Illustrated Daily; 6042; Art and the Law

The arts are a major part of New Mexico's economy and the state boasts more practicing artists than most, but do they receive all of the legal protections they require? We'll find out next on the Illustrated Daily. Good evening. According to the great 17th and 18th century natural law theorist writers like the English philosopher John Locke, nature and art are distinct. Today however, there are those in New Mexico who argue that the state's abundant artistic works and the artist

who produce those works are like our natural resources because they enrich our lives they are beneficial in and of themselves and because they enrich our economy they deserve the same care we attempt to provide our other resources. It is an interesting argument if for no other reason than New Mexico communities like Santa Fe and Taos and Albuquerque have become some of America's busiest art centers in recent years. A look at New Mexico Arts and calls for greater legal protection tonight with Tom Getzel, a visiting professor of law at the University of New Mexico, on leave from the Golden Gate University School of Law and San Francisco and a member of the Board of Directors of Bay Area Lawyers for the Arts. Gordon Church, coordinator of the 1% for arts program in Albuquerque and Cratic Bagshaw, a photographer who is a member of the American Society of Magazine Photographers. First however,

a look at existing legal protections for New Mexico artist in this background report. Ever since Ernest Blumenschein and Bert Phillips broke a wagon wheel outside of Taos in 1898 and stayed on to found the Taos Society of Artists, the light and the cultures of the land of Enchantment have been a magnet for painters, photographers, sculptors and artists of every sort. Today, artists become a cornerstone to the state's tourist-oriented economy. Almost by definition, an artist is not a person preoccupied with commercial pursuit. He's usually represented by others in the world of business and does not often join guilds or other organizations designed to represent his interests to our lawmakers. As a result, there are two few laws designed to protect or encourage artists and their clients. In New Mexico, there are three such pieces of legislation. In 1929, a law was passed making it a criminal offense to sell jewelry falsely represented as having been Indian-made.

In 1983, payment of death tax was authorized to be made by giving a work of art or article of intrinsic cultural value, by mutual agreement to the state museum. The third law protects the artist who consigns his work to a gallery which subsequently becomes insolvent. It gives him first right over other creditors in the recovery of his own work. And so existing laws designed to protect artists and their work. And Tom Getzel, you've been writing about the need for greater legal protection for our arts and artists and drafted a law in California, I'm told, designed to protect art from alteration and so-called mutilation. First, what's this law all about? And secondly, what's its justification? What happened is that we'd seen earlier what had happened in Pittsburgh, Pennsylvania where an Alexander Calder mobile won a Guggenheim award was purchased by a collector for a quarter million dollars and donated to the airport commission. The airport commissioners determined

that this work, which was going to hang in the main foyer, which was black and white, first to be repainted in the county colors green and gold. That occurred. It's just amazing. Shortly after they located the piece, airports which are very windy, they noticed that it would drift about every time there was a breeze as mobiles are want to do. This irritated the airport commissioners and they caused it to be immobilized. Alexander Calder was- They caused it to be immobilized. They caused it to become a fixed work of art instead of a mobile which was drift about with the breeze. Alexander Calder was still alive, was greatly upset. The people of Pittsburgh were greatly upset. This is after all the home of the Carnegie Art Institute, but nothing could be done. The artist had no rights and the public had no rights. We determined that this should never happen in California. So we drafted this bill which was then enacted and it gives the artist a cause of action to stop such

desecration from occurring. Even where the artist no longer owns the piece and the thinking is that the artist's reputation is at stake. If a piece is held out to be that work of a particular artist after it's been mutilated, the artist is injured. So the artist can insist upon having his or her name associated with the work while it's intact and can require his or her name to be removed from the work if it has been mutilated. In addition, the artist can get damages for the harm suffered by the artist's reputation. So what we're dealing with here is the rights of the artist versus the rights of ownership. Let me try this way. It doesn't the artist divest himself or herself of ownership upon sale or donation of a work of art. Certainly. The artist does not own the work of art and the damage is suffered by the artist would not be assessed by the value of the work of art but rather by the damage to the artist's reputation. Alexander Calder didn't create that mobile in green and gold. He did not create it as a fixed work of art. His vehicle

was the mobile and he chose black and white as the colors for that particular piece. How does one make a calculation of the damage to an artist's reputation? It's a very difficult thing to do and the question has not yet arisen because in my estimation the law has worked well particularly because there has been no litigation. What has happened is where somebody threatens to violate the law a letter can be sent out to them either by the artist or the artist's lawyer and people are advised of their rights and then they cease and desist. But would there be such injury to the artist's reputation? What you'd have to do is have expert testimony. Gallery owners could come in and indicate that the value of that artist's work was had declined in value that people were ridiculing the artist making fun of the artist and it ultimately becomes a very intangible thing. So let's say when you somehow have to show that the alteration diminished the work and therefore the reputation of the artist and wouldn't it, isn't it likely that somebody

