Art Law Gallery : Art Law Lawyer & Attorney : Sheppard Mullin Law Firm : Intellectual Property, Licensing Law : Art Law Gallery Legal Blog

By Kathryn Hines and Christine Steiner

Society is consumed with celebrity. We can survey Hollywood marriages and divorces, analyze Golden Globe wardrobe choices and comment upon the latest Lindsey Lohan foible. It is not surprising that many artists have channeled this societal obsession, featuring celebrities in paintings, collages and video installations. Moreover, as we approach the anniversaries of the death dates of Elizabeth Taylor, Michael Jackson and Amy Winehouse, commemorative portraits are likely to be in high demand. But when does using a celebrity image in art infringe that celebrity’s right of publicity? It depends. While an artistic rendering of a recognizable person may be protected under the First Amendment, there are limits to this protection.

• Print
• Comments
• Trackbacks
• Share Link

By Sarah Pavlock and Christine Steiner

The appeal in the case of Cariou v. Prince is shaping up to be the biggest visual arts copyright case in many years. It will likely result in guidance on what qualifies as a transformative use for appropriation art under the doctrine of fair use. Appropriation art "borrows" pre-existing works or images of the creative work of another artist in order to create something new and original. While this alone may seemed packed with copyright issues, it is generally not an appropriation artist's intent to "rip off" another artist's work. Usually, the success of the new work depends on the viewer's recognition of the underlying work; the "aha" moment is the connection between the old and the new as the viewer recognizes the original work or that another work has been taken, and differentiates the creative changes that have been made in the new work.

• Print
• Comments
• Trackbacks
• Share Link

By Tyler Baker and Christine Steiner

With New York's Fashion Week upon us, the time is appropriate to examine the intellectual property protections available to some of the most prominent artists in popular culture: fashion designers. No one would seriously question the great artistic talents of many designers. Their imaginative, inventive, and daring creations and their lasting legacies have pushed artistic limits of the fashion world for decades. And yet, despite being undoubtedly artists in their craft, fashion designers do not enjoy the same protection in their work under current U.S. intellectual property laws that their artistic peers enjoy in the worlds of visual arts, film, music and dance.

• Print
• Comments
• Trackbacks
• Share Link

By Lano Williams and Christine Steiner

The past year was packed with litigation that ranged from broad constitutional questions to the ever present scourge of forgeries. Art Law Gallery presents highlights of some of the most important cases:
 

• Print
• Comments
• Share Link

By Tyler Baker and Christine Steiner

The success of the art market depends largely on confidence in the authenticity of artists’ works. Traditionally, a work in an artist’s “catalogue raisonné” has been key to confirming the authenticity, and thus value. To that point, a recent lawsuit filed in the U.S. District Court for the Southern District of New York (“S.D.N.Y.”) regarding a purported Jackson Pollock work underscores the importance of the catalogue raisonné in pre-purchase due diligence, and shows that omission from the catalogue could be potentially disastrous to the value of a work. See Lagrange v. Knoedler Gallery, LLC, 11-cv-8757 (S.D.N.Y.) (filed Dec. 1, 2011). 

• Print
• Comments
• Trackbacks
• Share Link

By Lano Williams and Christine Steiner

The recent news that the Andy Warhol Art Authentication Board, Inc. will dissolve in early 2012 brings the role of authentication boards in the art world to the fore once again. The Board, which has been charged with authenticating the works of Andy Warhol since 1996, has been the subject of controversy, probably owing more to the nature of Andy Warhol's art-making process and his fame rather than anything the Board may have done. Warhol was famous for industrializing the art-making process, frequently directing others to execute works on his behalf. The question of what makes a Warhol is subjective and is open to changing interpretation as scholarship develops, as it involves current thinking on what steps of the art-making process the artist must control in order for a piece to be considered attributable to that artist. The Warhol market is also gargantuan. ArtTactic reports that his art accounted for 17% of contemporary art sales at auction in 2010 and 12% of the total contemporary art sold in the first decade of this century.

• Print
• Comments
• Trackbacks
• Share Link

By Tyler Baker and Christine Steiner

On October 17, a proposed class of artists filed three federal lawsuits against auction houses Christie’s, Inc., and Sotheby’s, Inc., and internet auctioneer eBay, Inc., alleging that the defendants sold their artwork at California auctions and on behalf of California sellers, but failed to withhold royalties due. The complaints seek class-action status to represent many other artists and allege that the auctioneers engaged in a ongoing pattern of concealing the identities and residencies of sellers who live in California, thereby avoiding the five percent royalty due as agents for the sellers. All three complaints, filed in the U.S. District Court for the Central District of California, allege violations of California’s Resale Royalties Act as well as California’s Unfair Competition Law.

