Ask the Ant

sergio  ||   19 April 2007

CLANCCO has joined forces with Volunteer Lawyers for the Arts (VLA) in order to bring you a Q&A column, Ask the Ant, based on legal information pertinent to visual artists. Our new ATL Question deals with websites, blogs, fair use, and the appropriation of images and text from other sources.

Blogs, Fair Use, Appropriation and Copyright

Dear Ant,
I run my own blog and now that it’s getting more popular I’m concerned that I may one day be sued for copyright infringement. My blog is a pretty much a typical blog: I post my thoughts on various world events and also on the things that happen in my life. As part of my blogging on news and world events, sometimes I quote from online newspaper articles, sometimes I link to other articles, and sometimes I post pictures that I’ve taken from other websites. Is this ok? How much can I quote from an article? Is linking ok? Posting pictures I didn’t take?
Sincerely,
NervousBigMouth666

Dear BigMouth,

In short, the answer to your questions are “maybe,” and “it depends.” Whether you will be liable for copyright infringement turns on whether your actions would be deemed to be “fair use.” Fair use is a limitation on the rights a copyright owner has in his work; it is an affirmative defense that you can raise when someone sues you for copyright infringement. The law on fair use is codified in Section 107 in Chapter 17 of the United States Code, which states: “the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

Determining fair use, however, is not as simple as just slapping one of those labels on what you’re doing and calling it a day. The statute imposes a four factor test that makes considering whether a use is “fair use” difficult to determine in advance. A court considers and weighs four factors in determining whether a use if fair use. The four factors are: 1) The purpose and character of the use, 2) The nature of the copyrighted work, 3) The amount and substantiality of the portion defendant used, and 4) The effect of Defendant’s use on the potential market of the copyrighted work. As you can probably see, determining fair use is going to turn on the specific facts of the particular case.

To briefly go through the four factors: the first factor, the purpose and character of the use, considers how the copyrighted work is used. The more “transformative” the work is, the more heavily this factor would weigh in your favor. Transformative use is use that is creative and adds something new to the original work, instead of just simply copying the work and adding nothing to it. In addition, the more commercial the use is, the less likely a court will find the use to be fair. The second factor, the nature of the copyrighted work, looks at the type of work that is copied. The more creative and original the work is, the less likely a court will find that the use is fair. This is because the more creative a work is the stronger copyright protection it receives. The third factor, the amount and substantiality of the portion used, looks to how much of the work has been copied. As you could probably guess, the more of a work that is copied, the less likely the use will be fair. Furthermore, copying the heart of a work, even if not a large portion of the work, would advise against fair use. Finally, the fourth factor, the effect of defendant’s use on the potential market of the copyrighted work, looks to the effect of the copying on the original creator or writers’ market. Courts look to whether the copier’s use will substitute for the creator’s work or whether it will harm the market for the creator’s work. The greater the harm, the less likely a court will find fair use. Note, though, that harm to the creator’s market due to a negative review or parody of the work does not count as harm to the creator’s market in the fair use determination.

While determining if a use is fair use can be confusing and uncertain, there are some general guidelines that can help you steer clear of definite violations. Simply copying and posting an entire article from a newspaper’s website would likely not be fair use. To run through the factors: 1) The use is not transformative, 2) While the news does not engender strong copyright protection, an entire news article is protected by copyright, 3) The entire article was copied, and 4) Copying and posting the entire article has a negative effect on the creator’s market for the article. On the other hand, copying and posting excerpts of an article or other copyrighted work to criticize or comment on the work is often fair use. Again, to revisit the four factors: 1) Criticism or commentary is transformative, 2) bits and pieces of a news article or other work are not strongly protected by copyright, 3) The amount used is less than the full work (note that copying only the parts of the article necessary for the commentary is a good practice to follow in order to get the most out of this factor), and 4) It does not harm the market like copying the full article would.

As for posting a copyrighted picture on your blog, once again a court would again apply the four factors. To determine the character and nature of the use, one thing a court will look at is how you are using the picture. If it is used for a different purpose than used in the original context, for example, that would weigh in favor of fair use. As for the nature of the copyrighted work, this would likely weigh against fair use, but that depends on whether the picture is a creative or more factual. The third factor, the amount and substantiality of the use, will turn on whether you are copying the entire image (or the heart of the image) versus just a portion of it. Finally, the fourth factor, the impact on the potential market, is likely the most important factor in this determination. If posting the image on your blog will lower sales of the picture or cause people to not access the copyright owner’s website, a court will likely find a negative impact on the copyright owner’s market, and this would militate against fair use.

