©2013. Published in Landslide, Vol. 5, No. 3, January/February 2013, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
We all know that Art is not truth. Art is a lie that makes us realize truth, at least the truth that is given us to understand. The artist must know the manner whereby to convince others of the truthfulness of his lies.
Artists are not like other clients. They “like pushing boundaries”1 and may “[never see] things as they really are.”2 As suggested by the range and variety of topics and laws discussed in the articles in this issue of Landslide® magazine, which is devoted to the arts, representing artists and arts organizations can present the practitioner with unique and intellectually intriguing questions and lead to unusual applications and approaches in familiar areas of the law. The challenges of serving as creativity’s lawyer often are opportunities for creative solutions.
On behalf of the readers of Landslide magazine, who may be enticed by this issue to expand their practice or pro bono work to include artists or arts organizations or to use their intellectual property expertise to support the arts in their community, I asked five lawyers with different experiences representing clients in the arts to share their insights and best practice advice.
—Susan Barbieri Montgomery
Susan Barbieri Montgomery is executive professor of law and business at Northeastern University, a member of the Board of Trustees of Rhode Island School of Design, and of counsel and previously partner at Foley Hoag LLP. She can be reached at email@example.com.
Lawyering on the Right Side of the Brain
By Steven J. McDonald
In 2002, when I was pursuing the opportunity to become general counsel at Rhode Island School of Design, I had been a lawyer for 18 years, a higher education lawyer for the last 10 of those years, and a developing copyright lawyer for probably eight, but I had never represented an artist or worked on a significant art-related legal issue. And so, to get a better sense of what I might be getting into, I turned to a colleague who had himself made the move from being a higher education lawyer to, eventually, serving as president of another college of art.
My colleague could not have been more positive about the opportunity and strongly encouraged me to accept the job if it was offered. But he had one piece of advice: “Artists don’t think the same way you do. You’re left-brained, and they’re right-brained. That won’t be a problem for you as long as you understand and are open to it, and in fact it can be exhilarating for a lawyer. Just be ready for it.”
It was good advice, and it has served me well. Like most lawyers, I tend to be a linear, analytical thinker, working my way methodically through issues from A to Z, and preferably in that order. Artists, on the other hand, are more likely to be holistic, intuitive thinkers, attacking problems from all angles, often seemingly randomly and all at once, although no less thoroughly.
Even with the heads-up from my colleague, I found that conversations with artists about legal issues could be challenging at first, as we often seemed to be focusing on different things, and it wasn’t even always clear that we were heading in the same direction. But by consciously paying attention to the differences in approach, I soon came to find that we actually were tackling those issues more comprehensively and deeply together than either of us likely would have done alone.
I also came to learn that artists share one important characteristic with lawyers that makes them especially good clients. Artists are not afraid of shades of gray—in fact they use a gray scale as a tool in their work—and they understand that in life, unlike in coloring books, there rarely are clear lines to guide us. Comfortable with ambiguity, they are not dismayed to hear “it depends” as an answer.
Still, artists also can be endlessly, even relentlessly, curious about the parameters, and willing to challenge the assumptions, behind that answer. When I hold workshops for our students and faculty on copyright and fair use (one of the ultimate “it depends” issues), it sometimes can seem like I’m back in law school being subjected once again to the Socratic method (minus the angst), and the discussion can go on for hours. Their quest for understanding can lead to deeper understanding for the lawyer as well, and better results.
In turn, I have tried to learn more about the artistic thought process. I make an effort to attend at least one final “crit” (the school’s version of exams, and almost like a thesis defense) each semester, and sometimes even participate. I attend our openings and make a point to ask questions. I also took a drawing class through our continuing education division to see what I could do and to exercise my right brain. Much to my surprise and delight, I did improve significantly, though the experience confirmed the wisdom of my career choice. These things, too, have strengthened and enhanced our lawyer-client relationships.
