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Status and Remuneration of Artists and Cultural Actors: Towards the Recognition of a Legal Status and Social Protection for Artists, University of Geneva
October 28, 2022 | 12PM-1PM EST Language: French and German
Artists and other persons active in the field of culture (“cultural actors“) often do not have a clear legal status or adequate remuneration, which reinforces the precariousness of certain cultural actors. There are several initiatives aimed at the recognition of a clear legal status or the remuneration of cultural actors. For example, in terms of remuneration, some authorities are beginning to condition the granting of public subsidies on compliance with branch tariffs. In terms of status, artists' collectives are thinking about strengthening so-called wage portage solutions in order to create social protection for cultural actors. However, these initiatives must deal with a complex legal framework. Remuneration is treated differently depending on whether it is qualified as salary or self-employed fees by the authorities. The solutions aimed at recognizing the status of artists are the subject of changing and complex case law. This has led, on the mandate of certain artists' collectives, to a detailed legal study relating to the “ Status and remuneration of artists and cultural actors: legal analysis and possible solutions, including wage portage.”
Join us in conversation with Elena Zavelev, founder and CEO of New Art Academy and CADAF (now with a marketplace using Tezos), Sarah Conley Odenkirk, IP and art law attorney, partner at Cowan, DeBaets, Abrahams & Sheppard, LLP, and Irina Tarsis, Founding Director of Center for Art Law, for a discussion on NFT marketplaces, 24/7.
Our speakers will discuss what different NFT marketplaces have to offer, types of wallets to bring for the ride, the challenges and experiences of working with blockchains as well as (smart) contracts. What questions might artists and collectors want to ask about choosing the right platform and whether all NFT marketplaces are equal? Join us to find out.
Do law and justice go hand-in-hand? Have some court decisions taken us backwards? What role can the arts play in making the law more accessible? Whereas legalese tends to be confusing and inaccessible, poetry might be brief and go straight for the heart of the matter.
Center for Art Law is thrilled to host New-York based artist and lawyer Harbani Ahuja for our Art Law Lunch Talk. Harbani is an Artist-in-Residence at human rights advocacy center ICAAD, where she has developed Dicta: a poetry series created from redacting sections of key Supreme Court cases in US history. Her collections on the Rights of Black People, Immigrant Rights and Women’s Rights highlight the tensions between law and justice in the courts through striking visual art. Harbani will be joining us to discuss her career as an attorney, the reasons she chose to pursue a career in law, and how Dicta has changed her outlook on the law and her legal career. She will also be doing a poetry reading of a special selection of her works, which you can preview here.
In 2012, New York passed an amendment to its Arts & Cultural Affairs Law, N.Y. Arts & Cult. Aff. Law §12.01 (2012), that affects the consignment relationship between artists and dealers and creates critical new duties (and liabilities), for the art dealer. Most importantly, it makes using any form of agreement drafted under the old law risky, particularly for the gallery or consignee. In 2022, Center for Art Law launched its third clinic, the Artist-Dealer Relationships Clinic.The Clinic connects artists, dealers, and attorneys to forge meaningful relations and provide a platform for artists and dealers to learn about art contracts, consignment agreements and have their questions on the topic addressed by experts in the field. Register for a one-on-one consultation session with our team of volunteer attorneys to have all queries on art contracts and consignment agreements answered!
Art Law Day will take place on Friday, November 11 at the New York Athletic Club, 180 Central Park South (at 7th Avenue). This year, Art Law Day will also be livestreamed. The program includes a variety of panels on NFT Ownership; Living with, Planning and Advising; Museum Reparations, Colonial Art; Fractional Interest; Political Risk Management. View the schedule and presenters is available online.
Call for Holiday Card Ideas!
Deadline: October 30, 2022
Last year, our beautiful holiday card was designed by the courtroom illustrator Elizabeth Williams. We would love to feature works of more art law inspired artists on our 2023 Holiday Card. Please contact us with ideas or proposals. Thank you!
You got art law questions (or know people who might)? We got art law answers (and so much more!) Consider getting a premium subscription (individual, student or group) for unlimited access to our articles, free events, archived webinars and discounts to art law events around the world.
Museums in Basel (Switzerland) have been collaborating on a new citywide movement to bring more clarity to the origins of the pieces within exhibitions. This transparency initiative is one of the many efforts that museums across Europe and the U.S. are taking in their provenance curation efforts. The initiative’s proposed solution is a “just and fair” concept of title returning to the original owner, while allowing the work to still be displayed in the museum’s permanent exhibition on loan. This practice is setting the stage for norms to shift in the museum world, toward a focus on efforts for reparations, transparency, and intensive provenance research. (HT)
MoMA's digital deal worth $70 million?
