Daniel Berset, "Broken Chair" and protest against the war in Ukraine, in front of the UN Palace of Nations (Geneva CH).
Dear <<First Name>>,
We all come from somewhere with our experiences, traditions, heritage, and ideas about justice. Born in Kyiv, I am a Russian-speaking naturalized American, with Jewish and Ukrainian roots. It took me decades to formulate that much of my identity. However, three weeks ago my world shifted, again, and not for the better. The Russian "military operation" in Ukraine was not the end of the Covid pandemic we needed. Yes, we continue living in "unprecedented times" yet we look to precedent and take comfort in predictable, peaceful, productive times.
How you ask? Because art has the power to cheer up and make life worth living.
Assuming there are going to be future Art Law Blasts, I want to thank all of you for doing what you can to: help protect freedom of speech, create protest art, preserve cultural heritage at risk, and give to humanitarian causes. As we live and witness the worst of human nature, we are also seeing the best of humanity as countless volunteers collect and distribute aid, and as corporations contribute to the Ukrainian Red Cross Society and others in need. Countless artists (and kids, and non-artists) have organized exhibitions and auctions with proceeds going to the recovery of the second-largest country in Europe, at the fault line between superpowers. One example of the cultural preservation efforts taking place has been fostered by SUCHO, an initiative that sprung up to collect and archive digital resources about Ukrainian cultural heritage.
Art law, if nothing else, attracts optimists. Things can get a lot worse but in the end, everything will be fine. Even if everything is not fine, it's not the end.
Irina Tarsis Founder and Managing Director
On Our Calendar
INT'L CONFERENCE Looted Art Conference (Venice, Italy) March 25, 2022 4:00 AM EST
The objective of the conference is to raise awareness of the subject of Nazi-looted art in Italy, emphasizing the urgent need of provenance research in Italian art collections and offering practical solutions to those who in the years from 1933 to the mid 1990’s might have inadvertently acquired artworks stolen by the Nazis or forcibly sold during the Nazi era. International experts from practice and science will give insights into how the art market, museums, heirs of victims of the Nazi regime and private collectors in possession of Nazi-looted art have addressed the topic and will discuss the current state of affairs in Italy. The event is both in-person and virtual. More information and tickets available here:
INSTITUTE OF ART & LAWHeritage and Sustainability: Legal Issues in Protecting Cultural and Natural Heritage for Future Generations
March 29, 2022 7:00 AM EST
Heritage and Sustainability: Legal issues in protecting cultural and natural heritage for future generations will discuss sustainability and the historic environment from a variety of angles and jurisdictions (England, Spain, Italy, the Middle East, Australia, as well as internationally).
CENTER FOR ART LAW Clinic: Estate Planning For Artists March 30, 2022 5:30PM EST
Calling all visual artists: join the Center for Art Law's Artist Legacy and Estate Planning Clinic for an evening of low-cost consultations with attorneys, tax experts, and other arts professionals with experience in estate and legacy planning.
After a Keynote Address presented by Ralph Lerner on Taxes and Estate Planning, each participating artist will be paired with a Volunteer Professional for a confidential 20-min discussion. Come for the Keynote and stay for the clinic; separate tickets for Keynote are available.
CENTER FOR ART LAW Workshop on Licensing and Negotiation April 7, 2022, 12:00 PM EST
Licensing arrangements can provide artists with a great opportunity for passive revenue, allowing you to commercialize your art on your terms. While license discussions may begin based on commonly used terms, every license negotiation is bespoke due to the uniqueness of the work of art and proposed use for such art. There are fundamental provisions that all license agreements should contain, as well as pitfalls for the unwary. Join the Center for Art Law along with Catlan McCurdy, Esq. in a presentation that will cover a bit of both in an effort to make you a more informed licensor.
CENTER FOR ART LAW Art Law Lunch Talk: Museums and Deaccessioning April 7, 2022, 12:00 PM EST
Join the Center for Art Law as we discuss and explore the issues that museums have to consider and what they go through when they go through the deaccessioning process with Jill Duepi, Director of the Lowe Art Museum, U. of Miami, Katie Wilson-Milne, Partner at Schindler Cohen & Hochman LLP, and Irina Tarsis, Director of Legal Affairs, Artists Rights Society.
Students are eligible for a discount on membership. Contact us for more info!
What's New in Art Law
Sharing Shevchenko An immersive exhibit highlighting the work of Ukrainian artist Taras Shevchenko is set to visit six North American cities. Alongside highlighting Ukrainian culture, the organizer of the exhibit, Lighthouse Immersive, is using these displays as a fundraising opportunity for the Red Cross and National Bank of Ukraine Fund. The exhibit, which made its debut in Odessa, Ukraine last year, was visited by President Volodymyr Zelensky.
Alexandria in Ukraine
The Museum of Local History in Ivankiv, Ukraine was burnt down after being set ablaze by invading Russian forces. Among the lost art are 25 works by Maria Prymachenko, a Ukrainian folk artist who rose to fame in the mid 20th century. These lost works represented the entirety of the museum’s Prymachenko collection.
France, Spain, Austria, and the U.K. withdrew their loans to Russia’s Kremlin Museum following the attacks of Russia on Ukraine. The exhibit, called “The Duel: From Trial by Combat to a Noble Crime,” was expected to run March through June but after being postponed by the Kremlin Museum, loaning museums were offered an opportunity to rescind their contribution. It is expected that some of these paintings, such as those lent by France, will be kept at their respective embassy until it is safer for them to be transported.
It’s not me, It's You
The Amsterdam Hermitage Museum, a satellite museum of St. Petersburg’s State Hermitage Museum, has announced its decision to end this nearly 20 decade long collaboration. The Dutch Hermitage stated that it could not remain politically neutral while Russia invades Ukraine, but that it would be open to continuing the partnership in the future if Russia changes.
Exploring the NFT Museum Space Quantus Gallery, Europe’s first NFT advisory, will open on March 23rd in East London. While NFT exhibits have been featured at other galleries, it will be the first to exclusively exhibit NFTs and additionally help educate collectors about this space along with spotting scams that tend to dominate the crypto sphere. Apart from displaying NFTs that are for purchase, Quantus has plans to incorporate “interactive elements'' that will further blend the digital and physical world.
Rifting over Richter
Gerard Richter’s Dusenjager, a 1963 painting of a fighter jet, has been the center of a longstanding legal disagreement between Phillips and art collector Zhang Chang. This year in February, the New York State Supreme Court upheld a July 2021 decision that dismissed Zhang’s claims that the auction house had breached the terms of its contract and “unjustly enriched itself” by requiring payment of a $2.6m buyer’s premium.
Scrubbing the Sackler Name
As part of a court decision relating to their involvement in the opioid crisis, the Sackler Family will allow any U.S. museums to scrub the family’s name from their properties. The decision comes as a result of a settlement reached with nine state attorney generals and the District of Columbia. The Metropolitan Museum of Art and the Serpentine Gallery in London have already taken advantage of the ruling, with both institutions removing the name from their respective Sackler Galleries.
Reaching Restitution The Royal Museum of Central Africa, also known as Africa Museum, has begun a significant repatriation process by sharing a list of 84,000 artifacts with the Democratic Republic of Congo. A joint research committee will look into the provenances of these objects to determine whether or not they were illegally acquired by the museum, which was created to display King Leopold II’s personal collection. This process is the museum’s latest attempt to acknowledge the role the museum has had in perpetuating colonial narratives.
The office of U.S. Attorney Audrey Strauss indicted an alleged conspirator of fraudster art dealer Inigo Philbrick, Robert Newland, a sales director at experimental art company Superblue. Newland faces charges of wire fraud and conspiracy to commit it in order to finance a co-conspirator’s business. Having plead guilty in November of 2021, Philbrick now awaits sentencing. Reportedly he plans to turn in over $87.6m in blue-chip paintings linked to his fraudulent activity.
The J. Paul Getty is suing Allianz Global Investors for reckless mismanagement of their investment fund. The trust claims that 97% of their investment was lost due to structural changes made without their awareness. Other investors, such as New York’s Metropolitan Transportation Agency, have also filed lawsuits. Allianz is expected to pay out a settlement of over $4 billion.
Pandora’s Block A recent report by Interpol shows that over 9,000 cultural artifacts were seized by law enforcement between June and September of 2021. A part of Operation Pandora, the seizures come after an international crackdown on the trafficking of cultural artifacts such as coins, sculptures, paintings and more. 52 arrests were also made in connection to the seizures, adding up to 407 arrests since 2016.
M.I.A. at the MIA
A court decision in Torre Annunziata has ruled that the Minneapolis Institute of Art (MIA) must restitute an ancient Greek statue. According to an investigation by the Carabinieri of the Naples Cultural Heritage Protection Unit, the Torre Annunziata Group’s investigative unit, and the Public Prosecutor’s Office, the statue was illegally removed from Italy before entering private collections and later, the collection of the MIA. The MIA is awaiting communication from Italian authorities before taking further action.
This spring, Center for Art Law brings three hybrid events to the National Arts Club. We hope to see many of you there in person or online!
To guide with the estate planning and legacy preservation process, in 2022, Center for Art Law hosted a virtual two-part “A Primer on Artist Trusts” series. The first part of the series, hosted on June 16, focused on the basics of setting up an artist’s trust and factors to consider when deciding whether to create one. The second part of the series took place on November 21; it dived into the nuts and bolts of setting up a trust. Both events are archived and available on demand.
This series was made possible with the collaboration of Julia Schwartz, Artist Legacy Foundation; Tracy Bartley, R.B. Kitaj Estate; Farley Gwazda, Gwazda Art Services; and contemporary art curator, writer and researcher Kristina Newhouse.
A Primer on Artist Trusts: Part 1
Speaker 1 – Melissa Passman, Esq.: Overview of Trusts
The estate planning process can seem complicated with the number of options and buzzwords out there for securing a loved one’s legacy–wills, trusts, estates, foundations. The first session of the series discusses the basics of artist trusts, the pros and cons, and the real life experience behind making the decision to create one.
The first half of the program was led by Melissa Passman, an attorney at Day Pittney, who has extensive experience with tax, trusts and estates, and art law. Passman began the series with an overview of what trusts are and how they compare to other legacy planning entities.
Passman explained that estate plans are often desirable because without one, default inheritance laws will apply upon an artist’s death. Passman explained the different types of entity options available such as creating an LLC, S-Corp, trust, or private foundation. With an LLC, a single member is disregarded for income tax purposes and members of the LLC will not be held personally liable for obligations of the LLC. Additionally, an LLC provides ownership and membership flexibility. A trust is a private agreement whereby the timing of the beneficial ownership and division of title between different parties can be controlled. It is administered by a Trustee. A private foundation can be formed as a trust or corporate entity.
Passman then provided an overview of the basics of a trust and key actors such as the beneficiary, settlor/grantor, and trustee. A trust instrument is a document that names the settlor and the trustee and lays out the governing terms. Passman then gave an overview of the types of trusts available such as revocable, irrevocable, and charitable trusts. Revocable trusts do are trusts that can be revoked or amended but do not have any significance for income tax purposes. Meanwhile, irrevocable trusts may not be revoked or amended. They are immediate gifts of property and may be subject to gift tax and federal tax. Charitable trusts on the other hand are forms of irrevocable trusts established for charitable purposes and provide for income tax deductions. To conclude, Passman stated that the decision to choose a trust ultimately comes down to the artist’s goals.
Speaker 2 – Jamie Johnson: Real Life Experience Creating an Artist Trust
Jamie Johnson led the second half of the program, sharing her experience creating an artist trust. Johnson is the managing trustee for the William S. Dutterer Trust, which she created in 2018. Prior to that, she managed Dutterer’s estate.
