FAQ About art law, media law, and the first amendment — — ADAM WILSON LAW
What is art law? What is media law? How do they intersect with intellectual property law, the First Amendment, and the U.S. Constitution? This page provides a general overview of my art & media law practice for artists, creatives, and creative / media ventures, from for-profit startups to small and emerging non-profits, from both a freedom of expression standpoint and an IP standpoint.
These FAQs are for general information purposes; they do not constitute legal advice; please see my disclaimer here.
WHAT IS ART LAW?
'Art law' is not a separate or distinct body of law in the United States. Rather, the mixture of laws that are relevant to art and creativity are a combination of multiple areas of statutory and common law that already exist, and that already apply elsewhere.
Some of laws that go into the mixture that is ‘art law’ include intellectual property (IP), contract, copyright, constitutional law (especially the first amendment), business torts, property, insurance, tax, trusts and estates, and, at times, even areas of criminal law and international law.
Depending on the issue, art law can also involve the legal rules, doctrines and precedent that relates to jurisdiction, standing, general federal practice (such as the rules of civil procedure and the rules of evidence), choice-of-law issues, and alternative dispute resolution (such as binding arbitration pursuant to an arbitration clause).
Each of these areas of the law are continuously evolving, and each case is unique, with its own set of facts — and facts can matter as much as the law in determining outcomes. As a result, art law can involve conceptually difficult ‘open’ questions — novel questions of first impression in the courts. These undecided areas of the law can require resolution through intensely rigorous and intellectual briefing at the appellate level. All the while, because art law blends so many areas of jurisprudence, it pushes boundaries of existing case law precedents and statutory interpretations.
For all of these reasons, the application of all of the legal regimes that comprise ‘art law’, to all of the particular facts in an individual case, requires not only sound analytical thinking, but also truly creative intellectual thinking. It also requires someone who can think and perform as both a legal specialist and as a legal generalist, not just to synthesize the law in all of its relevant parts, but also to anticipate and structure arguments that will remain successful across all of the legal issues that may arise.
WHAT IS MEDIA LAW IN RELATION TO ART LAW?
Media law, which is sometimes referred to as entertainment law, refers to legal services relating broadly to the entertainment industry. Many, but not all, of these legal services deal with intellectual property law. They can also deal with freedom of expression, which is a fundamental right under the First Amendment of the U.S. Constitution.
As discussed throughout this site, my practice focuses on creative-related intellectual property and media law, such as copyright, the right of publicity, life story rights, general privacy rights, defamation, libel, and First Amendment law (here, with a focus on freedom of expression). Primarily media law is grounded in transactions —— negotiating and drafting contracts, licensing agreements, and deals, but proper and practical media law insight and advice is also informed by Constitutional considerations, from freedom of expression, on the one hand, to avoiding defamation claims, on the other.
Media law, like art law, can sometimes include trademark law issues as well as employment law, labor law, bankruptcy, tax, and insurance law issues. I do not practice in these areas and I will help you find a suitable referral should you require specialized expertise in such areas. My media law work at present focuses solely on helping artists, creatives, and creative startups and non-profits when they decide they want to exploit their artistic intellectual property (IP) —— such as their live performances —— to create derivative media projects, ranging from podcasts to inclusion in television, film, and documentaries. All in the context of their First Amendment and Constitutional rights and duties.
WHAT creative ACTIVITies DOES ART LAW & media law apply to?
Broadly and generally speaking, art law —— and media law as it applies to artist and creative endeavors —— applies to anything and everything concerning artists, creatives, and everything they make, in any form, including derivative media products from original artistic content.
Specific rights and doctrines can vary greatly depending on the type of art and depending on relevant definitions in statutes as interpreted by courts, in case law.
Generally speaking, art law and media law encompasses art creation, sale, re-sale, licensing, use, issues of use without consent, transactions, disputes, lawsuits, and evolving areas including the moral rights of certain groups of artists, such as visual artists.
