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Legal Basics for Artists

By Carol Steinberg

EASL's Fine Art and Pro Bono Steering Committees presented a panel discussion on Legal Basics for Artists in Bushwick on June 1st in connection with Bushwick's Open Studio weekend. The event was a great success, with much appreciation expressed by the artists and attorneys who attended. Judith Prowda, Immediate Past Chair of the Section, conceived the idea for a panel when she took her students from Sotheby's Institute of Art out to Bushwick earlier in the year. Judith moderated the panel, which consisted of "Copyright Basics", presented by Carol Steinberg, one of EASL's Pro Bono Steering Committee members, "Moral Rights", with Richard Altman, and "Artist-Gallery Agreements", with Megan Maxwell, EASL's Co-Chair of the Digital Media Committee. Innes Smolansky, EASL's Second Judicial District Representative organized the wonderful reception both before and after the panel discussion, which was enjoyed by all.

About 80 artists and a few lawyers attended the event, which consisted of a reception, panel discussion and Q&A. The program was held at the Diana H. Jones Senior Center in the heart of Bushwick, where photographer Daryl-Ann Saunders, curated a wonderful exhibit at the center itself.

Carol began her discussion with the following hypothetical and image of an abstract painting:

A producer from the Brooklyn Academy of Brooklyn (BAM) contacted an artist
whose work she saw in a gallery in Bushwick, and asked the artist to re-
create the work as a backdrop for a BAM production. The work would be a work-
for-hire, the artist would receive $5,000 in compensation, she could hire an
assistant, and must include images of a man and woman on the backdrop.

Each panelist spoke for 20 minutes, and Carol covered the basics of copyright and fair use, by focusing on how copyright is created, the exclusive rights of the copyright owner, work for hire, and the importance of registration. She showed images of Patrick Cariou's photographs from Yes Rasta and the appropriated images in Richard Prince' paintings, the subject of the Cariou v. Prince lawsuit, to illustrate the application of the fair use factors. Then she applied the legal basics to the BAM hypothetical and advised as to how the basic deal should be revised.

Richard Altman, who litigated at least two of the landmark Visual Artists Rights Act (VARA) cases, told the stories of important moral rights cases and showed a wonderful clip of the sculptural installation which was the subject of the Carter v. Helmsley-Spear litigation. (Carter v. Helmsley-Spear 71 F.3d 77 (2d Cir.1995), cert.den. 517 U.S. 1208 (1996)). He shared the story of the Soho Wall case, where artist Forrest Myers had been commissioned to erect projections on the wall of a building at Houston and Broadway. (Board of Managers of Soho Int'l Arts Condominium v. City of New York, 2005 U.S. Dist. LEXIS 9139 (S.D.N.Y. May 13, 2005)(decision after bench trial), 2004 U.S. Dist. LEXIS 17807 (S.D.N.Y. Sept. 8, 2004)(summary judgment decision) and 2003 U.S. Dist. LEXIS 13201 (S.D.N.Y., July 29, 2003). Subsequently, when the owner of the landmarked building wanted to remove the sculpture to use the wall for advertising, the City Landmarks Preservation Commission refused to permit it. Three-way litigation then ensued among the City, the owner and Myers, who engaged Richard to defend his rights under VARA. He then described "the nasty legal battle" where ultimately the work was restored to the building, with the owner obtaining a small portion of the lower wall for advertising revenue. Richard pointed out, as the Tilted Arc (Richard Serra) case illustrated, that when art conflicts with real estate in the U.S., art usually loses. He then described the Carter case, in which ultimately the court found the installation to be a work for hire (and thus not protected by VARA) despite the fact that the artists had a prior agreement that they alone held the copyright in the work (a much criticized decision). Richard also added his personal perspective. Several years later when the work had still not been torn down, he served on a panel where one of the lawyers for Helmsley-Spear said the work was not torn down for years despite the legal win. Richard said he was surprised that it had not been torn down, and the lawyer told Richard that the case was fought to prove a point --that artists cannot dictate what goes into their buildings.

Megan Maxwell then talked about contracts in general, typical agreements or lack thereof in the art world, and the artist consignment statute, which benefits artists by protecting the proceeds of sales of art and protects the art from the claws of creditors. Megan pointed out that contracts express the understanding of the parties and that many artists and galleries do not have written agreements. She discussed the basic provisions that should be included in artist gallery agreements and further described a gallery's fiduciary obligations to the artist.

The panel concluded with robust Q & A. The artists had many good questions. Further, Daniel Braun, a new EASL member, asked an interesting question about the legal implications of street art. Many stayed to speak individually with the panelists and to enjoy the refreshments.

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This page contains a single entry from the blog posted on June 12, 2012 7:32 PM.

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