Whether linking to other websites is fair use also involves consideration of the four fair use factors. However, a court has yet to find that “deep linking,” which is postings links that take people to an internal website page, is copyright infringement.

Also, note that some copyright owners decide to forego some of the rights they have been granted by the copyright statute, and so you wouldn’t even need to worry about fair use and copyright infringement in certain situations. Creative Commons licenses is one form of licenses like this. Creative Commons “provides free tools that let authors, scientists, artists, and educators easily mark their creative work with the freedoms they want it to carry. You can use CC to change your copyright terms from "All Rights Reserved" to "Some Rights Reserved." See http://creativecommons.org/ for more information. You should be sure to check the copyright notice on the website you are quoting from to see if there is a Creative Commons license on it or something similar. Moreover, as a content creator yourself, you are welcome to use a Creative Commons license for the content you create that you post on your blog. This could help your website increase in popularity as people feel more comfortable quoting and copying from your website.

Determining whether a use is fair use is difficult to predict in advance. In addition, fair use is an affirmative defense to copyright infringement; this means that you assert fair use after you’ve been sued. So even if you have a fair use defense, you’re still involved in a lawsuit and sometimes it’s hard to tell how a court will view your use. This shouldn’t completely discourage you, though, from discussing or briefly quoting from other websites or blogs for purposes of comment or criticism, since these uses typically are fair use. In addition, a copyright owner will usually attempt to contact you to tell you to remove their copyrighted material if they are unhappy with your use of it. But it’s always better to be safe than sorry, and having some idea of what a court will look to if you needed to assert a fair use defense will help you stay away from uses of copyrighted material that could get you in the most trouble.

Good luck!
-Josh Karp

Josh Karp is currently a 3L at Columbia Law School, an intern with Volunteer Lawyers for the Arts, and on the editorial staff of the Columbia Law Review.

Collaboration and Reproduction Rights

Dear Ask the Ant,
I do freelance photography for a variety of local and national print media. Recently, I did a spread for New Worker magazine. One of the subjects of the shoot, who was in all of photographs and who collaborated with me, believes she has some copyright ownership in the work we did together. Is this true? Does she also have a right to sell reproductions of the photographs? New Worker magazine claims they have exclusive rights to my work, since they paid for it.
Thanks, Leica Lens

Dear Leica,

A copyright owner has exclusive rights to reproduce copies, prepare derivative works, distribute copies, perform the work, and to display the work. Photographs, which fall under the category of works of visual art, can be protected by copyright. The owner of the copyright in a photograph is usually the photographer. If the photographer is an employee of a newspaper, the newspaper, as the employer, is the owner of the copyright.

Sometimes, it may be possible for the subject of the photograph and the photographer to be joint authors of the copyright in the photograph. For instance, if the person who hires the photographer works closely with that photographer and significantly contributes to the creation of the photograph, they may be joint authors. This holds true only if the parties intended to create a joint work. Merely posing for a photograph or contributing helpful insights is generally not enough to constitute joint authorship.

If a person hires a photographer to take photographs and wishes to own the copyright in the resulting photos, that person should obtain a written assignment of copyright from the photographer. Any or all of a copyright owner’s exclusive rights may be transferred. In order for a transfer to be valid, it must be in writing and signed by the copyright owner. It is advisable to record any assignment with the U.S. Copyright Office by filing the original assignment document. For more information on copyright law and ownership and transfer of copyrights, visit http://www.copyright.gov.

It is important to keep in mind that ownership of a photograph is distinguished from ownership of a copyright, or of any of the exclusive rights under a copyright. Thus, the physical transfer of a photograph does not carry with it a transfer of the copyright.

An unauthorized use of a photograph is likely to infringe on the copyright owner’s exclusive right to control the reproduction of that photograph and the exclusive right to create derivate works. Sometimes, however, a “fair use” defense may apply. For example, if a photograph is reproduced for criticism, comment, news reporting, teaching, scholarship, or research, it is likely that such use will be considered a “fair use.” When used for one of these purposes, the copyright holder’s exclusive rights are not infringed.

In considering who holds the copyright in a photograph, another right to think about is known as the “right to publicity.” In New York, for example, one must obtain permission from the person depicted in a photograph for use of his or her likeness for a commercial purpose. A commercial purpose is one that implies sponsorship, endorsement or where the photograph is used to sell a product or service. Thus, a newspaper’s publication of photographs of people in public places or at local events would not be considered a commercial purpose. Even if a newspaper is sold for profit, that alone does not constitute a commercial purpose. The right of publicity more commonly arises when a celebrity’s picture is used for advertising or trade, without permission, and not merely for a newsworthy purpose.

