Wednesday, June 15, 2011


This article originally appeared in the 6.16.11 issue of Metroland

A decision out of an Albany state court last week turned some art-world heads —it had to do with Nite Moves, the “gentlemen’s club” on Route 9. The court rejected the stripclub’s owner’s claim for a tax break under a state law that provides a sales tax exemption for admission costs to “live dramatic, choreographic or musical performance[s].”

OK, let the jokes begin. Actually, they already have. Even the court threw in a zinger or two (“...there can be no serious question that — at a bare minimum — petitioner failed to meet its burden...”). But as often happens with cases like this, goofy as they may seem, serious issues are involved, and the way the court decided them is troubling.

The crux, as pointed out in, is that the court went where courts never should go—and decided that pole and lap dancing were not art. And this wasn’t decided because them Lathams dancin’ gals was nekkid; courts have long refused to allow, on constitutional grounds, regulations based on the content of “erotic dancing”. An incredible decision in this regard came in 1998 from local federal judge Thomas McAvoy in a case in which the City of Schenectady tried to outlaw nude dancing. Check out this quote: “Perhaps the City of Schenectady finds the performances in cabarets more objectionable because the audience is mostly men who prefer to drink Budweiser while they view the naked form engaged in dance, rather than the couples at the opera who prefer Dom Perignon with their falsetto.” Yowsa. No question, “erotic dancing” is protected expression pursuant to the First Amendment.

Here, the court tip-toed around the constitutional issues and held that there was no credible evidence that the dancers’ moves were choreographed, despite the testimony of the club’s expert, a cultural anthropologist who testified at length that, yes, what goes on at Nite Moves, both at the pole and on the couches, fits neatly into the definition of choreography.

On one hand, the decision could be read as really dealing solely with evidentiary issues—that the court didn’t like the expert’s testimony, and no dangerous precedent has been set. On the other, it could be argued that the court’s rejection of the expert was a stretch of logic and law, employed to get the court to where it felt it needed to go. Which poses some problems. Hmmm. Buh-bye tax breaks for modern improvisational dance? Folk dancing? The decision will likely be appealed, and we’ll see what happens.

Speaking of what happens, back in February I wrote about this “street artist” character who calls himself “Mr. Brainwash.” He was featured in the film “Exit Through the Gift Shop” which was either a documentary or a mockumentary (or maybe both) about the street art scene. The Hollywood Reporter reports that Mr. Brainwash has just been found liable of infringement for an appropriation piece that was featured in the film, a piece based on a 1990’s photograph of RUN-DMC. Like the recent decision against artist Richard Prince (which I wrote about last month), the court rejected Mr. Brainwash’s claim that his use of the photo was fair use. And like the Prince decision, the judge used some really broad language to justify the ruling:

"To permit one artist the right to use without consequence the original creative and copyrighted work of another artist simply because that artist wished to create an alternative work would eviscerate any protection by the Copyright Act...Without such protection, artists would lack the ability to control the reproduction and public display of their work and, by extension, to justly benefit from their original creative work."

Ouch! Granted, the judge apparently did look at the “four factors” judges use to determine whether something is fair use. Whether he looked hard enough at the “transformative” nature of Mr. Brainwash’s work is another issue. Maybe he did. Whether the judge was correct is actually another issue, too. The big problem is this: to have language like that quoted above just hanging out there, available for lawyers to grab and use out of context in the next lawsuit and dozens after that, will have a huge chilling effect on the creation of new works. Good or bad. The ruling will be a hammer at the disposal of copyright bullies.

I can’t find the decision anywhere online, so we’ll just have the take the reports’ word for it that the court also apparently accepted that Mr. Brainwash was actually the person who created the work (many thought Mr. Brainwash, and his works, were fictitious creations created by Banksy and Shepard Fairey. Ir this were true, the fair use arguments would have been much more powerful), and that he’s liable for the infringement. Which raises the question of whether the film’s producers and directors might now be liable as well.

I’m sensing a trend here, and I don’t like it.


At 12:32 AM, Anonymous Rob Heverly said...

More details, Paul, including the decision, here:

Interesting stuff!


At 8:05 AM, Blogger Paul said...

Thanks Rob---I was writing this yesterday, and there was nothing on Westlaw, nothing on the court site, and I'm thinking "was it an oral ruling"?

At 8:54 AM, Anonymous Christopher Schiller said...

You can find a pdf of the case at

I find it disturbing that, by this judge's logic, another artist can't create a transformative work by definition, but, a t-shirt manufacturer could possibly. Weird world to live in.


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