The last few years have raised important copyright issues and concerns for artists. There are three main factors which have impacted–and will continue to impact–how visual artists relate to each other, to art institutions, and to other intellectual property right holders when it concerns issues of copyright.

The first factor is our current economic recession. The recession has forced artists to seek out any and all monies owed to them regardless of amount, and many times, regardless of the professional repercussions they may engender. For example, previous to the recession, artists were hesitant to take legal action against any gallery or art collector, regardless of the monies owed, for fear of professional and artistic suicide. In other words, artists were willing to take cents to the dollar on art works sold, as well as wait months, and sometimes years, for full payment. The current financial recession has permanently impacted not only job prospects for individuals (including artists), but also drastically limited the availability of public funds for artistic projects. Furthermore, and going to the historic financial viability structure of artists, teaching jobs in academia have been reduced–and will continue to be reduced–at an unprecedented rate. How then do artists survive?

The second factor, education, is perhaps the most crucial. Visual artists are becoming aware of not only their legal rights, but more so artists are becoming educated as to the proprietary nature and value of their artistic projects. In other words, artists are realizing that their art projects may in fact be protected by intellectual property, but also, that their art projects can be leveraged like any other property right.

Third, visual artists who were not aware of the nature of intellectual property rights are becoming aware of them thanks to a very unpleasant experience, litigation. More and more, artists, other individuals, and corporations are suing artists — many times unjustly so — in order to protect not only their intellectual property (copyrights and trademarks), but also as a means of establishing a pro-property legal interpretation of copyright and trademark laws.

The education factor is extremely important and, in fact, ties in to the economic factor. Although a corporation must legally assess the nature of its assets and the property rights it may own, visual artists have historically not done so. Visual artists’ unawareness of the property and intellectual property rights to their artwork is due to three main factors. One, reluctance to seek legal representation and counsel as a means to obtain certain goals (here, distrust of lawyers and the judicial system come into play); two, visual artists lack financial means to obtain counsel and/or legal information and, three, the difficulty and impracticality in accessing legal information via physical libraries and/or educational institutions.

But this is changing. For one, more lawyers are entering the legal profession possessing an artistic background. This is paramount because artists are more likely to feel at ease with lawyers who understand the nature of their work as well as the intricacies and difficulties in conceptualizing and materializing the art work. Two, because of legal organizations like Volunteer Lawyers for the Arts, artists are now able to obtain pro bono representation, aided in large part by attorneys willing to do pro bono legal work. Third, the Internet, websites, blogging, Facebook, and Twitter, have had the biggest impact in educating artists. Where as previously an artist may not have known about a legal doctrine called Copyright, where to look for such information, or organizations and institutions that educate the general public in legal issues affecting artists, artists are now able to locate introductory information on law via the Internet. Simultaneously, places like VLA, the Stanford Fair Use Project, and the Berkman Center for Internet & Society can make available their information on copyright as well as classes and workshops on legal issues pertinent to artists. Lastly, I have noticed that many art schools and university/college art departments are increasing their students’ exposure to law and legal issues, in both a theoretical and practical sense. This is great news.

The factors mentioned above are crucial to understanding why copyright litigation has increased in the U.S. in the last few years. These factors also help us foresee how copyright issues and copyright litigation will continue to evolve (and increase) in the coming years. I also believe that the factors above are indicative of how artists are beginning to see their practices as inter-related to common business practices, perhaps better phrased as entrepreneurial practices. In other words, artists are realizing that in order to survive, they will have to depend more on their own financial means and their own artistic assets.

Regarding Shepard Fairey’s motion to have a federal judge postpone his deposition of Fairey until the federal criminal investigation against him is complete, and the denial of that motion, Ben Sheffner analyzes the recently released documents. The short memo can be found here, and Ben Sheffner’s analysis can be found at Copyrights and Campaigns blog.

UPDATE: Feb. 17, 2010

For those interested in the AP’s side of the argument, Sheffner has their opposition brief on his blog, which includes a valid and on-point argument as to why Fairey’s lying and destruction/fabrication of evidence goes to counter the good faith and fair dealing argument presupposed for a fair use defense.

“The AP’s basic argument is that Fairey’s troubles are entirely of his own making, and that ‘[f]or Mr. Fairey now to point to the government’s investigation of his own misconduct as grounds for a discovery extension…is truly the definition of chutzpah.’”

Thanks Ben!