To avoid infringing a copyright owner’s rights in a photograph, or the subject of a photograph’s right of publicity, it is advisable to obtain written permission or a release. For more information on this, and/or to obtain sample assignments and releases, visit http://www.uspatentinfo.com/copyright.html#6 and http//:www.blumberglegalforms.com. Another useful source is Tad Crawford, Business and Legal Forms For Photographers (1999).

Rent Control and Rent Stabilization

Dear Ask the Ant,

I am painter living in New York, and am looking to rent a live/workspace apartment in Manhattan. I found a great place, and the landlord has given me a written two-year lease that stipulates at the top that the space is “rent stabilized.” The landlord also stated this when I spoke with him. Does this mean that my apartment is rent-stabilized? Also, what’s the difference between rent-stabilized and rent-controlled?
Thanks, Paint Renter

In NYC, rent stabilization is generally a matter of statutory right. That is, a particular building will either fall under the category of rent stabilized or not. However, there are many variations and exceptions in the law, and units that appear to be covered are sometimes not, and vice versa. An apartment may be stabilized if it is in a building of six or more units that was built between February 1, 1947, and January 1, 1974. In addition, tenants in buildings built before February 1, 1947, who moved in after June 30, 1971, may also be covered by rent stabilization. Also, an apartment may be rent stabilized if it is in a building with three or more apartments constructed or extensively renovated on or after January 1, 1974 with special tax benefits. Generally, these buildings are only subject to stabilization while the tax benefits continue or, in some cases, until the tenant vacates.

While a building meets the criteria above it does not necessarily mean a particular unit within the building is rent stabilized. One should not assume that a particular apartment is rent stabilized based solely on the fact it meets the description above or they are told it is rent-stabilized by a landlord. For example, if the legal rent for a particular unit in the building exceeded $2,000 following a vacancy the unit may be or may have been deregulated. Moreover, if the unit was in a building converted to a co-op it may be deregulated upon vacancy. In addition, rent stabilization only applies to units that are primarily used as a residence. Since many exceptions to the rules apply, and Landlords may have applied to have particular apartments deregulated, you should never assume an apartment is under rent stabilization. To determine if your apartment is under rent stabilization, you should contact the New York State Division of Housing and Community Renewal at (718) 739-6400 or (212) 961-8930.

As discussed above, rent stabilized units are generally determined by statutory provisions. However, although rarely, courts have held that the rent stabilization rules can be expressly contracted into. That is, a resident may make a claim that a particular apartment should be subject to rent stabilization provisions because a landlord has expressly agreed and contracted into it. However, merely attaching rent stabilization forms or riders to the lease is not controlling in a courts determination of rent stabilized status. In addition, solely providing a lease with “Rent stabilized” in the header, may not be enough, without more, for a court to designate a unit rent stabilized. Moreover, rent stabilization may not be created by estoppel, that is, a mere oral promise or statement from a landlord that a particular unit is rent stabilized. Thus, the best and safest way to ensure a unit is or should be subject to rent stabilization laws is to contact the New York State Division of Housing and Community Renewal.

Rent stabilized apartments provide many benefits to tenants. First, if an apartment is stabilized, the landlord must attach to a lease the Rent Stabilization “Lease Rider.” The rider provides information regarding rights and responsibilities revolving around rent stabilized apartments. In addition, stabilized units have limitations on the amount of rent charged and the amount of rent increased each year. Local Rent Guidelines Boards set maximum rates for rent increases once a year which are effective for leases beginning on or after October 1st of each year. Also, Tenants are entitled to receive certain services from the landlord. Moreover, tenants are entitled to have their leases perpetually renewed and may enter into a one or two year term upon their choice. Lastly, tenants may not be evicted except on grounds allowed by law. If tenant’s rights are violated, the landlord/owner may be subject to penalties or tenant may have their rent reduced. If you believe a landlord may be in violation of Rent Stabilization laws you should contact the New York State Division of Housing and Community Renewal at (718) 739-6400 or (212) 961-8930.

