Archive for the ‘arts law’ Category

Artists Under the Dome

Wednesday, October 29th, 2014

DSC00780 Artists Under the Dome The Massachusetts Artists Leaders Coalition’s 8th Annual Artists Under the Dome event will be held Wednesday, November 12 from 10am–2pm in the Great Hall of the Massachusetts State House. This event will provide artists of all disciplines with the opportunity to meet and become more engaged with legislators and their staff. There will be networking at a brown bag lunch, time for artists to visit their legislators’ offices, and an opportunity to watch the House in session. The event is free and open to the public. RSVPs are strongly encouraged. Learn more and register.

Artists as Independent Contractors in MA

Thursday, March 7th, 2013

In Kenji Nakayama‘s terrific letter stream (above), art meets commerce quite literally – in a storefront window.

But art and commerce can, at times, be uneasy partners. There was an interesting post recently in the (always-interesting) Grub Street Daily by John Weeks, a democratic strategist, political consultant, and Grub Street writer. Like many writers, Weeks works on a freelance basis, but in the post, he talks about how Massachusetts law 148B, aka the Massachusetts Independent Contractor Law, prevents publishers from hiring Massachusetts-based freelance writers.

Weeks writes of 148B:

It’s a good law that exists to protect workers from the corporate ruse of “misclassification” and the attendant loss of important employee protections. In recent years, however, the law has come under fire from freelance writers because it’s costing us work.

In essence, the wording of the law makes companies wary of hiring Massachusetts creative freelancers – not only writers but illustrators, designers, and other creative disciplines – because the companies, naturally, don’t want to run afoul of the law. Even though the law’s intended purpose is to protect workers (Weeks cites delivery drivers, chauffeurs, and construction workers, for example) from unfair misclassification that deprives them of employee protections, it effectively blocks MA creative freelancers from getting independent contractor work they want.

Read the article by John Weeks, a member of the Independent Contractor Working Group to find a solution for the issue. And for further research, check out the Massachusetts Artists Leaders Coalition (MALC), an organization that has been actively advocating on behalf of artists on this issue, and a WBUR piece on the issue in 2010.

Image: Kenji Nakayama, LETTER STREAM (2012) enamel on black gesso, 8ftx16ft wall.

Copyright (or wrong)

Thursday, July 26th, 2012

Your graphic novel reimagines a 40-year-old old movie. Your paintings integrate corporate logos into the imagery. Your photograph was used without your permission in someone’s news article.

If you make new work, and do so for long enough, you’re likely to someday come up against the quagmire that is copyright. The issues can be complicated and the solutions, at times, opaque.

A recent “cease and desist” letter to NY-based playwright David Adjmi (a past panelist in our Artist Fellowships Program) illustrates the complexities an artist faces when approaching copyrighted material. Adjmi’s play 3C is about two female and one male roommate, a riff on some of the themes and situations of the 1970s/80s sitcom Three’s Company. Adjmi received critical admiration for the play; not so admiring were lawyers for the company that owns the rights to the sitcom. They sent a letter that, among other things, claims Adjmi’s play infringes on copyrighted material, says 3C damages a proposed stage version of Three’s Company, and demands the playwright cease all future productions and publications of 3C.

The Theatre Communication Group’s blog has posted a letter by Jon Robin Baitz in support of David Adjmi. Among the first to sign the letter are Edward Albee, Tony Kushner, Stephen Sondheim, and Paula Vogel. At the time of this writing, there have been over 540 signatures of support.

We’ve explored copyright issues a few times on this blog: artists Tim Devin and David Taber guest-blogged about copyright, appropriation, and ethics in the work of contemporary artists. Lawyers Jenny Milana and Mitchell Bragg addressed different intellectual property issues, like fair use, derivative works, in our Ask an Arts Attorney feature.

If you are facing a copyright or intellectual property issue, one place to start may be Volunteer Lawyers for the Arts. Through the VLA, lawyers donate their time to serve the legal needs of the Massachusetts arts community. There is an application fee, but if eligible, artists may receive free services.

But even if you’re not facing a current legal issue, questions of copyright may still affect how you create your art. Have concerns about copyright law ever restricted or changed your artistic decisions? And if so, is that a good or a bad thing?

David Adjmi’s play Marie Antoinette will have its world premiere at A.R.T. in Cambridge, Sept. 1-Sept. 29, 2012.