Johnson was married to artist Dutterrer and when he passed away in 2007, he left all of his artwork to Johnson in his will. Johnson explained that initially, her two options were to declare no real value for the work or to throw out the work. After hiring a professional to assist her, Johnson considered different entities to manage the artworks. She noted that her main hesitation against establishing a foundation was the extensive regulations and management necessary. She therefore decided to create a trust because of the relatively minimal regulation requirements, affordability, and ease of management. Johnson created an irrevocable trust in 2018 and gathered legal representation, an art accountant, and board of directors.
Johnson explained the consequences of creating the trust such as the increased credibility of her work and her network within the art world. She concluded by describing the trust’s goals for the future and contextualizing their present position towards that goal.
A Primer on Artist Trusts: Part 2
Speaker 1 – Bennet Grutman, CPA: The Financial Basics of Creating a Trust
What counts as a well-formed artist’s legacy? Taking care of the family members? Placing art in institutions? Shaping a careful and complete narrative? An artist’s legacy plan often requires a series of complex legal entities for the preservation and protection of a lifetime of work. The second session focused on selecting and creating several different types of trusts and other entities that are commonly used in legacy planning. ‘Planning’ and ‘conducting’ may encompass lifetime giving placement of one’s work or selling, and always a focus on the minimization of income, gift and estate taxes. An artist must be mindful of valuation issues, the needs for the management of their archives , placement of art, conveyance of intellectual property and of course, the responsibilities they have to their family and friends. The session also looked into who the beneficiaries and who the trustees are.
The second installment in the series began with a discussion of the accounting questions. The first speaker Bennet Grutman, CPA, has extensive experience advising artists, collectors, dealers, gallery owners, trustees, and foundation directors. He also served as a trustee to Robert Rauschenberg’s multi-billion dollar estate.
Gurtman began by explaining some of the concerns artists have when planning to create a trust such as personal needs and family support, tax minimization, and furthering their legacy and philanthropic goals. Grutman then dived into the tax planning maneuver to try to reduce adverse effects of tax rates on trusts. He stated that trusts and estates are separate taxable entities that receive their own income and pay their own expenses. A grantor trust, he explained, pays all of the income tax on the income and gains of the trust and a non grantor trust pays its own income tax.
Grutman provided an overview of some of the available trust types and different transfer strategies. These transfer strategies include testamentary transfers, inter vivos sales, and lifetime gifting. A testamentary transfer is when the transfer is made in a will after the artist’s death and includes purchases of artwork by the trust from the artist’s estate. Inter vivos sales are transfers made during the artist’s lifetime such as an installment sale to an intentionally defective grantor trust. Lifetime gifting is the gifting of artwork during the artist’s lifetime and includes contributions to charitable trusts or split-interest trusts. Grutman concluded his presentation on the financial and tax overview of artist trusts by explaining the process behind transfers to non-grantor trusts, transfers to grantor trusts, and split-interest charitable remainder trusts.
Speaker 2 – Caryn B. Keppler, Esq.: The Financial Basics of Creating a Trust
Caryn B. Keppler, Esq. presented the second part of the webinar. Keppler is a partner at Pierro, Connor & Strauss. She has experience in estate and trust planning as well as gift and charitable planning for a wide client base which include artists, collectors, and artists’ foundations. Keppler is a director of the Estate Law Specialist Board Inc.
Keppler began by weighing the pros and cons of creating a trust for artists. She stated that while trusts can provide for centralized control by a fiduciary, they are usually not the recommended option. She explained that there are other entities that provide for more control, better tax consequences, and are better for management for an artist. Problems with trusts include the restriction by the terms of the governing agreement, the inflexibility of amending them, and high tax rates at low income levels. Keppler suggested that business entities provide a better, more flexible means of managing an artist’s artwork. Separate entities are a great way to separate the intellectual property and the artwork. To separate the entities there are different entities that can be used such as LLCS, C Corporations, S Corporations, and charitable foundations. The most common and flexible form is the LLC. Some of the advantages of the LLC are the ability to have different classes of ownership and the fact that they may be treated as pass-through entities so that the income, expenses, and tax attributes are passed to the owners and members. However, LLCs require the artist to relinquish their artwork for membership interest and LLCs have attracted the attention and scrutiny of the IRS, in terms of income tax.
C Corporations provide a high level of protection from risk and allow for different classes of ownership but are disfavorable in terms of taxation and costs. S Corporations on the other hand, have more favorable tax treatment and state law liability of shareholders is limited. However, S Corporations disallow tax-free distributions of property and are limited in their ability to be owned by trusts. Artist foundations, Keppler explained, help preserve an artist’s legacy and can be created during the artist’s lifetime or after their death. It can be formed as a charitable trust or a nonprofit corporation. Foundations can also provide for income tax deductions and estate tax savings. However, there are strict rules regarding minimum annual distributions to qualified charities and against self-dealing, which make it very important to strategically select the board of an artist foundation. Keppler stressed the difficulty of estate planning and the importance of consulting with accountants and attorneys.
The audience for the sessions included artists, directors of estates, art professionals, young attorneys, established attorneys, undergraduate and graduate students. Some of the questions posed during the session included what the qualifications, experiences and skill set required from a Trustee in the case of Trust or from a Board member in case of an artist charitable foundation were and the commitments generally required of a trustee. Caryn Keppler responded that first and foremost, a trustee has to be a person once can trust. A trustee can always hire a team of experts to assist him/her/them – such as an attorney, accountant, investment advisor, art advisor. But the trustee has to be someone that one knows will be faithful to the terms of the trust document and fair to the beneficiaries. In New York, an individual trustee is entitled to be compensated pursuant to statutory rates: (a) an annual commission based on the value of the trust, and (b) 1% of all principal paid out during an accounting period when the trustee accounts to the beneficiaries. Of course, individual trustees can waive compensation but Keppler tells clients that are considering serving as trustees that it can be a lot of work and can open them up to a lot of potential liability so that they do deserve to be compensated. Corporate trustees such as banks are compensated based on their own published rate schedules. For foundations, board members should have some knowledge of the artist’s work and goals for the foundation, as well as working knowledge of the artist’s business. It’s a good idea to have an attorney, accountant, a financial advisor and family members on the board. If the artist has a staff, staff members are usually good additions since they have a working knowledge of the day to day workings of the business. Compensation will be dependent on the size of the foundation and the amount of hours and contribution that a board member puts in. When Keppler serves on a board, she usually asks to be paid on an hourly basis for her time. In both a trust and a foundation, the time involved will always depend on the size of the trust or foundation, the assets involved, the number of meetings (foundations should meet at least 1x annually if not more often if they are very active). And if the artist hasn’t properly inventoried their work before death, the initial work is substantial and could mean several individuals working full time for years just to get organized. That’s why creating a proper inventory and archive are the most important things that an artist can do for their estate and legacy.
Other questions asked by the attendees included:
Who should one reach out to first in the process of establishing a trust? Whether to first reach out to an attorney, CPA, or appraiser.
How do you move from an S corporation to an LLC corporation?
What factors should an artist take into consideration when deciding which structure to set up?
What are the requirements a beneficiary has to keep various interests separate? What happens when interests merge?
How does one add art to a trust or other entities, especially if there are a lot of artworks or archival materials that have not been appraised or inventoried or have more cultural value than financial value?
Offered as part of the Center’s Estate Planning for Artists Clinic, the series aimed at addressing the different types of trusts and other entities including limited liability companies and foundations, to help artists or their family members think about the nuts and bolts of setting up a trust and calculating the costs associated with successful operation of these different trusts. The series underscored the importance of getting sound and experienced advice from legal and tax experts for creating a sound legacy plan, unique for each artist and providing the knowledge for them to satisfy their ideas for immediate and lasting needs.
Handouts for the event:
Architectural Body Research Found. v. Reversible Destiny Found., 335 F.
Supp. 3d 621 (S.D.N.Y. 2018).
Andy Warhol Found. for the Visual Arts, Inc. v. Federal Ins., 189 F.3d 208
(2d Cir. 1999).
Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 992 F.3d 99 (2d
City Bank Farmers Tr. v. Arnold, 197 N.E. 288 (N.Y. 1935).
W.E. Scott et al., Estate planning for artists: will your art survive?, 21 Colum-VLA JL & Arts 15 (1996).
What is Legacy Planning?: A Legal Perspective, R.B. Kitaj Studio Project (Apr. 6, 2021).
Hrag Vetanian, What Should Artists Do With Their Work After They Die?, Hyperallergic Podcast (Apr. 18, 2019).
Sample Artist Trusts:
Edward Gorey Charitable Trust
Renate, Hans, and Maria Hofmann Trust
William S. Dutterer: Dutterer Trust
About the Author: Nikki Vafai is a law student at the University of Maryland Carey School of Law and holds a B.A. in International Affairs and Art History from the George Washington University. Nikki served as a 2022 fall legal intern at the Center for Art Law.
“I have this dream my daughter-in-law kills me for the money, She thinks I left them in the will, The family gathers ’round and reads it, And then someone screams out, “She’s laughing up at us from hell!”…”
~Taylor Swift, from “Anti-Hero” (2022)
In Taylor Swift’s 2022 track and visual “Anti-Hero”, the viewer is invited to the artist’s deepest intrusive thoughts and fears as viewers are taken to her “funeral” while she sings of her heirs reading her will. While Swift’s slightly satirical, but very real nightmarish skit is a fun play on the artist’s personal fears within inheritance and wills, her point poses an interesting question. But in all seriousness, what happens to artist’s estates, copyrights, and originals when they die?
The subject of inheritance continues to be a focal point in many artists’ legacies. Family feuds, severed ties, and convoluted legacies can often end as a result. While we see these stories take shape globally from Picasso to Rothko, the artist and children’s book illustrator Tasha Tudor (Aug 28, 1918 – June 18, 2008) specifically comes to mind as her legacy was built on the foundation of family and the peaceful whims of a cottage-core lifestyle.
Tasha Tudor – Select Biography and Works
Tasha Tudor was born and raised in New England, a location that set the stage for playful imaginative children’s book stories with beautiful sceneries inspired by living in the countryside. She began her work with stories like “Pumpkin Moonshine” and eventually went on to illustrate popular novels such as The Secret Garden and The Little Princess by Frances Hodges Burnett. Her works of art carried a whimsical air that continued into over one hundred of her published illustrations. She also found other mediums to curate this idealistic imaginative lifestyle into her reality specifically through her motherhood and raising her family. Many of the magazines and stories she created were based on the reality of her own life she created in her home and with her children. From marionette shows, to holiday festivities, this lifestyle was ingrained into not only her art, but her everyday being.
Tasha Tudor’s legacy and brand was built off of the idea of childhood, love of nature, and homemade living. She always thought of creative ways to entertain her family, even designing several small magazines where her children could buy clothing items and other things by trading buttons as money. Many of the illustrations also drew from personal memories such as pushing a flowered cake down the creek for birthday celebrations. While her and her family of five grew up with the animals on the farm, making homemade recipes, and living the naturist lifestyle she curated, she eventually translated all of these collective works through her illustrations, cookbook, fan magazines (Take Joy!), documentaries, and the Corgiville world. She brought her home to life for her fans as she toured and released monthly articles that inspired those around the world with her way of living.
The Case: Estate and Family Feuds
While Tasha Tudor’s literary and visual world evoked a charming and harmonious imagery, the later years of her family’s everyday life and connection to her saw otherwise. In 2008, after the artist’s death at the age of 92 in Marlboro, Vermont, questions arose over the ownership of her art and the $2-million-dollar estate that was originally built by her two sons, Thomas and Seth Tudor. This began a relentless dispute between her four children. Her eldest son, main caretaker, and the current director of the majority of her lifestyle and artwork record keeping, Seth Tudor, inherited a large portion of her original artwork and copyrights, as well as her estate, while the remaining children were “disinherited.” $1,000 USD was given to both of her daughters, Efner and Bethany Tudor, and a vintage highboy was given to her youngest son, Thomas Tudor. While the original will in 2001 divided up all her works, originals, and properties between her sons and her grandson, the amended will in 2002 left most of the estate and copyrights to her son Seth.