Rent stabilized apartments are often confused with Rent control apartments. Rent control applies to residential buildings constructed before February of 1947 and only to certain units within those buildings. In order for a particular apartment to be under rent control the tenant must have been living there CONTINUOUSLY since before July 1, 1971. After a rent-control apartment is vacated it typically becomes rent stabilized. The primary benefit of rent control is that it limits the amount an owner may charge for an apartment and it restricts the right of any owner to evict tenants. The rent that may be charged is set and adjusted based upon an assessment of what it costs owners to operate their buildings plus make a reasonable profit. In NYC, rent control operates under a system known as Maximum Base Rent (MBR). Under MPR, a rent is established for each apartment and adjusted every two years to reflect changes in operating costs. Owners who meet all their statutory requirements may be entitled to raise rents up to 7.5% each year until the MBR is reached. Tenants may challenge any proposed increase if they believe the landlord or building is in violation any laws.

Like rent-stabilized apartments, one should not assume that a particular apartment is rent-controlled. To determine if an apartment is or should continue to be under rent control, contact the New York State Division of Housing and Community Renewal at (718) 739-6400 or (212) 961-8930. For more information, please visit the New York State Division of Housing and Community Renewal website at http://www.dhcr.state.ny.us.

Consignments and Right to Know Collector's Name

Dear Ask the Ant:

I’m a painter living in New York. Since I came here from Shreveport, La, I have had great success exhibiting my work. I’ve had such success that one Chelsea gallery is now representing me. This gallery has sold many of my paintings, but recently I became curious as to who was buying and collecting my work. I inquired about who the buyers/collectors were, and my gallery dealer told me that they are not required to give me this information. Is this true? If so, what can I do to protect myself?
Thanks,
Salvador Picasso

Dear Salvador,

Generally there are two types of relationships between artists and the galleries that sell their work. First is an outright sale, in which the gallery buys the work from the artist. Second is a consignment relationship, in which the dealer becomes an agent for the artist, and earns a commission upon selling the work to a third party. Consignment relationships are regulated by the Uniform Commercial Code and in many states, including New York, by state consignment laws.

In New York, when an artist delivers his art to a gallery or art dealer to exhibit or sell on a commission, the acceptance of the work by the dealer creates a consignment relationship between the artist and the gallery. New York Arts and Cultural Affairs Law Title C § 12.01 offers several protections to artists in their consignment relationships with art dealers. However, while some states, such as Oregon, include a clause in their consignment law which requires galleries and dealers to supply artists with the name of the purchasers of their work upon their request, New York’s statute contains no such provision.

Galleries may be reluctant to give artists information about buyers for fear that the artists would use that information to engage in private sales. Therefore, if an artist needs to know the name of future purchasers of their work, they should execute a consignment agreement with the gallery which includes the right of the artist to demand information about the purchaser of their works. While this agreement may be oral, it is recommended that the artist and gallery execute a written signed agreement. Similarly, without any additional written agreement, a dealer who takes title of the artwork by an outright sale has no obligation to tell the identity of the purchaser.

For more on Consignment Agreements in both New York and other states, see The Artist-Gallery Partnership: A Practical Guide to Consigning Art by Ted Crawford and Susan Mellon. This text also provides a sample Consignment Agreement. For the text of the New York consignment law, see http://public.leginfo.state.ny.us/menugetf.cgi, follow the “Article 12” hyperlink and then follow the “§ 12.01” hyperlink.

Performance Art, Parody, and Copyright Infringement

Dear Lawyer:

I am a performance artist and my work is mainly of a conceptual nature. My recent project is one that will re-enact performances by certain notable performance artists of the ‘60s and ‘70s. However, my performances will parody these original performance pieces by re-writing most of the lyrics/words but keeping the performance mostly the same. In effect, my own performances are a critique of these performances.

Sincerely,
Performer

Dear Performer,

You might have a defense of “fair use.” But first, it is important to note that the Fair Use doctrine provides a defense to copyright infringement. So a performance artist, let’s call her, Varen Dinley, must first make out a case of copyright infringement against you. Otherwise, you’re in the clear. In your situation, however, we are going to assume that, with your proposed parody of one of Dinley’s performances you would, in fact, be infringing Dinley's copyright. Now that we have that straight, let’s see if you have a fair use defense when Dinley sues you.

The reason that the law provides a defense of fair use is because Congress believes that artists and authors should be able to use the work of others to create new and productive works – the key words being: “new” and “productive.” Productive uses build on the work of others by adding their own socially valuable creative element. In legalese, such productive use is said to “transform” the pre-existing work into a new work, at least for purposes of copyright law. Therefore, the more “transformative” the work, the more likely it is that the would-be copyright infringer can raise a defense of fair use.