The United States Court of Appeals for the Fifth Circuit (Texas, Louisiana, Mississippi) has rejected an artist’s claim that a painted junked-car filled with plants is protected by the First Amendment and the Visual Artists Rights Act. Fifith Circuit Chief Judge Jones stated that the city of San Marcos, TX, has the authority and justification for enacting an ordinance to eliminate eyesores, including wrecked and inoperable cars. The regulation itself, stated Jones, is content-neutral and narrowly tailored to protect public health and safety. The artists’ claims fail, Jones added, because the planter is an advertisement that’s not protected by VARA.

Why is the sculpture advertisement and not sculpture? Read the facts at Courthouse News.

No, they do not.

I posted earlier this week on the Mackie v. Hipple copyright lawsuit going on in Seattle, arguing (among other things) that it would be interesting to find out whether or not there was a written agreement between the artist and commissioning party to assess whether or not the artist, in our case Mackie, had in fact transferred or shared the copyright to his sculpture. Donn Zaretsky disagreed, and today stated that “in [his] experience too the artist always retains the copyright.” [italics mine]

I disagree.

For one, I’m a bit shy of dealing in absolutes. The assumption that artists always retain their copyrights would, in this case, hinge on which artists we’re talking about. Although not a huge fan of anecdotal evidence, but in order to not run afoul of confidentiality rules, I will say that some of the artists I meet and advise have in fact signed away their copyrights or unwillingly shared ownership of their copyrights. We have to remember that not all artists are lawyered up before being offered a commission. Many artists, particularly those in the early stages of their career, are so thrilled to be given an opportunity to make art and potentially be remunerated, that they will gladly sign and/or waive anything without seeking counsel. The artists I meet do not have the financial resources that would allow them to maintain a lawyer on retainer, nor do they, for whatever reason, have the knowledge of how to obtain pro bono counsel or representation (I work for a pro bono organization; Donn for a law firm). If artists always retained their copyright, this “generally accepted practice” would not have encouraged Mass MoCA to sue Christoph Büchel and make, among many other claims, that they owned or were joint-owners of his copyright.

On Wednesday, January 27, 2010, the U.S. Court of Appeals for the First Circuit handed Christoph Büchel and visual artists a major victory. The First Circuit found sufficient evidence to allow a jury to find that Mass MoCA violated Büchel’s right of artistic integrity by modifying his installation without his consent, thereby causing prejudice to Büchel’s honor or reputation. In making this finding, the First Circuit concluded that the Visual Artists Rights Act of 1990 applies to unfinished works of art.

But that’s not all. The First Circuit found that Büchel has a viable claim under the Copyright Act, finding significant evidence suggesting that Büchel’s art work was repeatedly and deliberately exhibited to numerous individuals without Büchel’s consent. The First Circuit also rejected Mass MoCA’s contention that the unfinished installation might constitute a joint work of Büchel and the Museum.

The New York Times‘ Randy Kennedy.

Ray Dowd, of the Copyright Litigation Blog, comments on a recent lawsuit against the Calder Foundation. In that case, “[t]he plaintiff owned a work it believed was created by the late Alexander Calder…. The plaintiff sued because the Calder Foundation refused to include the work in the artist’s catalogue raisonne.” The plaintiff lost, primarily because “the court found that it did not have the power to declare the purported Calder work authentic nor to order the Calder Foundation to include it in the catalogue raisonne.” Adds Dowd,

Foundations vary greatly in practices, market power, and credibility.  There is no disputing that for certain artists, the foundations act in dictatorial and inappropriate ways, leveraging the artist’s power far beyond what copyright law contemplates.

Read Dowd’s analysis here.

College Art Association Panel:

When it comes to art, “Is it real?” is a question that interests everyone from casual museum-goers to arts professionals. Answering the question can involve historical research, connoisseurship, sophisticated scientific analysis, and more. The question, however, is not only an academic or philosophical one. (Is a Warhol a “Warhol” if the artist himself never touched it?) In an art market where millions—and sometimes tens of millions—can hang in the balance, who is willing to risk being wrong in offering an opinion about authenticity? For those who do offer opinions and even warranties, what are they risking, and what—if anything—should they be risking? What of those who create fakes?  More information on the CAA Panel here.

The FBI busted a Hollywood antique dealer yesterday for allegedly selling a phony Pablo Picasso painting for $2 million, and the heirs of a late German-Jewish banker have renounced all rights to a painting by Pablo Picasso, allowing a foundation set up by British composer Andrew Lloyd Webber to keep the piece.

