FAQ - ADAM WILSON LAW
This page provides a general overview for artists + creatives. It is for general information purposes; 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 ACTIVITY DOES ART LAW APPLY TO?
Broadly and generally speaking, 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. That said, the law is constantly evolving as to what activities are addressed by ‘art law'.
WHAT TYPES OF ART DOES ART 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, be it visual, music, film, theater, literature, or any other type of creative expression, including performance art and 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 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.
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 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?
Generally speaking, 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 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 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. My site as an artist is here.