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Event Recap: Creative Time--Bringing Cutting Edge Art to the Public

By Stephanie Spangler

Held on September 15, 2010 from 6-8pm, this informative event was co-sponsored by EASL's Pro Bono and Fine Arts Committees, Cardozo's Intellectual Property Program, and the Cardozo Art Law Society. The program provided insight into the legal issues faced by non-profit art organizations aimed at producing and displaying public artworks. The panelists included Katie Hollander, Creative Time's Deputy Director, and Judith Church, Esq., from Debevoise & Plimpton LLP and pro bono counsel to Creative Time. The moderators included EASL Chair Judith Prowda and Pro Bono Committee Co-Chair Carol Steinberg.

The evening began with Ms. Hollander's introduction of some of Creative Time's well-known and recent projects, which included Tribute in Light, a temporary 9/11 memorial co-created with the Municipal Art Society, Playing the Building, by Talking Heads artist David Byrne, and The Key to the City Project, by Paul Remirez Jonas, a project recently based out of Times Square. More information on Creative Time's projects can be found at its website (http://creativetime.org/programs/index.html ). What is most significant about Creative Time's work is that its projects aim to reach a broad array of the public. Hence, the projects have an inherent public artwork identity, and it is this apparent interaction between the artworks and the public that gives rise to potential legal issues.

Ms. Church then spoke on the legal issues about which she has advised Creative Time. She began with the the issue of whether the American Disabilities Act (ADA) applies to sculptures, especially where ADA compliance fundamentally alters the nature of the artwork. One of two examples Ms. Church used was the recreation of Freedom of Expression National Monument, by architect Laurie Hawkinson, performer John Malpede, and visual artist Erika Rothenberg. (See more information about the work at: http://www.creativetime.org/programs/archive/2004/freedom/ ). The main feature of this work is the gigantic, operative megaphone attached to a platform six feet above ground. Since access to part of the sculpture was only possible by traversing a twenty-one foot long ramp to the six-foot tall platform, the work was not initially ADA compliant. After negotiations with the City, the solution eventually was to alter the work by adding a pipeline that connected with the megaphone. However, this compromise raises fundamental issues regarding the nature of the artwork, and perhaps serious considerations artists must have if creating public works to meet ADA requirements.

A second legal issue related to the right of publicity. One work entitled It Is What It Is, by Jeremy Diller (http://www.conversationsaboutiraq.org/), which included a journey across America and engaging the public in conversations about Iraq. As the artist also documented this three and a half week trip, there were concerns regarding the right of publicity relating to the documentation. Ms. Church discussed the common law right of publicity, differences in statutory law in different states, and challenges with utilizing a release form versus release signage.

Ms. Church also discussed representation of third parties in works. As part of Creative Time's Democracy in America: The National Campaign project, one of the commissioned works was Revolutionary Love 1: I am Your Worst Fear, by Sharon Hayes (http://www.creativetime.org/programs/archive/2008/democracy/hayes.php). This piece required publication participation, and because of the politically charged material recited during a politically charged time, there were concerns about representations of these participants.

Finally, there were comments on determinations of reuse rights between Creative Time and the artist. There was also discussion on the importance of seeking the involvement of the Board of Directors to prevent Board liability when the project occurred in an uninhabited, unmaintained building.

Overall, the evening was an engaging discussion between Ms. Hollander and Ms. Church. The audience could quickly pick up on the collaborative nature between the arts organization and its pro bono counsel. The discussion lent itself to be more of a conversation between the two panelists which allowed the audience a better behind-the-scenes look at how the panelists work together on ensuring the projects come to fruition with as little legal strife as possible.

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