MoMA is keeping busy in the digital age. The William S. Paley Foundation will auction off works by Picasso, Bacon, Rousseau, and Renoir among others, the proceeds of which will be used to expand the digital presence of the Museum of Modern Art (MoMA) in New York. The William S. Paley art collection is expected to fetch between $70 and $100 million. As part of the effort in increasing its digital footprint, MoMA may also launch its own streaming channel, host virtual exhibits and video chats with creators, offer online courses and possibly purchase its first NFTs. In November 2021, MoMA contributed metadata of its entire collection towards AI artist Refik Anadol’s exhibition and NFT project Unsupervised.
U.S. Returns Rare First Century AD Coin to Israel
American investigators have returned a silver quarter shekel, estimated to be worth as much as $1 million, to Israel. The coin is thought to have been minted by Jewish persons during The Great Revolt, a bloody uprising against Rome in the first century AD. The coin’s return happened in the nick of time: the statute of limitations on prosecuting the theft expired in August, just two months after Assistant District Attorney Matthew Bogdanos received a seizure warrant from a New York judge and confiscated the coin.
Kandinsky Homecoming: Looted Masterpiece Returned to Rightful Heirs
Kandinsky’s View of Murnau with Church, formerly owned by the Dutch Van Abbemuseum, will be returned to descendants of a German Jewish family from whom it was looted during the Holocaust. The family’s original claim failed to prove how the painting reached the Hague art dealer Karl Alexander Legat, known for other dubious art dealings, who then sold it to the Eindhoven museum in 1951. Although their first claim was rejected by the Dutch restitutions committee, a second investigation showed that their ancestor, Johanna Margarethe Stern-Lippmann’s loss of possession was involuntary. Stern-Lippmann’s relatives are elated by the results of this protracted legal battle, stating: “[t]he painting used to have a prominent position hanging in our (great) grand-parents’ house and represents much of our family’s story. Its coming back to us now marks an important moment – it won’t bring back the nine immediate family members who were so tragically murdered – but it’s an acknowledgment of the injustice that we, and so many like us, have endured.”
Ukraine on my Mind
On October 10, 2022, Kyiv and many other cities in Ukraine were attacked by missiles (again). This time, museums including the Taras Shevchenko Museum and The Bohdan and Varvara Khanenko National Museum of Arts sustained damage. In other news and museums around Ukraine, reports have shown that contents of museums in areas under the Russian occupation have been looted with some of the stolen artifacts turning up on the art market. ICOM’s Red List of Cultural Heritage at risk for Ukraine cannot be completed soon enough.
“Government Speech” vs. 1st Amendment
A Florida district court Judge has ruled in favor of the City of Miami Beach (the “City”) in a dispute over the City’s removal of a public artwork installed for the art show, ReFrame Miami Beach (“ReFrame”). The vinyl artwork by Rodney “Rock” Jackson depicts a man’s face in front of a white halo of light. Gold lettering at the bottom of the work indicates that this man is Raymond Henrisse, a man killed by Miami Beach police 2011.
In 2020, the Florida chapter of the American Civil Liberties Union (ACLU) filed a lawsuit against the City, alleging the City violated ReFrame’s curators free speech rights. Representatives for the City maintain they removed the artwork to “bring unity and positivity” to the City. Earlier this year, Florida Southern District Judge Marcia G. Cooke ruled in favor of the City, explaining that the City’s removal of the artwork constitutes “government speech.” The ACLU is reportedly considering the possibility of an appeal.
Cambodia recovers 27 looted objects
Marking a return of dozens of looted artifacts, Phoeurng Sackona, Cambodia’s Minister of Culture and Fine Arts, said that "the trade in stolen antiquities – and their “commodification” on the international art market – not just robs nations of their national treasures, but also of their history and identity.” We could not say it better ourselves.
Deaccessioning and Direct Care of Artwork
Members of the Association of Art Museum Directors (AAMD) voted in favor of allowing American institutions to sell their art to finance the cost of caring for works in their collections. The new policy defines where the funds from deaccessioning can be funneled: the money can be put only toward “direct care of works of art,” meaning, the costs associated with “the storage or preservation of works of art.” According to the new rule, the funds cannot be put toward staff salaries or “costs incurred for the sole purpose of temporary exhibition display.” This focused direction addresses changes requested by members and ensures consistency with norms across the museum field. It also provides clarity and guidance (fingers crossed) on how to implement a ‘direct care’ standard, should their institutions choose to do so.
25 (more) to advise the President
On September 30, 2022, President Biden signed an Executive Order creating an advisory Committee to among other things help with “promoting philanthropic and private sector engagement with and support for the arts, the humanities, and museum and library services to advance the policy objectives…” For now the committee would only last 2 years, let’s see what they can do (and who will be invited to join the ranks).
Will Reparations be MET?
