An introduction to some basic legal issues for Artists Galleries and Authors. © 2011 Ja’Afar...

An introduction to some basic legal issues for Artists Galleries and Authors.

© 2011 Ja’Afar Alwan Al Jaziri & Associates 1

“...good business is the best art” (Andy Warhol)

Lawyers and Artists have much in common-most lawyers enjoy and appreciate the Arts but most Artists do not enjoy or appreciate the law!

“art law” now seen as a distinctive legal discipline.

Art Market continues to grow in value and sophistication.

Lawyers thrive in mature markets....


WHAT WE INTEND TO COVER TODAY

Understanding CopyrightWhat is protected

What is an infringing work?Who owns the Copyright?

Moral Rights and Sharia law.Contracts and Artists

© 2010 Ja’Afar Alwan Al Jaziri & Associates

Understanding Copyright, and Fair Use.

• What is copyright, how long can it last and who gets the benefit?

How does copyright relate to my work as an author, sculptor, painter, installation, conceptual or multi-media digital artist?

Should I retain copyright when I sell or license my work?

Who owns the copyright in commissioned work or work done as an employee?

What is an infringement?


Copyright© Copyright is the source of all reproduction

rights that an artist sells in an artworkthe UAE law is UAE federal law No 7 of

2002,regarding “Copyright and Related Rights” and the rights subsist for the life of the creator plus fifty years

Protection extends to moral as well as economic rights

Copyright provides the exclusive right to licence the use of the work, its reproduction in any form, and its publication via the web or any other means of communication.


What is protected by Copyright?

Copyright covers a wide range of works, including literary dramatic and musical works, paintings, sculptures, photographs, sound recordings, motion pictures and computer programs.

There are exemptions for “fair use” derived from public policy

Only works that are original and distinctive will benefit.The owner has the exclusive right to reproduce,

sell ,distribute and display (or perform) the workThe UAE Courts have an overriding jurisdiction to review

contracts which are unfair to copyright holders (Art 10)


Copyright infringement…what is the test?“would an ordinary observer, looking at the two works under examination

believe that one has been copied from the other”


Its an infringing copy!Koons based his sculpture on a notecard with a photograph

by photographer Art Rogers. So a flat photographic image was transformed into an infringing three dimensional sculpture-neatly illustrating how copyright law works;

i. Koons argued the original photo was banal and lacked originality so could not be protected-rejected (ironic).

ii. Koons said his sculpture should be seen as a parody of the original-rejected.

iii.Koons argued that no economic damage was inflicted on the market for the original-also rejected


Copyright and “work for hire”Where the work is created under the direction and control

of another, that person, and not the artist will be treated as the owner of the copyright.

Where work is done in the course of a contract of employment-copyright belongs to the employer.

The Courts are full of cases involving “joint “ authorship where there has been a dispute regarding claims to ownership…

Understand the relationship and agree who owns what before you start.

Art 26 UAE Law no 7. The natural or legal person who has directed creation of the collective work can practise alone the author’s economic and literary rights in it unless there is an agreement otherwise.


A Model Copyright Clause

For use when selling your work

“xxx(name) reserves all rights to copy or reproduce the work hereby agreed to be sold in favour of (himself) (his) heirs , executors, administrators and all subsequent assignees.

No part of this work may be reproduced without the written permission of the artist and all such reproductions, if any , shall bear an appropriate copyright symbol in a form identical to that appearing on the original.


MODEL COPYRIGHT CLAUSEFor use when you are working to a Commission“The Artist reserves all rights of

reproduction and all copyrights in the Work, the preliminary design, and any incidental works made in the creation of the Work. Copyright Notice in the name of the Artist shall appear on the Work, and the Artist shall also receive authorship credit in connection with the Work or any reproductions thereof.”

(Tad Crawford-Legal Guide For the Visual Artist)


Derivative WorksBaigent v Random House-the Da Vinci Code Case.Extensive review of central themes involving Dan Brown’s

DVC and the earlier “The Holy Blood and the The Holy Grail” by Baigent

Claim was that HBHG had been use as the basis on which DVC had been created, drawing on sources not otherwise publicly available

Claim dismissed;

"the important point is that copyright can be used to prevent copying of a substantial part of the relevant form of expression, but it does not prevent use of the information, thoughts or emotions expressed in the copyright work. It does not prevent another person from coincidentally creating a similar work by his own independent efforts. There is no infringement of copyright in the absence of a direct or indirect causal link between the copyright work and the alleged copy".