For instance, if an art historian or scholar wished to write a biography of Dinley’s early years in the art industry, she might include brief excerpts of Dinley’s monologue in order to comment on their artistic value. There is no doubt that by copying the monologue verbatim, our scholar would be committing copyright infringement. However, since she is putting the lyrics to a new and productive use – scholarly comment – she would likely have a Fair Use defense available to her in the event that Dinley hauls her into court.

Lucky for you, the Supreme Court of the United States stated, “parody has an obvious claim to transformative value…it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” Therefore, as long as your parody of Dinley’s performance has some critical bearing on the substance or style of Dinley’s original, you are free to parody away.

Free Speech and Prisoner Rights

Dear Ant:

My question concerns the first amendment and prisoner rights. I’ve heard that prisoners have very little first amendment protection, and sometimes none at all. Is this true? If so, why do prisoners get less first amendment protection when speaking, painting, or making music won’t affect anyone outside prison grounds? Lastly, can you please give me any information on resources I can contact in case I think my first amendment rights have been violated? Thank you.

Sincerely,
Mr. Bird

Dear Mr. Bird,

Prisoners do not lose their First Amendment rights merely because they are incarcerated. However, their rights may be restricted far more than the rights of those who are not in prison. In 1987, the Supreme Court set forth guidelines for considering policies which restrict prisoners’ constitutional rights. In Turner vs. Safley, The court ruled that “a prison regulation that burdens fundamental rights” must be “‘reasonably related’ to legitimate penological objectives.”.In this opinion, the court set out four factors to consider in determining whether such a reasonable relationship exists.

The first factor states that “there must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” Turner.. This means that there must be some logical connection between the prison policy and the justification for the policy. If there is such a rational connection, courts will view this as evidence of the policy’s reasonableness. If there is no such connection, courts will likely declare the policy to be arbitrary and unreasonable. For example, a policy denying inmates in solitary confinement access to magazines and newspapers was upheld on the grounds that allowing access to these publications would make solitary confinement seem more appealing (see Beard vs. Banks). The prison’s goal of making solitary confinement more threatening was logically related to the prison restriction preventing prisoners from reading magazines and newspapers while in solitary confinement. However, a policy restricting all prisoners from access to magazines and newspapers would probably be viewed more skeptically. In Spellman vs. Hopper, an Alabama district court ruled that inmates in administrative segregation could not be denied access to these publications. Since they were not placed in administrative segregation as a punishment, there was no logical need to deter inmates from entering administrative segregation, and thus no logical reason for trying to make administrative segregation appear more threatening.

The second Turner factor calls for inquiry into whether there are alternative means available for the prisoner to exercise the right in question. If there are alternative means, the court will be more likely to view the prison policy as reasonable, and uphold the policy. Thus, a policy preventing prisoners from any form of expression would be viewed more skeptically than a policy only limiting one type of expression. For example, in O’Lone vs. Shabazz, the Supreme Court ruled that a policy preventing a Muslim prisoner from participating in one specific ceremony was reasonable, since the prisoner retained other means of expressing his faith. In contrast, a policy preventing all means of expressing one’s faith would probably be deemed unreasonable.

The question of acceptable alternatives for exercising one’s First Amendment rights has been a particularly tricky issue for courts. In Clement vs. California, a district court ruled that a prisoner could not be prohibited from receiving information generated on the Internet. Here, the prisoner’s right was described as the right to receive information by mail, and the court found that there was no alternate way for prisoners to receive internet-generated information. In Morrison vs. Hall, the 9th Circuit stated that listening to the radio/watching television are not adequate substitutions for an inmate’s right to learn about the outside world. However, in Beard vs. Banks, the Supreme Court upheld a policy denying inmates in solitary confinement any access to magazines and newspapers. One reason for this disparity may be that courts are more likely to place an emphasis on this second Turner factor when prisoners are not in disciplinary segregation for misbehavior while in prison.

The third Turner consideration is whether accommodation of the right will have an “impact …on guards and other inmates, and on the allocation of prison resources generally” Turner. at 90. So, if a prisoner can be allowed to exercise his First Amendment rights in a way that does not affect other prisoners, the court will be more likely to find unreasonable a policy restricting those rights. Conversely, if accommodating a prisoner’s right does affect other prisoners, the court will be more likely to uphold a policy restricting that right. For example, if inmates were frequently starting fires with newspapers, a court would likely find that a policy restricting inmate access to newspapers was reasonable, even if that policy restricted the prisoners’ right to have access to the news.