The Met (again) is under review for holding looted and trafficked art in the permanent collection. Ongoing search warrants have been executed on over 27 pieces bought from Rome, Egypt, and Greece. (and now Cambodia and Nigeria). Questions surrounding the Met’s current protocols regarding looted pieces have come into light, as the Museum reportedly had knowledge that several of these pieces were bought from well-known prosecuted art traffickers, such as Gianfranco Becchina, as recently as in ten years ago, in 2012. While the Met insists that it conducted legitimate research on the exported pieces, there is concern as to why the removal and return of these pieces were not done sooner. As more and more museums are held accountable for storing looted works, and public knowledge of art trafficking is expanding, the question beckons how museum institutions will evolve in their approaches to address such concerns.
Guelph Treasure remains in Germany, for now
The U.S. Dist. of Columbia District Court granted Germany’s motion to dismiss a lawsuit against the state-run museum SPK (Stiftung Preußischer Kulturbesitz) on jurisdictional grounds. The legal dispute began in 2008, when descendants of Jewish art collectors, who sold the Guelph Treasure in 1935, brought action against the museum seeking return of the $250 million collection of medieval ecclesiastical art arguing it was sold under duress during the Holocaust. The plaintiffs alleged the Treasure sold for 10 percent less than what their antecedents originally paid; however, “a German commission disagreed, finding in 2014 that the Great Depression, not Jewish persecution, accounted for the difference in price.” There’s also the issue of a domestic takings violation claim: Judge Colleen Kollar-Kotelly found little evidence that the heirs’ ancestors weren’t German nationals, and a “domestic takings” violation requires the seizing of property from a foreign national. This case raises a variety of questions about German citizenship under the Nazi regime, different jurisdictional handlings of Holocaust restitution cases, and the Foreign Sovereign Immunities Act.
An Army for the Arts
The U.S. government is working with the Smithsonian to create a new task group to protect works of art and cultural heritage sites across the world. This collaboration’s mission is to provide protection through the aid of military commanders by minimizing damage in times of conflict. “Monument officers” of the 21st century will focus on preserving intangible and tangible art and culture in heightened times of conflict and bringing the military and art worlds together in its intersection.
Given the criticism in 2003, after the U.S. military is blamed for mishandling important works of art at the Iraq Museum in Baghdad, the current initiative includes training complete with intense simulations of instances of “imminent attacks” in times of war or conflict. 21 officers will have backgrounds in military, cultural property, archaeology, and curation and play a role in promoting diplomatic relations.
The Simonian Plot Thickens
Last month, The Art Newspaper broke the news that several German museums are complicit in whitewashing antiquities of dubious origin that belonged to the Hamburg-based Simonian family of dealers. Robin Dib, the family’s dealer, has been arrested in Paris for criminal conspiracy, gang fraud, and money laundering in connection to the scandal - which involves millions of dollars worth of illicit artworks being sold to museums including the Met and the Louvre Abu Dhabi. The Simonian collectors have a history of convincing (or attempting to convince) art institutions to overlook ambiguous provenance in the acquisition of their art objects. Elena Vassilika, former head of the Roemer & Pelizaeus Museum in Hildesheim noted the “unorthodox” way in which Serop Simonian stored much of his illicit collection in the museum’s warehouses, stating that there is a “lack of awareness in Germany, in particular, of the UNESCO accords” to prohibit illicit imports. “Hildesheim bought aggressively, perhaps to make up for losses due to WWII,” Vassilika told ArtNet News. German and French investigations of the family’s dealings are ongoing.
New King, New Times, New Law?
In August, the Arts Council England issued a new advice to the British museums on the subject of restitution. The spirit of transparency might be transcending the traditional attitude of museums and collection keepers of keeping everything regardless of how museums acquired their goodies. The advice has been given in part by the Institue of Art and Law, a long proponent of "fair and just solutions" for treatment of Nazi-era looted art and not only.
Repatriation Conversations Continues: What is looted Asante Gold doing in the UK?
Tristram Hunt, the director of the Victoria and Albert Museum visited Ghana earlier this year to meet with ministers of tourism, arts, and culture, as well as the current Asante king, Osei Tutu II, where discussions began around the possible repatriation and display of Ghanian art objects. The V&A isn’t the only museum that holds objects acquired during 19th century colonialism: the British Museum, for example, holds around 100 looted Asante artifacts stolen during a British military raid of the Ghanian city of Kumasi in 1874. Despite some museum leadership supporting restitution to colonized communities, British law presents barriers to this goal. According to ARTnews, UK national museums are “currently restricted from deaccessioning art objects from [their] permanent collections due to a 1983 law that is meant to keep historical artifacts in British national institutions from being exported. This law does not have an exception for cultural repatrations.” Hunt believes this law needs to change, but in the meantime, long-term loan agreements with the Ghanian government may be a temporary solution to this legal and ethical conundrum.
Case Law Corner
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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.
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Koldehoff, