Friday, May 23, 2014

Mastrovincenzo v. City of New York case brief discussion

Mastrovincenzo v. City of New York (2006)
§  Issue: whether Ds can sell their ‘graffiti’ style hats and clothing without a permit
·         NO!
§  Reasoning
·         The court asks what is the dominant motive of these ‘artists’?
o   Expressive or non-expressive?
§  Court finds that the P’s work is mainly expressive
·         However, the court does not stop there. It then asks other factors:
o   1. Whether an artist’s stated, motivation for producing and selling an item is his desire to communicate ideas
o   2. Whether a vendor purports, through the sale of goods to be engaging in an act of self-expression rather than a mere commercial transaction
·         The court said that these graffiti style hats and clothing is art, but not one of the types of art mentioned in the law [Bery]
o   It is not a painting in the Bery sense
o   Court refuses to adopt the broad meaning of painting meant to be anything to which pigment has been applied
§  This would transform an exception that would make virtually all goods exempted from the law
§  Discussion
·         Clay cooking casserole
o   Is it art?
§  NO!
o   Is it copyrightable?
§  NO [without more info, like if its unique]! But it is patenable!
o   Fine art? Qualify for loft housing?
§  NO!
§  Would probably need more info
o   Expressive? Can you sell on the streets without permit?
§  NO!
·         Is it any different if this casserole was used regularly to burn incense?
o   NO!
·         Is it any different if its 2000 years old?
o   YES! It will come in duty free
§  The law says that if something is more than 80+ years, then it comes in duty free
o   Something that is that old tells us something that belonged to that era and tells us something about that era. It has cultural, educational and maybe religious significance

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