Her second son Thomas Tudor noticed changes in his mother’s will, he contested these changes in court, claiming his older brother Seth Tudor unduly influenced their elderly mother in her later years. The defense argued that the will was just and fair, having only been changed due to disinheritance. Thomas Tudor rebutted, noting key witnesses from his sisters to a close friend of Tasha Tudor’s argued that communication to reach Tasha Tudor had been cut off and that Seth was profiting off her legacy. The suit lasted for two years and was meant to be directed to a Probate Court Trial in Vermont, but in turn eventually led to a private settlement. Thomas Tudor drew objections from the will and estate after the settlement and a judge-ordered division of Tasha Tudor’s ashes were cut in half between family members. Currently, Seth Tudor and his family continue to run the estate as a museum and integrate her legacy and lifestyle through their own life in order to promote her world.
How to Protect and Plan for Estate and Copyright
While this family-filled estate drama seems intensely specific, it is a very common occurrence amongst artists. Although family feuds often go much deeper than the division of an estate, there are some important preventative steps to conflict and ways that artists can continue to cultivate their legacy. While settlements are the “ideal” case in terms of legal battles and family affairs, cases do not always end in this way. During will planning, artists may want to consult lawyers, such as estate lawyer Matthew Erskine, on both how to create more clarity so as to avoid feuds in the planning process and how to clearly manage the legacy of the artist after their death. In an interview conducted with Matthe Erskine, on Tuesday October, 11, 2022, Erskine provided important advice on beneficial ways to navigate this common issue, it is necessary to prepare and meet with a lawyer who can help organize and map out the process of copyright and estate transfer in order to minimize contention between family members, organizations, and other actors such as gallerists. He also suggests considering a transfer of the originals and copyrights by forming a publishing company with a Limited Liability Company (LLC) in order to avoid complicated and lengthy bureaucratic processes. This allows beneficiaries to pool resources to manage, assign shares in the company, and access certain royalties that one gets as the publisher. Artists should never contract away their intellectual property, moral rights, or copyrights. While these copyrights can be licensed, they cannot be transferred unless noted so in the will. “Copyrights may also be bequeathed by will in whole or in part and may pass as personal property by applicable laws of intestate succession”.
This calls into question one of the next important measures that Erskine mentioned, which is archival procedure and ensuring that all pieces are preserved and possible making them more available to the public. As families inherit copyrights or estates, some things to consider with both the archival processes and preservational work is to reach out to museums, galleries, or large archival institutions such as the library of congress in order to bring light to the works of art. Archival procedures become key to the maintenance of the artist’s legacy. As we are deep in the digitized era and metaverses, it is important for artists to find organized ways to record, keep, and memorialize their work digitally. While the process of archiving and organizing can be daunting in an artist’s life work, it is this procedure that can prevent fallout. Resources such as the Center of Art Law’s Artist Legacy Clinic can be helpful in this aspect of estate and copyright planning. Especially in a time where art is often considered in digital spaces and re-molding through this element, it is important that artists ensure their legacy remains how they wish it to be represented to the best of their abilities through thorough copyright and estate planning.
Family feuds and relations will always be a particularly tender subject that adds an extra layer to will and estate planning. As Taylor Swift mentions in her song “Anti-Hero”, this can be a recurring and very real nightmare. While this process can be very layered and complex, there are nuanced and effective ways for artists to organize and archive this process. It is always in the artist’s best interest to seek professional advice as soon as possible to both archive and protect the legacy of the work. When an artist dies, the will is what remains of the legacy; In order to protect this, turning to a professional can help guide an artist through the many obstacles or legalese, complicated legislation, state specific and global specific statues, as well as convoluted familial affairs. Through the work of lawyers and programs such as the Artist Legacy Clinic here at our center, provide a great first step in maintaining legacy and planning for the future. It is the work of art professionals generally that secure the wishes of artists while they are still living, thus preserving their interests well before their passing. In doing so, artists will have no need to worry about those dreading nightmares of family fights breaking out over the will becoming reality. Ironclad estate planning and legacy protection will create the clarity and transparency needed to keep the art alive and well for years to come.
Loretta Wortenberger, The Artist Estate: A Handbook for Artists, Executors, and Heirs Paperback. 2016
Ramsay H. Slugg, Practical Planning For Art and Collectables, 2021
Hanna Tudor is currently in graduate school at New York University studying Art Politics and Public Policy. She majored in Art History & Visual Culture as well as Political Science, which drew her towards the field of Art Law. She is the granddaughter of the artist mentioned, Tasha Tudor. A majority of this article is first hand information, but any additional information will be listed above and in suggested readings. Her love for art law is centered on its ability to strengthen artist voices and create bridges to protect those who are vulnerable to the institutions that attack certain salient rights to creative expression and cultural heritage
The author of this article is the granddaughter of the artist discussed in this article. ↑
“By far, the greatest danger of Artificial Intelligence is that people conclude too early that they understand it.” —Eliezer Yudkowsky
Again and again, artificial intelligence (AI) has demonstrated its sheer power to create and tell stories by making visual art,writing poems, code, composing music, and even testing astrological compatibility. Or has it? AI seems to be (machine) learning and doing it all—perhaps, it has taken a step even further to play a little on the human psyche and create “magic avatars” envisaging who one may want to be. If one has ever imagined what they might look like if they were Monet’s or Van Gogh’s muse or if they were animated by artists from Disney or Pixar— AI has got it covered. Now, one can get stunning portraits of all these and many more at the low cost of $10 and likely a few morals here and there — if one is willing to ignore some major ethical red flags (as tempting as that may be…) as well as concerning legal and privacy issues.
Inthe recent past, AI-generated art has become increasingly ubiquitous owing to the quick turnaround time and detailed prompts to collaborate and create artwork. With the accelerated rate of improvement and enhanced neural networks, AI is becoming more talented, more quickly. AI software (or the people behind the code) like DALL.E 2 among others, is now being accused of stealing artists’ protected works without consent to generate “new” images. Only days after South Korean illustrator Kim Jung Gi passed away (October 3, 2022), his work was fed into an AI model and reproduced. A 34-year-old Polish artist, Greg Rutkowski also stated that AI models should exclude the work of living artists after learning thousands of AI-generated images were copying his fantasy style and the fact that his name was searched over 93,000 times while the images were being produced. Lensa’s “magic avatars” is one such AI model that is being accused of copying artists’ work to create “magic avatars” or AI-generated portraits. Lensa’s magic avatars grant instant gratification to those who want to see themselves exactly as they desire, making it an instant darling of the digitally savvy… while possibly/probably referring to works of real artists’ and our contemporaries’ styles, leading living artists and artists’ estates to ask for accountability.
Screenshot of the download window for Lensa AI on the iOS App Store
What is Lensa?
Launched in 2018, Lensa is a product of Prisma Labs — a company based in Sunnyvale, California that recently topped the iOS app store’s free chart. Though it was created in 2018, the application did not become popular until Prisma Labs introduced its “magic avatar” feature in 2022. Lensa uses artificial intelligence to digitize and generate users’ portraits in a variety of categories, from anime to fantasy to what they call “stylish” which most closely resembles an oil painting. The app itself is free, but the portraits require an in-app purchase. With a seven-day “free trial,” users can upload 10 to 20 selfies and then select a package of unique avatars, ranging from 50 for $3.99, 100 for $5.99, or 200 for $7.99. A year-long subscription is $35.99.
How does AI create the avatars?
To create “magic avatars” Lensa uses Stable Diffusion, an open-source AI deep learning model, which draws from a database of art scraped from the internet. Stable Diffusion has been around since 2020 and was founded by Emad Mostaque but released to the public only in August 2022. Stable Diffusion draws from a database called LAION-5B, which includes 5.85 billion image-text pairs, filtered by a neural network called CLIP ( also open-source).Other recent applications to now employ Stable Diffusion include Canva. An independent analysis was conducted by researchers and tech experts Andy Baio and Simon Willison, where they explored 12 million images used to train Stable Diffusion and found out the websites where it pulled images from, along with the artists, famous faces, and fictional characters found in the data. They employed Willison’s Datasette project to make a data browser to explore the images and traced the origins to platforms like Blogspot, Flickr, DeviantArt, Wikimedia, and Pinterest. Pinterest, of which is the source of roughly half of the collection. This essentially implies that the AI has been trained on unadulterated internet images with minimal filters and restrictions, and that have been taken from across the internet regardless of whether they are copyright protected works of other artists or not. Stability AI, the company that funds and disseminates the Stable Diffusion software removed “illegal content” from Stable Diffusion’s training data, including child sexual abuse material. Additional changes to their policies were also made in late 2022 to make it harder for Stable Diffusion to generate certain types of images that include nude and pornographic output, photorealistic pictures of celebrities, and images that mimic the artwork of specific artists such as the case of Greg Rutkowski. But who makes these decisions as to which artists are fair game and which are off limits? Perhaps it should not be AI…
What makes the avatars so “magical”?
Unlike other filters or photo-editing applications to edit or modify photos, Lensa generates images that do not necessarily look “real,” but rather lean into a new kind of photo distortion rooted in its other-worldliness and dreams. The application requires a minimum of 10 photos (with a maximum of 20) and demonstrates examples of “good” and “bad” selections of “selfies” to upload. A good selection is an up-close selfie that showcases natural features while a bad selection is a distanced pose, or a group photo. There are explicit instructions to not upload any group photos or photos with any sort of nudity. (It does seem concerning to note that while no images are uploaded with nudity, the AI generated images contain nudity…) After the photos are selected, the application takes up to 20 minutes to generate the portraits in 10 styles: fantasy, fairy princess (or prince), focus, pop, stylish, anime, light, kawaii, iridescent, and cosmic.
The “portraits” have a striking similarity to the user of the application, but there is something both dream-like and dystopian in the similarities and differences of the output. As an example below, Lensa accurately captured the user’s dark hair with bangs and brown eyes. What was most unsettling was the accuracy with which it captured the user’s “winged eyeliner,” red lips and somewhat closed-mouth smile that was present in many photos and is present in real life. The differences whether in terms of length of hair or the clothes or poses were also deliberate as to imagine something of a fantasy.
LensaAI generated “magic avatars”
Ethical, moral and legal concerns
While millions of users around the world began generating and falling in love with their vanity… and narcissus-like magic avatars, concerns grew within the artist communities online. Not only were these AI-generated portraits taking away commission opportunities for digital artists, but some of those artists’ who rely on commissions of artworks were being used to train the AI model that generated them, and often without their permission.
Screenshot of tweets by Prisma Labs
A number of artists who spoke out against Lensa, including Jon Lam who stated that “Lensa uses Stable Diffusion which is still using Datasets from stolen data and art all over the internet. This is how it knows how to mimic art styles. It’s unethical, and Big Tech is behind this ripping off artists everywhere for $8 a pop. This is what normalizing data/art thievery looks like. It’s malicious apps disguised as fun trends. If you are an artist, or truly appreciate us, Stop messing with this.” Digital artist Meg Rae posted a warning stating “Do not use the Lensa app’s ‘Magic Avatar’ generator. It uses Stable Diffusion, an AI art model, to sample artwork from artists that never consented to their work being used. This is art theft.”