In the end, the good advice that I received, and that I pass on, is simply a variation of the age-old maxim “know your client,” but with an artistic flair: Learn to see the world through your artist-clients’ eyes and you will not only be able to serve those clients better, but also will have a richer understanding of the world and of yourself.
Steven J. McDonald is general counsel for Rhode Island School of Design. He previously served as a litigation associate at Jones Day and as associate legal counsel at The Ohio State University. He can be reached at firstname.lastname@example.org.
Sometimes No Good Deed Goes Unpunished for Artists’ Representatives
By William Hochberg
When representing clients in the arts, one thing lawyers should know is that in several jurisdictions you may not “procure employment” for the client without an agent’s license, or you risk voiding the client agreement, disgorgement of fees, and/or other penalties. These laws apply equally to lawyers, managers, producers, and others who may obtain work for their clients. Working alongside a licensed talent agent may avoid the problem, but not always.
Perhaps the most famous case3 involved talk show host Arsenio Hall, who rewarded the manager who procured his eponymous talk show in the late 1980s by voiding their contract under California’s Talent Agencies Act.4 The ex-manager—also an attorney—was required to disgorge over $1 million in commissions back to Hall. Since then, it has become a playbook tactic of rising stars in California to use the Talent Agencies Act to eject early-stage representatives in favor of those perceived as higher powered or lower commissioned.
More recently, the California Supreme Court softened the law’s impact, ruling that where a representative lacks a talent agency license, rather than voiding the entire contract ab initio, the unlicensed procurement activity may be severed out and the contract preserved where legitimate activities—such as advising the client—are the main purpose of the relationship.5
While California is on the cutting edge, 25 other jurisdictions have similar statutes that require either a talent agency or employment agency license for procurement activities involving artists. In New York in 2010, pop superstar Lady Gaga was sued by her early producer, collaborator, and alleged boyfriend Rob Fusari, who claimed she owed him $30.5 million for breach of their production deal. Lady Gaga countersued, claiming Fusari’s deal was invalid because he was an unlicensed talent agent, in violation of a provision of New York’s Arts and Cultural Affairs Law,6 pursuant to which an unlicensed talent agent can be enjoined from further activity and future commissions. “It’s an age-old story in the music business,” said Robert Meloni, a lawyer for Fusari. “You become famous and you turn on the person who discovered you.”7 But the New York law is tame compared to California’s statute, which can cause not only the elimination of future commissions, as in New York, but also disgorgement of commissions from the previous year.
These laws were born out of an antifraud concern from the early 1900s, as explained in the eloquent Marathon opinion by California Supreme Court Justice Kathryn M. Werdegar:
From an early time, the Legislature was concerned that those representing aspiring artists might take advantage of them, whether by concealing conflicts of interest when agents split fees with the venues where they booked their clients, or by sending clients to houses of ill-repute under the guise of providing “employment opportunities.”8
Today some lawyers and managers decry the laws as out of touch and say a cartel of big talent agencies is using them to corner the talent market. They say many artists cannot retain licensed talent agents early in their careers, and some forms of employment, such as music publishing contracts, are never procured by talent agents anyway. Recording contracts are now expressly exempt from the California law.9 In 2011, Texas repealed its talent agency licensing law after the legislature determined that the state’s antifraud laws were sufficient to protect artists from reprehensible representatives.10 Meanwhile, reputable representatives need to be well informed about the agency laws where their artist-clients reside.
William Hochberg practices entertainment litigation and transactional law at Law Offices of William Hochberg, PC, in Los Angeles, California. He can be reached at email@example.com.
Protecting a Life’s Work
By James F. Grace and Megan E. Low
Professional artists devote their lives to creating valued artworks and honing their craft. Unfortunately, it is too often the case that artists do not then protect their life’s work and legacy through careful estate planning. Estate planning can be a difficult subject for anyone. From the technicalities of financial planning to the emotional issues of choosing beneficiaries and considering end-of-life care, the entire process is a daunting task for everyone—and of course including artists.