Image: Question mark copyright from Wikimedia Commons

Copyright, Appropriation, and Creatives

Wednesday, June 22nd, 2011

In May 2011, artists Tim Devin and David Taber organized a conference in Cambridge called Play-Jurisms, exploring the complex thicket of copyright, appropriation, and ethics in the work of contemporary artists. We asked the two collaborators to share their observations from that weekend, which approached the idea of creative property from all angles.

How does copyright really work? How can you protect your creations from being stolen? How much of another person’s work can you include in your own before getting into trouble?

We started talking about appropriation last fall. The more we looked into it, the more interested we became – and the more we learned how complex it was. We figured that other creative people in the area would want to know about these things as well, so we organized Play-Jurisms. The conference took place May 21- 22, 2011, at the Democracy Center in Cambridge. All of the sessions were free, and all of the speakers were volunteers.

Two intellectual properties lawyers led things off. Between them, they delivered easy-to-understand explanations of intellectual property law as it relates to creative work, and provided an incredible amount of background information.

Miguel Danielson, principal at Danielson Legal LLC, began by explaining some basics including what copyright is and how it is enforced. He told us that every expression that “shows a modicum of creativity” and is “expressed on a tangible medium” is automatically copyrighted. The phonebook, for example, is not copyrightable. Even though copyright is an automatic right, if you want to make sure you have undisputed standing in court, it is best to register your work with the US Copyright Office, which costs $35.

Danielson also spoke about legal provisions for fair use. Fair use exceptions to copyright law allow for the use of other peoples’ work for educational purposes; commentary; parody (comedy that mocks the original work – but not satire, which makes broader social statements); or “transformative” uses that create a unique work. One important limit to fair use is that the new use cannot have a “negative market impact” on the original work, he said.

In general, he said, case law does not provide a particularly clear guide for how future copyright disputes will turn out.

Danielson’s presentation is available here. The examples he used are worth checking out – including a case that pitted 2 Live Crew against Roy Orbison, and one involving Demi Moore’s body and Leslie Nielsen’s head.

Sheri Mason, who is an associate at Morse Barnes-Brown and Pendleton PC, and is the Director of Legal Services at the Volunteer Lawyers for the Arts, presented next.

Discussing recent trends in copyright law, Mason said the courts have been increasingly tough on people using “fair use” defenses in recent years. In particular, she cited Richard Prince V. Patrick Cariou, in which the court found that Prince’s alterations of Cariou’s photographs were not transformative.

Mason also discussed recent developments in moral rights – rights explicitly offered to visual artists in the United States under the Visual Artists’ Right Act of 1990, and given to other creators to some extent through other laws. Moral rights include the right to be credited and its opposite, the right to publish work anonymously or under a pseudonym. They also include the right to the “integrity” of visual works; that is, the right not to have your work mutilated, distorted, or modified. There are limits to moral rights, however. For example, Mason spoke about a case where landscape design was found to not be copyrightable, and therefore not protected from mutilation.

Mason also discussed Creative Commons – a license that allows others to use your work for free, as long as they agree to certain conditions. (Such conditions could include making the new work available for reuse as well, or not reusing the original work for profit.) Creative Commons works are still copyrighted, but the creator is voluntarily giving up some rights, she said.

Next, we heard from James O’Keefe, the founder of the Massachusetts Pirate Party, a newly formed political party that pushes for copyright-reform and open government.

O’Keefe spoke about how copyright had evolved, and why the way it is now isn’t necessarily the best thing for us. He began by telling us how copyright had been created in Europe to protect religious and political interests, then business interests, rather than individual creators’ rights. He then talked about extensions of copyright that we’ve seen since the early 20th Century in the U.S. – from 14 years to life-of-the-author plus 70 years – pushed for by corporations, particularly one seeking to protect a particular large-eared cartoon character.

O’Keefe made the important point that culture is what has come before, and for culture to move on, we must build on that past. As copyright bars more and more uses of previously created material, it bars what forms culture can take. (Here’s O’Keefe’s presentation.)

We finished up the first day by watching Craig Baldwin’s documentary Sonic Outlaws. This film explores the legal issues around Negativland‘s parody of U2 and Casey Casem. It also included a number of interviews and short vignettes about other copyright-questioning artists such as John Oswald and the Barbie Liberation Organization.

