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Artists Are Not Above the Law

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In 1987, sculptor Richard Serra launched a lawsuit against the federal government's General Services Administration for removing his "Tilted Arc," a public artwork that same agency had commissioned several years before for New York City's Federal Building Plaza. Throughout the art world and beyond, people took sides, some arguing along with the artist that the federal government had violated Serra's first amendment rights (by censorship) and artistic "moral rights" (destroying the piece by taking it away from the site-specific location for which it was solely created), while others condemned the sculpture as ugly and unresponsive to the actual people who worked at the site. In the end, Serra lost his case, not because the federal district court judge decided he didn't like "Tilted Arc" but on the more straight-forward fact that the contract the artist had signed with the General Services Administration contained a clause permitting the federal agency to move the piece. Much has been made of the state of public art in the United States as a result of the "Tilted Arc" controversy but, perhaps the most important lesson for artists to draw from the outcome is that "when you sign a contract, you're bound by it," according to John Henry Merryman, a legal expert in art law.

Sometimes, it is easy for artists to forget that laws apply to them, too, such as the artist who protested when her "site-specific" public sculpture she had not been asked to create or install was removed from land she didn't own. Or the Milwaukee artist who was told by the city to remove an earthwork she fashioned on municipal property, a 39 foot-long, three-foot high "snake" -- "I thought I had permission," she said, recalling a vague conversation she had with someone she thought worked for the city. Any number of other artists have ignored municipal home occupancy ordinances that disallow businesses operated out of one's home, especially those that create considerable noise (such as metal sculpture) or traffic (selling from one's studio).

Conceptual artist Jeff Koons found that he was not above the law after losing a lawsuit filed against him in 1989 by a photographer who claimed that Koons had appropriated his work. The photographer, Art Rogers, had created a line of notecards with an image of a man and woman holding a litter of puppies, entitling the picture "Puppies." Koons purchased one of these cards, tore off Rogers' name and copyright notice, and sent the card to Italian artisans (with whom he had worked in the past) with the instruction that they should copy the image as a sculpture, which was entitled "String of Puppies." As in the Serra case, many commentators in the art world weighed in, some siding with Koons, claiming that artistic freedom would be abrogated if artists could not make parodies or create work that somehow showed the influence of other artists. The court's reading of the copyright law did not support Koons, finding that the artist had not parodied but simply copied the photographic image and "that Koons' copying of the photograph 'Puppies' was done in bad faith, primarily for profit-making motives, and did not constitute a parody of the original work."

The concept of what determines originality has been tested subsequently by other artists (including Damian Loeb, David Salle and Barbara Kruger, all of whom have had to defend against copyright infringement lawsuits from artists whose imagery they used in their own) and the issue will likely be revisted in the courts again.

Certainly, fine artists tend to be more sinned against than sinning. Since they usually are in a weaker economic position than collectors, museum officials and art dealers, artists are more likely to be taken advantage of by the people on whom they are dependent. Bringing a matter to court -- such as nonpayment, copyright infringement, willful destruction of artwork or any type of breach of contract dispute -- can be so expensive, time-consuming and damaging to the very relationships artists look to cultivate and maintain that many do not fully pursue their rights. "So many artists have clear claims but can't afford to bring them," said Ann Garfinkle, a Washington, D.C. lawyer who has represented visual artists.

Few of the claims that fine artists bring to any of the Volunteer Lawyers for the Arts organizations around the United States ever get to court. These organizations, which rely on the services of legal attorneys who are donating their time, seek to settle most disputes through mediation, which presumes that both sides of a disagreement are willing to resolve the problem amicably. On occasion, according to Elana Paul, executive director of Volunteer Lawyers for the Arts of New York, "one of our pro bono lawyers will send a threatening letter, which often has the desired effect." Artists with claims that can only be litigated are directed to outside legal counsel, who may or may not choose to pursue the matter. The main factors in that decision are, first, how much money is involved in the dispute and the likelihood of winning. "It costs a lawyer between $100,000 and $170,000 to pursue a case and an appeal," said Scott Hodes, a Chicago lawyer who has represented a wide assortment of visual artists. "If the lawyer doesn't feel he has a slam-dunk case, he won't take it," noting that too few artists have the financial resources to be able to pay if they lose.

