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Free Legal Advice For Artists

Free Legal Advice For Artists

Written by Joshua Wattles

Scott “Sourdough” Power who runs this place asked me to write an article because he wants to give you people some free legal advice and I am a lawyer. But I know that people in the creative class don’t usually take advice from lawyers even when it’s free because it’s going to be limiting and cautious. More to the point, artists in a place called Not Real Art will be less likely to accept real law. There’s a bigger issue with Scott’s idea. A real lawyer doesn’t give free advice, or any advice, unless it’s to a client. There are real laws that say that.

Copyright Artwork

I can tell you how to do some things: I thought something practical like how to copyright your stuff.  So I went to the copyright office website. They have these videos with instructions on how to fill out some of their forms if you decide to register.  I fell asleep during the first one and it was only 2:30 in the afternoon – – really challenging and compelling content.

Copyright law is the foundation for the protection of the arts in all its forms so you might think they could attract De Niro and Margret Cho to narrate with maybe Spike Lee directing on a script from Arron Sorkin produced by Tyler Perry with maybe a catchy intro theme by Lady Gaga. Nope.

The materials at Copyright.gov are very dry. But they are also pretty easy to understand. So if you want to know how to register for a copyright on whatever you have made, go there for the answers instead of some article from a random Google search that might tell you to register your paintings as photographs to take advantage of bulk registration fees. (That would protect the photographs of the paintings but not the paintings themselves. The copy of the painting you will provide at registration will be a photo but please register the painting as a painting.) Like most of the bureaucratic things artists as business people need to do, getting a copyright registration is going to be a drag compared to firing up the boom lift and spraying a wall.

Deviant Art

If you want some background on how and why and how far you can protect your art, I produced a guide on that for DeviantArt where, as its lawyer for 18 years, I held the distinction of representing the interests of more visual artists than any person alive: over 50 million of you. https://www.deviantart.com/protectart/journal/The-Art-Theft-Discussion-544490149 There are even some cool illustrations that prove the point the Copyright Office missed: hire a good artist and they can even dress up the driest content.

Attorney and NOT REAL ART columnist Joshua Wattles at our 2019 NOT REAL ART Creators Conference   where he spoke on helping artists legally protect their art.
Attorney and NOT REAL ART columnist Joshua Wattles at our 2019 NOT REAL ART Creators Conference
where he spoke on helping artists legally protect their art.

Hacking the Law

Lots of artists ask me for advice and it is rarely for the advice they actually need. Sometimes it’s for advice on how to hack the law, particularly criminal laws that can impact street artists. Real lawyers can’t give you advice on how to break the law. I can recommend that if you are concerned about engaging in unlawful behavior, find a good local criminal lawyer, get his or her card and carry it with you at all times. I did that as soon as my fist son turned thirteen.

The most important legal concepts, other than copyright, to learn as a working artist are contracts and partnerships.

Contracts

You probably know that if you have a written agreement you might hire a lawyer to help out if there’s a problem. If you can afford it or if the payment on the project is big enough, you might even hire a lawyer to look over the contract before you sign it. But most artist just sign whatever is put in front of them. I can suggest that you should at least read it first because you’ll probably catch some issues with it, but most artists don’t even do that. One of the things we’ve all learned from the Internet and technology is not to bother reading the Terms and Conditions. Just click through.

No clicks are required to make a binding contract. Contracts don’t have to be written down. And that’s where many artists and business people get tripped up. In most cases, oral agreements without any writing are enforceable contracts – – as in you can get sued over it or you can sue to enforce one. How do you make an oral agreement? Simple, you agree in a conversation or series of conversations to do something in return for something and both sides know the what, where, how and when of the arrangement. That’s all it takes, assuming you can prove it. It is best to write something down. I once interpreted a two sentence “contract” written on a cocktail napkin in Cannes during the film festival by two business guys. It was much better than relying on their cocktail blurred memories.

Partnerships

The instruction on partnerships is also simple. Never use the word “partnership” or “my partner” unless you really mean it as a legal matter. Saying that word even socially in a business context can create a real partnership. A real partnership without a specific agreement to the contrary is usually considered by courts to create two kinds of very scary things if you didn’t mean them: (1) the split of any profits is going to be 50/50 and (2) what one “partner” agrees to do will also become the responsibility of the other partner – – not equally, but completely if the partner who agreed to it bails.

The final bit of help I can give is this: pay your taxes. It’s a shit storm down the road if you don’t.

