Artists' Rights & the Law

I had a good conversation with sculptor John T. Unger on his Internet radio show, Art Heroes, on February 25, 2010.  John is a client of mine who creates artisinal firebowls.  He's also a big proponent of social media and uses it to market his art and create an online community of artists.  In 2009, I had the privilege of representing John in a federal court lawsuit over his copyrights and trade dress in the firebowls when unauthorized replicas of his bowls began appearing on the market.

In our conversation on Art Heroes, we talked about "Artists' Rights and the Law."  John began by asking me to discuss the difference between rights under copyright, trademark, trade dress and patent law.  We talked about the benefits conferred on artists who register their works (such as the right to recover statutory damages in court, the right to attorneys fees under copyright law, and the presumption of validity that accompanies registrations).  We also talked about how for most artists, copyright provides the longest amount of protection (life of the artist plus 70 years), compared with trademark (10 year periods open to renewal) and design patents (14 years).  Applying for copyright registration is also  more affordable ($35 filing fee) than applying for trademark registration ($335 filing fee per class), both of which are significantly more affordable than applying for a patent ($5,000-$10,000 including attorney fees).

We also talked about when an artist may use, rely on, critique or "sample" other artists' work.  Copyright protection confers exclusive rights on authors, but an exception to this exclusivity is the doctrine known as "fair use."  For most artists, the question comes down to whether their newer work that borrows from earlier work is "transformative."  I'll blog more on Fair Use in the future.

We also talked about something known as "Recapture Rights" or "Termination of Transfer Rights," which highly impacts literary authors and singers/songwriters, among other artists.  Often when young or budding artists are getting established, they transfer their copyright rights to publishers or others in exchange for securing a book or record deal.  Realizing the inherent inequities of this draconian step, Congress gave artists the right to "recapture" their copyright rights for five year periods. For works created Jan. 1, 1978 to present, recapture rights kick in after first 35 years for a 5 year window from year 35 to year 40 (the earliest this would apply is 2013).   For most works created prior to Jan. 1, 1978, the recapture period is between 56^th and 60^th years, and artists get a second bite at the apple between years 75 and 79.   Artists get the remainder of the copyright term if they provide notice of termination of transfer during these five-year periods.  Don't forget: recapture rights are "use it or lose it" rights -- if you miss the five-year window, you're out of luck.  I'll blog more on Recapture Rights in the future, too.

John asked me what I thought about Myows.com, an online service that provides a central repository for artists' online works.  Myows stands for "My Original Works," and, which it is still in its infancy, looks like a great supplement to copyright registration.  Myows.com provides a time-stamp on all online works, down to the minute, which could be useful in establishing priority in copyright infringement suits.  To the extent Myows.com offers legal advice, I found several statements that were inaccurate and hope, instead, that Myows will delete these pages.  Major upside: Myops is FREE.

John hosts different people every week to talk about art and artists' rights. Check out his next show this coming Thursday at 9pm Central.  Future guests are scheduled to talk about licensing rights and becoming famous as an artist without leaving your day job.