Art Law

By Simon J. Frankel & Sean Howell

There were several cases concerning art law in 2019 of interest to California litigators. A copyright dispute over a cartoon frog that has come to be associated with white supremacists raised questions about artists’ control over their work in an era of remixing and "meme-ification." A decision concerning reproductions of Picasso’s work in which a California federal court declined to recognize a French judgment for copyright infringement brought to the surface tensions between American and French copyright law. A class-action lawsuit against Chinese e-commerce giant Alibaba survived a motion to dismiss in a decision that clarified the standard for vicarious copyright liability as applied to large internet platforms. And the California Court of Appeal re-affirmed the state’s protection of petitioning activity in a malicious prosecution action arising out of a suit over referral fees for work sold in an art gallery.

Dispute over Rights in Frog Cartoon Associated with White Supremacists Ends with Settlement after Split Ruling on Summary Judgment in Furie v. Infowars

A copyright infringement suit over rights in the character Pepe the Frog, a comic book character that has become associated with white supremacists and the "alt-right" movement, settled after a federal court in the Central District of California granted in part and denied in part cross-motions for summary judgment.¹ The case raised interesting issues concerning artists’ ability to control their work after it goes viral and is re-mixed into new forms on the internet.