Feeding the Starving Artist

             Shakespeare may have been a little quick when he unceremoniously wrote, “The first thing we do, let’s kill all the lawyers.”  Had Shakespeare been around today he just may have wanted to hear what we have to say first, as we take the bold step of trying to “feed” the “starving artist.”  Now that we have your attention, it is our intent in this series of articles to provide artists with resources to ease the contract process, protect the artistic product, and maybe in the end make art profitable.

The first of our goals after recognizing the issues that artists face on a daily basis was to take the guess work out of contracts involving the display, production, and exhibition of art.  Such contracts are not limited to the display of gallery work, but can be applied to film production, performance dance, and writing.  Some of the most important decisions regarding works of art are made at the contract stage, before anything is ever displayed or sold.  Contracts, be they gallery, publishing, or film production contracts, not only capture both parties’ (i.e., gallery owner and artists) understanding of the agreement, but also protect the rights of the artist.  It is easy for an artist just starting out to believe that his or her bargaining abilities are limited due to their possible perceived obscurity in the art community at large.  However, with basic contract knowledge and maneuvering, artists can help to ensure that they are getting the best possible deal with the biggest potential pay-off.

 While some artists do not care to think about their work in monetary terms, at the end of the day even those committed to “the work” have to be able to create “the work.”  It is our belief that with the assistance of legal concepts, artists do not have to sacrifice anything in the way of commitment while making sure they are getting what they deserve.  Contracts that clearly and explicitly provide the basic rights of parties, the payment terms, promotion and advertisement, and selling strategies can go a long way to not only protect the artist and a promoter (i.e., publisher, gallery owner, film studio, etc.), but also show the art community that no one can take advantage of you, the artist.  

With respect to your work as a whole, what you don’t know can hurt you, both in terms of protecting your work and in terms of infringing on the rights of others. So it’s important to know more than how galleries and forums and performance centers work, and how not to be ripped off in contracts to show your work or have it performed. 

Protecting your work and yourself from claims of infringement by other artists is the foundation for the other of our goals in setting up our legal department.  Information and guidance with respect to such issues will help inform and advise you, the artist, about protecting your rights and about respecting the rights of others who came before you. 

In future columns, we will be discussing the copyright law ― both in the U.S. and in other countries ― and the limits of fair use in the copyright law. We will also be discussing the laws of privacy and publicity.

For now, it will be helpful to understand that property, in general, comes in three flavors: real property, personal property, and intellectual property. Real property covers land and things affixed to the land, like your house, your studio, your shed, your factory. Personal property covers tangible things that are also movable, like your clothing, your computer, your tools and instruments, your artist supplies. Finally, intellectual property covers things that come out of your head. And that’s where we come in. 

All three types of property have attributes in common. For example, you can transfer property that you own. We have different words to describe transfers, but the concept is the same for all three types of property. In real estate, a house, for example, is “sold” and ownership rights are conveyed by means of a “deed.” In personal property, goods are also “sold” with a “bill of sale.” In intellectual property, however, rights to your works can be “assigned.”

With all three types of property, the owner may want to own the land or the car or the music, but allow someone else to use it. For real estate, the terms we use are “rent” or “lease.” For personal property, the terms are “lend” or “rent” or “lease.” But for intellectual property, we say the work is “licensed.”

 There is a bit more to this subject, so we will be discussing it in future columns, as well as other subjects, such as:

 • registering your work in the U.S. Copyright Office and why to do that

• copyright notices

• parodies

• derivative works

• public domain

• duration of copyright rights

• co-ownership

• the rights of privacy and publicity

• copyright infringement

• actual vs. statutory damages for copyright infringement, and

• other topics that concern creators of artistic works.

 We look forward to visiting you every issue and, of course, welcome your questions and comments.

Mark Levy & Ryan Miosek are attorneys with the Binghamton-based law firm of Hinman Howard and Kattell. They specialize in trademarks, copyrights, and the general protection of intellectual property. You can telephone Ryan Miosek at (607) 231-6804 and Mark Levy at (607) 231-6991, or contact them by e-mail at rmiosek@hhk.com and mlevy@hhk.com.