The search for a lawyer is often time-consuming and disheartening. Not only are fees high, but many lawyers are not knowledgeable about the issues encountered by artists. Standard techniques for finding a lawyer include asking a friend who consulted a lawyer for a similar problem, calling a local bar association’s referral service, or going to a legal clinic. All of these approaches have merits, but today the artist may be able to locate a knowledgeable lawyer with far greater precision.
The very definition of an area of the law as “art law” is an encouraging sign for the expertise lawyers will bring to the artist’s problems. The literature and educational programs for lawyers have vastly increased. Many law schools now offer art-law courses and bar associations are paying greater attention to art and the artist. The Selected Bibliography shows how many art-law books are now available for lawyers.
Equally encouraging are the lawyers across the country volunteering to help needy artists. Both volunteer lawyers’ groups and artists’ groups, several of which maintain rosters of attorneys who will help members at a reduced fee, are good resources to use when seeking a lawyer with art-law expertise. Such referrals may result in finding lawyers who either do not charge or work at more affordable rates. Up-to-date information on the volunteers closest to a specific location can be obtained from one of the following established groups:
The National Writers Union is a trade union of freelance writers in all genres, formats, and media who work for American publishers or employers. A local of the United Auto Workers, it bills itself as an activist organization committed to improving the economic and working conditions of freelance writers through the collective strength of 1,500 members in 15 local chapters throughout the country. It offers grievance assistance, industry campaigns, contract advice, a jobs hotline, health and professional liability insurance plans, member education, and networking. The NWU aims to challenge corporate media against unfair treatment of writers, lobbies Congress to pass legislation that protects the rights of writers, creates viable solutions to provide publishers fair alternatives to unfair practices, and educates and empowers its members.
When Jackson Pollock signed his first contract with collector and dealer Peggy Guggenheim in 1943, he was able to quit his job decorating ties to concentrate on painting. That first contract paid him a stipend of $150 per month, with guaranteed sales of $2,700 annually (if there were less than $2,700 in sales, Guggenheim would be paid the difference in paintings). His second contract with her two years later raised the stipend to $300 per month and gave Guggenheim ownership of Pollock’s entire artistic output for the year with the exception of one painting that the artist could retain. The terms of those contracts might not satisfy artists nowadays, but it was beneficial to both Pollock and Guggenheim then, reflecting her trust in his talents and allowing him to work unencumbered by financial constraints. This was a true partnership.
Relationships are what bring artists and dealers together, and these relationships (artist-collector or dealer-collector) help to sell works of art. Artists and dealers often have both personal and professional relationships, but when dealing with the business end of things, both sides do need to be clear as to the nature of their interactions. How often and in what context will the artist’s work be displayed? What sales commission will be paid to the dealer? How soon will an artist be paid following a sale? Who pays for framing, shipping, advertising, insurance, catalogues? Is the dealer an exclusive agent for the artist? How long will this agreement be in effect? Tacit understandings and handshakes must give way to sometimes lengthy conversations and even legal contracts that detail how artist and dealer will work with one another.
A written contract does not solve any of the problems that may arise between an artist and a dealer, but it clarifies the nature of their relationship and possibly offers a mechanism by which disputes can be settled amicably. A good contract is dependent upon a sound understanding of the pertinent law and what both artist and dealer are looking to do. In the ever-insecure world of the arts, there are endless opportunities for tensions to arise between artists and dealers; part of those tensions result from the fact that each side needs the other (one to produce, the other to sell). That need should be the basis not of ongoing antagonism but of a partnership, enabling artists to grow creatively within the relationship and earn money from the sale of their work.
The Authors Registry is a nonprofit organization formed by a consortium of writers groups to help expedite the flow of royalty payments and small reuse fees to authors, particularly for new media uses. As a payment clearinghouse for certain categories of royalties and fees, the Registry lifts the burden from publishers and delivers checks to freelancers. The Registry also distributes fees to U.S. authors for photocopying of their work abroad.
One of the most frequently asked questions is whether the use of another artist’s imagery is an infringement of copyright. In particular, illustrators often maintain files of images to fulfill assignments with deadlines too short to permit contacting anyone for permissions. The names for these files—the sedate “reference” file, the offhand “scrap” file or the larcenous “swipe” file—suggest the ambiguity felt when using such imagery. After all, the people who made that imagery are also artists and copyright proprietors like the illustrator who wants to use it. Increasingly, illustrators looking for references can casually download such artwork from the Internet and use powerful digital imaging tools to seamlessly incorporate referenced pieces into their own work. In this increasingly digitized artistic universe, understanding the scope of an artist’s copyright becomes especially important to the modern artist.
An artist suing another for infringement has to prove that an ordinary person would be able to tell his work was copied. The artist can then secure money damages unless the copying was trivial or insubstantial, or it was a “fair use.”
ASJA is a national organization of independent nonfiction professional writers. It offers benefits and services focusing on professional development, including regular confidential market information, meetings with editors and other field professionals, an exclusive referral service, seminars and workshops, discount services, and the opportunity for members to explore professional issues and concerns with their peers. Membership is open to established nonfiction writers who meet the organization’s high standards, but ASJA advocates industry wide for freelancers’ interests. Based in New York City, the Society has active regional chapters in Northern and Southern California, the Rocky Mountain area, the Southeast (Atlanta area), the Upper Midwest (Minneapolis area), upstate New York, Long Island, and Washington, DC.