There have been numerous instances in which artists have brought legal actions and won, which enhances the chances of other artists in similar situation to pursue their rights successfully. (Many more artists have had their lawsuits settled out of court, and sometimes the terms of the settlements include a "gag order" on publicizing the outcome, which speeds the process along for the injured artist but leaves other artists in the dark as to their rights.) As instructive as an artist winning a major case are instances in which artists do not prevail.
One lesson that artists often need to learn is "get it in writing," Elana Paul said. Artists may have understandings with their dealers -- perhaps tacit or even stated, but rarely written down. When there is a dispute, however, both sides may claim very different understandings, which a written agreement would have alleviated. The costs of deposing, or having lawyers interview, parties to the dispute would be lessened significantly. A second element to this, she noted, is that artists should read the agreements they sign: "Artists are handed a contract, and someone tells them what it means or says that it is a standard industry contract. After there is a problem, the artists come to Volunteer Laywers for the Arts, waving the contract and claiming that the dealer violated their agreement. We read over the contract and then have to tell the artists, 'You didn't sign what you thought you signed.'"

Some contracts, especially those in which an artist is commissioned to create a work, such as a portrait or public artwork (mural or sculpture), may need to be explicit about every possible contingency. Sculptor Howard Ben Tre, for instance, had never mentioned to the owner of a building in Baltimore, Maryland who commissioned a glass sculpture for the lobby in the early 1990s that cracks generally appear in his pieces but would not compromise the work's structural long-term integrity. However, on seeing the eventual cracks, the building owner became upset, leading to an arbitration that forced Ben Tre to remove the work at his own expense and return the money paid to him. Similarly, in 1980, sculptor Robert Arneson was asked by the San Francisco Arts Commission to create a bust of Mayor George Moscone, who had been assassinated two years before by a member of the city's Board of Supervisors, whose legal defense for the shooting noted his alleged addiction to Twinkies. Arneson's maquette was approved, but the final work, when it was unveiled in late 1981 contained a variety of additional elements, such as the suggestion of bullet holes in the pedastal, bloodlike splatters of red glaze and the inclusion of the words "Bang, Bang, Bang" and "Twinkie." The Arts Commission rejected the work and refused to pay him on the basis of a breach of contract (the bust was later purchased by an art dealer). It was common practice for Arneson to write words on, and make last-minute alterations, to his work, but the Arts Commission was unaware of the artist's practice and neither the artist nor his agent had informed Commission members in advance.

Another instance in which an additional provision or two in a contract might have precluded a legal action occurred three times with sculptor Athena Tacha. She has received numerous commissions for public artworks, but the contracts never contained a clause requiring the commissioning bodies to provide routine maintenance or make any needed repairs. Works at the University of South Florida in Fort Myers and at Hyde Park in Cincinnati were destroyed after they had been allowed to rust and become an overall hazard to the public. A third work, in Sarasota, Florida was similarly permitted to deteriorate, but a threatening letter from Tacha's lawyer, Ann Garfinkle, at least brought a promise to repair the piece. "Letting a work of art deteriorate to the point that the owner can declare it hazardous is a way to get around the provisions of the Visual Artists Rights Act," Garfinkle said, referring the 1990 federal law that provides "moral rights" to fine artists, such as prohibiting the willful destruction, alteration or distortion of a work of art of recognized stature. Because "there is no duty to maintain artwork under the Visual Artists Rights Act, you have to negotiate for that in the contract."

Like everyone else, artists cannot become overconfident about their chances of winning a lawsuit ("litigation is an uncertain process," Paul said, "where you may be confronted on the other side by a completely different set of factors, real, invented or imagined") or greedy about what they are owed. In the fall in 2005, Seattle, Washington-based glass artist Dale Chihuly brought a lawsuit for copyright and trademark infringement against Bryan Rubino, Robert Kaindl (another glass artist with whom Rubino collaborated) and a number of galleries that sold their work, claiming that the two had plagiarized his work. A couple of years later, he dropped the suit (a countersuit by Kaindl against Chihuly was also dropped in the agreement), stating "If I had to do it again, I probably wouldn't."