The next day started with Don Schaefer, an artist and artists’ rights advocate. He is part of the Massachusetts Artists Leaders Coalition and is the founder of Pro-Imaging, an international group aimed at promoting artists’ rights.

Schaefer argued in favor of copyright, saying that while its current iteration is a “bad performance,” protection is necessary to ensure that creative people are reimbursed for their time and effort. “We live in a predatory culture,” he said. “There’s no reason for us to be predatory towards each other.”

Schaefer recommended that people collaborate, instead of appropriating from each other; besides being a legal alternative to appropriation, collaboration helps build community, and can lead to further creative opportunities.

After Schaefer, we had a panel discussion about appropriation. On the panel were Danny Mekonnen, Dirk Adams, and Alana Kumbier.

Mekonnen, founder of the Debo Band, a local Ethiopian group, discussed the ethics of cultural appropriation. Mekonnen, himself an Ethiopian-American, spoke of appropriation as being a potentially meaningful exchange and bridge between cultures. During his career, he has worked with a number of Ethiopian musicians here and in Ethiopia. His group has covered their songs, and given them credit. Part of the importance of his work, he said, involves giving recognition and credit to older artists; he also believes in educating his audience about Ethiopian culture.

In his opinion, talk about appropriation as all-or-nothing isn’t right – the reality is more nuanced. Borrowing is fine, but hiding where you borrowed it from is problematic. (Mekonnen explores this idea further in this article.)

Dirk Adams spoke next. Adams is a performance and sound artist, and is also half of the multimedia group Gang Clan Mafia. He said we live in a pervasive information culture, where media has become part of our language. Since this is our culture, it doesn’t make sense to not refer to that culture in creative work. He uses snippets of pop culture to tell stories and create sensations through his work, which he wouldn’t be able to do without appropriating those snippets.

The third panelist was queer burlesque performer and zine-maker Alana Kumbier. Kumbier told us about a zine she edited called “Because the Boss belongs to us” and a cabaret show she’d put together called “Queers Do the Boss.” During the cabaret event, performers did imaginative interpretations of Bruce Springsteen songs. The zine told stories about Springsteen’s influence in the writers’ lives. Kumbier viewed the event (and book) as commentary and social satire, and therefore completely defensible. She said being able to freely discuss and interpret the work of iconic cultural figures who have influenced us is important for self-expression and self-understanding.

The panel raised a number of interesting issues. For instance, do the ethics of appropriation change if the performer is or isn’t making money? Second, there are two ways to reimburse the original creator – through a change of money, and through attribution, which helps get the original creators’ name and work out to a larger audience? In recent history, being reimbursed with money has been the primary goal – but is money really more important than attribution?

After the panel, we had a workshop by Heather McCann and Alana Kumbier. McCann and Kumbier are both librarians, and are part of Boston Radical Reference, a group of librarians who offer their help for free to cultural and left-leaning groups. For Play-Jurisms, they had created an online reference guide listing sites that had legal, free sound, video, and images that creatives can use.

After a short break, we had some free food, and then saw two performances. The first was by Gang Clan Mafia, who performed their new piece, created for the event, called “Gang Clan Mafia Sing Happy Birthday to You, Pac Man.” The piece involved sampled and sequenced sound snipped, as well as video and performance actions.

Factory Seconds, a Somerville-based brass band, closed out the weekend. Dressed in their teal-and-black colors, they played fun and imaginative interpretations of familiar tunes.

– David Taber and Tim Devin

Tim Devin is a Somerville-based artist. His projects have involved community, public space, books, zines, maps, walking tours, and giving things away for free. Tim is a member of the Rise Industries art group, and is on the board of the Somerville Arts Council.

David Taber lives in Somerville, plays low-brass for the Factory Seconds, occasionally writes zines, and thinks much about politics, culture, how to write fiction. Full time, he is a reporter at a newspaper in Boston.

All images courtesy of Tim Devin and David Taber.