As mentioned earlier, Lensa does employ a copy of the open-source neural network model Stable Diffusion to train its AI. This means anyone has access to the open source data without any restrictions. The model taps into a pool of billions of images from all corners of the internet, which are compiled into a dataset called LAION-5B. Stable Diffusion then uses these images to learn techniques that it applies to generate new works, which Lensa claims “are not replicas of any particular artist’s artwork.” While this is ethically dubious, the copyright law regarding these datasets is still murky. LAION’s website states that the datasets are simply indexes to the internet, i.e. lists of URLs to the original images together with the ALT texts found linked to those images. While LAION downloaded and calculated CLIP embeddings of the pictures to compute similarity scores between pictures and texts, they subsequently discarded all the photos. This means that because the datasets only contain URLs of images, they serve as indexes to the internet, which do not violate copyright law. It may be interesting to compare this to the US Court of Appeals decision stating that Google’s creation and display of thumbnail images does not infringe copyright and that Google was not responsible for the copyright violations of other sites which it frames and links to. The rationale was that Google does not store the images; its own page simply provides HTML instructions that direct a user’s browser to access and display a third-party website. Scraping public images from the internet, even copyrighted ones, to create something transformative would likely be fair use and be a defense against copyright infringement but only if the copyright infringement was levied against a human-made image not something created by a machine. In fact, the images generated are not copyright protected until the human authorship can be proved in the magic avatars. In addition, the open-source nature of Stable Diffusion means that any copyright infringement is the end-user’s responsibility. Even if AI art can clear these legal obstacles, the ethics are of course still deeply concerning.
Lensa’s app has been trained on artwork created and posted by artists across the internet, and some artists claim this not only devalues their own work by AI mass producing 50-100 images at a fraction of the cost of a commission, but it is also potentially appropriating their work, including their signature. Artists and others pointed out that in the AI-generated images one could see the mangled fragments of the artists original signatures in the corners of the portraits, as seen in the images below. Arguments were made against the same as well, stating that this is not what the “signatures” were. “This is the AI noticing that its training dataset always has signatures and reproducing that element.”  One person pointed out that it was “entirely possible that these are watermarks from photography studios, which would be more likely since people are seeding this AI with photos” while another reiterated that “copyright applies just as much to photos as it does to drawings and paintings” and regardless this work could be infringing an artist’s rights. Another commented stating that the worst part is that “future updates can be tweaked to avoid this.” It is interesting to think back to a simple rule-of-thumb jest attributed to Bob Oliver, “if you steal from one man, it’s plagiarism. If you steal from several, it’s research.” And who is better at doing research than a machine processor capable of processing hundreds of thousands of images. Is this theft? or is it simply “research” to create something new?
Screenshot of tweets by Lauryn Ipsum with signature fragments of artists on LensaAI generated “magic avatars”
Example of an AI-generated “magic avatar” with fragmented signature of artist on the top left
Artists in online communities like DeviantArt, which produce the kind of art that Lensa refers to, usually self-regulate. If someone posts art that looks like another artist’s work, that person is usually criticized for copying and ostracized from the community. But it’s more difficult to attribute responsibility when an algorithm generates the artwork. As of now, original artists are not receiving any payment from Lensa for the use of any images. And concerningly, if people become accustomed to paying so little for so many portraits, it may be a challenge for artists to produce artwork and be paid their dues for the same. Who can compete with machine making seemingly intricate portraits?! Is this the dawn of the new prete-a-…. fashion? the ultimate Vanitas?
In December 2022, a digital artist named Ben Moran tweeted that moderators of r/Art (a 22 million member art forum on Reddit) banned Moran from the subreddit for breaking their “no AI art” rule. Moran had posted an image of their digital illustration, titled “a muse in warzone,” and moderators removed it and banned them from the subreddit stating it was an AI design or generated piece. Moran responded that they could provide a process or the PSD file of that painting to prove that Moran was the artist and that they were not using any AI-supported technology. Moran further stated that the punishment was “not right” and provided a link to their portfolio on DeviantArt. A moderator for r/art replied that they did not believe him and “Even if you did ‘paint’ it yourself, it’s so obviously an Al-prompted design that it doesn’t matter. If you really are a ‘serious’ artist, then you need to find a different style, because A) no one is going to believe when you say it’s not Al, and B) the AI can do better in seconds what might take you hours. Sorry, it’s the way of the world.” Moran’s response to this was that “Being accused of being an AI artwork is just like telling me that I’m a random guy and all of my job is just typing some words to have a painting in one or two hours. I think it’s not a good comparison.” Since AI is churning out artwork at a fraction of the time and cost and websites are (with good intention) trying to ban AI works on art websites to protect artists, who is able to differentiate between AI artwork and human produced work like in the case of Moran? Are human artists being reprimanded and devalued for work they have been creating long before AI?
Additionally, the updated policy provides more detail on privacy rights for residents of California, Colorado, Connecticut, Utah, and Virginia—the only five states with comprehensive privacy laws, some of which go into effect in the new year. For example, users in those states can request information about what user data is collected and to have it deleted. The legal team at Prisma Labs decided to add the state-specific section for the benefit of its core user base and after conducting a review of soon-to-be required legal notices.
Finally, while users may or may not own the rights to the photos generated by “magic avatar,” individuals may still have a right of publicity. The right to publicity prevents someone’s likeness, including their image, from being used commercially without permission. By granting rights to images through these applications a user could end up seeing their face on the developer’s website or marketing materials without granting explicit permission.
Screenshot of tweets of Prisma Labs
The issue with artificial intelligence is that there really seems to be no precedence… yet. (No doubt that in time there may be more lawsuits and complaints to peruse through!) AI is doing more than we know and a majority of it remains unregulated. There are no laws that strictly lay down any standards for ownership of work or liability and accountability of actions. Terms and conditions, privacy policies and good practices assist in ensuring that there are some standards followed and that basic violations of privacy do not go ungoverned but they can be vague and riddled with loopholes. It is important to note that one cannot copyright a “style” of work, only a piece of work itself. If the AI-produced work is ‘transformed enough’ from any original source input, it will be challenging for an artist to claim infringement. However, if the AI work is substantially similar to any artists’ prior work or that it appears to be copied, then infringement may be present and legal remedies would likely be available. “Theft” of art work through machine learning at least at this point seems to lack legal backing though ethical considerations must be taken into account. While the law does not prohibit sampling work to transform it (like using the fair use doctrine), is it moral to continue engaging with AI models to purchase mass produced and cheap art? Or are different “fair use” standards required for AI generated artwork?
Will AI artwork ever truly replace traditional art or the work of digital artists? While it may be relatively simple to make an artwork that looks aesthetic enough using AI, it is still difficult to create a very specific work regardless of detailed text-prompts, with a specific subject and context. So while apps like Lensa may be fun and trendy in the short run, the personality of the artist remains an important context for their work especially if commissioned. It is interesting to think of whether Lensa or similar apps could replace the market. Would a person who wants to purchase a high quality commissioned portrait rather employ a human artist or would they choose AI? It seems unlikely that AI would carry the same prestige or value but it remains challenging for artists who feel increasingly ripped-off.
As of now, behind all the AI software(s) is a human-run company which can be held accountable and liable for violation of any laws. At a minimum, perhaps these companies should seek informed consent for the data that they use to train their machine learning algorithms as the artworks are not public property just because they may be publicly available online.
Read more: What else is AI upto these days?
Screenshots from the Co-Star App
Co-Star: AI is now being used to chart out astrological stars and predict compatibility. After one inputs their information, including their place and time of birth, Co-star gives detailed daily readings as well as compares the user’s astrological charts with friends on the application to guide relationships. While access to most information is free, for more detailed readings one can make an “offer” of a certain sum of money from $1 – $20 to receive the full and “complex” reading. See more here: https://www.costarastrology.com/
Images generated on DALL•E 2 using text prompt: oil painting of a robot holding a paintbrush and painting a portrait
DALL•E 2: AI art platform creates images from text descriptions in seconds. One can input a detailed text prompt for which an image is generated. 50 credits are allotted to a user per month to generate a number of images at no cost. The app is available for $36 and bypasses hefty legal fees usually charged by lawyers. See more here: https://openai.com/dall-e-2/
DoNotPay: An artificial intelligence bot is set to defend a human in court for the first time ever in February 2023. The world’s first robot lawyer will help a defendant fight a traffic ticket in court. The Artificial Intelligence (AI) bot developed by DoNotPay will run on the defendant’s smartphone. It will listen to court arguments in real time and advise the defendant on what to say via an earpiece.The defendant will only say what the AI instructs them to say in court. To use the service, one has to input basic information about a specific legal issue and the information will be processed using AI to generate a legal document tailored to those specialized needs. DoNotPay was initially developed to help people contest parking tickets in London. Since its launch in 2015 where it was initially a chatbot, it has expanded to cover a variety of legal issues. See more here: https://donotpay.com/
Atreya Mathur is the Director of Legal Research at the Center for Art Law. She was the inaugural Judith Bresler Fellow at the Center (2021-22) and earned her Master of Laws from New York University’s School of Law where she specialized in Competition, Innovation, and Information Laws, with a focus on copyright, intellectual property, and art law.
A host of legal and ethical questions are raised by cases like that of Whitney Houston, whose estate began looking for legal opinion in 2020 after a livestream hosted by record producer Scott Storch used her hologram likeness without permission. Developed in 2016 by Hologram USA, her hologram was initially intended to debut on The Voice in a duet with Christina Aguilera before going on a worldwide tour. The endeavor was shut down after Houston’s estate said “it didn’t look like Whitney.” What determines fair usage and control of dead celebrities’ voices, images, and creations?
Before December 2020, twenty-three states recognized a post-mortem right of publicity, including California, Florida, Nevada, and Texas, meaning that nearly half the country has common law or statutes that recognize the commercial property value of an individual’s image and likeness during their life and after their death. No right of publicity exists at the federal level, so this is wholly a state issue, and this balkanization leads to an extreme variance in right of publicity laws across the country. For example, the duration of the right to publicity after an artist’s death varies dramatically: 100 years in Indiana, 50 years in Texas, and 10 years in Tennessee.
Despite being the first state to enact a publicity law with the New York Civil Rights Law in 1903, New York was the 24th to implement a post-mortem component, a protection that many states have been working to include since the 1980s. Former Governor Andrew Cuomo signed into law amendments to the New York Publicity Bill on November 30th, 2020, ensuring that performers who are New York residents at the time of their death can be protected from nonconsensual commercial post-mortem dissemination of their image.
This development comes after years of negotiations between the Motion Picture Association (MPA), SAG-AFTRA, and other interested entities. The MPA has served as an advocate for First Amendment rights, and SAG-AFTRA has argued for the rights of performers, celebrities, their families, and their estates in this matter. Because of this compromise, updates to the New York Publicity Bill are significantly narrower than other states’ statutes when it comes to protecting artists.
Amendments to the New York Publicity Bill were introduced by its sponsors, politicians Diane Savino, Brian A. Benjamin, David Carlucci, Pete Harckham, and Robert Jackson, on May 16, 2019. After a year and a half of negotiations, the bill was passed unanimously in the New York State Senate, and won with only one dissenting vote in the New York State Assembly.
This bill adds to the existing Right of Publicity statute (§ 50-f) in Chapter 6, Article 5 of the New York State Civil Rights Code (CVR) “Right of Privacy.” It “establishes the right of publicity and provides for a private right of action for unlawful dissemination or publication of a sexually explicit depiction of an individual.”. Contrary to California’s right of publicity, which is supported by statutes (Cal. Civ. Code § 3344) and common law (White v. Samsung, 971 F.2d 1395, 1397 (9th Cir. 1992)) New York only has one system of Right of Publicity law. The NY statutory regime supports a right of publicity, yet the New York Court of Appeals has held that there is no common law right of publicity in Stephano v. News Group Publications, 474 N.E.2d 580 (N.Y. 1984).
