Free talk on arts law issues

Artist/lawyer Sergio Muñoz Sarmiento, author of the thoughtful website Clancco.com and attorney at Volunteer Lawyers for the Arts, presents a free talk on his experiences at the intersection of art and law, specifically the legal issues that arise in the implementation of art projects. RSVP required.

Thursday, February 18, 2010 at 6:30

Lower Manhattan Cultural Council

Click here for workshop description and RSVP form.

Adventures in legal advertising

Introducing the very funny law firm commercial. A little off-topic for arts law roundup perhaps, but this blog is also about entrepreneurship. How many law firm commercials have made you laugh?

(via Lowering the Bar)

Tino Sehgal's Immaterial Art

The New York Times Magazine has a very interesting article about Tino Sehgal, the Berlin-based conceptual artist. Sehgal experimented with dance early in his career, but his recent creations, which he calls "staged situations," are conceived as artworks rather than theater, and have been acquired by the Tate and the Museum of Modern Art, among others. Nevertheless, his work builds on the ephemerality of dance (unless it's recorded, a dance performance is gone as soon as it is performed) and takes that quality to its logical extreme. Sehgal is adamant that his work be completely intangible: it cannot be documented in any way, which means it can't be photographed or publicized and is bought and sold without involving any objects whatsoever.

The only objects in the works themselves are human beings. For example, in This situation, the viewer is greeted by six people who intone "Welcome to this situation" in unison and then engage in a conversation inspired by a quote spoken by one of the six, all the while making slow, tai-chi like movements and occasionally including the visitor in the discussion. The process is repeated each time a new visitor enters the gallery.

The legal aspects of buying and selling this art can be confounding. The Times writes: "Since there can be no written contract, the sale of a Sehgal piece must be conducted orally, with a lawyer or a notary public on hand to witness it. The work is described; the right to install it for an unspecified number of times under the supervision of Sehgal or one of his representatives is stipulated; and the price is stated. The buyer agrees to certain restrictions, perhaps the most important being the ban on future documentation, which extends to any subsequent transfers of ownership. 'If the work gets resold, it has to be done in the same way it was acquired originally,' says Jan Mot, who is Sehgal’s dealer in Brussels. 'If it is not done according to the conditions of the first sale, one could debate whether it was an authentic sale. It’s like making a false Tino Sehgal, if you start making documentation and a certificate.'"

So if you document the work in any way, you've suddenly got a forgery on your hands. Sehgal isn't kidding when he says his work is ephemeral.

Two of Sehgal's works will occupy the entire Guggenheim rotunda, January 29 - March 10, 2010. Information about the exhibit is here.

Related post: Another reason for choreographers to videotape their work.

The Smooth Criminal's Patented Shoes

Michael Jackson and his dancers were able to lean forward beyond their centers of gravity (CG in the drawing below) during live performances of "Smooth Criminal" thanks to specially designed shoes patented by the King of Pop:

U.S. Patent Number 5,255,452, filed by Michael Jackson in 1993, explains that “in the past, a professional entertainer, one of the inventors herein, has incorporated dance steps in his recorded video performances, wherein he and other dancers would lean forward beyond their center of gravity, thereby creating an impressive visual effect. This effect was accomplished by the use of cables connecting a harness around the dancer’s waist with hooks onstage.… However, since this requires stagehands to connect and then disconnect the cables, it has not been possible to use this system in live performances.” The shoes solve this problem by allowing the performer, “by engaging the shoes onto an upstanding post positioned to project upwardly from a stage at a predetermined time, to lean forwardly or put his or her center of gravity beyond the front or rear of his shoes, thereby creating the desired gravity defying interesting effect.”

In a description of similar existing patents, Michael Jackson’s patent mentions footwear worn by astronauts which can be locked onto a rail to aid them in working in a zero-gravity environment.

I would provide a link to a youtube video showing the shoes in action, but my ability to do so without committing copyright infringement is an unsettled question.

(via Boing Boing Gadgets)

A Word to the Wise: "We're Not in the Sandbox"

A New York Times report about a contract dispute between a choreographer and the 92nd Street Y highlights how important it is for artists to have an outside eye scrutinize the agreements they enter into.  The Y commissioned Pavel Zustiak, a Czech choreographer, to create a work to be premiered at the Y's Harkness Dance Festival in New York City, and included a clause in its contract that forbade Mr. Zustiak from presenting any work in New York for a period of six months before and three months after the premiere.  Theaters frequently have this type of clause in their contracts with performers.  Mr. Zustiak ran afoul of the agreement when, thinking that the exclusivity provision applied only to performances of the Y-commissioned work, he scheduled a performance of one of his other works at a Manhattan venue less than three months prior to the scheduled Y performance.  Mr. Zustiak ended up paying the Y to guarantee at least $8,000 in box office receipts, and lost $1,200 in the process. 