Visible Artist Opportunities

Tuesday, March 1st, 2011

Choreographers Green Street Studios announces the Spring/Summer 2011 cycle of its Emerging Artists Award Program designed to provide infrastructure for choreographers, to create new work, and to provide deep, ongoing mentorship between experienced and early-to-mid-career choreographers. The Emerging Artist Award provides the opportunity for New England-based choreographers to be in residence at Green Street Studios from March – June 2011. Call 617-864-3191.
Deadline: March 4, 2011

Grant Information Workshop The Arts Foundation of Cape Cod (AFCC) will hold a grants information workshop for interested applicants on Tuesday, March 8, 6 pm at the AFCC office in Centerville. First-time applicants are strongly urged to attend. Reservations required. Contact 508-362-0066 or AFCC’s grants program provides cash awards to local artists and cultural organizations that are engaged in projects that help create a strong, stable, and diverse arts and culture industry on Cape Cod, and contribute positively to the quality of life and economic vitality of the region. Preference is given to specific program initiatives, particularly those enhancing the arts education of learners of all ages, and to collaborative efforts within the arts community.
Deadline to RSVP: March 7, 2011

Filmmakers Birmingham SHOUT: Gay and Lesbian Film Festival (August 27-28, 2011, Birmingham, AL) is now accepting submissions of independent films by, for, or about the GLBT community in the following categories: narrative feature (over 45 minutes), documentary feature (over 45 minutes), and short (under 45 minutes). Contact or call 205-324-0888.
Deadline: March 15, 2011

Boston Photographers The Mayor’s Office of Arts, Tourism & Special Events seeks Boston photographers to capture the essence and spirit of Boston. They are asking participants to photograph Boston on Patriot’s Day 2011. The best 25 photographs chosen will be displayed in the Mayor’s Gallery, the remaining pictures will adorn the hallways on the 2nd and 8th floors of Boston City Hall. The exhibition will take place May 23 – June 30, 2011. Participants must reside or work in the City of Boston. Artwork submitted will be juried by the The Mayor’s Office of Arts, Tourism & Special Events Exhibition Committee. To apply, submit 3 jpegs (72 dpi) of the photos, description sheet of the work submitted, and resume or brief description of your photography experience. Deliver or email completed applications to John Crowley, Exhibition Coordinator, Mayor’s Office of Arts, Tourism & Special Events, Boston City Hall, Room 802, Boston, MA 02201. Questions: or 617-635-2368.
Deadline: March 30, 2011

Public Art Festival Call to Artists The summertime festival ArtBeat 2011 (Somerville, MA) includes music, performance art, craft vendors, dance, theater, and food. Each year they develop a theme that serves as a launching point for artists and the community to express themselves. This year it is “Red.” Deadline for Craft Artists: March 28, 2011
Deadline for Performing Artists and Painters: April 1, 2011

Call to Artists FIGMENT BOSTON 2011 is now accepting project proposals for the event which takes place June 4-5 on the Rose Kennedy Greenway, Boston, MA. Learn more.
Deadline: April 15, 2011

Painters Lillian Orlowsky and William Freed Foundation Grant is offered to American painters aged 45 or older who demonstrate financial need. The primary emphasis is to promote public awareness and a commitment to American art, as well as encouraging interest in artists who lack adequate recognition. Questions: Call 508-487-1750 or visit
Deadline: August 15, 2011

Also of Note:

Make Art, Pay Bills: Creative Economy Summit 2

Moral Rights and the Visual Rights Act Webinar

 Free Drawing Marathon

 Gallery Conversations at the Provincetown Art Association and Museum

Image credit: Photograph by Provincetown Art Association depicting the Hawthorne Gallery.

Ask an Arts Attorney

Monday, November 15th, 2010

This Tuesday, November 16, 6-8 PM, attend an interactive workshop at the Boston Center for the Arts Mills Gallery on Legal Issues and Starting a Business as an Artist. The workshop is hosted by ARTmorpheus and features attorneys Jenny Milana and Mitchell Bragg of DangerMilana Law Firm. There’s a limit of 15 participants and a $10 fee, payable to Boston Center for the Arts. RSVP here.

If you’ve been following this blog, you may recognize Jenny Milana from our Ask an Arts Attorney feature, where she’s fielded questions about copyright, contracts, e-book rights, and other arts law matters. Jenny is back for another installment, and she’s joined by Mitchell Bragg, who specializes in intellectual property law for DangerMilana. (Also, credit is due to DangerMilana intern Michael McCubbin for researching the topics.)

Incidentally, if you have any arts law questions, send them our way for a future “Ask an Arts Attorney” post.

