F Y O F

Copyright infringement! Anti-semitism! 8-bit snobbery! Madonna!

Please familiarize yourself with the very public fight between Mikey Apples (Crystal Castles manager) and Trevor Brown (the artist who drew that Madonna w/ a black eye thing).

http://www.pileup.com/babyart/blog/?p=100
http://www.pileup.com/babyart/blog/?p=105

I asked an entertainment lawyer from NYC for some in-depth legal analysis. This is what “Mr. C” has to say about the situation:

1. “Receipt and sufficiency of which is hereby acknowledged”

That is, in fact, legal boilerplate, although it’s generally not necessary in a situation where there is more than token consideration (i.e. a $1 payment or something like that). Given the general tenor of the discussions between the two, I’d have to say that it needs to come out & be replaced with a requirement that the money be paid UPON SIGNATURE. That way, failure to pay the amount is a breach, & the agreement’s null & void. However, their failure to pay him w/o a signed agreement is not surprising — I wouldn’t pay him w/o a signed agreement, either.

2. Grant of rights

Well, that’s surely a broad grant of rights. If the payment was for a retrospective cure, rather than a prospective license — in other words, “CC pays Trevor to make him whole for the c’right violation but then stops using the artwork” versus “CC pays Trevor for the right to use his artwork, before, now, and in the future” — then Trevor’s absolutely right. Without knowing what the discussion was (and what the payment is), though, you can’t tell who’s right here.

3. Right of privacy / releases / etc.

First of all, this is ignorantly phrased. Madonna, God love her, doesn’t really have a right of privacy left. What she most certainly DOES have, and is a genius at exploiting, is a right of PUBLICITY; that’s what CC is talking about here. And of course he can’t deliver a release — that’s a completely fake issue, which will make him in breach as soon as he signs. They MUST know that CC can only deliver a quitclaim, which means, basically, “whatever rights I have, you now have, but I make now representation about the extent of those rights.” People grant quitclaims all the time.

Moreover, these issues are a red herring in another way. What’s happening here is CC infringed Trevor’s copyright by using his artwork w/o his permission. This is a violation of the copyright laws of the United States. Even if he DIDN’T have the right to use Madonna’s picture, that doesn’t then mean that CC has the right to appropriate his artwork without his permission. So these releases would ONLY be necessary if CC wished to continue to use the artwork in the future — NOT as a condition of curing the already-inflicted violation. And if they want to keep using the artwork, rather than to cease & desist, then they need to pay for the privilege.

4. “It goes without saying” (w/ regard to the use of the Madonna image)

In a nutshell, he’s absolutely right, and they’re wrong.

By the way, violations of the US Copyright Act are subject to punitive penalties of up to $50,000 per violation — and each misappropriation of this image is its own independent violation. So this is a much more serious business than CC seems to realize it is.

Unfortunately, Trevor’s not ever going to get a contingency litigator to sue CC, because even if he won — and I think he would — I really doubt that CC has enough money to make a recovery possible. BUT keep in mind that there are other potential defendants (i.e. the record label, for instance), although it’s highly likely that CC in their deal (if there is one) with the label warrantied that they had the right to the artwork, meaning that the label would turn right back to CC to collect a judgment rendered against it (the label).

Make sense? You can call me ___-___-____ or IM if you have questions.

MY ANALYSIS: They’re all totally gay and totally obsessed with Madonna.

Madonna - Think Of Me (mp3)

Posted on March 27th, 2008 by Jared
Filed under: Crystal Castles, Madonna, Trevor Brown, gay legal drama