5 Questions on Art & Digital Copyright Law (Part 2)
April 7, 2017
With the dual phenomena of increase in art world wealth and the ease of exploiting content online, self proclaimed specialists and bloggers in “art law” and digital copyright law are multiplying.
Recently named one of 51 High Wattage Women in the Art World, Barbara T. Hoffman’s writings and cases have generated legislation, influenced the development of the law and created important precedents for the creators of content, especially visual artists.
Your practice revolves around a wide variety of sectors in the arts and cultural community – what disputes regarding IP are most common in this sector?
Creatives are both users and owners of intellectual property, primarily copyright, in the art and entertainment world. The owner of a copyright has the right to control the use and reproduction of works they created. Most disputes involve the use without permission of my client’s artwork. A good part of my practice involves preventing disputes through careful drafting of collaboration agreements and license agreements. Representing many creatives, entrepreneurs and explorers, I have gained expertise in monetizing content by careful development and protection of intellectual property assets which provide a stream of revenue to finance projects.
In art negotiation environments, what particular skills and expertise make you particularly qualified to lead operations?
My many years of experience and knowledge of the law, enormous network and deep understanding of the way in which the art world operates are invaluable. In addition, I am passionate about what I do and can be extremely persuasive in the negotiations. Finally, I bring the creative mind and spirit of an artist to the solution of complex legal problems for my clients. We are a lean operation and success is in being efficient to reach economic solutions not supporting a mid to large firm structure.
Can you please explain the implications of the Visual Artists’ Rights Act (VARA) in the US, and have you encountered any notable challenges in your work, on the back of this legislation?
My website contains an article on the Visual Artist’s Rights Act and its limited success in protecting artists’ rights in the U.S. It is unfortunate that in public and private commissions, the tendency of the commissioning body is often to request a waiver of the right of integrity and the rights of authorship. Courts have been reluctant to give wide expansion to VARA. Notwithstanding, I have won on one of the few VARA cases; Flack v Friends of Queen Catherine, 139 F. Supp. 2d 526; 2001. (April 18, 2001).
You successfully represented Daniel Morel in a lawsuit against Agence France Presse (including Getty Images, the Washington Post, CNN, ABC and CBS) in 2011 regarding the copyright infringement of the photojournalist’s works from the internet– what were the complexities of the case and the challenges of litigating against such a large corporation?
This was the first case to involve the importance of TOS of Twitter and Twitpic, in an infringement lawsuit. The major media companies settled with us following denial of their motion to dismiss. The issues in this case were complex and it seemed that a strategy was employed to exhaust Mr. Morel’s financial resources. This is often the case in copyright litigation where the creator does not have the deep pocket. As a lawyer I have never been deterred by deep pockets on the other side. Our firm has successfully adopted the David and Goliath model which aims at early victory via summary judgment or settlement to avoid having to engage in protracted litigation and the costs associated discovery, which is mostly all costs in the U.S.
Is there anything else you would like to add?
For more information, please check out the Hoffman Law Firm’s website, especially our blog and recent news at: http://www.hoffmanlawfirm.org/.
Looking for an Art Law Boutique Firm? Contact The Hoffman Law Firm!
Barbara T. Hoffman is recognized internationally and nationally as one of the preeminent art, intellectual property, and cultural heritage lawyers. With more than forty years of practice in every aspect of the field, Hoffman has been acknowledged by her peers with leadership positions in the New York City Bar Association and International Bar Association, elected to Super Lawyers, Best Lawyers in New York, Best Lawyers in the United States, and named to Art and Auction’s 51 Power Women in the Art World 2016: “As an attorney who has specialized in art law for more than three decades, Hoffman advises artists, their estates, and foundations; museums; collectors; galleries; auction houses; and even foreign governments on matters related to intellectual property, copyright, artists’ rights, and cultural heritage. Working with renowned artists such as Maya Lin and Faith Ringgold, she has litigated precedent-setting cases involving copyright and fair use, establishing copyright protection for visual images on par with that for music used in film and television. She has also been instrumental in drafting contractual guidelines for public art projects around the world.”