Please note: this post is for informational benefit only and should not be used in place of actual legal services. Also, as a state agency, the Massachusetts Cultural Council does not endorse any individual business or service.

Today’s question:
If I commission someone to create something custom for me that I design, can they then replicate that design for someone else without my permission? I could draft some agreement to protect me from this or to share in future profits should there be any, but would that be accepted in the arts and crafts world? For instance, we designed a wrought iron railing that the iron company replicated for someone else in a very visible exterior location. Also my friend paid a lot of money for a custom stamped tin stove hood that the artist is now mass producing and selling for much less than she paid. Frustrating! Unfortunately neither of us had anything in writing to protect us. Is there anything we can do? I have another idea for something unique I would like to have made. How can I protect myself from this moving forward?

Ripped off!

Dear Ripped off!,

As a general rule, copyright protection does not extend to “ideas.” Instead, a creator can only protect the tangible expression of that idea when it is fixed in a physical medium. For example, were Michelangelo to think to himself: “I am going to chisel an image of Mary holding Jesus,” he could not receive copyright protection for that “idea;” however, he could receive protection for the actual sculpture of his famous Pieta. So, the answer depends on whether your “design” was ever fixed in any physical medium (i.e. a drawing, a sculpture, etc.), or whether it was merely an “idea” in your mind. If you have the “design” fixed in a tangible medium, you may receive some protection and stop further reproduction; however, if you merely thought of an idea, there is no copyright protection for the “idea” underlying the design. Also, if you do not have a copyright registration it will be difficult to bring a lawsuit, but the possibility remains.

The situation you presented will depend on your unique circumstances – for instance, did the iron company commission you to design a railing, or did you commission the iron company to make a railing for you, based on your design, and the company is now continuing to market that same design for sale to others?

If the company commissioned you to design a railing for their manufacture, then you likely have no rights to that design and the company can make any use of it. In this scenario, based on the information in your post, your “design” for the railing would be called a “work-for-hire.” Generally, this is what most commissioned works default to unless there is a written agreement otherwise. If so, because the company commissioned you to design the railing, they own all copyright protection in the design because they paid for your creative efforts.

Conversely, if you commissioned the company to make a railing, solely for your use, you may have some protection; however, any protection is contingent upon the factors discussed in the first paragraph above. Namely, do you have the design fixed in any medium and, more specifically, do you have a copyright for the design? While you may still be protected if you do not have a registration, provided that the design is fixed in a tangible medium (i.e. the drawing, sculpture, etc.), it will be difficult to claim ownership in court without a registration. To sue someone for copyright infringement, you must have a registration; however, you may be able to sue for “misappropriation” of your intellectual property (the design) if you can show proof of ownership for that design.

In the future, it is always best to have something in writing, signed by all the parties involved (e.g. you, the iron company, etc.) and the benefits of copyright registration cannot be overstated. Registration is relatively easy, inexpensive, and makes it easier to stop people from infringing your intellectual property. Similarly, a simple written document indicating that you own the design, the finished product, and which forbids the manufacturer from making additional reproductions of that product would seem to protect you. Essentially, you want the process of manufacturing your design to be a “work-for-hire” (you should call it that in the written document) so that you own all the copyrights. But remember, you would not want any work that you do for others to be called a “work-for-hire,” unless of course you don’t mind giving up ownership in the copyright. Again, copyright registration is only $35 – it pays to register!

Jenny Milana and Mitchell Bragg are attorneys at law at DangerMilana. Special thanks to DangerMilana intern Michael McCubbin who researched the above topics.

If you have any questions for a future Ask an Arts Attorney post, send them here.

Ask an Arts Attorney

Friday, September 10th, 2010

This is our second installment of Ask an Arts Attorney, in which arts and entertainment lawyer Jenny Milana of DangerMilana answers your questions on legal issues relating to work in the arts.

Incidentally, if you have any arts law questions, send them our way for a future “Ask an Arts Attorney” post.

Please note: this post is for informational benefit only and should not be used in place of actual legal services. Also, as a state agency, the Massachusetts Cultural Council does not endorse any individual business or service.

Now onto matters copyright, contract, and e-publishing!

Is it ok to take a published paperback novel and turn it into a piece of fine art by altering it and making it no longer readable and not having the title or author showing? The pieces would then be for sale. Thanks!