say oh this is a vast improvement upon this work of art? Well I should hope not but this is going to be assessed just like any reputational injury just how does one assess how much harm is done by a libel or by a slander. It's the same thing it goes to a jury of 12 true persons from the community and they have to assess as best they can from the testimony they hear what has been the extent of harm done. What do you say to those who argue that this is fundamentally an infringement upon the rights of the property owner? It's time they wake up to the 20th century. It's true that this is a novel concept in this country as applied to the arts but the root of this law is in the Dwap Moral which exists throughout Europe and furthermore there's considerable law. Yes and there's considerable precedent for this sort of restriction on property owner's rights if you look at real property people who buy land must consider what they're going to build and do on that land in light of the zoning ordinances that are applicable any restrictions and covenants that apply

to the land and you can't do whatever you like with your property in many respects. Help us understand the mechanics of something like this for instance has anything of this sort ever been adjudicated in Europe and what have been the problems and consequences? Well the most interesting case was one where there was a refrigerator which was taken by the artist Bernard Buffet and he painted the entire refrigerator and the refrigerator was in sold at auction and the purchaser of the refrigerator decided that a greater profit could be had on the resale of the refrigerator by disassembling it and selling the door as a separate piece of art and the side is a separate piece of art the top is a separate piece of art and the artist brought a cause of action in the French courts to stop this from occurring and was successful. The European law has been uniformly more protective of the artist's rights and generally more cognizant of the importance of art the role art plays in the culture. Well help us understand something else for instance art architecture is argued by many

to be art. Architecture is almost routinely hardy as a building go up but that it is routinely altered in some fashion and in time they hardly bear any resemblance to their original. Under law like this could an architect take action to protect the integrity of his original work? The answer is under the statute that exists in California which statute has by the way since been enacted in New York in Massachusetts the answer would be no because the statute by its express language only protects painting sculpture and drawing so it simply would not apply to architecture but the question has come up frequently and the answer must take into account the fact that where you have a work of architecture just as where you have a performance piece and the creators of that piece also have rights of integrity. The law has to take into account the interaction of the many people who claim rights and the

homeowner who owns a Frank Lloyd Wright and then needs to add an extra bedroom for the seventh child must be free to do that. If the artist wants to preserve a work which has been done a house that has been designed the artist could write that into the contract. But you would argue you would argue that the owner of a calder mobile in Pittsburgh couldn't say this doesn't work where we have it ergo we have to change it. The owner of a mobile could not do that. All right. Go ahead and cherish. You work with artists very closely in the 1% for art program. What kind of protections and guarantees do they get you've heard what Professor Getzels had to say about some of the problems? I think one of the major problems is what he mentioned about the cognizance in American society about the role of arts in the public sector in the public sphere. What are their rights and how we go about defining those. I think many people regarding many issues feel that maybe law is not always the way to resolve a problem that is arisen in society and I think artists' rights are in a similar

sort of position. Indeed, we do need to protect their rights. At the same time, I think something that is going on in American society and amongst artists in America is increasing cognizance of what they must do for themselves to protect those rights. That they can no longer be politically apathetic and I mean politically in its broadest sense. It's a concern about the marketing of their products in the public sphere, their responsibilities as well as their rights in that sphere and what I feel needs to go on is not only the laws to protect them but also the increasing activity of artists to familiarize themselves what are their rights, what can they be, how do they go about defining them. I mean, in the calder case, for example, isn't it also the responsibility of the artist to make sure that he has created a contract in which he has stipulated whatever covenants he may want with regard to the piece of art. We certainly in the 1% program in Albuquerque have, I think the public sector is leading

many parts of society in trying to articulate what those rights are and indeed that the artist be protected. That is something that we include in our contracts and I think though it behooves the artist to begin facing the issue. These are things that concern him, there are things, possibilities that he may have to deal with. Well, because you work in the public sector and in the arts, what kind of guarantees don't artist get, what kind of guarantees can they get, for example, can an artist stipulate the location of a work of art on aesthetic ground as a part of a contract with something like the 1% for our program. Well, under our program, we usually stipulate the site, however, we do have it in the contract that we're that art piece to have to be removed because a piece of property is being redeveloped. The artist will be the first person to be contacted regarding that removal or the relocation of that artwork and it own with his permission providing he is alive and can be contacted

that that will be done in conjunction with his wishes. However, in cities such as Seattle, which has been a leader in America's public art program, art clause in the contract does not exist and in many parts in the United States that does not exist. Well, artists refuse to do business with something like the 1% for art program without certain guarantees. I don't think artists are yet cognizant of what their rights could be, so often they're so concerned about making the living that the question of rights or what's going to happen five years, twenty years down the line is not something they're dealing with. And I think that part of what we're trying to do in the arts community is to increase the professionalism that will make an artist regard that just as he does other parts of his creative experience. I mean, it's not only marketing in the arts, but it is his rights and he has to articulate those and begin to be familiar with what his rights could be. If he doesn't articulate those, in many instances, why would necessarily the buyer want to articulate them?

