Do You Worry about Legal Issues when Selling Art?

This blog post discusses some legal questions that arose when an artist wanted to use discarded New York City subway cards to make a limited edition of forty decks of customized playing cards. With a museum store interested in selling the decks of cards, the artist became concerned over several potential legal issues.

The artist asked for helpful resources and also answers to the following questions: (1) Should the deck of cards be copyrighted? (2) For buildings depicted on the deck of cards, would licenses be necessary from the owners of the buildings? (3) Should the Metropolitan Transit Authority be contacted to license the use of the discarded cards that had been taken from trash receptacles and transformed?

I answered as follows: (1) The card decks don’t have to be copyrighted because the artistic additions to the cards automatically have copyright from the moment the artist creates those additions. While not strictly necessary, the artist would be wise to put
copyright notice on the deck to protect the added artistic elements. In addition, the artist might want to register the deck with the Copyright Office. (2) Buildings in general don’t have copyright or trademark protection so the artist would be free to use images of buildings and wouldn’t need to get a license from the owner of a building. (3) The
subway cards are simply physical objects. Even if they had a copyright notice (which the Metropolitan Transit Authority did not place on the original cards), the purpose of that notice would be to prevent the production of cards that looked like subway cards. Since
the artist is using real cards, there shouldn’t be a problem.

In addition, the artist might want to do some simple documentation with the museum or other parties who receive the decks for sale. This might be a bill of sale or a consignment agreement, depending on the deal. And the artist might consider how to guarantee the limited edition is limited. For example, the artist might want to give a certificate of limitation. Good resources would be Legal Guide for the Visual Artist and, for negotiation checklists and forms on a CD-ROM, Business and Legal Forms for Fine
Artists.

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