The article also mentions the ordeal of choreographer Laura Peterson, who lost thousands as a result of not having a contract with a theater that cancelled a production of her show at the last minute.  The moral of the story is that artists need to put their agreements into writing and have someone qualified review them.  To quote one theater director: “From the perspective of an artist, you’re always thinking, ‘I’m so poor, how can anybody be taking money from me, that’s so mean.’  But it is a business; we’re not in the sandbox.”

You Do Not Have A Right To Be Credited, Part I

People often think that if they create a work, they automatically have a right to be credited as that work’s author. And people often think that if they reproduce someone else’s work (say by placing a photo in a blog), then the way to comply with copyright law is to give that person credit.

These are misconceptions. In general, there is no rule of law in America that says that authors must be credited for their works. And that has been the state of affairs in the United States and Britain ever since Queen Anne, whose Statute of Anne was enacted in 1710 to protect authors from the printers and booksellers who were publishing and reprinting books without the authors’ permission, to the authors’ “very great Detriment, and too often to the Ruin of them and their Families.” This was a statute about giving authors exclusive control over the dissemination of their works, so that printers would have to pay authors for the privilege of publishing books. The idea was that these economic rewards would provide sufficient incentive for authors to write books. And since lofty things like authorial attribution have little to do with hard cash, the Statute of Anne leaves them alone. Copyright law was, and still is to a great degree, concerned with providing economic incentives to creativity: art is a commodity.

Things developed very differently on the European continent, most notably France. There, maybe because writers were the ones making up the law in the aftermath of the French Revolution, the right of attribution is just one of many so-called “moral rights” that authors enjoy. Protection for these non-economic rights is so strong in Europe that someone once got into trouble for placing his business cards next to a collection of art book covers, possibly causing one or two people to mistakenly think that he was the author of those book covers (the one-sentence judgment of France's Cour de Cassation is here).

If you are a creative artist working in the United States, however, all is not lost. In an effort to bring its protection of artistic works into line with international standards, the United States does provide for a right of attribution in the case of certain works of visual art. Also, you can include a provision requiring proper attribution in any license agreements you enter into. I will discuss these possibilities in Part II of this entry.

Enclosing the Commons of the Mind

Did you know that we have scores of films crumbling to dust in libraries all over the country because transferring such works to more durable media would require the permission of the copyright owners – who are nowhere to be found?

Did you know that IBM makes twice as much money from its non-copyright protected software than its patent portfolio (which is, ahem, the biggest patent portfolio in the world)?

If you didn’t know these things, you might enjoy downloading a lecture by James Boyle, the witty and urbane author of The Public Domain: Enclosing the Commons of the Mind. His topic is the vitality of the public domain to creativity. Copyright policymakers often make their decisions based on an assumption that since the purpose of copyright is to incentivize authors to create, enhanced copyright protections must lead to more creation. But, Boyle argues, this assumption is made in the absence of empirical data. He notes that the World Intellectual Property Organization (WIPO) had until recently no economists on staff, apparently because copyright policymakers have scant regard for actual data on how their own policies might affect creative output.

The problem in Boyle’s view is that we all (copyright policymakers included) have a bias against openness. This bias is not based in reality. Who would have thought that Wikipedia would be more reliable than Britannica? Who would have thought that open-source software would be so successful (see IBM example above)? These are examples of Internet-based creative works that have flourished in the absence of conventional copyright protections. They are also creative works that have been immeasurably beneficial to humanity.

In Boyle’s words, “we built the Web for science and make it work [only] for porn, shoes and books.” That is because, although the Internet is uniquely capable of gathering together stores of information from an infinite number of inputs, we have a copyright system that often inhibits access to such information in ways that are of little benefit to authors. For example, the films crumbling to dust that I cited at the beginning of this post. Most books published after 1923 are both copyright protected and out-of-print and have outlived their economic use to their authors (many of whom are actually dead). Think of the knowledge that would be at our fingertips if we could make all this commercially unviable work available on the Internet.

Boyle’s lecture is available here. You can also go to iTunes and download it as a podcast. My synopsis does no justice to how engaging a speaker he is. You should take a listen.

PS. Appropriately, you can either buy his book on Amazon or download it for free.