In addition to the New York right of publicity only being supported by statute, the bill specifies that it won’t operate retroactively. Unlike states with retroactive right of publicity laws, the post-mortem right of publicity for those domiciled in New York at the time of their death only applies after May 29, 2021. Furthermore, recent updates to the Right of Publicity in New York only apply to commercially valuable deceased personalities, or digital replicas of the state’s legislative definition of a performer: a person for whom “gain or livelihood was regularly engaged in acting, singing, dancing, or playing a musical instrument.” For claims unrelated to sexually explicit deep fakes, the commercial value of an individual’s personality at the time of their death is of key importance.
Protecting Artists and Artists’ Estates
This bill protects artists, performers, and their estates by prohibiting unauthorized uses of performers’ images, such as commercialization after death, creation of digital replicas in movies and other content, and the dissemination of deepfakes throughout the internet. It operates in two ways:
Establishes a post mortem right of publicity. The commercial property value of an artist or performer’s personality and likeness is recognized and protected. For nearly two decades, SAG-AFTRA has been arguing for legislation that protects entertainers living in one of the biggest entertainment cities in the world. Performers residing in New York at the time of their death are now able to have their estate manage the commercial aspects of their likeness for forty years following their death. According to Tarter Kinsky & Drogin, “monetary remedies include the greater of $2000 or compensatory damages suffered by the injured party and profits from the unauthorized use that are not included in the compensatory damages.” The usual first amendment protections apply for works that are literary, musical, parody, satire, commentary, or criticism, but in New York, the legality of creating the hologram of a deceased performer and selling tickets to its concert will depend on contracts signed by the performer during their life or their estates’ decision in cases where 40 years haven’t yet passed since the performer’s death.
Provides for a private right of action for unlawful dissemination or publication of a sexually explicit depiction of an individual. Deep fakes can be understood as the video form of photoshop, and this technology was initially used in movie studios to better align actors’ lip motions with dubbed audio. Since the development of deep fake technology, which often uses a hyper-realistic construction of an individual’s face or body to spread misinformation, many female celebrities have been victimized by malevolent pornographic material that maps their likeness onto sex workers. According to Giorgio Patrini, CEO and co-founder of Sensity, a company that detects AI-manipulated content, “Reputation attacks by defamatory, derogatory, and pornographic fake videos still constitute the majority [of deepfake videos] by 93%.” The increased accessibility of deepfake technology raises questions about the spread of misinformation and the way in which facts can be verified. With this technology, anyone who has shared photos of themselves online could be victimized by AI-generated revenge porn, so the New York Publicity Bill provides a private right of action to all individuals and not just performers. A less disputed issue than the post-mortem right of publicity, this new private right of action amendment speaks to the shared concerns of first amendment advocates and those invested in the civil rights of entertainers.
Protecting First Amendment Interests
While recent changes to the New York Publicity Bill make important strides in protecting the rights of performers, these amendments also have carveout protections for the first amendment. SAG-AFTRA’s website states: “It is important to note that content creators have critical First Amendment rights to use your likeness without permission, such as for the purpose of satire, parody, commentary, criticism, biographical films and documentaries or other newsworthy or educational purposes.” The statutory language of the legislation makes it clear that there are exceptions for expressive works. This bill also creates a Right of Publicity Claim Registration where “any person claiming to be a successor in interest or a licensee thereof to the rights of a deceased personality may file a claim registration.” This creates a barrier (with fees and other legal requirements) to filing a claim against someone who creates audiovisual works of a deceased person, and gives notice to those who intend to use another individual’s likeness for advertising. Another way this bill balances the interests of different parties is its lack of retroactive applicability. Marilyn Monroe’s estate, for example, doesn’t have a right of action for the use of her image in advertising campaigns and the like, and her image is considered public domain despite being domiciled in New York at the time of her death. Additionally, unlike the components of this legislation that address deep-fakes, this right of publicity for deceased individuals will only apply to individuals whose likeness, image, or voice has commercial value at the time of their death or because of their death.
There are a variety of questions raised by updates to this law. For instance: what are the parameters around “commercial value?” In § 50-f (2)(a), a right of action is created for “deceased personalities” for forty years after their death. According to the bill, a “deceased personality” is a person “whose name, voice, signature, photograph or likeness has commercial value at the time of his or her death or because of his or her death,” yet commercial value itself isn’t defined within the bill.
Another question might be: who is a “deceased performer?” The statutory language makes a distinction between those whose likenesses have commercial value at the time of their death and those who have commercialized themselves during their lives as performing artists. “Deceased personalities” receive a more traditional right of publicity protection that exists in many states. “Deceased performers,” on the other hand, are uniquely protected from having their “digital replicas” commercially exploited. Unlike “deceased personalities,” “deceased performers” are defined as a person who “for gain or livelihood was regularly engaged in acting, singing, dancing, or playing a musical instrument.” Legal experts are unsure where this definition leaves retired and amateur performers, and athletes are not considered “deceased performers.”
Only time will reveal all the strengths, weaknesses, and implications of these updates to the New York Publicity law. Even so, this bill strikes an important balance between the creative interests of different categories of artists. After years of negotiations, legislators have created a bill that simultaneously aims to prevent the unauthorized, exploitative use of artists’ name, image, voice, and likeness without infringing on the First Amendment rights of others, a hard balancing act indeed.
About the Author:
Soleil Hawley (Center for Art Law Graduate Intern, Fall 2022) is an early graduate of the University of Pennsylvania, where she earned her BFA as an oil painter with a minor in Art History in 2019. Since her graduation, she has worked as a research assistant at the Penn Cultural Heritage Center and runs Mixbie, a marketing company she created with friends in 2020.
Facts of the case are based on ICC court records. For documents, news and recordings, visit HERE.
In January 2012, armed violence took place in the territory of Mali and led to different armed groups taking control of the north of the country. Around early April 2012, the Islamic Maghreb called al-Qaeda and the Islamic Maghreb ‘AQIM’ took control of Timbuktu, Mali. In addition, it is home to one of the UNESCO world heritage sites, 16 mausoleums of Timbuktu (Mali), “due to its outstanding universal value as an African intellectual and spiritual capital in the 15th and 16th centuries.” From January 2012 until January 2013 the AQIM imposed their religious and political edicts on the territory of Timbuktu and its people. They did so through a local government, which included an Islamic tribunal, an Islamic police force, a media commission, and a morality brigade called the Hesbah.
The case has been made against Ahmad Al Faqi Al Mahdi, who was responsible for destroying the cultural heritage sites. He belongs to a family that is known in his community for having extensive knowledge of Islam. Al Mahdi joined the armed group Ansar Dine at the beginning of April 2012. For relevance, Ansar Dine was formed in 2011 by Iyad Ag Ghali, who partook in the 1990 rebellion in Mali. The fusion of Ag Ghali and Ifoghas Tuareg gained the backing of al-Qaeda in the Islamic Maghreb (AQIM). Al Mahdi was also in direct contact with the leaders of AQIM. Al Mahdi returned to Mali to provide help to these armed movements as an expert on matters of religion. He was also asked to lead the Hesbah. He wrote a document on the role of the Hesbah, which was entrusted with regulating the morality of the people of Timbuktu.
The mausoleums of saints and mosques of Timbuktu were an integral part of the religious life of its inhabitants and represented a common heritage for the community. The mausoleums were a popular place for the residents as a place of prayer and, for some, places of pilgrimage. The AQIM administration was interested in raising awareness among the population to stop such practices and, as the case may be, to prohibit them from pursuing them. Al Mahdi was asked to monitor the cemeteries visited by the residents.
In late June 2012, the AQIM administration made the decision to destroy the mausoleums. Al Mahdi was asked to conduct the attack as he was the leader of the Hesbah. Around June 30, 2012 and July 11, 2012, ten of the most important mausoleums of saints and mosques were attacked and destroyed on the orders of Al Mahdi and other individuals. All the destroyed sites were dedicated to religion and had been historic monuments dating back to the 15th and 16th century. In addition, they were not military objectives, and most of the buildings had the status of protected UNESCO World Heritage sites.
A warrant was given on September 18, 2015 for Al Mahdi’s arrest from a single Judge of Pre-Trial Chamber I, International Court of Crime Chamber (ICC). He was held at The Hague ICC detention center until September 16, 2015. When he was caught, he was fully collaborative: he admitted to personally determining which buildings/monuments were to be attacked and how. Also, he had written and read a sermon dedicated to the destruction of the mausoleums.
SITU Research is a studio that aims on putting together data and design to create a new path for justice, based in New York City, USA.(7) SITU Research teamed up with ICC to develop visual and special information about the case. On the platform, all the offenses made by Al Mahdi are listed visually.
Al Mahdi was caught, surrendered to the ICC by the authorities of Niger, and then taken to the ICC Detention Centre in the Netherlands on September 26, 2015.
The International ICC decided to give the sentence of nine years in detention in proportion to the gravity of the crime.(10) It’s The first time that the ICC has prosecuted cultural heritage destruction as a war crime under the Rome Statute of 1998. The Chamber highlighted that crimes against property are generally of less gravity than crimes against persons. They also highlighted the fact that the buildings destroyed were not only religious but also had another layer of value for the inhabitants of Timbuktu on an emotional and symbolic level. For the decision, the Chamber stated the following:
“…five mitigating circumstances, namely: (i) your admission of guilt; (ii) your cooperation with the Prosecution; (iii) the remorse and the empathy you expressed for the victims; (iv) your initial reluctance to commit the crime and the steps you took to limit the damage caused; and, (v) even if of limited importance, your good behavior in detention despite your family situation. Taking into account all these factors, the chamber, unanimously, sentences you to 9 years of imprisonment.”
In accordance with an order of the ICC, the time Al Mahdi spent in detention following his September 18th arrest would be deducted from his sentence. Mohamed Aouini represented Al Mahdi as defense counsel. Aouini has gained widespread recognition as a criminal lawyer. He is known for working in the case of Georges Ruggiu,who was a Belgian journalist working in Rwanda in 1994 and was accused of being connected to anti-Tutsi statements allegedly made in the course of his work as a radio broadcaster.
The three judges that were assigned to the case were Judge Raul C. Pangalangan, Presiding Judge Antoine Kesia-Mbe Mindu, and Judge Bertram Schmitt.
On November 25, 2021, Al Mahdi’s case was reviewed to reduce his sentence. The Appel Chambers of the ICC, three judges: Judge Solomy Balungi Bossa, Presiding Judge Marc Perrin de Brichambaut and Judge Gocha Lordkipanidz. The focus of the review was for Al Mahdi to get two years reduced from his charges, therefore completing his sentence by the 18th September of 2022.
This review was initiated because Article 110(3) of the Statute provides in relevant part that “[w]hen the person has served two thirds of the sentence, […] the court shall review the sentence to determine whether it should be reduced.”
Other points that were highlighted during the review to reduce Al Mahdi’s sentence is if there is early and continuous cooperation, which also include voluntary cooperation, of the person with the investigation and prosecutors. Furthermore, Al Mahdi, while attending his sentencing, disassociated himself from the crime and did not create any problems while in prison with the staff or other prisoners.
A point made against Al Mahdi was that if he were to be freed into society again, he would be a disturbance to society. In response, he said would live in another country. Meanwhile, while in prison, he acquired new skills that would help him create a new life. The Republic of Mali opposed the release of Al Mahdi because the Mali community has not yet recovered from the wounds.
The Panel felt it was appropriate to reduce his sentences to two years, and he was released on September 18, 2022 instead of his original release date in 2024. The Panel also highlighted on that day that Al Mahdi will be released to take into consideration the concerns expressed by the Republic of Mali and the victims, in which country he would be released to.
Since their destruction, the mausoleums have been rebuilt. The planning of the operation from UNESCO started in 2013 with the help of many experts in the field. The reconstruction implementation started in 2014. The project has also taken the path of peace:
“The reconstruction and restoration of the earthen architectural heritage of Timbuktu highlighted the potential of cultural heritage as a peace-building tool and to increase resilience.”