• Print
• Comments
• Trackbacks
• Share Link

By Jessica Kantor and Christine Steiner

Attention shifts to Los Angeles this Fall, thanks to Pacific Standard Time, a stunning tribute to the Los Angeles post-war art scene. Pacific Standard Time (PST), spearheaded by the Getty Trust, presents simultaneous exhibitions and events at more than 60 Southland cultural institutions. PST provides an ideal opportunity for a closer look at practical business and legal considerations that preserve and shape an artist’s legacy.
 

• Print
• Comments
• Share Link

In the current financial crisis, when stock market indexes are falling and the only certain thing in the capital market is uncertainty, investors are paying more attention to art, which in addition to their artistic value, can provide a relatively high rate of return.
 

• Print
• Comments
• Share Link

By Jessica Kantor

Click here to read the Chinese version of this article.

On the verge of becoming an international institution, the recent Hong Kong International Art Fair, known as "ART HK," represents an exciting development in the state of the art world in China. This growth has critical, yet profoundly inspiring, implications upon the international art community.  Since its humble beginnings in 2008, ART HK has shown rapid growth with over 260 galleries from over 38 countries participating in the recent fair.  Momentum of ART HK's success and prominence was recently propelled by an announcement that MCH Swiss Exhibition, owners of Art Basel, the world's biggest contemporary art fair, have just signed an agreement with Asian Art Fairs, the owners of ART HK, to purchase a majority stake in ART HK, which went into effect on July 1, 2011.  This tactical move, combined with rising auction revenue, favorable tax considerations, a newfound interest in art as an asset class, and interest based on national identity, cements China’s role in the global art market.
 

• Print
• Comments
• Share Link

Christine Steiner joins us from her private practice, having previously served as secretary and general counsel of the J. Paul Getty Trust and the assistant general counsel of the Smithsonian Institution.
 

• Print
• Comments
• Share Link

Everyone remembers the first day of their highly touted unpaid internship—nerves twitching, heart racing, palms sweating, eager to perform any mundane task with the utmost perfection to impress a new supervisor. For many, especially in art, fashion, and entertainment, these internships are an individual's big break, granting entrance to a career of their dreams by providing hands-on experience and access to priceless networking opportunities. While unpaid internships have seemingly been a mainstay of the creative industries—even Stephen Spielberg, Tom Ford, and Sylvia Plath found themselves fetching coffee at one point—many other for-profit employers are venturing down the unpaid internship route. What many employers would be surprised to learn is that, according to the U.S. Department of Labor's ("DOL") Wage and Hour Division, there are very few circumstances where a for-profit employer can offer an unpaid internship and still be in compliance with the law. With a struggling economy and a significant increase in unpaid internship programs offered by for-profit employers, this issue has been thrust into the spotlight. Internships are increasingly becoming a crucial component of the business world, and while employers can provide an invaluable opportunity for interns, state and federal regulators across the country are focusing on ensuring employers are not taking advantage of wide-eyed, eager students looking to jumpstart their career.
 

• Print
• Comments
• Share Link

In the age of skyrocketing auction prices, the explosion of global art fairs, and increased digitization from iPad masterpieces to the Google Art Project, how are artists, galleries, and cultural institutions around the world adapting to recent trends? Gain insights on how the boundaries of law and conventions of business shape the arts in 2011. Take this opportunity to learn about licensing, digital innovation, and sponsorship in the profit and non-profit arts landscapes with a round table of Los Angeles thought-leaders. Join USC Art Law Society and Sheppard Mullin Richter and Hampton LLP, for a dynamic dialogue on the Business of Art for 2011.
 

• Print
• Comments
• Trackbacks
• Share Link

The notion that the arts make our culture "richer" is commonplace in our vernacular, but an undeniable trend has emerged giving an entirely new meaning to the phrase: across the board, the country’s nonprofit arts and culture industry has grown by twenty-four percent over the past five years, generating over $166 billion in economic activity a year. Art can be big business, and not just in cosmopolitan meccas like New York and Los Angeles. Across the United States, small and midsized cities are harnessing their creative energy to jumpstart their local economies, often with striking results. Cities that have taken heed of this trend have been rewarded in multiple ways—from the rehabilitation and development of uninhabitable areas of the city to the welcoming of tourists, businesses, and well-heeled residents to those very areas. One seminal example is New York’s Soho and Tribecca neighborhoods, which now exceed the famed Upper East Side and Central Park West neighborhoods in rental and real estate prices. It is a reversal of the commonly held notion that artists drain resources, rather than attract them. Perhaps no city has been more successful in exploiting the economic potential of the arts than Paducah, Kentucky, a town of 27,000 which got the Extreme Makeover formula just right when it implemented what has come to be known as an Artist Relocation Program.

• Print
• Comments
• Share Link