UCLA Entertainment Law Review

This Article first provides a basic outline of both the right of publicity and the mechanism of Section 230. Next, it analyzes the existing case law interpreting Section 230’s intellectual property exclusion. The Article then explores three dimensions that suggest the right of publicity should not be treated as intellectual property for 230 purposes. Finally, it offers concluding perspectives on this difficult and vitally important area of the law.

This Article explores the reality and mythology of NFTs in art law and in the art world by unpacking six myths, misconceptions, and poorly understood truths about NFTs that prevent persons, and particularly art law lawyers, from understanding the role NFTs are playing and could play in the art world and beyond. The Article discusses the legal and financial attributes and potentialities of NFTs for artists, galleries, dealers, investors, museums, and, most especially, for lawyers who advise the players in the art world. The six myths or misconceptions are:

-Myth 1: NFTs are artworks.

-Myth 2: NFTs create a false artificial scarcity in artworks.

-Myth 3: The valuation of NFTs is unlike any rational process of valuation for any other artwork or asset.

-Myth 4: Smart Contracts are like regular contracts.

-Myth 5: NFTs have created the ability of artists to receive resale royalty rights.

-Myth 6: NFTs will allow all artists the chance to make serious money from their art.

This Article explores fair use jurisprudence in the fine art context. Particularly, this Article proposes that, motivated by an increasingly commercial contemporary art landscape, courts may be reevaluating their approaches to fair use in this sphere. Part I of the Article provides background on fair use law in the fine art context, specifically focusing on the difficulties posed by appropriation art in copyright law. Part II of the Article explores changes to this paradigm following the Second Circuit’s recent decision in Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith. I focus on the Second Circuit’s reemphasis of the fourth fair use factor, as well as the copyright holder’s pecuniary interests in licensing within the fourth factor analysis. Part III offers several motivations that may have informed the Goldsmith decision: (1) overly broad interpretations of transformative use from the 1990s to 2010s; (2) a shift away from equitable relief in copyright infringement actions; and (3) growing concern regarding socioeconomic inequality both within and beyond the fine art sphere. Informed by this analysis, Part IV of the Article asserts that, contrary to popular belief, fine art may not be unique when compared to other copyrightable works. As such, distinctly laissez-faire approaches to fair use in this sphere are no longer justifiable. Accordingly, the Goldsmith decision and its nod to aesthetic pluralism may instead reconcile the aspirations of the U.S. copyright system with internal shifts in the contemporary art economy.