FAQ - ADAM WILSON LAW -- opening 2019
This page provides a brief overview for artists + creatives who may be considering art law issues for the first time.
WHAT IS ART LAW?
'Art law' is a combination of multiple areas of statutory and common law that already exist and apply elsewhere -- 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 rules, doctrines and precedent relating to jurisdiction, standing, general federal practice (such as the rules of civil procedure and the rules of evidence), and alternative dispute resolution (such as binding arbitration pursuant to an arbitration clause).
These areas of the law are evolving, and each case is unique, with its own set of facts. 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 usually require resolution. Meanwhile, 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, art law 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, to synthesize the law in all of its relevant parts.
WHAT ACTIVITY DOES ART LAW APPLY TO?
Broadly, art law applies to anything and everything concerning artists, creatives, and everything they make -- in any form. 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 encompasses art creation, sale, re-sale, use, issues of use without consent, transactions, disputes, lawsuits, and evolving areas including the moral rights of artists.
WHAT TYPES OF ART DOES ART LAW APPLY TO?
Traditionally, art law was defined narrowly, as to only include fine art -- usually meaning highly valuable works -- and it spoke primarily to the business side of the art world -- transactions involving those works. This is changing; art law now broadly includes the work, and rights, of all artists and creatives, be it visual, music, film, theater, literature, or any other type of creative expression, including graffiti and street art. 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, depending on the type or nature of the work.
TRANSACTIONS, LITIGATION, AND/OR ALTERNATIVE DISPUTE RESOLUTION?
As discussed, art law involves 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 will arise with respect to these transactions, rights, and duties -- requiring either private alternative dispute resolution (ADR, usually binding arbitration or voluntary mediation) or court resolution through a lawsuit (litigation).
WHAT ARE THE SOURCES OF ART LAW?
The sources of law relevant to a given 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 some 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 artists + creatives of all types, no matter their creative work and no matter the stage of their career. I place a particular emphasis on providing affordable guidance to emerging artists + creatives.
MORE INFORMATION ABOUT ART LAW?
Periodic updates about art law and the rights of artists and creatives are here.
MORE INFORMATION ABOUT APPELLATE LAW?
Periodic updates about federal appellate law and Supreme Court law are here.
MORE INFORMATION ABOUT ADAM WILSON?
General services that I provide to new and emerging artists + creatives are here.
My site as an artist is here.