An artist with a novel idea

Dear novel idea,
What you are describing is called a derivative work. A derivative work is when an author creates a new work of art that incorporates copyrighted material, whether identifiable or not. What might be considered unidentifiable to some may be identifiable to others though. Only the original author of the novel has the right to use or license for use the copyrighted work to create a derivative work. When a derivative work is created, in this case the fine art, the fine art is copyrightable. However, the copyright in the fine art only covers the new material. It does not extend to the previously copyrighted work, the novel.

Another thing to be careful of when you create a derivative work is you could be violating rights other than copyright. For example, if the author has a trademark or other marks that are protected on the pages of the book, you would be possibly violating trademark rights if there is any way that the consumer could think the work was authorized or created by the trademark owner.

When you create an original work of the fine art, you hold the right to create derivative works or license others to create derivative works. An example is I could not take a photograph of your piece of fine art and then turn around and sell the photograph. That would be a derivative work, even if I used Photoshop and mutilated the image to the point your work was unidentifiable. I could not have created the photo without incorporating the image of your fine art. As the author of that fine art, you would want the ability to sell photographs.

Ultimately, my suggestion to you is to use books that are in the public domain. This way there is no copyright to worry about. Avoid using images from any books in the public domain though as those may not be part of the public domain. There are several books that are part of the public domain and are newer than 1923, but if you want to be truly on the safe side, any book first published in the US prior to 1923 are part of the public domain.

I do not like to make prints or reproductions of my work. I sent a painting to a dealer to show a customer not too long ago and I was told by a fellow artist that I should have made up a contract stating that I didn’t want to have reproductions made of my work, in any form. I thought the dealer would have to ask for my permission to do if that were to occur.

My question is: Should I have made up a contract for the dealer to sign stating that under no circumstances there will be no reproductions of my work without my written consent?

The painting’s the thing

Dear painting’s the thing,
The answer to your questions is yes and no. Yes, every time you send your work to a dealer you need to send along a written statement. No, you do not need a contract that the dealer must sign to prevent your work from being reproduced.

There is a Massachusetts law (MGL 104A) that covers this issue. When you send a Gallery your painting and the Gallery is being paid to exhibit or sell the painting, the painting is considered on consignment. Auction houses are excluded from this statute. It sounds as though the situation you describe falls under this statute.

When you deliver your work to the dealer you are supposed to furnish to the dealer a written statement indicating you delivered your work of art. This statement should include your name as the artist and your name as the owner of the work, the title of the work if any, the medium and dimensions of the work, the date of completion, the date of delivery and the anticipated fair market value of the work. The dealer must keep a copy of that statement as an acknowledged acceptance of delivery and if the work is sold, the dealer is to record the date it sold, the amount it sold for and the name and contact information for who purchased the work. The dealer then sends the funds owed to you, the artist. These records are supposed to be kept for 4 years after completion of the sale and payment is to be made to you within 90 days of the sale or the dealer can incur fines.

Under this arrangement, the dealer is acting as an agent for you the artist and the property is held in trust by the dealer for the benefit of you the artist. Your work can never be subject to a claim by a creditor of the dealer and the dealer is responsible for any damage or loss to the work of fine art. The dealer also has a fiduciary duty under the law, which is a fancy way of saying the dealer has a very high standard of duty that the dealer must abide by regarding the money received for selling the work of art.

If you are providing a written agreement when you deliver the work of fine art as described under the law above, you can certainly add a quick clause that states you are only giving the art dealer permission to sell the work of art being delivered. This is really not necessary though because the right to create reproductions of your work is a right held solely by you the copyright owner. None of those rights are transferred to the dealer when you deliver the painting.

I recently signed a publishing contract for a new book of fiction. In my contract, the royalties for “online, digital, or other electronic format” publication is slightly less than for the paperbound edition, which seems odd, since it is presumably so much cheaper to publish or sell and electronic books. Shouldn’t royalties for e-books be more, not less, generous?

Also, I get a lot of e-mail from the Author’s Guild warning about the end of the world if publishers get their way with e-books and have not had nearly enough time to follow the intricacies of the debate. In short, what’s the essence of this?