There are several reasons why an estate plan is particularly important for working artists. First, art is a unique physical asset for an artist, combining not merely monetary value and reputation, but also significant personal and emotional investment, and thus must be considered with great care. Second, artists may own significant amounts of intellectual property but may not fully understand their rights and responsibilities with respect to that property. Third, an artist’s studio, collected works, and equipment can be particularly difficult for family or friends to deal with after the artist’s death without any clear indication of the artist’s wishes. Fourth, the added cost of advisors, storage, studio space, and disposition of the work is not often accounted for with dedicated funds and professional support.
In assisting artists with their estate planning over the years, the Volunteer Lawyers for the Arts of Massachusetts program has identified particular concerns for artists and developed an estate planning questionnaire to assist artists and their counsel.11 Four areas are important to discuss with an artist-client in preparation for creating an estate plan.
First, establish and maintain an inventory of the artist’s work. A key component of the ability to deal with an artist’s estate includes an accurate inventory. Maintaining a record of works created, along with images, descriptions, and records of sales, loans, or other agreements, is essential. A working inventory permits others to account for an artist’s work quickly, to identify works whose authenticity or authorship later comes into question, and to classify those works the artist himself or herself considers to be most important. Additionally, artists often own or store the work of other artists, which can further complicate the distribution. Where creating an inventory appears particularly challenging, it may be advisable to hire art school students to assist or make use of existing targeted software packages.
Second, a frequent issue that arises with artists is either the misplacement or total absence of important documents relating to their work. Sale contracts, representation agreements, and consignment arrangements are all extremely important documents for an artist’s business and have significant ramifications regarding the property rights in certain artworks. Working with an artist-client to understand the full extent of professional relationships and agreements entered into helps the artist operate his or her career in a professional and assiduous manner both in the present and as he or she prepares for the future.
Third, create a plan for managing the artist’s work. Artists should consider engaging a knowledgeable party to deal with the specifics of their artist practice. After an artist’s passing, there will be unfinished business, and an individual familiar with the artist’s work and wishes can assist the executor in facilitating these decisions.
Fourth, consider alternative dispositions of the artist’s work. Many artists have not considered or even been aware of the alternative ways of distributing their artwork. Estate planners should discuss possible interest in charitable donations, either to organizations of personal interest or to an arts-promoting organization, and communicate with those entities to arrange the gift.
Addressing and making progress in these four areas can greatly simplify creation of the estate plan while yielding the additional benefit of assisting the artist in managing his or her business as effectively and diligently as possible during life.
James F. Grace is the executive director and Megan E. Low is the director of services at the Arts & Business Council of Greater Boston and Volunteer Lawyers for the Arts of Massachusetts. The organization continues to assist artists and arts organizations in the areas of publishing law, public art, copyright, trademark, nonprofit incorporation and mergers, negotiation training, artist live/work space, and nonprofit board matters. Mr. Grace and Ms. Low can be reached at firstname.lastname@example.org and email@example.com.
Artists, Lawyers, and Specialness
By Mark A. Fischer
Artists have one thing that many others don’t have: What they do, how they think, and what they create is imbued with creativity and specialness.12 For example, bankers won’t keep on banking without a payout, but devoted musicians and painters work all the time in basements, garages, and clubs. How do we reconcile this intrinsic specialness with business and law in a highly practical way where money might not always be everything?
Having represented big publishers and distributors in traditional and new media on the one hand and individual artists on the other hand, it’s clear from my experience that they don’t always share the same perceptions and culture. In some fields, such as photography, from the company’s perspective the world does not revolve around the artist even if the artist thinks otherwise. To counter the premise of specialness, it’s true that to some buyers art is fungible, not special. Perceptions as to value and one’s relative place in the sun really do affect negotiation leverage in the arts.