The void of destruction does not create a healthy environment and it is a constant reminder of the past. It is through such projects of reconstructions of such spaces that give hope for the future of peace.
About the author: Daniela Baiardi (Center for Art Law International Class Intern, Summer 2022) is a Swiss Italian art historian doing her master’s degree in Theory and History of Art and Architecture at the Architecture Academy of Mendrisio, Switzerland. She is also doing an internship at the UNESCO Chair for ICT to develop and promote sustainable tourism in World Heritage Sites at University of Southern Switzerland (USI). In the future, she hopes to help protect cultural heritage.
The author would like to acknowledge input from Irina Strelkovskaya, Soleil Hawley and Paulina Picciano for their role in drafting this case review.
Prosecutor v. Al Mahdi, ICC-01/12-01/15, Judgment (Sept. 27, 2016). ↑
In September of 2022, the Swiss Federal Council, the executive body of the federal government of the Swiss Confederation, voted to create an independent commission on Nazi looted art. The independent expert commission’s purpose is to make recommendations regarding the return of “cultural property seized as a result of Nazi persecution.”
The proposal to create this commission was the by-product of ongoing national debate and most recently criticism sparked by the long-term loan display of the Emil G. Bührle collection in the newly opened wing of the Kunsthaus Zürich. Emil G. Bührle (1890-1956) was a German-born art collector, patron, and arms manufacturer. Bührle used slave and child labor in his factories to manufacture weapons and sold these arms to the Nazi regime. With his rapidly growing wealth, during his lifetime, Bührle purchased several works that were looted from Jewish families. As an aficionado of the arts, Bührle did contribute greatly to Kunsthaus Zürich. Bührle was a member of Kunsthaus Zürich’s collection committee, financed an exhibition wing, and in 1952, he donated two large Monet water-lily paintings to the museum. After his death, Bührle’s heirs set up a foundation, the Emil Bührle Collection, which oversees display of a third of the works he collected.
The Emil Bührle Collection claims that none of the items on display were looted from Jewish individuals. However, there are accusations that the provenance of some of the works in the collection may have been whitewashed and that the collection may still include Nazi looted art. The newly installed display of the Emil G. Bührle collection in Kunsthaus Zürich as of 2021 resulted in an online petition, calling for more transparency in the museum’s Bührle displays. The exhibition also drew criticism from former members of the Bergier Commission. The Bergier Commission was an international panel of scholars formed by the Swiss Federal Assembly in 1996 to research Swiss financial dealings before, during, and after the Second World War. The commission dissolved in 2001. Due to the vast amount of criticism, the city of Zürich pledged to conduct an independent investigation of the Bührle Foundation’s provenance research and to work with Kunsthaus Zürich to develop the museum’s Bührle displays.
CREATION OF THE INDEPENDENT COMMISSION
In response to the Bührle controversy and the resulting public pressure, lawmaker Jon Pult submitted a motion in December of 2021, urging parliament to set up an independent commission to assess claims for “cultural property lost as a result of Nazi persecution.” Such a commission would follow in suit of only a handful of countries, Germany, Austria, France, the Netherlands, and the United Kingdom, which have created independent panels to make recommendations and assess claims for Nazi-looted art.
In February of 2022, the Swiss Federal Council partially approved a parliamentary motion to establish the independent expert commission to make recommendations on the returning cultural property lost in the aftermath of Nazi persecution. However, concerns were raised with the use of the term “cultural property seized as a result of Nazi persecution.” Pult expressed concern that the approved but modified motion did not create a strict distinction between “looted art”—art stolen by the Nazis, and “escapee art”—works that Jewish people were forced to sell under duress at low prices. The Swiss Federation of Jewish communities (SIG/FCSI) and the Platform of Liberal Jews in Switzerland (PLJS) joined in Pult’s concerns and they continue to demand the use of the term “Nazi-confiscated cultural property.” The SIG/FCSI and PLJS have also expressed disappointment in the rejection of their proposed framework conditions.
In September, following the National Council of Switzerland (the lower house of the Federal Assembly of Switzerland), the Council of States of Switzerland (the upper house), adopted a corresponding motion on Monday. However, the motion was shortened and six guidelines for the design of the commission were deleted. The Council of States also decided to establish a national database to collect and research the provenance of artworks traded, collected, or exhibited in Switzerland. Due to the changes to the motion, it must go back to the National Council before the commission can be set up by the Swiss Federal Council.
About the Author: Nikki Vafai is a law student at the University of Maryland Carey School of Law and holds a B.A. in International Affairs and Art History from the George Washington University. Nikki is a 2022 fall legal intern at the Center for Art Law.
Credit: DALL·E 2; text prompts (left to right): painting of a robot holding justice scales; painting of a robot-artist painting flowers; painting of a robot reading a law bookWhat does it take to be an artist in the 21st century? Can one create art with paint brushes, watercolors, or oil pastels? Or can one simply think art into existence? ‘AI’ artwork generators like DALL·E and Stable Diffusion, offer users the ability to quickly create detailed images based on prompts, which can be anything you think of— An astronaut surfing in Times Square? A lawyer relaxing on the beach? (one could dream!) or a robot learning the law… in the artistic style of Da Vinci? You got it. However, when the idea is realized and the masterpiece has been generated– who owns it? who is the maker? the ‘AI’ or a copyright holder that the artwork is based on? Who has a perfected (or any) claim of co-authorship? Who can commercialize these images? Can someone be sued for infringement if they use the image without permission?
Introducing DALL·E 2
Artists build autonomous robots to collaborate with– they feed algorithms with data, and train machines to generate different kinds of visual works.Creators, such as Google Arts & Culture Lab, work with computer programs that mimic the human mind to generate a never-ending stream of unique artworks. Artificial intelligence has therefore emerged as a desirable collaborator in artistic creation. While AI-produced art has been around for some time, software released this year including, DALL·E 2, Midjourney AI, and Stable Diffusion, has allowed even the most inexperienced artists to produce intricate, abstract, or photorealistic compositions by merely typing a few words into a text box. DALL-E 2 is learned by an OpenAI model called CLIP (Contrastive Language-Image Pre-training) which functions as the main bridge between text and images. Through machine learning, AI is trained in data and is now able to create images and generate art by itself. The training data in this case is an aggregate of large datasets of images and tagged images labeled into a set of categories, across the internet, out of which most images are likely protected by copyright. The output images that these tools can generate are figurative-looking — in that it is believable that the artwork could have been created by a real person or artist.
OpenAI, an artificial intelligence research laboratory, was founded in San Francisco in late 2015 by Carlos Virella, Elon Musk, Greg Brockman, Ilya Sutskever, Sam Altman and Wojciech Zaremba, who collectively pledged one billion U.S dollars. OpenAI released its text-to-image generation model based on transformers architecture called DALL·E. The name of this model is inspired by surrealist painter Salvador Dali and the robot from Wall-E. OpenAI initially developed the GPT (Generative Pre-trained Transformer) model that its DALL·E software used in 2018, and just four years later the software is capable of generating imagery in myriad styles, manipulating and rearranging objects within its images and accurately designing novel compositions without explicit instruction. It has even proven to be capable of solving Raven’s Matrices – visual tests used to measure human intelligence – showing that DALL·E can express both geographical and temporal knowledge, where it has an understanding of places, concepts and how they change over time.
DALL·E 2 (2022) is the new version of DALL·E (first released in January 2021)and can make realistic and context-aware edits, including inserting, removing, or retouching specific sections of an image from a natural language description. It can also take an image and make novel and creative variations of it inspired by the original. DALL·E was trained by learning the relationship between images and the text used to describe them. It uses a process called “diffusion”, which starts with a pattern of random dots and gradually alters that pattern towards a final output. DALL·E “trained” on approximately 650 million image-text pairs scraped from the internet, learning from that dataset the relationships between images and the words used to describe them. But while OpenAI filtered out images for specific content, such as images that violate their content code including pornography and duplicates, and implemented additional filters at the API (application programming interface) level, for example for prominent public figures and likeness of individuals, the company admitted that the system can sometimes create works that include trademarked logos or characters. In their Press release dated April 6, 2022, the company stated that “the model can generate known entities including trademarked logos and copyrighted characters. OpenAI will evaluate different approaches to handle potential copyright and trademark issues, which may include allowing such generations as part of “fair use” or similar concepts, filtering specific types of content, and working directly with copyright/trademark owners on these issues.”
Copyright, Contracts and Commercialization
It is safe to state that artificial intelligence generated art is here to stay. The success of the model has been such that OpenAI also announced that it will be commercializing DALL.E 2 and its image generation platform. Credits can be purchased to make prompts to generate art. So once an AI-generated masterpiece is created, what’s stopping someone from claiming it as their own and using it commercially or preventing others from using it? Who owns these DALL·E outputs? Is it OpenAI? The person who writes the prompts? Or is it nobody’s at all?
On top of existentially threatening the very concept of artists and creatives, AI-generated content raises several new legal issues. Copyrights are a form of intellectual property protected by federal law. Owning a copyright gives the owner the exclusive right to reproduce, publish, or sell an original work of authorship, such as a book, a painting, or a song. Under current copyright law, artists using traditional mediums, such as paint, pen, or paper, are considered the authors of the work and generally hold copyright over their work by default. The fundamental question before addressing AI-created art is whether copyright can belong to anyone other than a human being. The Naruto Case throws some light in understanding the matter and answers this question.
David Slater, a British (and very much human) wildlife photographer, set a camera up on the island of Sulawesi and had left the camera unattended. A handsome and rather curious young gentleman (a monkey) named Naruto clicked the button while looking at the camera, capturing selfies showing off his photogenic side. Following this, Slater published a book featuring the selfie and other pictures that had been taken by Naruto. In response, the People for the Ethical Treatment of Animals (PETA) filed a complaint against him and the publisher, representing Naruto, and argued that he had “the right to own and benefit from the copyright in the Monkey Selfies in the same manner and to the same extent as any other author.”Further, it was argued that while the claim of authorship by species other than homo sapiens may be novel, “authorship” under the Copyright Act, 17 U.S.C § 101 et seq., is sufficiently broad so as to permit the protection of the law to extend to any original work, including those created by Naruto. However, the US. Copyright Office stated that they “will refuse to register a claim if it determines that a human being did not create the work.” The office also said that it would exclude works “produced by machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”
Although copyright law doesn’t specifically address artificial intelligence, or even human authorship of original art, protection under the Copyright Act must meet the following requirements:
an original work of authorship;
fixed in a tangible medium;
that has a minimal amount of creativity.
If a work of art doesn’t meet all three of these requirements, then it does not qualify for copyright protection. Copyright cannot belong to the AI itself. Section 306 of The Copyright Act protects “original works of authorship,” which implies a human hand in the process. The Act makes the human requirement clear: “The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being.“ This means that, under the current rules, AI-generated art has no owner.
Copyright protection in art is given as soon as the work is created, so the creator has exclusive right to decide the future use of the work. But since machine-created may not need the criteria for copyright protection, ownership may not be clearly distinguished.
Apart from ownership rights of the AI-generated artwork, there are additional copyright concerns that may arise. There may be infringement claims on the final image based on copyrighted artworks inputted into the AI at the time of machine learning which may infringe the rights of copyright holders.
Under the current U.S law, owners of the AI technology itself may be the ones with cause for concern – potentially being at risk of copyright infringement lawsuits. AI usually reviews or even contains reproductions of other people’s artwork that it uses to create new artwork, that new artwork could be an unauthorized derivative, which is an infringement– if the AI also stores a reproduction of that artwork, that too is an infringement. This concerns the owner of the AI who may ultimately be liable for infringement. But since copyright law does not protect AI-generated artwork, it is likely neither the AI nor the AI company has any rights in the image.
