right to public display/performance. Similar to other art forms, if a graffiti work complies with these requirements, it can be protected under copyright. For example, Keith Haring’s famous street art in the New York City subway, using white chalk to draw dancing people on the black advertising panels, is protected under copyright law, because they are original and fixed on subway panels.  However, not all graffiti qualifies for copyright protection. Some graffiti is too simple to be considered as artwork to be protected. These include for example, short phrases and words. 

Locally, graffiti is generally illegal if it is created without permission from the surface’s owner. According to Washington state law, graffiti is a gross misdemeanor. Under RCW 9A.48.090, a person is guilty of malicious mischief in the third degree if he or she writes, paints, or draws a mark of any type on any public or private building unless he or she has gained the permission of the owner of the property. 

Controversies surrounding graffiti art have persisted.  In Washington state, graffiti is everywhere on bridges, walls, and traffic signs. From 2015 to 2017, state transportation officials spent more than $600,000 to remove graffiti and this number raised to $1.4 million between 2019 and 2021. However, when the city officials quietly painted over a tunnel full of graffiti in Washington Heights, some residents accused them of “whitewashing” the culture and the history of the neighborhood. The comments show how the community has different stances on the issue of graffiti. In 2021, individuals brought a lawsuit challenging Seattle’s graffiti ordinance. Four people were arrested and jailed for writing easy-to-clean political messages on temporary barricades. They filed a complaint alleging that “SPD only select[s] to enforce the ordinance when views are expressed that do not align with their own.” None of the four, however, were ever prosecuted for the graffiti.

Graffiti is a form of artistic expression and brings positive outcomes to the community. At the same time,  graffiti without consent is also illegal and considered to be vandalism. Prior to creating their artwork, graffiti artists should seek the property owner’s consent, as a standard practice. Additionally, if the work meets the qualifications, including originality and fixation requirements,  it should be safeguarded under copyright law as a form of artistic expression. Given the ambiguity between graffiti and artistic expression, graffiti artists should always exercise caution and be mindful of the context and legality of their artistic endeavors in public spaces. 

No One Should Own Exclusively AI Generated Art

/ Washington Journal of Law, Technology & Arts / 1 Comment
Photo by Pixabay on Pexels.com

By: Jacob Alhadeff

On February 14, 2022, the Copyright Review Board (CRB) rejected Physicist Stephen Thaler’s claim for a copyright of his algorithm’s “authorship” because a “human being did not create the work.” On September 15, 2022, Kris Kashtanova received a copyright for their comic book Zarya of the Dawn, in which all of the art was AI generated, but Kris created the other aspects of the book. The difference in treatment is likely down to questions of originality, authorship, and simply that one work required human creativity while the other was effectively the work of a computer. Though these legal arguments are compelling in themselves, a necessary and implicit policy rationale seldom explicitly recognized by the law deserves highlighting — the relationship between work and incentives. Here, copyright incentivizes Kashtanova’s creative human work while reasonably denying that incentive to Thaler’s exclusively AI generated art. 

AI art, AKA generative art, uses machine learning (ML) algorithms that have been trained on billions of images frequently from licensed training sets and images publicly available on the internet. The images these algorithms use are frequently copyrighted or copyrightable. Users then type in a phrase, “carrot parrot,” for example, and a unique image is generated in seconds. Creating novel art can now be as simple as an image search on Google. This technology has been in the works for many years, but recently, platforms like DALL-E, Midjourney, and Stable Diffusion increased the volume of training data from millions to billions of parameters and the emergent result was an exponentially better output. In response, on October 17, 2022, Stable Diffusion announced the completion of a $101M seed round at a $1B valuation. Sequoia Capital then posted a blog suggesting that generative AI could create “trillions of dollars of economic value.” The future of Generative AI looms large, and at the very least promises to expose unexplored ambiguities in copyright. 

Functionally, in generative art there are two primary entities that may be incentivized through copyright — the programmer or the user. The programmer may have spent many hours writing and training the algorithm so that the algorithm may quickly create novel works of art. The user of the algorithm, on the other hand, is “the person who provides the necessary arrangements,” basically the person who prompts the program with a phrase. Providing either of these entities a copyright to exclusively generated art ineffectively balances incentives and ignores the purpose of copyright. 

