S
ometimes need is plain to
see. We take note when
people are hungry, homeless,
or injured and especially when
disaster strikes—and we respond.
We campaign, draft petitions,
create banners, host dinners, solicit
sponsors, plan concerts, walk miles,
auction prizes, and otherwise donate
our time and material resources in
order to effect positive change.
Our efforts to do good can and
often inevitably do lead us to call
Legal guidance is indispensable to artists seeking to protect intellectual property rights
Answering the
creative call
BY
MA R C I A . R O L N I K ( J D ’00 )
upon individuals and organizations
in the arts to generate written copy,
create unique logos and catchy
graphic design, provide live music
performance or permission to use
recorded music, film promotional
campaigns, contribute photographic
service, and/or donate fine or
contemporary artwork to auction.
Artists are often quick to
answer the call and readily
volunteer; however, they often do
not realize that even these simple
interactions call for a written
agreement to clarify the scope of
any implied license to use the visual,
literary, or performance works of art
they create.
The need for legal counsel is
not obvious to either involved party,
and lack of counsel can lead to
disputes made difficult by the lack
of virtually any understanding of
who owns what—something that
may be assumed to be an essential
part of the deal. Compensation may
also be assumed to be part of the
transaction, but the public at large
often expects artistic content to be
free or inexpensive. When content
comes with a price, there is often
a misunderstanding that payment
includes full usage rights.
So this is the rub: We live in an
ever-evolving digital society that
relies upon and is driven by easy
access to information and creative
content and yet most of the public,
including artists, has little access
to legal information on how to
structure contractual provisions
that permit these exchanges. Parties
often don’t know, for example, that
the United States Copyright Act
requires a writing to transfer all
rights, enter into a work-made-for-
hire arrangement, or exclusively
license copyright interests.
The unfortunate result is that
parties enter into intellectual
property transactions without a full
understanding of material terms of
these agreements. For the public,
this can mean scrolling through
without reading software licenses
and checking a box. For artists,
however, this can mean giving
up substantial property rights or
fighting to clarify the scope of
permitted use for their work. Once
content is available online, it is
often exceedingly challenging and
sometimes impossible to stop the
flow of unauthorized distribution.
The rapid spread of online
content creates unique, often
jurisdictional, challenges for
attorneys trying to enforce
intellectual property rights, and
artists often need experienced
counsel they cannot afford. Whereas
lawyers may expect artists to
budget for legal work like any other
business expense, unfortunately,
many working artists live hand
to mouth depending on when
they receive income from selling,
performing, or exhibiting their work
or when they collect licensing or
other royalty fees. Rather than seek
out an attorney, artists habitually
borrow contract samples from other
artists, or do not use contracts at all,
or substitute a written invoice with
a sentence or two regarding the
obligations between the parties.
Artists are at a natural
disadvantage when it comes to
negotiating agreements. They sit on
a very low rung of the bargaining
pyramid, because they need the
contacts or large marketing budgets
of bigger players in order to develop
a broader consumer base. The flip
side is that art dealers, record label
executives, venue talent buyers,
traditional and self-publishers,
magazine editors, film producers,
and studio heads can view
individual artists as dispensable and
replaceable. Artists, aware of this
view, may work under conditions
the average person would not
tolerate and be more willing not to
raise legal issues for fear of being
blackballed in the industry.
An attorney can significantly
level the playing field, simply by
reviewing and explaining terms
of an agreement to an artist, who
may not appreciate the effect of an
election to renew a contract solely
at a personal manager’s discretion,
or who may not understand that
a commitment to record seven
long-playing albums may not be
realistic in one lifetime. The artist
may also not realize that Illinois
law requires a written agreement
between an artist and art dealer and
that the artist can and should limit
photographic reproductions of the
artwork consigned to the dealer.
Lawyers’ natural risk-adverse
instincts help to clarify the
obligations between the parties—
whether an artist is permitting
a digital image to be used for a
fundraiser or an artistic director
is hiring an illustrator to create a
collection of artwork on a work-
made-for-hire basis. Advising in
these areas requires attention to
copyright law and an interest in the
various steps required to create,
deliver, or distribute any particular
form of creative content.
It generally takes an artist
to understand the magnitude of
creative energy, sacrifice of time
and resources, personal dedication
to excellence, and myriad steps,
performed repeatedly as necessary,
to produce and perfect any single
artistic work. It takes a lawyer
to extrapolate risk, identify all
protectable elements, and carefully
navigate intellectual property
transfers within any seemingly
ordinary business transaction. The
good news for the legal community
is that the need for counsel applies
not only to artists, but also to any
business clients who create or
acquire creative work.
■
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R E S O U R C E S
Copyright laws of the U.S.:
copyright.gov/title17
U.S. copyright circulars:
copyright.gov/circs
U.S. Patent andTrademark Office:
uspto.gov
ABA Intellectual Property Section:
americanbar.org/groups/
intellectual_property_law.html
LCA primers on legal issues in
visual art, music, and film:
Artists aren’t always aware of the need
for written agreements to clarify the
scope of licensing for their work, says
Marci A. Rolnik (JD ’00).
Marci A. Rolnik (JD ’00)
is legal director of Lawyers for the Creative Arts, a tax-exempt corporation that provides legal assistance to individuals and business entities in all areas of the arts. She has worked
as a commercial photographer and producer of independent film projects, and has served as chair of the Chicago Bar Association's Media and Entertainment Committee. She is currently vice chair of the
Volunteer Lawyers for the Arts Division of the ABA Forum on the Entertainment and Sports Industries, and teaches a legal and business affairs course on film production at Columbia College Chicago and
DePaul University.
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ALUMNI RESEARCH
SPRING 2013
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LOYOLA LAW
