I get it. Part of the appeal of any form of art – whether it’s gallery-level paintings or blogging about your favorite TV show – is creativity and freedom. And the (shudder) law is exactly the opposite. It is, by definition, a set of rules you are not supposed to break. So you would be forgiven for assuming that legal issues, like taxes and the dentist, should be ignored as long and as much as possible.
The problem is that there are a whole host of laws that can actually help artists and creative types protect their work and maybe make a few bucks doing it.
Each of these is probably worthy of a separate post (I’m working on it), but here’s five things that any artist or creative professional should at least consider.
1. REGISTER YOUR COPYRIGHTS
Number one with a bullet is taking advantage of copyright registration. Copyright law is the primary way to exercise control over your work, from ensuring you get paid for authorized uses to allowing you to veto uses you don’t want to be associated with. You obtain some rights as soon as you create a new work, but registering the work with the Copyright Office provides all sorts of advantages if you need to enforce your rights, including increasing the potential recovery and allowing you to win back your attorney fees and costs, which in turn makes it more likely that someone else will think twice before infringing your work or back down if they do infringe and are caught. Registration is also inexpensive and not overly complicated, especially once you’ve done it a few times. If you regularly create new products, you may want to get in the habit of registering all of your new works on a schedule, such as once a month or once a quarter. Registering several works at a time is usually easier and less expensive, and doing it regularly means your works don’t go too long without protection.
2. DON’T FORGET ABOUT TRADEMARKS AND TRADE DRESS
Although copyright law is the primary shield for artists, it has its limits. For example, you can’t copyright words or phrases (like names or titles), nor can you copyright items that are useful or aren’t sufficiently “creative,” such as realistic depictions of things found in nature. But trademark law can help fill in the gaps. Because trademark law is intended to protect consumers, rather than creators, it covers things copyright law doesn’t. Trademark law is particularly useful for preventing someone from creating knock-off works that are slightly different from yours, but are intended to trade on your reputation. Trademark protection also applies to your entire brand, not individual works, so you won’t need to go through the registration process as often - usually just once in the beginning, and then only when you add a new aspect to your brand like a logo or a new brand name.
3. CONTRACTS – LET’S GET EXPLICIT
Forget thick documents filled with pseudo-Latin. A contract is nothing more than promising to do something in exchange for something else. Buy a gallon of milk at the grocery store? That’s a contract - you’re promising to pay the amount on the price tag, and the store is promising to give you the milk. Artists and e-businesses deal with a ton of “contracts” in their business, whether they realize it or not - terms of service with their website provider, purchase orders for supplies, sales of their works, agreements with co-creators and assistants. Even if these “contracts” are friendly understandings and handshake deals, they can be just as enforceable as a fifty-page document signed in triplicate. The problem is that these friendly handshake deals probably never discussed critical details, leaving the two sides with completely different understandings about what constitutes the “deal.” If you have enough of these, a dispute is inevitable. Maybe it gets worked out after some angry phone calls, maybe a lawyer needs to get involved - but either way, it’s not pleasant and it’s not inexpensive. Here’s where the law can actually help you out - all you have to do is talk about the details ahead of time, and then write it down in a document that everyone agrees on. The law doesn’t require a contract to be anything formal or expensive - it really does want to make sure everyone gets what they bargained for. Nine times out of ten, there are no “magic words” required, and the document can be as simple as a page or two. Don’t think of it as “lawyering” a relationship, think of it as just making sure everyone is on the same page.
4. FAIR USE - GREAT IF YOU FOLLOW THE RULES
Although artists are certainly entitled to protect their creative works, “creativity” also sometimes requires building on what came before. The law recognizes this in the “fair use” doctrine, which exempts certain types of uses from copyright infringement. Fair use is particularly important for creative professionals who comment on or discuss other art, such as critics, scholars or parodists, but it can help out lots of different artists — when used correctly. Therein lies the rub. Although everyone seems to have heard of Fair Use, very few people actually understand it or when it applies. It’s not true that you’re allowed to use a certain number of seconds of a song or video for free, for example, and copyright law doesn’t cease to exist just because you didn’t make any money off your (totally infringing) YouTube video. Fair Use can be a powerful tool, but you need to make sure you actually understand the rules.
5. GALLERY AND FINE ART LAWS
Finally, if you’re a fine artist such as a painter, photographer or sculptor, several states have enacted laws specifically designed to give you extra protection in your dealings with galleries and third-party brokers. In Oregon, for example, the law gives artists additional rights regarding payment from dealers, protection in the event a work is damaged while in the dealer’s possession, and requires dealers to provide artists with a written contract that spells out certain terms. California likewise has laws protecting fine artists, including a law that gives some artists the right to prevent the destruction or modification of their works, even after the work is sold. If you work with galleries or art dealers, look into whether your existing agreement complies with local law and make sure you understand all of your rights - you may be entitled to more than you think.