Saturday, June 10, 2023

Do Artists Always Retain Their Copyrights?

No, they do not.

I posted earlier this week on the Mackie v. Hipple copyright lawsuit going on in Seattle, arguing (among other things) that it would be interesting to find out whether or not there was a written agreement between the artist and commissioning party to assess whether or not the artist, in our case Mackie, had in fact transferred or shared the copyright to his sculpture. Donn Zaretsky disagreed, and today stated that “in [his] experience too the artist always retains the copyright.” [italics mine]

I disagree.

For one, I’m a bit shy of dealing in absolutes. The assumption that artists always retain their copyrights would, in this case, hinge on which artists we’re talking about. Although not a huge fan of anecdotal evidence, but in order to not run afoul of confidentiality rules, I will say that some of the artists I meet and advise have in fact signed away their copyrights or unwillingly shared ownership of their copyrights. We have to remember that not all artists are lawyered up before being offered a commission. Many artists, particularly those in the early stages of their career, are so thrilled to be given an opportunity to make art and potentially be remunerated, that they will gladly sign and/or waive anything without seeking counsel. The artists I meet do not have the financial resources that would allow them to maintain a lawyer on retainer, nor do they, for whatever reason, have the knowledge of how to obtain pro bono counsel or representation (I work for a pro bono organization; Donn for a law firm). If artists always retained their copyright, this “generally accepted practice” would not have encouraged Mass MoCA to sue Christoph Büchel and make, among many other claims, that they owned or were joint-owners of his copyright.


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  • ries

    Although most government run arts agencies automatically cede copyright to the artist in their contracts, there are a LOT of public art projects with the contracts written so the client retains limited, or total, copyright.

    Particularly on the West Coast, there are a lot of local ordinances that require private developers to commission public art in order to get a building permit- LA, and Pasadena being two of the most well known for this.
    Obviously, private developers play harder ball than city arts commissions do, and often retain copyright in full or part, no matter how “lawyered up” you get.

    I worked on the Seattle baseball stadium, and the team retained Perkins Coie to write the contracts- and it was NOT artist friendly, to say the least. In that case, the artist retained copyright was quite compromised- but as an artist, you dont usually have the option to turn down a big commission.
    Sports is big business, and they didnt get that way by giving money away.

  • It’s often unclear to artists and others what the ownership of copyright means. Possession of the art does not confer copyright – that is easily understood by the artists but not by the person in possession of the artwork.

    Copying and use of a piece of art (by a living artist) in advertising or design projects which are created to sell merchandise is still common and artists can’t often afford to take the legal action necessary to protect them.

    Your article doesn’t identify the pro bono law firm that you work with but I’d be interested in learning that, if not for myself, then for others that I know.

    best regards
    Tom J. Byrne

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