Josh Wattles

Joshua S. Wattles has a distinguished decades-long career as an attorney, business executive and law professor in the entertainment, communications and technology sectors. Most recently, he was Advisor-in-Chief to DeviantArt.com, an online community for visual artists and their user-generated content ranked by traffic as one of the top 150 websites in the world, where he spearheaded its successful multi-million dollar acquisition by Wix.com (NASDAQ). Mr. Wattles has a varied career as a lawyer, executive and academic in the film, television, music, visual art, Internet and technology fields. He was the deputy and acting general counsel of Paramount Pictures. At Paramount, where he worked for eleven years starting in 1981, he was responsible for the studio’s highest profile talent and content agreements as well as major litigations. He advised the Chairman and all division Presidents on legal matters and managed the more than 60 lawyers operating throughout the company. His litigation experience includes managing the infamous Art Buchwald “net profits” case brought against Paramount on the film “Coming to America.” He was also the senior intellectual property lawyer for Paramount Communications advising film, book publishing, sports and cable television units and was a key architect of the film industry’s anti-piracy programs in the transition to videocassettes. With executives at Universal Pictures, he created the industry’s collective licensing organization for cable and satellite retransmissions of television programs and films in the EU. Josh Wattles’ background in the music industry began right out of law school as an in-house litigator for the American Society of Composers Authors and Publishers (ASCAP) where he worked on the first Copyright Royalty Tribunal proceedings in the United States. At Paramount, concurrently with his legal positions, he ran all of its music operations including the production of soundtracks and its significant music publishing interests, The Famous Music Publishing Companies. He acquired the Duke Ellington catalog and doubled the gross and net revenues of the publishing companies. He helped create the business and legal structure for the modern film soundtrack with the groundbreaking contributions of Flashdance, Footloose, Beverly Hills Cop, Top Gun and numerous others. He shared responsibility for breaking the longest running number 1 single in history, End of the Road, by Boyz 2 Men. After twelve years at the studio, Mr. Wattles became involved in a number of early-stage Internet ventures. He is the founding President of Mixonic.com, an on-line CD and DVD replication company, sold last year to a long time competitor, and he designed and developed the strategy and technology for the most disruptive play the ringtone space, Xingtone, subsequently funded and acquired by Siemens AG. His association with DeviantArt as its chief business and legal advisor began as a pro bono project at the very beginning of the website’s launch 18 years ago. Hejoined DeviantArt full time nine years ago. In his private legal practice, Mr. Wattles was of counsel most recently to Bingham, McCutchen, then a large international firm. His clients over the years include major studios, such as MGM, Fox and Televisa as well as prominent artists including J.K.Rowling, the author and creator of Harry Potter. He participated in MGM v. Grokster, an attack on open Internet distribution of content which progressed to the United States Supreme Court, in which he represented the opposite side to the entertainment industry as counsel to LimeWire and to the developers of the Gnutella protocols who appeared together as amicus. He also represented Michael Robertson, a prominent technology entrepreneur, in copyright litigations with the music industry. He was the lead entertainment and copyright lawyer on Televisa’s litigation team in a significant contract and copyright case against Univision that went to trial in Los Angeles. Mr. Wattles is a Lecturer in Law in Advanced Copyright at USC’s Gould School of Law and previously taught, as an adjunct, the copyright course at Southwestern University Law School and at Loyola Law School in Los Angeles. He has also taught full courses in Entertainment Law, in Art Law and in Music Publishing Law. He continues to lecture and speak at many other schools and professional organizations, most recently as an invited panelist at the ABA 33rd Annual Intellectual Law Conference held in Arlington, VA. His presentation on Fan Art Law at Comic Con International has over 180,000 views on YouTube. He is past President of the Los Angeles Copyright Society. Before attending law school and as an activist artist, he was co-founder of one of the very first programs providing legal services to artists, Bay Area Lawyers for the Arts, which morphed into Volunteer Lawyers for the Arts. Mr. Wattles’ law degree is from George Washington University Law School. He received his bachelor’s degree from Mills College in Oakland, California, cum laude, in American Studies, where he was Phi Beta Kappa and is still distinguished as the only male ever awarded an undergraduate degree by the college.  Mr. Wattles also attended the University of California, Berkeley.  He is admitted to practice to the Bars of California (active) and New York (inactive). Contact: Joshua Wattles joshuawattles@gmail.com

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