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Legal tools help artists protect their work

Legal News Reporter

Published: September 29, 2015

A musician opens up a music school and later finds himself unable to pay his teachers so he closes up shop. The teachers sue and so do the clients who prepaid for lessons. Is the owner personally liable?  According to Harrington, Hoppe & Mitchell associate Denise Glinatsis Bayer the answer depends upon whether the owner formed a limited liability company (LLC).

“Creating an LLC can help protect the artist from being personally liable for business debts,” said Glinatsis Bayer, who focuses on creative arts and copyright/trademark law among other things. “Business creditors will have a more difficult time reaching personal assets of the artist, such as a home or personal savings accounts.

“Forming a separate business can help the artist organize and take advantage of tax deductions attributable to the artist’s business.” 

LLCs, contracts and copyrights are some of the legal tools that will be discussed during an Oct. 30 clinic in Mahoning County sponsored by The Legal Creative, Inc. The Canfield, Ohio-based nonprofit organization provides artists and art professionals with educational, business and legal resources.

Glinatsis Bayer founded The Legal Creative in 2013 to provide an advisory service for artists.

The upcoming clinic will give artists a chance to meet one-on-one with a volunteer attorney free of charge.

“Many artists miss out on the chance to maximize the value of their work by not taking advantage of the options available to them under state and federal laws,” said Glinatsis Bayer.

“For example, a simple contract that lays out the terms and conditions under which the artist is hired by a business or individual can ensure the person is properly paid for his/her work. But so many artists are afraid to mention the word contract because they are afraid of scaring a potential employer away,” she said.

Buckingham, Doolittle & Burroughs partner Joseph Feltes said contracts are especially important in cases where an artist is hired to create a one-time unique work like a sculpture or a painting.

“The contract should detail the scope of work, establish deadlines and compensation and include a payment schedule that sets certain benchmarks,” said Feltes, partner-in-charge of the Canton office, whose practice includes drafting, reviewing and negotiating contracts and representing clients in contractual disputes. “For example, there may be a provision that requires a partial payment before the work commences, another partial payment at the halfway mark and a final payment once the work is completed,” said Feltes, who is on the board of trustees at the Canton Museum of Art.

“There should also be a provision that provides for a termination or ‘kill fee’ should the person commissioning the work change his/her mind,” said Feltes.

In addition, Feltes said before an artist enters into an agreement with an art gallery a number of questions must be considered.

“The artist needs to decide whether he/she is giving the gallery the exclusive right to sell the work,” said Feltes. “Will the agreement pertain to the particular works on display or all of the work produced? Does the agreement preclude the artist from selling pieces on his/her website? These are all things that must be discussed and put in writing.”

He said artists should record a title and description of all works sent to the gallery and discuss where the works will be placed. “You don’t want to find out your work is in a dark corner in the back.”

It’s even more important for the artist to discuss what the gallery’s commission will be, said Feltes. “In the Akron area, it usually is in the 30 to 40 percent range, but in larger cities like Cleveland it often can be higher.”

He said the artist should also inquire as to whether the commission will include insurance and advertising expenses. “Be sure that creditors will not be able to lay claim to your work if the gallery were to declare bankruptcy,” said Feltes.

Finally, Feltes said the agreement should contain a right to cancel if the gallery breaches and is in default, as well as an alternative dispute resolution provision to avoid potentially high legal fees should problems arise.

Be clear about what will happen if someone wants to buy your work after a contract has expired, said Feltes. “What if the contract is for 180 days and a buyer sees your work on day 179 and comes back to buy it on day 183. Does the gallery get any commission? The gallery could argue that they are due money,” said Feltes. “One option could be to include a clause providing for a 30-day reduced commission after the contract expires.”

Feltes said gallery owners must also take precautions to ensure that the work they are displaying is original and actually belongs to the artist.

“Gallery owners must obtain a certification of authenticity from the artist,” said Feltes. “I represented a gallery in northeast Ohio in a matter in which an artist had imbedded a protected image from the Internet into the work. Getty Images owned the copyright and issued a cease and desist letter requiring that the work be taken down and demanded a licensing fee.”

Feltes said artists must realize they can’t grab something off the Internet and incorporate it into their work without first determining whether the image is protected by a copyright or trademark.

Buckingham, Doolittle & Burroughs associate Paul Filon said one of the easiest ways for artists to protect their work is by registering with the U.S. Copyright Office.

“It is inexpensive and it affords so many levels of protection,” said Filon, who focuses on copyright, trademark, patents and intellectual property matters. “Securing a copyright not only protects the original work, it also keeps people from reproducing copies, making a piece that is a derivative of your work or displaying or performing it in public.

“Painters, photographers, musicians and authors who come up with individual works can apply for a copyright unless it is a work for hire in which they are commissioned by a company to take photos, create a painting or piece of music or write a story,” Filon said.

“In most cases any copyrightable work created by an employee as part of his/her duties in the course of employment is owned by the company unless your employment agreement says otherwise.”

Filon said if an artist owns the copyright and someone is infringing, an attorney could send a takedown notice or demand a licensing fee.

He said major companies that produce movies or music have multiple layers of protection in place. “Music licensing companies such as BMI (Broadcast Music, Inc.) and ASCAP (American Society of Composers, Authors and Publishers) have people who patrol the airwaves and Internet looking for infringers as do companies like Getty Images, which licenses the use of copyrighted images.

“U.S. copyright law cannot protect against infringement in other countries but if someone makes knockoffs in Brazil and sells them on eBay in the U.S., copyright protections kick in.”

Filon said other protections artists should be aware of are patents and trademarks. “Patents are used to protect useful and novel processes and products such as machines, articles of manufacture and compositions of matter,” said Filon. “Trademarks are symbols used to identify a source of goods or services and to distinguish them from goods and services made or sold by others.” 

The Oct. 30 clinic will be held at the Austintown branch of the Public Library of Youngstown and Mahoning County, which is located at 600 S. Raccoon Rd. Those interested in attending or attorneys who want to volunteer can preregister online at legalcreative.org or send an email to info@legalcreative.org