License to use copyrighted work in connection with criminal activity

Alfred Steiner

No physical dimensions

Offer, acceptance, consideration

There’s a lot of buzz during these Covid days concerning the employment of written agreements by artists. As I’ve indicated on this blog, this “practice” is nothing new, if by new we mean this year or the last few years. What is interesting to me is to see how creative artists get.

A long-time friend of mine, artist and lawyer, Alfred Steiner has just released his Public License for Criminal Use. Below, he explains the origins of this contract and his intent with drafting such an agreement. One aspect of Alfred’s agreement that I find quite interesting is how it sits squarely between the space of the law and the out-law. First year law students quickly learn that contractual agreements that engage criminal activity are not lawful, they are not binding (at least within courts of law). But that is not what Alfred’s contract is.

Rather, is Alfred encouraging criminal activity, or is he merely stating that no civil liability will befall any person wishing to use his copyrighted content for “criminal purposes”? With so much still unclear in the “art law” arena, such as graffiti murals painted on property without consent, Alfred’s contract highlights the current pandemic in artistic practices, with the pandemic being safe and conservative approaches to the making and interpretation of art.

One last thing: note what Alfred describes as the “medium” to this artwork!

Now take a look at the agreement and see what you think. Here are Alfred’s thoughts on his project:

This is one of several contracts I’ve drafted for primarily non-legal or aesthetic purposes. I conceived of it in 2014, but didn’t draft the license itself until 2020, when the coronavirus pandemic gave me more time to develop a larger body of works that need nothing more than words to appreciate. In a sense, I’m giving away all of my work by giving away nothing. Anyone can use any of my work for free, as long as the use is in connection with activity that violates applicable criminal law. By contrast, a typical license is limited for uses in accordance with applicable law.

The work raises many questions, including: How can a work of art be used for criminal purposes? Would an artist be morally culpable (r criminally liable) for a crime committed using the artist’s work with permission? Has a notorious criminal ever been taken down on criminal copyright charges, a la Al Capone’s prosecution for tax evasion? Would the license be enforceable or would it be found void as contrary to public policy (in which latter case I might still succeed in a copyright infringement action against an unwary “licensee”)? How can artists contribute to changing unjust or overreaching laws (think Jim Crow, the War on Drugs, anti-sodomy laws, etc.)?

While I continue to consider these questions, I suppose I can look forward to my first indictment for aiding and abetting graffiti vandalism or distribution of LSD. –-Alfred Steiner