The law is constantly evolving as to what activities are addressed by ‘art law' and what activities are covered by the areas of law known as ‘art law’ and ‘media law’.
WHAT TYPES OF Creativity DOES ART LAW & media law APPLY TO?
Traditionally, the concept of art law was defined narrowly, as to only include fine art — usually meaning highly valuable works — and art law spoke primarily to the business side of the art world — transactions involving highly valuable works.
This is changing. Art law now broadly includes the work, and the rights, of all artists and creatives, including creative startups and creative non-profits, be it visual, music, film, theater, literature, or any other type of creative expression, including performance art and graffiti and street art. When combined with media law, this extends to the work of converting artistic and creative content in to mediums such as podcasts, television, film, and documentaries that may be distributed and exploited in other ways, through related derivative creations, with respect to the underlying artistic intellectual property (IP).
Generally speaking, the relevant bodies of law that must be considered in creative contexts — summarized above — apply with relative uniformity across all areas of creativity. That said, in certain areas, specific rights and remedies can vary considerably based on the type or nature of the work.
In other words, at present, sometimes the type of art, or its nature, will determine what rights and remedies may exist.
TRANSACTION, LITIGATION, or ALTERNATIVE DISPUTE RESOLUTION?
As discussed, art law and media law involve many areas of law, across many types of transactions, agreements, and interactions, regarding an array of rights and duties relevant to artists and creatives.
Inevitably, disputes and even lawsuits will arise with respect to these transactions, rights, and duties.
While trials are, in theory, a way to resolve disputes and lawsuits, they only make sense in certain circumstances.
Most artists and creatives find that it saves time and money — and relationships — to settle disputes through ‘alternative dispute resolution’ (ADR).
The primary form of ADR used for this purpose is mediation. Artists and creatives may also find that certain contracts require binding or non-binding arbitration.
WHAT ARE SOME SOURCES OF ART LAW?
This section relates specifically to art law, not media law. Generally speaking, the sources of law relevant to a given art-related matter can include federal statutes, state statutes, case law interpreting those statutes, federal and state regulations, local ordinances, and international law. The policies and procedures of entities and organizations may also become relevant in certain matters. Here are just a few examples.
Copyright Act of 1976, Title 17 U.S.C. et seq.
Artworks are protected by U.S. copyright law. The act applies to the creation, ownership, reproduction, and dissemination of works of art.
Visual Artists Rights Act (VARA), 17 U.S.C. § 106A
Certain artworks are protected with respect to certain moral rights. The act applies to defined categories of artworks and provides a defined set of protections that may be waived.
37 C.F.R. Sec. 201.2-212.8
Promulgated by the U.S. Copyright Office. The regulations govern copyright registration, certain other procedures, the Visual Arts Registry, and requirements for the registration of pictorial, graphic, and sculptural work.
Other Statutes, Case Law, and Common Law:
As stated above, in addition to case law interpreting the above statutes and regulations, art law is informed by statutes and case law regarding intellectual property, contracts, constitutional law (primarily the first amendment in relation to censorship issues), torts, business torts, property law, insurance, and tax law. Additional areas relating to IP law include trade dress and trade secrets. Additional areas relating to artist rights generally include moral rights (see VARA, above), author rights, and other rights-based jurisprudence.
WHO DO I WORK WITH?
I work with creative people and creative entities of all types, no matter their fields and no matter the stage of their career (or size of the startup or non-profit). You can be any type of creative person or entity. Some examples are here.
I also work with and/or make a referral to specialized attorneys if your matter requires specialized legal services. My particular service is to help creative people and creative entities with art and media law issues; for expertise with issues involving, say, tax, employment, and other areas, I advise my clients to work with a specialist, and I help them find an appropriate referral for that.
In addition to the above, I place a particular emphasis on providing affordable guidance to emerging artists and creative entities that are just starting out. My site as an artist is here.