It’s commonplace, for example, for commentators to say that musicians should give away their music and make their money though merchandise and live shows. Apart from the impossibility of this financial model for the emerging bands, say, in Brooklyn, this point of view devalues the art itself. If the artwork has no economic value to the public, our constitutionally mandated system of incentivizing creativity13 is eroded. There is a wonderfully strong case for copyright and the value of the artwork, despite the trash talk about it.
Some things to note that flow from the premise that something special is going on are:
- Art is easily ripped off, and traditional intellectual property categories can only help so much. Contracts, including click-through agreements, are valuable additional ways to creatively protect creativity.
- Artists don’t always follow a lawyer’s advice. Like a dentist’s fruitless exhortations to floss, real-world compliance in registering copyrights and obtaining model releases may be lacking. Creative workarounds of problems are (almost) always possible so that all is not lost (e.g., an unlicensed element in movie footage can be edited and still make the creative point).
- A painting that never makes it out of the studio can’t inspire the public and can’t pay the artist’s rent. Even when it’s risky to disclose ideas and to make deals, taking chances isn’t just bold art; it can be good—even necessary—business.
- Artists and their lawyers need to see the big picture and to envision careers as much as the individual dots of deals when deciding which opportunities to seize.
- Artists are being asked to be renaissance men and women who know how to market virally, merchandise, work with social media—and by the way, create great art. The lawyer can help fill in gaps in business skills; some artists are more like Mozart than Jay-Z in terms of business acumen.
- Artists may want to be creative and innovative in their business models (e.g., ticketing and fundraising), not just their art. Why not explore? New ideas for new media make perfect sense.
- Clients—both large and small—view lawyers through the lens of legal fees. Candid discussion of fees and feelings is often essential. Volunteer Lawyers for the Arts groups are often a good place to refer artists when the rates of the lawyer are too high in context.
- Someone who is an artist may not have the personality of a CPA or a lawyer. Being a bad boy or girl can be in the artist’s DNA—and can sometimes even help a career! In behind the scenes business, however, the artist must be savvy and cool in picking the right fights.
One thing to know about representing artists is that they truly do have something special. The arts and entertainment lawyer can help the artist channel that quality into a practical, successful, special career.
Mark A. Fischer is a partner at Duane Morris LLP in the Boston and New York City offices. His law practice is focused on solving problems and making deals for innovative companies, institutions, and individuals. Mr. Fischer’s clients are typically involved in creative industries, including new media, social networking, music, interactive entertainment, art, information technology, software, television, and publishing. He can be reached at firstname.lastname@example.org.
What Artists Don’t Know about Copyrights
By Lucy D. Lovrien
Artists create. The Copyright Act protects those creations. Yet many creative people don’t understand basic aspects of U.S. copyright law. They may needlessly give up control of their works, or they may believe it is “too late” to enforce rights. Creative people need to understand how the rights of others may limit their own freedom. This makes questioning the client and thorough discussion important to understanding the entire circumstances of their concerns and of how they do business. Following are four questions and circumstances to consider and discuss with an artist-client.
Is the artist working for someone or has the artist asked anyone to assist him or her in what he or she is doing, and what is the artist’s relationship with that person?
Ask whether any other person has assisted the client in the creation of his or her work. Anyone helping create a work could be the owner, or co-owner, of copyright. If, for example, a friend helped the artist create a mural, the friend is likely a joint owner of copyrights in that mural. Ask questions to determine whether an assistant is a full-time employee and whether your client is or was anyone else’s employee.
Work for hire agreements can be traps for the unwary. The client may mistakenly believe he or she has performed work under an agreement with work for hire terms that granted copyrights to the employer. Or the client may have signed a work for hire agreement with an independent contractor. Many types of works cannot be the effective subject of a work for hire agreement with an independent contractor. The mural, for example, cannot be treated as a commissioned work for hire under the Copyright Act because a mural does not fall within the nine enumerated categories.14
Did the artist give someone a verbal copyright license, or could an implied license be found? Discuss all the artist’s dealings with others, concerning his or her artworks, in order to begin advising the client about what rights may have been licensed to others.
