Archive for the ‘design’ Category

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.

Signs of the times: a roundup

Friday, August 6th, 2010

What discoveries await you in this fan blog about Williamstown writer Jim Shepard? A. the above video. B. news of a new collection coming out March 2011, and that The Millions thinks You Think That’s Bad‘ll be rad. And C. that a Project X movie may be on the way. (I guess I just spoiled all your discoveries. Sorry. But still go check out the blog.)

Boston novelist Michelle Hoover guest-writes in the highly entertaining 1st Books Blog (authors writing about publishing their first books). The takeaway: persist, writers! Some 15 years spanned between the author starting her novel to the final days of editing, when she read chapters aloud to Other Press publisher Judith Gurewich.

Local playwright, actor, and theatre artist John Kuntz has launched a blog, and he recently wrote about how the audience at Company One’s Grimm was engaged and interested in the new play process: “It was a packed house, out for the night, they wanted to be there, and they were having a great time.” Dig it. May many more new works find many more enthusiastic audiences.

Jen Mergel, Senior Curator of Contemporary Art for the Museum of Fine Arts Boston, was featured in the New American Paintings blog discussing the role of contemporary art in an institution with a strong art history tradition: “I see [emerging artists] as hugely important in terms of keeping the conversation going and the discourse alive.”

And while we’re in the hallowed halls of the MFA: the Boston Globe recently profiled Andrew Haines who, as the museum’s conservator of frames, matches frames with paintings from MFA’s collection (that is, when he’s not creating his own astutely observed paintings).

In promoting their books and advancing their work, writers should definitely do these three things and then also these five things. Then POW: instant fame! Or at least, eight things done.

Sign of the times: Porter Square Books in Cambridge has added an e-Books buying section to its website.

Neato idea: a theatre company in NY enlists donations to cover the cost of giving away seats to audiences who otherwise may not have the opportunity to go.

In the blog of ArtCorps, an organization that sends artists to strengthen and mobilize Central American communities, Massachusetts native Laura Smith talks about using art to foster empowerment with women in El Salvador.

Always wanted to weld/wire/sew/woodwork but don’t have the tools, space, and/or know-how? Artisan’s Asylum, a non-profit community workshop in Somerville, wants to make an array of tools and classes available to current or aspiring makers of things. In preparing their upcoming class schedule, they’re asking for artist/artisans to take an interest survey.

Attend the London Biennale – in Boston. No inter-dimensional wormhole required! TransCultural Exchange, a Mass. org specializing in connecting international cultural communities, is holding a local satellite event – a Curated Salon – as Boston’s contribution to the London Biennale’s three month calendar of cultural events. If you’re interested, bring yourself and a non-artist guest for an evening of brilliant conversation. All participants will be listed on TransCultural Exchange’s website as official participants in the London Biennale. The salon takes place on August 19, 6-8 PM, at the Hampshire House. Download the press release, which includes ticket information, here.

Finally, two “Notes” we missed in our recent Artist Fellows Notes: Wendy Jehlen’s (Choreography Finalist ’04) Anikai Dance Company is producing a free site-specific outdoor performance at Georges Island on the Boston Harbor Islands on Saturday, August 7, 1:30 PM. And Vico Fabbris (Painting Fellow ’06) is featured in the July/August 2010 Design New England. His art was selected as part of a model unit by interior designer Meichi Peng (see art overlooking pillow, below).

Media: clip of Jim Shepard reading the story “Boys Town” at Skidmore College; detail of model unit at the W Boston Hotel & Residences in Back Bay, Meichi Peng, designer and Michael J. Lee, photographer, from Design New England Magazine.

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.

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


Friday, July 23rd, 2010

Perhaps you’ve heard of TED, that confluence of creative super-brains in technology, entertainment, and design? TED Talks at the annual conference have included “ideas worth spreading” from Steven Hawking and Al Gore as well as local innovators Tod Machover and Dan Ellsey from the groundbreaking Hyperscore music project (watch the video above) and Boston Philharmonic Conductor Benjamin Zander. TED has collected those talks in an online catalog – a kind of embeddable Bible for the “groundbreaking genius” sect.

And, just as the Biblical Shem begot Arphaxad, so has TED begot something with an “x” in its name. Coincidence? Yes, I think it is, probably. But the point is, TED led to TEDx.

What’s TEDx? It’s local communities designing and organizing their own independent, TED-like events. And the next TEDx event is about to happen in Boston.

TEDxBoston takes place Thursday, July 29, 2010, 10 AM to 6 PM. Among the events speakers are arts and technology writer Scott Kirsner, designer and Poe story illustrator Eric Mongeon, dance crew Static Noyze, Artists for Humanity founder/director Susan Rodgerson, percussionist Marcus Santos, Boston Latin School senior and erhu player Muhan Zhang, and Sapir Ng, the architect behind the fascinating Tremont Underground Theatre Space concept.

Read about all the 2010 speakers and the pre-conference events. Then go invent something radical, like an ice cream-making hat powered by brainwaves!

Common Boston Festival: Connecting with Architecture and Design

Thursday, May 20th, 2010

Imagine a continuum that extends from a painting of a puppy riding a unicycle* (pure aesthetics) all the way to the Boston City Hall (brutalist functionality). Common Boston sits smack dab in the middle of this continuum, half art, half function, all creative.

The Common Boston Festival (June 17-27, 2010) is an all-out, multi-armed (and -legged, in the case of the walking tours) celebration organized by the Boston Society of Architects that exemplifies how good design benefits Boston communities.

To me, this festival brings up the same the argument we keep implicitly making on ArtSake: our region has 1. Great brains and 2. Magic potion-esque creative spectacularity. Like the artists we often feature here, the state’s top minds in architecture and design compliment their finely-honed skill sandwiches with just the right mustard of creative innovation.

The Common Boston Festival, now in its fourth year, includes 10 days of lectures, art exhibitions, and walking and building tours. And every single one of these design- and architecture-lovin’ events is free as a wild cockatoo. Talk about neighborly!

Of particular interest to artists: you can submit photographs to the Common Boston Neighborhood Photography Project until June 1. The theme is “Building Communities, Behind the Scenes” (showcasing the often invisible process behind the building of Boston’s physical landscape). Winning entries will be displayed in an online gallery or – and this is super neat – on the large exterior LED media screen on the Carpenters Center (which faces I-93).

Other highlights:

  • An open-invite design party (dParty) for everyone interested in design and Boston’s neighborhoods. Attendees get in free when they wear monochrome outfits (examples, as depicted by co-organizer Katie Flynn, above).
  • Common Build (co-sponsored by is a 72 hour competition to design/build creative wayfinding on an active pedestrian site, to orient and connect people within the neighborhood. Janet Echelman (Crafts & Sculpture/Installation Fellow ’09), the only artist to ever win simultaneous MCC Artist Fellowships in different categories, is on the jury!
  • Among the walking tours is one exploring the TUTS concept – that is, the Tremont Underground Theatre Space, the proposed multi-use arts space in an abandoned T tunnel. It won the SHIFTboston Ideas Competition!

More information about the festival, including a full schedule of events, here.

* (By the way, if anyone owns/has created a picture of a puppy riding a unicycle, I will trade you a creatively mustarded sandwich for it.)

Images: Common Boston logo; dParty, as illustrated by Katie Flynn, co-organizer; bus shelter ad for the Tremont Underground Theater Space, proposed by Sapir Ng and Andrzej Zarzycki.