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WaLAW: Proprietary Issues in Public Art

On Wednesday I went to the follow-up to last month’s Workshop on Negotiating for Public Art Contracts, which this time was held at 4Culture near Pioneer Square, and had nearly standing-room only attendance. Speaking were Robert C. Cumbow of Graham and Dunn, and Amy McBride of the Tacoma Art Commission. The topic was essentially “So now that you have a contract for a public work of art…what can you do with it? What can the government agency do with it?”

The basic outline was:

  • Who owns the work itself?
  • Who owns the copyright in the work?
  • What can or can’t they do with it?
  • A brief look at VARA (the US take on moral rights)
  • Fair use
    • Your incorporation of other’s work into your art
    • Other’s use of your work in their art
  • Questions from the previous panel that were more appropriate for this one

I took pages of notes, but I’ll try to post just the important bits, and embed links to relevant code sections.

The fundamental question with art ownership is “who is the author?” Copyright legally vests in the person who created the work, although this right can be signed away before the work is created as a work made for hire. Works made for hire can be either something created by an employee within the scope of their employment, or a specially commissioned work, in which case the contract would govern the transaction.

Three types of moral rights are laid out by the Berne Convention: attribution, integrity, and following. The US only observes attribution and integrity, and only for works of “visual art” which does not include television or film for some reason. Moral rights, unlike copyrights, are personal instead of economic rights, and can be waived but generally not sold outright. Attribution is the right of the author to have their name on a work, or to have their name taken off a work that doesn’t represent them as an author. Integrity is the right of the artist to have their work not defaced or altered, and is usually limited by the amount of wear and tear, and the physical limits of the space in which the art was placed. Having a piece of Styrofoam sculpture in the middle of the ocean would not have as much duration as a concrete work in Detroit, for example.

Compared with Europe, the US is far more interested in the right of society to use a work, allowing the authors and inventors exclusive rights only for a limited period of time before the work enters the public domain. One good point is that “public domain” is a phrase with a specific legal meaning, and is not a fancy word to indicate the work has been published. Being on the internet does not put something into the “public domain” because that would mean it was no longer protected by copyright law. In the US, that would happen if it were published before 1923, or if the author has affirmatively dedicated it to the public, but generally not otherwise.

However, determining whether the art you want to use as inspiration has an expired copyright is really more of risk analysis, and not legal analysis. The great summary of risk analysis is a three part question:

  1. How likely is the Copyright owner to know about the use?
  2. If they know, how likely are they to care?
  3. Even if they care, what’s the worst thing that could happen as a result?

This last part is where copyright attorneys really excel, as we tend to know the punishments for infringement, whether what you want to do is one act, or multiple acts, and whether what you’ve done might fall under permissible fair use. What is fair use? How much of a work can you use without being sued? Fair use is defined by the copyright act to be “use of a copyrighted work that is allowable by the law for such purposes as criticism, comment, teaching, news reporting, scholarship, research..” and is not a shield against litigation, but an analysis applied by the court during a case of copyright infringement.

There is no hard and fast rule about fair use, merely four factors that the court uses to determine whether an individual use merits the protection. An evaluation is made about the nature of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work. That’s a lot of words for “it depends.”

Finally, a list of the questions asked at the session by attendees:

  • If the artist wants to make another piece of art somewhere else, is that a copyright issue?
  • What about ephemeral works? What if it’s totally improvised, and one time only?
  • What if the original work of authorship is the process?
  • How does the artist prevent the agency or another artist from making more copies?
  • Can the agency or the artist prevent third parties from filming? What’s the best way to do that?
  • How much signage saying “no filming allowed” is enough?
  • If a third party takes pictures of public art and sells merchandise, is that infringement?
  • Do you have to come down hard on infringers or risk losing the ability to collect a lot of damages?
  • How much of a work do you have to change before you can use it in your own work?

Want answers to these or similar questions? Sign up for a clinic to discuss your own legal issues, or come to the next few workshops! December 8th is going to be Art Law for Craftspeople at the Seattle Art Museum, then December 15th is the first in a short series for filmmakers. Check the WLA’s website for more information as it becomes available.

Posted in Miscellaneous.

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  1. Michelle says

    Great post. I may check out one of the upcoming workshops.