The current economic crisis has not left the legal market untouched. During times like these, many lawyers second-guess their current legal careers and think about jumping ship to another law-related career or pursue a different practice area. Confronted with this existential question, many lawyers opt for hot or up-and-coming legal areas. Others begin by asking themselves what makes them happy or what they like to do. These two questions usually lead to intellectual property and art respectively. As an art lawyer, I am often asked about my career and if I like what I do. I am also asked for pointers on how to “get” where I am. In all honesty, I am usually unable to give a precise and succinct answer to these question because I too am perplexed by how I “got” here. Thus I decided to write a blog entry on precisely this question.

So, how do you become an art lawyer? Eight starting points.

First of all, do what you love, and love what you do. As cheesy as that sounds it’s true. You have to have a passion for it, which means that you won’t find doing any of what I mention below to be boring, excruciating, or a chore. In case you didn’t know this, we are in an age of transparency and honesty, and with social media sites and the Internet the days of being able to fool others and be pretentious are over. If you’re doing this solely so you can hang out with artists you’ve got another thing coming. Artists aren’t stupid; they’ll see right through you, especially when they’re paying you.

This leads to my second point. Artists don’t like to feel or be made to feel that what they do is a hobby. Artists don’t want you a lawyer to question their work and ask, “why is this art?,” and they certainly don’t want to have to convince you that what they’re doing is art. If you do that you’re certain to lose their respect and their business. Make an effort to understand art and artists’ particular method of working. Artists are the opposite of lawyers: lawyers are risk-averse; artists are risk-takers. This distinction will lead to some hard but necessary conversations with artists. You, the lawyer, will be forced to utter a word non-existent in artists’ vocabulary: no.

Third point. In order to better understand artists and their work, you must, must, visit art galleries and museums. Go to art openings, meet artists and ask them if you can do studio visits. If you like art and are seeking to support artists, buy art (it can also make a great investment).

Fourth point. Understand that artists and nonprofit art institutions pose particular problems. The learning curve can be high, but certainly rewarding. Remember that artists and art institutions also face problems similar to other clients or legal issues you may have had. They’ll still need written agreements, think about starting businesses, and certainly need insurance. Do some research: some artists and art institutions care more about the content of their work than they do about the money. Which client do you prefer?

Keep in mind that the art law field may not be highly lucrative if you focus too narrowly or are too picky. With this in mind, the fifth point is to be willing to expand your clientele by having an expansive definition of art. Are you interested in representing fashion designers, actors, musicians, dancers and filmmakers? Will they be in a broad range of practice areas and styles, modern or post-modern? Will you focus solely on intellectual property? Will you represent artists or galleries, or both?

Sixth point. What background interests do you have that could benefit artists? Think hard and make a list of services you could provide to this specific clientele. Do you have an MBA or other license that could deepen the services you provide for artists. Do you have an arts background? Where you a graphic designer? Are you a musician? Where you previously a gallery assistant or minor degree in art history?

Regardless, you’ll need to strengthen your repertoire. Take classes in copyright and trademark law, cyberlaw or Internet law. Enroll in a studio art course. This will not only energize the right-side of your brain, but more importantly it will give you a first-hand lesson in what artists face each time they go in to their studio. If you’re not much into getting dirty or moving materials around, try taking an art theory or art history course. I suggest something in modern or post-modern art. Don’t have time to take a full course? Check out your local museums and art institutions for art talks, panels and lectures, many of them free of charge. How up to date are you in new technology and social media networks? Remember, artists are always a step ahead and looking for new means of communicating and spreading their ideas and thoughts. Mix this with their background in studio art and art history and you’ve got a plate full of information to catch up on.

So how do you start? Point eight: believe it or not the best way to learn is by doing pro bono or volunteer work for legal organizations such as Volunteer Lawyers for the Arts in New York City (there are other VLAs in other states, so check to see if there’s one around you). There are also legal clinics affiliated with law schools across the U.S. that handle cases in art and entertainment law. Check those as well. Keep in mind that there are many low-income and mid-income artists who need legal services of all kinds. Many artists graduate from graduate art school with hundreds of thousands of dollars in student loans, so you won’t have to look too hard to find artists who would love pro bono work from qualified professionals.

So what do you think? Are you ready to make the move? Keep these pointers in mind, and I hope they work for you. I’d be interested to hear what you think about them, or if you think I left something out. E-mail me at sergio_sarmiento@clancco.com and let me know.