“Your Content. You may provide input to the Services (“Input”), and receive output generated and returned by the Services based on the Input (“Output”). Input and Output are collectively “Content.” As between the parties and to the extent permitted by applicable law, you own all Input, and subject to your compliance with these Terms, OpenAI hereby assigns to you all its right, title, and interest in and to Output…”
“Similarity of Content. Due to the nature of machine learning, Output may not be unique across users and the Services may generate the same or similar output for OpenAI or a third party…Responses that are requested by and generated for other users are not considered your Content.”
The second paragraph recognizes the possibility of other creators coming up with similar generated images based on similar prompts and attempts to bypass copyright concerns stating that any prompt generated by another user, which may be similar or the same due to the nature of the machine learning. But the terms simply state that the content would not belong to the creator if it has been generated by another user but provides no guidelines as to who the content then actually belongs to.
The sharing and publication policy also states:
“Creators who wish to publish their first-party written content (e.g., a book, compendium of short stories) created in part with the OpenAI API are permitted to do so under the following conditions….The role of AI in formulating the content is clearly disclosed in a way that no reader could possibly miss, and that a typical reader would find sufficiently easy to understand… People should not represent API-generated content as being wholly generated by a human or wholly generated by an AI, and it is a human who must take ultimate responsibility for the content being published.”
Below, find an image generated on a text prompt including the name brand “Gucci.” The software has likely been inputted with alternate images that circumvent any identifying trademark or brand name or logo, but still make for interesting and even amusing artworks when certain terms are inputted. In this case, with subtle inferences to luxe looking hand bags and spoiled pooches. Art in its own sense, perhaps?
OpenAI also gives users full usage rights to commercialize the images they create with DALL·E, including the “right to reprint, sell, and merchandise.” To be clear, this doesn’t mean OpenAI is relinquishing its own right to commercialize images users create using DALL·E. Deeper into the terms of service, you will find that “OpenAI will not assert copyright over Content generated by the API for you or your end users.” OpenAI is signaling to users that they are free to commercialize their DALL·E images without fear of receiving a cease-and-desist letter from a company that could sue them from profiting from the images created. This does not restrict a third party from suing the user of a DALL·E image or the sale of an AI-generated artwork. However, the terms of service also put users on notice that OpenAI “may change these Terms or suspend or terminate your use of the Services at any time.” Which means that the legal concerns can become more pressing in time. With the inherent lack of paternity or authorship of the work by the AI itself and potentially infringing datasets that AI has learned, the creators may ultimately be liable for infringement of copyright when the images are used.
Ultimately humans are the ones that make the final decision to use art generated by a machine (to illustrate their articles for example); therefore, AI clearly cannot grant permission for use of the work or hold a copyright for the same. The Naruto case was decided as it was for this reason. If there was substantial contribution from a team or a person who provided substantive inputs deemed creative enough for the ultimate output of the work, then they could potentially own copyright in the work. If the design, however, was significantly attributed mainly to the AI or the program, then the work would likely not be copyrighted and would possibly belong in the public domain. The future in terms of legal protection of these works is still questionable, as it is difficult to assess the full extent to which AI will be used in creative works. For now, it seems likely that creators can continue to use DALL·E 2 and generate images that can be used commercially with no fear of being sued from OpenAI or DALL·E 2, provided all the terms and content policy of the software are complied with. However, it would be wise to proceed with caution, especially if commercializing the images, keeping in mind that the final images produced may still infringe on another’s copyright or the likeness of a subject in the AI-generated images.
In other intellectual property realms, the patent world is discussing whether an AI can be listed as an “inventor” on a patent application. While not directly comparable, since the standards for “authorship” and “inventorship” are different, it is a notable step for understanding AI ownership rights, and as laws evolve with society, it isn’t beyond imagination that Artificial General Intelligence may find its way as a “legal person” or may have laws specifically drafted for its regulation and ownership in the near future.
The risks associated with using models like DALL·E to generate art are still largely unknown as they have not been contested or substantially tested in any courts. The usage of any of these software or programs do come with their own contracts, terms of service, license agreements and limitations. Such terms can impose restrictions on who owns the final output, what can be done with the generated art, the content permitted to be generated, commercialization of artwork and risk and liability of using the artwork. Being aware of what is expressly permitted and prohibited when using such tools becomes critical as one’s ability to use it may be rescinded or considered infringing if the terms are violated. It may be wise to consider not using any artist’s name or work in the generation of artwork, and explicitly mentioned the artwork was created by AI — especially in cases where the styles or similarities to artists is still under copyright protection. It may be argued that regardless of initial images inputted in, the artwork is transformative enough to be fair use of the artwork, but this is a defense against infringement and may be challenging to prove depending on the case. Without knowing the specifics of the AI and the prompts used, it will be difficult to give a definitive answer on when the work would be infringing and who has ownership of the artwork when similar artworks based on similar, or the same prompts can be generated.
Atreya Mathur is the Director of Legal Research at the Center for Art Law. She was the inaugural Judith Bresler Fellow at the Center (2021-22) and earned her Master of Laws Graduate from New York University School of Law where she specialized in Competition, Innovation, and Information Laws, with a focus on copyright, intellectual property, and art law.
Stock language suggested in the terms to describe the creative process, provided it is accurate:“The author generated this text in part with GPT-3, OpenAI’s large-scale language-generation model. Upon generating draft language, the author reviewed, edited, and revised the language to their own liking and takes ultimate responsibility for the content of this publication.” ↑
The Supreme Court waited 27 years after deciding the 1994 landmark case of Cambell v. Acuff Rose to revisit the issue of fair use in Google LLC v. Oracle America Inc. Decided in 2021, the court took an expansive view of the doctrine of fair use, agreeing that Google “reimplemented,” technology in a new context. Now, less than two years later, the Court in Warhol Foundation v. Goldsmith is again considering the scope of the fair use doctrine in copyright law. Center for Art Law has followed the case with great interest, written at great length on the issue of fair use, and has covered the oral arguments made by both sides of the Warhol v. Goldsmith controversy; this article revisits the facts of the matter as well as attempts to explore the possible ramifications ahead of the Supreme Court’s decision.
Following three years of litigation, the Andy Warhol Foundation (AWF) successfully petitioned the Supreme Court to review a copyright infringement case that has garnered the attention of the public as it made its way from trial to the court of appeals. At its center is a decades-old photograph of the pop star Prince, a series of pieces by Andy Warhol based on that same image, and the doctrine of fair use.
“Let the little things that would ordinarily bore you suddenly thrill you,” said Andy Warhol, visual artist and champion of the pop art movement. Beginning his career at a time when beauty embraced realism and elevation, Warhol couched his philosophy in the exact opposite by finding beauty in the mundane and the ordinary. Warhol’s musings remind us of the axiomatic, that inspiration can be found anywhere, and could even allude to a cornerstone of copyright law that receives all that which has been sufficiently transformed as artistic creation.
The controversy stems back to 1984 when Vanity Fair decided to publish an article about Prince in a magazine. Vanity Fair reached out to a licensing agency that managed Lynn Goldsmith, a celebrated rock photographer, in search of a photograph of Prince. The agency, on a one time basis, granted the use of a particular photograph. Vanity Fair then commissioned Andy Warhol, just three years before he died, to create a piece to accompany the article based on the licensed photo. Warhol made a number of screen prints, though only one was selected for the Vanity Fair article.
Prince died in 2016 and Vanity Fair decided to publish a special article about his legacy as an artist. Vanity Fair then contacted the Andy Warhol Foundation, a New York nonprofit that licenses the artist’s works. It was during this exchange that Vanity Fair learned that Warhol had created multiple prints based on the Goldsmith photo of Prince provided in 1984 for the original article. Vanity Fair then chose a different screen print of the selection to use in their special article. Goldsmith saw the special issue and contacted the Andy Warhol Foundation about her copyright claim and immediately registered the photo of Prince as an unpublished work (VAU001277562 / 2016-11-17).
Preemptively, the Andy Warhol Foundation sued for declaratory judgment, confident that the work selected had been sufficiently transformed and was not substantially similar, thus avoiding infringement of Goldsmith’s copyright. The trial court granted the foundation’s motion for summary judgment claiming fair use and denied Goldsmith’s cross motion for summary judgment claiming copyright infringement. The trial court reasoned that Warhol’s treatment of the Prince image conveyed new meaning and message noting numerous artistic differences, particularly Warhol taking no more than what was necessary for his transformation.
Goldsmith appealed the trial court’s ruling and brought their reasoning before a panel. Contrary to the trial court’s decision, the panel found that the photograph was not transformative and concluded, in addition, that judges are ill-suited to decide “the meaning or message” of art works. The panel provided that, in assessing the degree of transformation a piece has undergone, judges must compare the pieces side by side and consider, if outside of the artist’s intent, whether the resulting work is fundamentally different and new.
Using the test enumerated above, the panel concluded that Warhol’s Prince Series still retained essential elements of its source material and the Goldsmith photo, despite the artist’s attempts to imbue it with new meaning, remains the recognizable foundation of the piece. The panel further reasoned that while the pieces occupy different markets, Warhol’s rendition still harms Goldsmith’s ability to license the photo to publications and to other artists so that they might create derivative works.
Individuals and organizations alike wrote amicus briefs ahead of the case’s arrival to the Supreme Court. Most notably, the Copyright Office, based in Washington D.C., has aligned itself with the National Press Photographers Association and the American Society of Media Photographers backing Goldsmith and urging the court to rule in her favor. Collectively, they advance that “the fair use defense was never meant to give infringers a pass so long as they claim some new subjective ‘meaning or message’ in their derivative use regardless of how it is used … [AWF’s] argument that a derivative use of a copyrighted work should be found ‘transformative’ so long as it adds any cognizable echo of ‘new meaning or message’ ignores the plain language of the Act and invites the fair use exception to swallow the derivative use rule.”
Conversely, museums, professors of art and law, and organizations such as the Robert Rauschenberg Foundation and the Roy Lichtenstein Foundation have drafted amicus briefs in favor of AWF. Overwhelmingly, they emphasize the importance of copying to visual art and its link to creativity. Those siding with AWF argue that they intend to protect artistic progress, and by consequence, they recognize that artists must have room to build on, be inspired by, and transform works that came before them.
At present, Chapter 17 of the United States Code provides that copyright protection “subsists, in … original works of authorship fixed in any tangible medium of expression.” The standard for originality is not expressly provided for in Chapter 17. The court in Bleistein v. Donaldson, however, ruled that original meant “created organically by an author [with] some degree of creativity.” 17 USC 102(a) define works of authorship as literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial graphic and sculptural works, motion pictures, audiovisual works, sound recordings, and architectural works. Finally, fixed, according to 17 USC 101, means “perm[inence] or [the ability] to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”
The fair use provision, Section 107 of the Copyright Act, states:
Notwithstanding the provisions of section 106 and 106a, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, purposed such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include – (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
Whether you find yourself siding with Goldsmith or AWF, it is important to acknowledge the implications of the Supreme Court should it decide against adhering to its own standard. Primarily, a decision contrary to precedent puts the onus on judges to inspect the similarity of two works of art. Should the judge be unable to look past visual similarities then the argument is moot, regardless of training or expertise. Historically, art is filled with pieces that are similar since aspiring artists naturally study the works of masters and those they look up to. What is more insidious and harrowing, however, is the sudden triumph of copyright over the right to free speech, where the Supreme Court has made it clear time and again that it is inviolable. A ruling in favor of Goldsmith allows copyright to overreach, thus chilling the rights of artists who express themselves through image. The doctrine of fair use is just as germane to copyright as it is to free speech.