It’s an E-nigma

Dear E-nigma,
Regarding your first question, your thinking is not uncommon. It is a common frustration of authors and a common topic on publishing and author websites. Royalties for e-books are not likely to be more though, and here’s why. Say traditionally you receive 15% royalties for hard back books and the book sells for $30. If the book is an e-book there are lower production costs as there is no printing. But the book wouldn’t sell for $30. It would sell for maybe $15. It is easy to argue though that the royalty rate should still at least be 15%, not less.

The reason e-book royalties are so low is because they never used to matter. The technology had not caught up yet so there was no convenient way to read e-books and they were not popular. Since it was rare for anyone to really make any money on e-books, the royalty rate was ultimately unimportant. The times have changed though as e-books are becoming the more popular format. But the contracts are not changing. In December of 2009 according to Amazon, they sold more e-books then print books.

The Author’s Guild has been fighting for higher e-book royalties for a while now and is making some headway very slowly. Just last month, Random House reached an agreement with a literary agency where they agreed to pay upwards of 40% in e-book royalties for the Odyssey series.

Other issues are slowing down changes. Most publishing agreements are broken up into territories and there are different clauses for translated books and entering into contracts with publishers in other territories. But e-books are sold online, and the internet is worldwide. Where an e-book would still need to be created in different languages, one publisher could release all versions of the book rather than there being several different publishers across the globe representing the different territories. The publishing industry has not figured out how to handle that issue just yet because any change affects the publishing industry across the globe.

There is also the issue of price point for e-books. Amazon set the standard quite low but as e-books grow in popularity, so will their prices. What the market will bear and where prices will level out is still up in the air. There was a lot of buzz when Apple released its iPad with the iBookstore what price consumers would pay for e-books. Prices were so similar that the Attorney General of Connecticut started an investigation into the contracts Apple and Amazon entered into to see if they threaten to encourage coordinated pricing.

The other issue that makes the Author’s Guild leery is that the majority of the agreements authors enter into have clauses that are very broad in scope granting publishing rights for any and all electronic versions in any all media formats for the length of the contract. With technology changing so quickly and the industry changing so much as well, everyone waits with bated breath. Ultimately the jury is still out.

Jenny Milana, a partner at DangerMilana, specializes in arts, media, and entertainment law.

If you have any questions for a future Ask an Arts Attorney post, send them here.

Ask an Arts Attorney

Wednesday, July 28th, 2010

We’re excited to welcome guest blogger Jenny Milana, of DangerMilana, whose experience in contract negotiations, copyright issues, and other legal matters spans the publishing, theater, music, film and television industries. What’s more, while growing up in California, Jenny worked as an actor, so she knows the field from the creative side, too.

She’s generously agreed to field artists’ questions on legal matters relating to their work. (Incidentally, if you have any arts law questions, send them our way for a future “Ask an Arts Attorney” post.)

Please note: this post is for informational benefit only and should not be used in place of actual legal services. Also, as a state agency, the Massachusetts Cultural Council does not endorse any individual business or service.

So without further ado…

My questions may be a little different than what you may typically hear from artists concerning copyright. At this point I am not concerned about the copyright of my own work but the copyright of published books and illustrations. I love to work with paper and am interested in using books with illustrations as materials for a new project. First, I understand that any work published before 1923 is considered public domain, but if those works are re-published at a later date (ex: Alice’s Adventures in Wonderland originally published in 1865 but the story re-published in 1946), is the 1946 publication considered public domain as well? Can I purchase that 1946 copy to be used in a new work of fine art? Thank you so much for any help!

Let It Fly

Dear Let It Fly,
Your question is a bit tricky because it involves the doctrine of fair use. Works in the public domain do not have any copyright protection and can be freely used. However, if those works are re-published at a later date by a new author and they are not identical to the original works, then such work does have copyright protection in the new material. The new material could be a spin on the story’s ending or the illustrations.

The original story itself which is in the public domain can still be used, but the new publication typically has taken the original work and modified it somehow, repackaged it in such a way which gives the new publication copyright protection in those new elements. So in your example about Alice in Wonderland, if the 1946 publication is still copyrighted because it maintained its registration prior to the 1976 copyright law, then you could not take that book and use it in a work of fine art because you are creating a derivative work, a right held exclusively to the copyright owner. A derivative work is a modification, or new use of the original work. You could, however, create a derivative work using the 1865 original.