Has the artist received or produced work on a commission?
Artists often mistakenly believe that if a patron commissions and pays for a work, the patron now owns the copyrights in that work, despite lack of any written assignment. Ask for copies of all documents and correspondence to assess whether any type of transfer has occurred and, if so, the scope of that transfer. Consider whether “termination of transfer” is a viable option for older assignments and licenses.
Does the artist believe that he or she no longer owns a copyright in works he or she sold?
Sometimes artists assume that copyright in the object is conveyed upon sale of the object. What are the client’s dealings and documents with relevant purchasers and galleries? It may be desirable to clarify the scope of rights with past purchasers. Does the artist already possess reproductions of the artwork, or might he or she need to ask the purchaser for access to take photographs? This discussion also may identify reasons to set new procedures for future sales.
Does the artist borrow from work created by others? What about “appropriation art”?
Quite a few artists are interested in parody, which may include using the image or identification of the subject. Of course, the client’s assertion of parody does not mean that his or her actions will be regarded as benign. This also is true with subjects that bring up trademark or right of publicity claims. Artists should be careful about putting borrowed images, celebrities, or trademarks on merchandise such as T-shirts.
Although your client’s First Amendment right may give him or her the right to create a painting depicting a particular football team or event, the client may be severely limited in how he or she actually uses paintings of such subjects. Consider discussing with your client the decision in University of Alabama Board of Trustees v. New Life Art, Inc.15 Trademark rights of others are not necessarily subrogated to the copyright rights of the artist-client. The court concluded that certain goods bearing the defendant’s works (paintings, prints, and calendars) had a higher First Amendment right, as opposed to another category of goods (T-shirts and other “mundane products”) bearing the artworks. This holding illustrates the idea of a spectrum of liability for artists’ use of material that may be claimed by others.
The “appropriation art” of the artist Prince was found to have infringed the photographer Cariou’s copyright by incorporating the latter’s photographs into Prince’s paintings.16 The federal district court declined Prince’s invitation “to find that appropriation art is per se fair use, regardless of whether or not the new artwork in any way comments on the original works appropriated.”17 An injunction issued, severely limiting Prince’s ability to sell and show the works at issue. The case is on appeal.
What about “fair use”? After all, “every author is both an earlier author from whom a later author might want to borrow material and the later author himself.”18 The copyright fair use doctrine is hard to summarize briefly. Of course, the purpose of a defendant’s use is a key consideration, but all the factors must be considered.
When advising a visual artist on borrowing or appropriating and the availability of fair use, consider discussing with the client recent cases involving other visual artists.19
Lucy D. Lovrien conducts a solo practice in Boston focusing on representing artists and others on copyrights, trademarks, contracts, licensing, publishing agreements, and business law and related litigation. Ms. Lovrien can be reached at email@example.com. She thanks Beth Wolfson for her assistance.
1. Barbara Walters Presents: The 10 Most Fascinating People of 2009 (ABC television broadcast Dec. 9, 2009) (interview with Lady Gaga (“I like pushing boundaries”)).
2. Oscar Wilde, The Decay of Lying, in Intentions (1891) (“No great artist ever sees things as they really are.”).
3. Wachs v. Curry, 16 Cal. Rptr. 2d 496 (Ct. App. 1993).
4. Cal. Lab. Code §§ 1700 et seq.
5. See Marathon Entm’t, Inc. v. Blasi, 174 P.3d 741 (Cal. 2008).
6. N.Y. Arts & Cult. Aff. Law § 37.07.
7. Jose Martinez, Producer, Alleged Ex-Lover Who “Discovered” and Named Lady Gaga Sues Her Company for $30 Million, NYDailyNews.com (Mar. 18, 2010), http://articles.nydailynews.com/ 2010-03-18/gossip/27059406_1_lady-gaga-stefani-germanotta-suit.