It is important to understand that while AWF has raised fair use as a defense to copyright infringement, it is more than an affirmative defense. Fair use is the crux of copyright. If the purpose of the copyright clause in our constitution is to encourage the continued proliferation of creative works then fair use ensures that artists can create new works that continuously build on the works of their predecessors and draw inspiration from the world around them – this is the essence of creativity and the goal of copyright law itself. As the Supreme Court has enunciated in the past, fair use is a first amendment “safeguard,” functioning to ensure that copyright is an engine to freedom of expression, not a hindrance.
About the Author:
James Parker is a recent graduate of New York Law School, class of 2022. While in law school most of his studies orbited Intellectual Property law drawing a particular interest in copyright. Parker recently sat for and passed the July 2022 administration of the Bar and is Center for Art Law’s current Judith Bresler Fellow.
Brief for the American Society of Media Photographers et al. as Amicus Curiae Supporting Respondents, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 21-869 (2nd Cir. Oct. 12, 2022). ↑
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Today, Henry Darger (1892-1973) is known to the world as an artist celebrated for vibrant and vividly-colored drawings that now command up to $800,000. During his lifetime, however, Darger’s talents were unknown to the world; a custodian by day, Darger kept his art to himself. In 1972, Darger moved out of the Chicago, IL apartment he’d rented from Nathan and Kiyoko Lerner for over a decade, leaving behind thousands of pages of drawings, paintings, and collages. Darger passed away one year later in a Chicago nursing home, with no known family or close friends, but his work soon took on a new life in the public eye.
Darger is often referred to as an ‘outsider artist:’ an artist with little formal training in the arts and little or no contact with the professional art world. Only upon Darger’s death were his works published, promoted, and ultimately celebrated thanks to the efforts of Kiyoko and Nathan Lerner, who salvaged and promoted Darger’s works in lieu of disposing of them with the other items Darger left in the apartment. Since Darger’s death, the Darger works have been shown at the Museum of American Folk Art, The Center for Intuitive and Outsider Art, and various other museums and galleries. The Darger works now command hundreds of thousands of dollars and have been sold through auction houses like Sotheby’s and Christie’s for hundreds of thousands of dollars.
In recent years, however, the legality of the Lerners’ handling of the Darger works has been challenged. Darger died intestate, meaning he did not bequeath his artworks or their copyrights by will to anyone, including the Lerners. In the state of Illinois, when an individual dies intestate with no known kin, the contents of the deceased’s estate go to the state. However, two factors have complicated the matter of who legally owns the Darger estate. First, Kiyoko Lerner maintains that Darger transferred the ownership of his artwork to her during his lifetime, though no written record of this transfer exists. Secondly, several distant relatives of Darger have emerged through the forensic genealogy company HeirSearch. These relatives filed a lawsuit against Kiyoko Lerner (Nathan Lerner passed away in 1997) this past July, seeking compensation for what they allege is unlawful exploitation of Henry Darger’s artwork.
On September 30, 2020, lawyers representing a group claiming to be Darger’s relatives emailed Kiyoko Lerner to inform her of their intentions to recover the physical Darger artworks, the associated intellectual property, and any revenue generated by Kiyoko and Nathan Lerner through what they allege is “misappropriation and unlawful exploitation of the Darger artwork.”
The email alleges that Lerner has no valid right, title, or interest in any physical embodiment of or copyright to the Darger artworks. Furthermore, the email alleges, any claim Lerner makes that Darger gifted his artworks to her husband is “questionable at best–given his deteriorating mental state and conflicting contemporaneous accounts.” Even if Darger did gift his artwork to the Lerners, the email continues, “any such gift would have excluded any intellectual property rights.”
In January 2022, the claimants petitioned the court for probate of the Darger estate. In May 2022, Christen Sadowski, one of the claimants, was named Supervised Administrator of the Henry Darger Estate. The claimants, known as the Estate of Henry Darger, then promptly filed a complaint with the district court against Kiyoko Lerner for the following infractions:
unfair competition and false or misleading description or representation of fact;
a declaratory judgment under the Declaratory Judgment Act;
unfair competition under Illinois common law;
deceptive trade practices;
unjust enrichment under Illinois common law;
an equitable easement; and
conversion under Illinois law.
A Closer Look: Does Kiyoko Lerner Legally Own the Darger Works and Copyrights?
In the United States, laws concerning the transfer of property from a deceased person to their heirs is subject to state law and thus varies depending on the state in which the deceased person resided upon their death. As Darger died intestate in Chicago, the question of who lawfully owns the physical Darger artwork is determined by the state of Illinois.
According to Kiyoko Lerner, when Henry Darger moved out of the Lerners’ Chicago apartment in 1972, he “said they could do whatever they wanted” with the contents he left behind in the room. By the Illinois Lifetime Transfer of Property Act, as long as Lerner’s recollection of Darger’s statement that she and her husband ‘could do whatever they wanted’ with the contents of the room constitutes a valid transfer of property, she legally owns the artwork Darger left in his room.
Without any known written evidence of this exchange between Darger and the Lerners, the plaintiffs contend that this interaction between Darger and the Lerners does not constitute a valid transfer of property. The plaintiffs question the accuracy of Lerner’s claim that Darger gifted his artwork to her and her husband and furthermore question Darger’s soundness of mind at the time Lerner alleges Darger gifted his artwork to her husband. Unless Kiyoko Lerner can find a way to corroborate her claim that Darger, in sound mind, transferred ownership rights of his artwork to her or her husband, it will be difficult for her to prove that Darger transferred his artworks to her.
However, there is another avenue Lerner can take to show that she rightfully owns the physical Darger artworks. In the city of Chicago, when a tenant moves out of a rented property and leaves items behind on the premises, the landlord is required to store the property for seven days after the tenant leaves the property. After seven days, the landlord is free to dispose of the property as they please, including through sale of the property. As Darger lived for another year after moving out of the Lerners’ Chicago apartment and did not pick up his artwork within seven days of moving out of the apartment, the Lerners have a strong case that they had the right to do what they wished with the physical Darger artworks.
Aside from the question of who owns the physical Darger works, there remains a separate question as to whether Kiyoko Lerner owns the copyrights to Darger’s art. In the United States, copyright ownership does not transfer with the ownership of the physical object. Furthermore, under federal law, a transfer of copyright ownership is not valid, other than by operation of law, unless an instrument of conveyance, a note, or a memorandum of the transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. The plaintiffs contend that Lerner is not the valid copyright owner of Darger’s artwork. The law is on the side of the plaintiffs, in this case: since Darger did not transfer the ownership of the copyrights to his artworks to the Lerners, and since the Lerners are not kin to Darger, Kiyoko Lerner likely has no claim to the copyrights of the Darger artworks.
If not Kiyoko Lerner, Who Owns the Darger Copyrights?
While he was alive, Darger, as the creator of his artworks, owned the copyrights to the Darger works. The copyrights to any work exist for 70 years after the death of the creator and may be inherited by the creator’s heirs. Because Darger died intestate, Illinois state statutes determine who lawfully inherited his work upon his death. By 755 ILCS 5/2-1, since Darger died without a spouse, living parents, siblings, or children, the estate goes to the descendants of any kindred to Darger.
It appears that Christen Sadowski, the plaintiff who was named supervised administrator of the Darger estate this past May, is one of these descendants. According to court papers, upon being granted this role, Sadowski was authorized to take possession of the physical Darger artworks and their associated copyrights. The plaintiffs seek relief in actual damages, the actual amount of which, they have specified, they want to be determined at trial.
Kiyoko Lerner has held that, while Darger was alive, she and her husband often checked in on him to ensure that he had sufficient food and proper living arrangements. Despite pressure from neighbors to cease renting to Darger due to his disheveled appearance, the couple continued renting to Darger, even lowering his monthly rent from $40 to $30 so that he could afford to stay. With no kin to care for Darger, it was the Lerners who arranged for Darger to move into a charity nursing home in 1972, after which time Kiyoko Lerner claims they approached Darger to see what he wanted done with his materials, including his artworks.
And yet, without a will to communicate Darger’s wishes, the ownership of Henry Darger’s artworks and their copyrights has gone to Christen Sadowski and other relatives who Darger never knew. These relatives, contending that Lerner unlawfully exploited Darger’s artworks, seek to be awarded with all profits the Lerners made in managing the Darger artworks as well as punitive and statutory damages and other forms of relief for the Lerners’ alleged wrongdoings.
Since the Estate of Henry Darger seeks a jury trial to determine the actual amount of damages they receive, the outcomes of this case are not easily predictable. It may be possible that Lerner’s description of her personal connection to Darger will be a more significant factor to the jury in determining the amount of damages owed to the Darger Estate than it was for the judge who granted Sadowski supervised administrator of the Darger Estate. Perhaps this trial will be an opportunity for Darger’s wishes concerning the inheritance and use of his work to be considered.
Obsessions & Confessions by Kristin Simmons Bergdorf Goodman (NY) Through March 20, 2022
Bergdorf Goodman’s 2022 artist exhibitor Kristin Simmons is bringing a colorful installation to the retailer’s Fifth Avenue flagship. Starting Thursday through March 20, the New York-based artist will welcome visitors to her interactive exhibition, “Obsessions and Confessions,” spanning the store’s seventh floor. Obsessions & Confessions’ juxtaposes cultural symbols of success, status, power and pleasure with underlying societal critiques. Original works on view are available to purchase for $3,000 to $60,000, and for $2 visitors can play the claw game for a chance to win one of Simmons’ works. A portion of proceeds from the exhibition will benefit Free Arts NYC, a nonprofit that provides arts mentorship for underserved youth across New York City.
Dia Art Foundation presents an exhibition of Sam Gilliam’s early work from the 1960s and 1970s at Dia Beacon in Beacon, New York. Installed alongside Dia’s permanent collection, this presentation situates Gilliam’s practice in dialogue with that of his Minimal and Postminimal peers, such as Robert Morris and Anne Truitt, who, like Gilliam, considered painting in an expanded form. One of the most important figures in American abstract art, he emerged from the Washington, DC, cultural scene in the 1960s alongside Truitt. Setting himself apart stylistically from Washington Color School painters, with whom he is often associated, the artist incorporated a beveled edge and experimented with suspension as two distinct methods of working with canvas.
The Orchid Show: Jeff Leatham’s Kaleidoscope New York Botanical Gardens (NY) Through May 1, 2022
The dazzling floral creations of Jeff Leatham, famed artistic director of the Four Seasons Hotel George V in Paris and floral designer to the stars, return for The Orchid Show’s 19th year. Leatham’s bold and colorful vision will unfold through captivating installations and designs, transforming the historic Enid A. Haupt Conservatory into a different color experience and visual effect, like the turn of a kaleidoscope.
AGL is looking for a Project Executive to work with them. The Project Executive will support AGL Director and team in planning and overseeing operational activities to ensure projects are completed in a timely fashion, within budget and in line with AGL policies and donor requirements. Read more about how the position and how to apply HERE.
Adobe is looking for a hardworking, positive, and high-energy lawyer to support product and business teams within Creative Cloud. You will work closely with product management, engineering, business strategy, and marketing teams, as well as colleagues in Legal, to provide counseling on a range of legal topics while managing legal and brand/reputational risk. Apply HERE.
Kavi Gupta: Gallery Coordinator & Coordinator for the Owner
Kavi Gupta: Coordinator for Client and Artist Relations
Kavi Gupta is hiring a Gallery Coordinator to Provide Direct support to Kavi Gupta, Owner, and Aryn Foland, Associate Director of Client relations. You can find more information about the position and how to apply HERE.
Kavi Gupta is hiring a Gallery Coordinator for Client and Artist Relations to, among other tasks, provide direct support to Kavi Gupta, Owner, and Aryn Foland, Associate Director of Client relations. You can find more information about the position and how to apply HERE.