A few questions. The first has to do with music publishing: what should an indie artist be on the lookout for when trying to license their original music? The second is about gigs: is there a casual way of putting something in writing for a gig which is both legal, casual and easy? Possible uses: dj’ing a wedding, gig at a small club on a tour (making sure gear and staff agreed upon, etc. is there).

Indie Songster in Somerville

Dear Indie Songster,
As in most things there is a long answer and a short answer. I’ll try to give you something in between. A musician looking to license their work should be on the lookout for a variety of things. The first and most important thing to watch out for is what rights you are licensing away. You don’t want to end up with your music as the theme song to a pornographic movie if your target market is teens, for example. You don’t want to give exclusive rights, either, otherwise you won’t be able to license your music for other purposes. There are also two kinds of licenses, master license and synch licenses. Most often, a music license needs to contain both. The master license is for the sound recording and a synchronization license is for the music and lyrics, or musical composition. Most licenses require both but some uses may not need both.

You want to make sure when negotiating rights that subsidiary rights like merchandising are talked about as well so it’s very clear what you are allowing the other party to do and not do with the music. Another thing to be on the lookout for is royalties. The royalties or cost to license the music should take into account every right or use you are granting. Some of these things may not be negotiable, though, when licensing to places such as iTunes. Most often, those contracts are not negotiable.

With regards to your second question, there is definitely a way to put something in writing that keeps thing casual but still protects your interests as best you can. Most parties do things on a handshake, and to involve lawyers and complicated contracts sometimes puts bad tastes in people’s mouths, which strains the relationships. At our firm DangerMilana, our primary goal in reviewing/drafting or negotiating any contract is to talk with the parties as though the contract is more like a collaboration agreement. Everyone’s goal is to continue working together and keep things moving, rather than slow things down going back and forth with negotiations. The contract should also be drafted in as plain English as possible, without all of the legalese. For small gigs like DJing weddings, etc., a contract is of utmost importance as it can be the difference in months of headaches and not getting paid. It also sets the expectations from the beginning.

Those types of contracts should be friendly, basic and no more than two pages at most if at all possible. I would still recommend a lawyer to draft this document, though, because they can maximize protecting your interests in as little wording as possible.

I recently won a publication contest for a book of short stories. I then received a contract to sign. This will be my first published book and so I had no agent and knew no lawyers with specialties in this area. I joined the Author’s Guild for an annual fee of $70 or so, and they reviewed the contract for me and sent me a lengthy response with proposed changes. I was then left more or less on my own to negotiate with the publisher based on their advice. Can you recommend a better way to do this?

Even after I won the prize, I still felt that I was extremely lucky to have found a good publisher for a collection of literary short stories, and although it seems to me the publisher negotiated in good faith, I still felt like I had very little leverage. Should I have acted tough? Should I have gone in swinging? Or should I just be grateful? And let’s say I had hired a lawyer, what should I have expected to pay?

Published but perplexed

Dear Published,
First of all, congratulations on winning the publication contest.

Second, unfortunately there are not a lot of better options. The best option is to have a lawyer do the negotiating if possible. That can be difficult though as lawyers can be expensive. One option is to request the attorney to simply negotiate the really important clauses like price or rights. This can cut down on the cost immensely and protect your interests in the area you are most concerned about.

Regarding your second question, I wouldn’t suggest going in swinging or just being grateful either. As I mentioned in another answer, our goal with any contract negotiation is that the parties are going to be working together and likely want to preserve the ability to work together in the future. As to what you could expect to pay, firms charge all different types of rates, some flat, some hourly. To give you a sense, though, our firm’s hourly fee is typically $300. However, we charge a flat fee for certain services such as contract review. For a review of a contract of less than five pages, we have the artist come in to sit and talk about their concerns (which which typically takes a good hour or so). But our flat rate for that ($150) would be significantly lower than our hourly rate. So when you approach a lawyer be sure to clarify what the rate is – and which type of rate it is – for the service you require. Be aware that some services may have a minimum retainer.

At our firm, we try and work with artists, and depending on the project, can offer a pricing level to fit the artist’s situation. Every artist is different, as are their needs. Some lawyers will be a better fit than others, so don’t hesitate to ask around until you find representation that fits your needs.

Jenny Milana, a partner at DangerMilana, specializes in arts, media, and entertainment law.

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