Monday, June 01, 2009

Drawing The Line

In Federal Court we can expect more constitutionally learned decisions than we can get here in St. Johns County. Here is an important decision from the 2nd Circuit deciding whether hats with paintings on the crown fell within the fully protected First Amendment area ( may they be sold on public property without permit):

"…while Edward Munch himself would not need a license to sell ‘The Scream’ (or prints of it) from a sidewalk table, a vendor wishing to sell the popular neckties featuring the painting’s distraught figure undoubtedly would need a license. The necktie merchant uses the Munch design not as art in itself, but to sell ties. His end is starkly commercial, with not a tinge of purpose conveying even collateral or residual artistic expression. But Munch did not paint ‘The Scream’ to market pieces of cardboard". 2004 Christopher Mastrovincinzo and Kevin Santos vs. New York City 313 F SUPP 2D 280


  1. Anonymous02 June, 2009

    Isn't Cap'n John just painting "St. Augustine" on the shell to sell the shell? But the painted shell is okay to sell in the market.

    That's different than a tie, which should not be allowed in the market. I do see the difference because you can't wear a shell around your neck (unless your any kind of tourist or teenager in Florida).

    Well, if you string the painted shell onto a necklace? Yes. If the artist who painted and strung the necklace sells it, then it's okay to sell in the market.

    If a first party painted the shell and a second party strung the shell on a necklace then a third party sold it at the market, that's okay as long as either the first or second party is present?

    Does the artist actually have to be painting, or taking photographs or stringing jewelry while at the market so that we know that the person selling is the actual artist?

    Nah, cops can just look for a "made in china" label or take an affidavit.

    It all makes sense now. That line is blinding me it's so bright.

  2. The Federal Court in Bery Vs nyc recognizes that jewelry can be art but not in the pure sense that pictures can. Jewelry does not have full first amendment protection.

    The artworks do not have to be produced by the artist vendor.The same holds true that the book or newspaper vendor does not have to be the author in order to have first amendment protection.

    The capt'n's works are questionable, but in borderline cases shouldn't we concede in the direction of the first amendment.That's the American Way isn't it?

  3. Anonymous03 June, 2009

    Who's this "we" that gets to make these decisions? Someone might debate whether the painted shells are even that close a call.

    That's the problem.

  4. Yes, the painted shell probably would not pass the expressive test in Bery vs NYC and Mastrovncenzo vs. Bloomberg.

    Tourist trinkets and figurines are ruled out in other cities using the expressive vs use test.

    My sentimentality about the Capt'n's story colored my initial opinion.