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Lap Dancing with the Courts

by Paul Rapp on June 15, 2011

A decision out of an Albany state court last week turned some art-world heads—it had to do with the Nite Moves “gentleman’s club” on Route 9. The court rejected the club’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 ArtInfo.com, 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 Latham’s dancin’ gals was nekkid; courts have long refused to allow, on constitutional grounds, regulations based on the content of the dancing. An incredible decision in this regard came in 1998 from local federal judge Thomas McAvoy in a case involving the City of Schenectady trying to ban all 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.” No question, “erotic dancing” is protected expression pursuant to the First Amendment.

Here, the court tiptoed 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 around 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) of the street-art scene. The Hollywood Reporter reports that Mr. Brainwash was just found liable of infringement for an appropriation piece that was featured in the film, a piece based on a 1990s photograph of Run-DMC. Like the recent decision against artist Richard Prince, 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. 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, will have a huge chilling effect on the creation of new works. 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 report’s word for it that the court also apparently accepted that Mr. Brainwash was actually the person who created the work, and that he’s liable for the infringement. Which raises the question of whether the film’s producers and directors might be liable as well.

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