The fourth Turner prong states that the “the absence of ready alternatives” is one factor supporting the conclusion that the regulation is reasonable, while “the existence of obvious, easy alternatives” may suggest that the policy is an unreasonable “‘exaggerated response’ to prison concerns.” Turner, 482 U.S. at 90. Again, consider the example of prisoners starting fires with newspapers. If there is an obvious, easy alternative to the policy which does not restrict prisoners’ First Amendment rights, then a court may find that the policy is unreasonable. So, if there was another obvious way of preventing fires (perhaps banning prisoners from having access to matches), then the policy may be found unreasonable. However, if there was no obvious, easy alternative (perhaps prisoners had found a way to start fires without matches), then that would support the reasonableness of the policy.

If you believe that your First Amendment rights have been violated while in prison, consider contacting one of the following organizations. National - The ACLU National Prison Project ( 915 15th Street, NW 7th Floor Washington, DC 20005 (202) 393-4930); New York - The Legal Aid Society of New York Prisoners Rights Project (contact The Legal Aid Society, Criminal Defense Division 199 Water Street, 6th Floor New York, N.Y. 10038 212.577.3300); California - California Prison Focus (Litigation In Prison Project California Prison Focus 2940 16th Street, Suite B-5 San Francisco, California 94103 Phone: 415-252-9211), The Prison Law Office (Prison Law Office General Delivery San Quentin, CA 94964.); Ohio -The Ohio Justice and Policy Center (617 Vine St., Suite 1301 Cincinatti, OH 45202 phone: 513-421-1108); The South - The Southern Center for Human Rights (83 Poplar Street, N.W., Atlanta, GA 30303 2122 Telephone (404) 688-1202).

Gallery Consignments and Payment on Works Sold

Dear Ant:

I am a painter in New York. I have been offered the opportunity to have my work displayed in a New York gallery with the understanding that the gallery will try to sell my paintings. However, I am worried that if the gallery is unsuccessful in selling the paintings, I will have trouble getting the gallery to return my work. I am also concerned about the gallery paying me for any works they sell to other people.

What are my rights with respect to my work once I deliver the paintings to the gallery?

-Blinky Magrite

Dear Blinky Magrite,

New York State has a law called the Arts and Cultural Affairs Law that explicitly protects the rights of artists in the situation you are describing. When an artist delivers their work to a gallery or any other art merchant in New York, a consignment relationship is created. This means that the gallery or art merchant becomes the agent for the artist and the gallery is holding the work solely for the artist’s benefit. Although the gallery or art merchant has physical control over the works of art, the ownership rights remain with the artist until the work is sold to a third person and the artist receives full compensation from the sale.

Under New York law, if the gallery is unsuccessful in selling the artwork, the gallery must return the work to the artist. However, there is no way to guarantee that a gallery will not give an artist a hard time about returning the work despite the protection of the law. An artist can better protect their rights by signing an agreement with the gallery expressly stating that if the gallery does not sell the work after a specified period of time, they agree to return the work to the artist. This agreement should also clearly state whether the artwork will be delivered to artist's gallery or whether artist will have to pick up her/his work. While it is very exciting to have a gallery interested in displaying and selling your work, do not just jump at the opportunity without protecting yourself first. Even though the law requires the gallery to return your work, it will be much more cost effective in the long run to have an agreement rather than resorting to the courts for a judgment ordering the return of your work.

New York law also requires that a gallery or art merchant hold any proceeds from the sale of an artist’s work for the benefit of the artist. Because it can be time consuming and expensive to collect proceeds, it is a good idea for the artist to have a written agreement with the gallery agreeing to a certain amount of money acceptable for the sale of the work(s), and the payment schedule, before the consignment relationship is created. This way the artist can keep track of any balance due from the gallery for the sale of their work.

DISCLAIMER: This article provides general information only and does not constitute legal advice. The content is not guaranteed to be correct, complete, or up-to-date. This article does not create an attorney-client relationship between you and Volunteer Lawyers for the Arts (VLA). The information provided is not a substitute for consulting with an attorney and receiving counsel based on the facts and circumstances of a particular transaction.

Since 1969, Volunteer Lawyers for the Arts has been the leading provider of pro bono legal services, mediation services, educational programs, and advocacy to the arts community in the New York area. For more information about VLA please see www.vlany.org or call the Art Law Line at (212) 319-2787, ext. 1.

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