Transformative Works


Transformative works-analysing Prince

Claim was that Prince’s “derivative work” was entitled to fair use protection; Claim rejected and 10 M USD worth of Art ordered to be delivered up or destroyed. Use involved commercial exploitation Of copyrightable material A substantial part was being used, and The effect on the market for the original work was

significant.The essential question is as follows;

Does the new work add something new, with a further purpose or different character , altering the first with new expression, meaning or message?


Copyright conclusionBe aware of what you ownBe wary of giving up your rights without

realising it-assignments can only be done in writing

Check to see what rights exist before you appropriate or draw on the work of others and give due attribution

Always use written agreements to make clear your intentions

Always use the © symbol followed by your name and date.


Moral RightsWhat are Moral Rights and what do they

protect?Moral rights under Islamic and Western Law


MORAL RIGHTSMoral Rights are an integral part of Sharia Law

in the Qur'an and Hadith.Based on the importance of accurate attribution

of Hadith (to confirm authenticity). Reflects the importance of integrity in personal

dealing set out in the Qur’an-Article 5 UAE Law No. (7) of 2002.

Islamic approach Pre-dates western concepts by at least 800 years.

In the US=“Visual Rights Act” of 1990In the UK=1998 CDPAIn France=series of codes from the 19th Century.


Berne ConventionIndependently of the author’s economic rights, and

even after the transfer of the said rights, the authorshall have the right to claim authorship of the work

and to object to any distortion, mutilation or othermodification of, or other derogatory action in relation

to the said work which would be prejudicial to hishonour or reputation

(UAE is a signatory to the Berne Convention)


MORAL RIGHTS AND ARTISTC INTEGRITY


Man at the Crossroads

By Diego Rivera

Commissioned by the Rockefeller Centre in NYC and subsequently destroyed;

why?

MORAL RIGHTS CAN BE CONTENTIONSSome see Artists moral rights as a form of private

censorshipMoral Rights can be used to stifle an individuals

response to artSome say all Art should be “Public” but especially

when commissioned by Public AuthoritiesOnce sold-some argue that the Artist has given up

the right to dictate how their Art should be presented

Moral rights are often used to assert economic interests


Moral Rights in summaryThe right to determine when your work is

publishedThe right to withdraw or correctThe right of attribution and the right against

misattributionThe right against non-attributionThe right to publish anonymously (the

pseudonym) and the right to withdraw from a promise to publish anonymously

The right to respect of the work (integrity)


SOME EXAMPLES OF CASES INVOLVING MORAL RIGHTS

Physical mutilation or destruction-The Rockefeller Centre

Mutilation of a copy- The Asphalt Jungle case (in France)

Altering the dramatic context-Waiting for Godot

“Appropriation Art”-an emerging genre that depends on an assumption of another artists work which is reused as the basis for another entirely new work


The Business of ArtThe importance and use of contractsWritten Contracts are the best means of

expressing the basis of agreement and responsibility for errors and mistakes

What form of contract is required? Managing disputes.


ContractsDon’t have to be in writingGoverned by the UAE Civil Code-International Conventions

may also apply.Written Contracts interpreted according to their words,

and ambiguities resolved in accordance with the parties intentions.

The codified nature of Contract Law in the UAE makes it important to accurately reflect your agreement in writing.

The Civil Code contains a number of ways to bring contracts to an end-if they are oppressive, impossible to perform, or contrary to Public Policy-also remember Art 10….

Artist contracts involve numerous areas of potential ambiguity so great care is needed when drafting contracts for Galleries and/or Artists.


Contact Details

David Melville, Solicitor and Legal

Consultant. Ja’Afar Alwan Al

Jaziri & Associates Hamarain Centre PO Box 722 Dubai [email protected] Mobile +971 (0) 55

8873065Office;+971 4 2626

777Fax; +971 4

2629282 © 2010 Ja’Afar Alwan Al Jaziri & Associates

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An introduction to some basic legal issues for Artists Galleries and Authors. © 2011 Ja’Afar...

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