8. Marathon, 174 P.3d 741.
9. Cal. Lab. Code § 1700.4(a).
10. Tex. Occ. Code Ann. §§ 2105.001–.253 (repealed 2011).
11. The Volunteer Lawyers for the Arts of Massachusetts estate planning questionnaire and more information about the program are available at www.artsandbusinesscouncil.org.
12. The words “artist” and “artwork” apply here to any kind of author or creation.
13. U.S. Const. art. I, § 8.
14. See 17 U.S.C. § 101 (“A ‘work made for hire’ is . . .  a work specially ordered or commissioned for use as a contribution to a collective work,  as a part of a motion picture or other audiovisual work,  as a translation,  as a supplementary work,  as a compilation,  as an instructional text,  as a test,  as answer material for a test, or  as an atlas . . . .”).
15. 683 F.3d 1266 (11th Cir. 2012).
16. Cariou v. Prince, 784 F. Supp. 2d 337 (S.D.N.Y. 2011).
17. Id. at 348–49.
18. William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law 69 (2003).
19. See, e.g., Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006); Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006); Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792 (9th Cir. 2003); Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).
About the Artists
The following artists submitted self-portraits for this issue at the request of Landslide® magazine. We are grateful for their permission to use them—and for the opportunity to share with our readers their backgrounds and their work.Deborah Kass
Deborah Kass’s paintings examine the intersection of art history, popular culture, and the self. She received her BFA in Painting at Carnegie- Mellon University, and studied at the Whitney Museum Independent Study Program, and at the Art Students’ League. Her work, which is in the collections of several museums as well as numerous public and private collections, has been written about extensively. A survey show, “Deborah Kass, The Warhol Project,” traveled across the country from 1999–2001. Her work has been shown nationally and internationally, including at the Venice Biennale, the Istanbul Biennale, and the Museum Ludwig, Cologne. Kass is a Senior Critic in the Yale University MFA Painting Program. She is represented by VIncent Fremont and the Paul Kasmin Gallery. The Andy Warhol Museum is presenting “Deborah Kass, Before and Happily Ever After,” a retrospective of her work in 2012.Paolo Ventura
Paolo Ventura, born in Milan, Italy, has been called one of the most interesting storytellers in the art world today—using photography to carefully construct his narratives. Like all good narrators, Ventura was raised on stories. He recalls that his father, a children’s book author and illustrator, “was always inventing stories for me and my brothers.” His grandmother’s stories of life during World War II had a great impact on his first work, War Souvenir, and they continue to resonate with his more recent bodies of work, including Winter Stories, The Automaton, and Behind the Walls. Ventura’s work has been exhibited worldwide, including at the Venice Biennial, and is part of major private and public collections including the Museum of Fine Art in Boston, The Library of Congress, and the Museum of Contemporary Art in Rome. After years of living and working in New York, Ventura recently relocated to Tuscany.Mickalene Thomas
Mickalene Thomas was born in New Jersey in 1971. Thomas earned her MFA from Yale University and holds a BFA from Pratt Institute. In 2002–03, she participated in the Artist-in-Residence program at the Studio Museum in Harlem and in 2011 she was a resident at the Versailles Foundation Munn Artists Program in Giverny, France. Recent awards include the 2012 Brooklyn Museum Asher B. Durand Award, Timerhi Award for Leadership in the Arts, the Joan Mitchell Grant and the Pratt Institute Alumni Achievement Award in 2009, and the Rema Hort Mann Grant in 2007. Thomas has exhibited extensively both nationally and internationally, and her solo exhibition, “Origin of the Universe,” is currently on view at the Brooklyn Museum of Art. Thomas’s work can be found in significant museum collections, and her work has been featured in various catalogues and reviewed in ArtForum, Art in America, The New York Times, The New Yorker, and Whitewall among others. Thomas lives and works in Brooklyn, NY.