Digitally created images derive from prior techniques, yet offer the power to meld and manipulate images that bring the very truth of those images into question. Unlike fine art, in which the brush stroke may establish uniqueness and, therefore, value, the digital image exists in a different construct and can be infinitely reproduced without any generational loss of image quality. Certainly the digital world is a more hospitable environment for copying than the world of the brush stroke or even the transparency. In fact, the truth of the image is so vulnerable to manipulation that some advocates for ethical practices have proposed what amount to labeling requirements that would disclose when work has been altered. Of course, infringers would ignore such disclosure requirements in the same way that they ignore the boundaries set by the copyright law with respect to copying. Implicit in all this is the power of the computer to take existing images and change them beyond recognition.
So the digital image not only eliminates originality in the sense of physical uniqueness (since the art can be reproduced an infinite number of times without any generational loss of image quality), but it also challenges the concept of the individual creator’s originality as the memory of the computer holds more and more appropriated imagery.
Appropriation art is a postmodern theme. Some gallery artists gain fame by appropriating the images, and sometimes the life styles, of their famous, painterly predecessors. Is appropriation the proper response to consumerism and the money excesses of the art world? Is this an attitude that has perhaps gained wider acceptance than we might imagine? Is the easy taking of the appropriation artist being paralleled by the budget-conscious behavior of corporations whose bottom-line concerns are paramount? The answers to these questions will become apparent with the passage of time. For now, we can only emphasize that infringement is unlawful and unethical. Artists must do whatever they can to protect their images and ensure that appropriation, in whatever guise, is not allowed to become an artistic norm.
If you are a published book or freelance author, have been offered a publishing contract or are a self-published book author, you should seriously consider joining the Authors Guild. The Guild has more than 9000 members writing in every genre, and is the only organization that offers members individual business and legal advice, including contract reviews and advocacy, from experienced publishing attorneys at no additional charge. Members receive its Model Trade Book Contract and Guide with helpful negotiating tips. Its quarterly Bulletin and frequent Advocacy Alerts keep authors up-to-date on key legal and business developments. The Guild lobbies for legislation favorable to writers and engages in grass roots and direct advocacy against unfair businesses practices by publishers, agents, and retailers. It offers print-on-demand republishing service, seminars and workshops on negotiating contracts and industry trends, and superior and economical web and blogging site design software to members.
This information has been adapted from the 4th edition of The Writer’s Legal Guide by Kay Murray and myself, co-published by The Authors Guild.
The Visual Artists Rights Act (VARA), landmark legislation creating moral rights for artists in the United States, was enacted on December 1, 1990, as an amendment to the copyright law and took effect on June 1, 1991. Copyright, the power to control reproduction and other uses of a work, is a property right. Moral rights are best described as rights of personality. Even if the artist has sold a work and the accompanying copyright, the artist would still retain rights of personality.
Prior to the enactment of VARA, the protections for American artists had been limited and often unsatisfactory. While some legal commentators argued that American laws relating to unfair competition, trademarks, right to privacy, protection against defamation, right to publicity, patents and copyrights amounted to a satisfactory equivalent of moral rights, the better view was that this mélange did not at all approach the protections offered to creative people and their work under specially designed moral-rights provisions. Many artists’ groups recognized moral rights as an important issue and urged the enactment of legislation to guarantee this protection. A number of states responded by enacting pioneer moral rights laws, a trend that helped develop momentum for the enactment of VARA.
All visual artists benefit from this legislation that protects artists’ work and reputation even after the sale of of the work and their copyrights. Read the full text of the Act here.
Post 1 in my Professional Authors Association Series
Every professional or aspiring writer should join a writers association. This could be one of the most prominent organizations I intend to highlight over the coming weeks, but you can easily find others, including local groups or branches of national groups, by doing a little research.
Writing is an isolated endeavor. Joining a writers group offers you many benefits that offset the negative effects of working alone. By connecting with other writers, virtually and in person, you become part of a community of people who share your professional interests and from whom you can learn current relevant market information. Information equals power in any negotiation, and membership in at least one writers organization will improve your knowledge of the legal and business environment and thereby help you enhance your negotiating position. Even the most successful writers with powerful agents gain from being part of a writing community, and most bestselling authors belong to at least one prominent organization.
There are numerous organizations for published and aspiring writers of every genre. Each offers varying benefits, such as substantive feedback on ongoing projects, practical advice about the market, writing competitions and awards, networking opportunities with agents and editors, current payment rates and industry information, legal advice and individual advocacy, lobbying for writers’ interests, health and liability insurance group plans, website- and blog-building software, self-promotion advice, and discounts to services. In general, membership dues are small and can usually be deducted on tax returns as a business expense against your writing income.
To give a brief glimpse into the well-established associations, I will post every other week with some basic information about another organization. Check back here for some ideas of groups to join to expand your network and your knowledge.