I mean, unless it is, say, the public sector, such as ourselves, it's going to be perhaps not in the interest of the buyer to do so. It has to be the artisans' cognizance and his willingness, ability to articulate those that's going to make the difference. All right. You've heard Professor Guest will talk about a law in California in Massachusetts in New York, I believe, which inhibits, I guess, prohibits alteration of an artist's work. Are there a need in New Mexico for additional legal protections for artists working and doing business in this state? Yes, I feel there are. Again, I think, though, when it comes to the artist relating to the public sector, he has the best chance because there we are trying to consider his rights as a citizen, as well as the artist, in creating those contracts, and I think we are more cognizant of that. But when he is dealing with the private sector, that responsibility has generally been up to him, and again, with the unawareness of American artists or their apathy regarding

law or rights or things like this, they haven't dealt with this or articulated it. And I think that that's part of what the educational process has to be in relation to law is to inform artists of what their rights can be. Many of them don't even know that they would have rights. I mean, this question would be absolutely obscure to them. Some to whom we spoke were surprised it was an issue as a matter of fact, which probably comes as no surprise to you, Professor Guest. So, credit, your photographer, your works are theoretically protected by copyright laws. Your impression are rights of artists adequately protected by the law, or is there need for legislation in New Mexico further to protect them? I think there's need for legislation here, theoretically, the rights of photographers are protected, but they've already, the new copyright law has already been gone around considerably. What do you mean? The old copyright law was a nightmare.

I had a chance to try to enforce it a few times, and it was almost impossible. The amount of research the law would change from year to year, and the rules would change from year to year, and it was almost impossible to pin that down. Under the new copyright law, it's very clear that the creator of a work of art owns the copyright unless it's signed away, or unless there's a situation called work for hire. And that situation is, for instance, the photographers for the Albuquerque Journal are employees of the Albuquerque Journal. Anything they shoot as part of their job becomes a copyright of the journal. Unfortunately, Time Magazine started this in New York. They started forcing photographers to sign work for hire contracts, even though they were contract laborers, California passed a law which is tough to enforce as I understand, but it's a good law that says it's sure you can enforce someone to sign a work for hire, but you have to treat them as a full employee with medical benefits, with insurance, with everything else that an employee would get.

It hasn't gone to court yet as I understand, but it's created a problem. Are you saying that under the copyright law, if a person is construed to be an employee of the visual medium which uses his or her photography or art or what have you, they lose rights to their creative work, right? Yes. And do you have trouble with that? I would not necessarily have trouble with it except that in my opinion it's being abused that as a contract laborer, I am expected in many cases to sign a work for hire or not get the job and there is a very large number of agencies in New York and Chicago advertising agencies that are refusing to hire anyone that doesn't sign a work for hire and they all came up with this at the same time and they all send out very similar letters at the same time. What is a recourse in a situation like this? What do you think needs to be done? Well, the American Society of Magazine Photographers, which was one of the prime groups pushing

the new copyright legislation through is now working to get that clarified, to get the work for hire situation clarified. Most of that is contractual. Even if the work for hire weren't a problem, they could still force a photographer to sign over all rights, which many of them are doing now in lieu of the work for hire, to sign over all rights or not get the work, which is happening to a great extent because there are so many photographers. And photographers need to work. Yes, they need to work. And the American Society of Magazine Photographers came about in the 40s because someone was buying the habit of the industry was to buy the photographs one time and then to use them indefinitely, commercially, without paying any residual to the photographer. Well, that means you'd work once and then they would live off your work indefinitely. You're very deeply involved in the impact of technology, notably computer technology on artistic fields, including photography.

It is now possible virtually for buy computer to take a variety of photographers' works and rearrange them in such fashion as to produce, quote, unquote, a new photographer. But it's the computer's creation and not the photographer's creation. Are there any problems here you see that need legal protections for photographers? There are. There's a major problem in the entire industry as far as I'm concerned because it's, I heard yesterday I started calling around New York and California to friends of mine who have been dealing with this. Evidently, one company has taken three photographs and put them together on the leading machine called a Sytex machine. They digitize the images. What it does essentially is you could take the cloud from one person's photograph and the foreground from another and put them together as a new image. They are claiming copyright on that image because they're the creators of that specific image. And photographers have no legal recourse, is that your impression?