Incentives and the Purpose of Copyright 

Copyright’s purpose is to “promote the progress of Science and useful Arts.” The Constitutional basis for copyright is therefore explicitly utilitarian. The Supreme Court has expanded on this language, suggesting that copyright’s purpose is to (1) “motivate the creative activity of authors and inventors by the provision of special reward” and (2) “to stimulate artistic creativity for the general public good.” Justice Ginsburg found that copyright’s dual purposes are mutually reinforcing because the public is served through copyright’s individual incentive. This mirrors James Madison’s claim regarding copyright, that “the public good fully coincides in both cases [copyright and patent] with the claims of individuals.” At its core, copyright is a monopoly-based incentive to create art to further public welfare. This incentive is at least implicitly predicated on the notion that creating valuable creative works is not easy, and therefore requires or deserves incentivizing. If improper law and policy are adopted, then Generative AI has the possibility to throw a wrench in this balancing of incentives.

The now rightfully defunct “sweat of the brow” copyright standard awarded a copyright partially because of the amount of work that went into the effort. One reason “sweat of the brow” was flawed was because it meant that facts themselves could be copyrighted if it took substantial work to attain those facts. The ability to copyright a fact “did not lend itself to support[ing] [] the public interest” and the standard was discarded. Though improper, the underlying concept was not entirely baseless. If the Constitutional purpose of copyright is to provide incentives to artists for public benefit, then copyright law must balance incentives, which implicitly balances work versus reward. 

Incentives are not absolute but are contextual and must at least tacitly recognize the difficulty of the act the incentive intends to induce. ‘Energy in’ must be somewhat commensurate with ‘value out’ — otherwise, the incentive structure is misaligned. This balancing of incentives is one of the reasons why a perpetual copyright is unconstitutional. If a copyright holder holds this monopoly right too long after its initial creation, they are rent-seeking, and the incentive that copyright provides far overshadows the public benefit. Rent-seeking is growing one’s wealth without “creating new wealth,” which has pernicious societal effects. For this reason, courts have determined that no amount of creativity, originality, or work merits an infinite monopoly on a creative work. 

Exclusively Generated Art Should Enter The Public Domain

Neither the user nor the programmer should receive a copyright for exclusively generated art, in part because doing so would misalign incentives. To be overly reductive, incentivizing someone to dedicate their life to an artistic craft requires a substantial incentive — a copyright for example. By contrast, if the effort required to create the art is effectively null (typing a prompt into generative AI), then the incentive required to promote the useful art is effectively null. As such, the law should not be reticent to reduce or eliminate the incentive for someone to type five words into a generative AI and provide a public benefit by creating exclusively generated art. Importantly, this reasoning excludes an artist’s creations that use generative AI as a tool or a component of their work – these artist’s works deserve copyright’s protection. Given that without any guarantee of copyright protection, over 1.5 million users are creating 2 million images a day using Dall-E, current evidence suggests that generative art users are not concerned about a monopoly on the economic returns for their creations. Lawmakers should not be concerned either. 

The owners of the generative AI algorithm should not receive a copyright for every work generated by their algorithm. Some in intellectual property suggest that AI generated art should be copyrightable because without protection, there will be a “chilling effect on investment in automated systems.” The argument is basically that if the owner of a generative art algorithm cannot hold a monopoly on the generated art, then there will be insufficient incentive to continue investing in automated systems. This ignores the concept of Software as a Service and the present reality that machine learning algorithms are currently effectively contributing to lucrative business models without guarantees of copyright protection. Relevantly, Stable Diffusion is valued at $1B.  

Further, a world where the algorithm’s owners automatically have a valid copyright claim could completely undermine the market for art. Similar to how no amount of work can justify a perpetual copyright, no amount of work could justify a handful of entities with machine learning algorithms copyrighting a substantial proportion of modern artistic creation. While generative art may simply become another tool for artistry, it is conceivable that someday the world’s human artists would not compare to the volume of work accomplished by ML algorithms. Lawmakers should not reduce artistic markets to whoever can create or purchase the most effective machine-learning algorithms.