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American Bar Association Young Lawyers Division - The Young Lawyer November 2009 Vol 14 Issue 2, November 2009: Arts Law: Not Just for the Entertainment Lawyer

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The Young Lawyer October 2009 Vol 14 Issue 2, November 2009: Arts Law: Not Just for the Entertainment Lawyer

Elizabeth T Russell owns Russell Law in Madison, Wisconsin, and can be contacted at beth@erklaw.com.

 

Arts Law: Not Just for the Entertainment Lawyer

By Elizabeth T Russell

Chances are, you already practice arts law. You may not practice art law because few attorneys do. But arts law? Very likely.

Art law is a niche field of practice. It involves legal issues surrounding the creation, protection, distribution, and disposition of visual art otherwise known as “pictorial, graphic, and sculptural works” (PiGS) under Section 102 of the federal Copyright Act of 1976 (17 U.S.C. § 102). Art law practitioners provide counsel in transactions among fine artists, galleries, dealers, and collectors. They negotiate and draft fine art commissioning agreements and help clients navigate state laws that govern prints and fine art multiples. They also advise artists about moral rights, resale rights, First Amendment issues, and, of course, copyright and trademark.

Art law is not just about the artist’s intellectual property interests. It is just as much about dealers and collectors buying, selling, and transferring the physical media embodying an artist’s work. Accordingly, art law attorneys need to understand trusts and estates, taxation, secured transactions, and the Uniform Commercial Code. Art law practitioners also advise on international treaties and patrimony laws concerning the illicit trade in art and cultural property.

PiGS is only one category of works of authorship protected under section 102. Entertainment law is a much broader field of practice that often involves the other seven categories:

  • literary works;
  • musical works, including any accompanying words;
  • dramatic works, including any accompanying music;
  • pantomimes and choreographic works;
  • motion pictures and other audiovisual works;
  • sound recordings; and
  • architectural works.

Entertainment lawyers serve the music, film, television, theater, and publishing industries and work in many different practice areas, including intellectual property (copyright/trademark/privacy/publicity), labor and employment, real estate, bankruptcy, securities, antitrust, immigration, international, tax, and insurance. The entertainment industry is tough and fast-paced, and transactions involve substantial sums. Entertainment law clients are typically at or climbing to the top of their game and generate a lot of money for a lot of people. Attorneys who wish to practice entertainment law are well-advised to secure employment in a large firm or company with offices near salt water or in a city beginning with “N” and ending with “ashville.”

But not every client is a mega-star. Most hobbyists and arts entrepreneurs, in fact, write, paint, or record simply for the love of it. These clients might not be wealthy, but many do make a living from their artistic work. They confront many of the same legal issues as big stars, just on a smaller scale. Let’s face it. If the average painter, sculptor, or local gallery owner walked into a big New York City law firm seeking representation from its art law group, it wouldn’t happen. The dollars aren’t there. Similarly, the local singer-songwriter hasn’t a chance with a large entertainment law firm. Where do these clients turn for legal advice or representation? An arts law attorney.

In my view, art law and entertainment law practitioners focus on the stars. Arts law attorneys serve everyone else. Arts law is an umbrella that includes not only art law and entertainment law, but also legal service to the average creative person and smaller-scale creative business. In my practice, I call upon the same legal training and apply the same legal concepts as art and entertainment attorneys; however, I choose to work with local, regional, and emerging artists and businesses that might never rise to stardom or notable financial success. (There are, by the way, far more of these clients than there are big stars!) Because it’s such a different practice, I refer to myself as an arts attorney rather than an art or entertainment practitioner.

But what about you? I began this article with the suggestion that you may already practice arts law. The creative industries employ millions of people and contribute significantly to our national economy. A 2007 report from Americans for the Arts showed that in 2007 there were 546,558 U.S. businesses involved in the creation or distribution of the arts, employing nearly 2.7 million people. Representative sectors include museums and collections; the performing arts; visual art and photography; film, radio, and television; design and publishing; and arts schools and services. If you are providing tax, real estate, or litigation services, for example, for these types of clients, you are practicing arts law.

Arts law also plays an increasingly significant role in the general business world. Businesses that use social networking as a business development tool need content clearance and protection. Does your client use music for those on hold, online, or in the background of its retail space? Did a client retain a Web designer? A videographer? Does a client’s Web site solicit user-generated content?

Look around. Arts law is everywhere.

 

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