It's, to me, it's very shaky as to whether that's the impression. It's all up to the interpretation of the courts. Do they, do they, Professor Gets? I think it could be argued on behalf of the photographer who has created the initial images that what is being done is the construction of what the copyright law refers to as a derivative work, and one of the exclusive rights that you have as the proprietor of the original copyright is the right to control derivative works. I should think that the practical problem would be in identifying when some part of one of your works has been used, but theoretically, if somebody has taken a component of one of your photographs and used it, that is an infringement of your copyright. This legislation prohibiting alteration of the work of an artist, extent to a situation like that. So, if photographs would be made part of the law, it would cover that. At present in California, photographs are not protected. Why?

It was a political decision that was made. The decision was not to include multiple images, which is to say prints and photographs and multiple cast sculptures. Arguably, they would be covered within the protection of the law because, to the extent to which one of those works is distorted, destroyed, mutilated, altered, nevertheless, there are pure images which still remain. You buy that? I have a problem I have with it is that I would need to, at some point in the future, because it is the direction that the industry is going, I would need to give permission for my photographs to be used as composite parts of another image. With that permission, I would still like to have the copyright of my image or my portion of the image so that it didn't become someone else's image. It is right now, I see what is happening with the ad agencies in New York, the images which were supplied solely by photographers at one point are going to be supplied by other

people as part of this computer revolution of people supplying bits of information, photographs just being an image bit of information rather than information. Craddick has defined a rather interesting set of problems here for art, artist, and the law. It can already reach anything like this. I think it can and I think it must. If I may, I would like to add anecdotally that the problem you are talking about, the computer image is arose a few years ago without the aid of computers where Robert Rauschenberg incorporated the photographic work of Morton Beebe into one of his collages. Morton Beebe said, hey, you are using my work, that is a copyright infringement. The argument proceeded in terms of whether it was an unlawful use of the work of Morton Beebe on the one hand or on the other hand Rauschenberg defended saying it was a fair use that he was making, he was just using a smaller rendition of the image as a component of a larger work. Unfortunately, perhaps for the development of the law, the case was not tested in the court,

it was resolved out of court, and the resolution as I understand it was that Morton Beebe received one of the copies from the edition, which is I think a happy result for him probably. But the common theme I hear how is that although artists need better to be informed of their rights and to assert their rights as Gordon has pointed out, at the same time, to a certain extent, as Craddock has made it clear, artists lack the negotiating power to achieve what they may even know are their rights. You may know you're getting worked over when you sign on that work for higher agreement, but there's not much you can do about it. And that's where the legislation that was enacted in California and in New York has helped, I think, at least provide a vehicle where artists will be able to leverage that situation. Well, what about the work for higher situation that Craddock was just describing? All in film, television, photography, magazines, law, and have been faced with this problem. And as nearly as I can tell, there has not been much of a satisfactory resolution. Is this something that the law need deal with?

Or can it? Because I mean, they were talking about folks with lots of power, networks, and public. Well, we've done in California, and what was done in New York is to acknowledge that, first of all, we deal with the problem where the work for higher situations created by federal law and the state has no authority there. But what's happening is the artist is getting the short end of two sticks. First, the artist is losing the copyright. And second, the artist is being deprived of the protections that accompany the employee status because you're taken on as an independent contractor. Thus, the artist doesn't have workers' protection, does not have unemployment insurance or disability insurance. So what the statutes in New York and California have done is declare that where, for federal law purposes, a work for higher situation has been created. The artist will be treated under state law as an employee and will be entitled to those benefits. Now, it's suspected that when that comes to the test, namely when an artist is perhaps injured and brings suit against one of those persons contracting for the artist's services, then in the future, what's going to happen is that it's going to be economically correct

for that contractor to leave the copyright with the artist, simply take a license for the particular use because providing the insurance benefits will be too expensive. And we can leverage. We can help the artist leverage that situation. We're almost out of time. I'm curious. I didn't get established when the City of Albuquerque, for example, takes possession of a work of arts under the 1% for art program. There are contracts drafted to spell out the rights of the artist as far as ownership change and that sort of thing. And reproduction rights, yes. The reproduction rights remain with the artist except final photos, for example, of the installed work can be used by the City, the public sector, for promotion of the program and such as that. However, the rest of the copyright rights do remain with the artist, as does any rights with regard to removal, alteration of the piece of art and so forth. But like I say, this is a rarity and not the norm.

Sounds like it from what Professor Getzel's told. Folks, you've done Earth the whole new set of issues here at the Illustrated Daily. I appreciate you coming by. Later time is up, tomorrow on location at the Museum of Fine Arts in Santa Fe were a very extraordinary work of art. Something called the Tent of Meeting celebrates the common threads which unite three of the world's greatest religions. Meanwhile thank you for joining us. I'm Hal Rose. Good night. . .

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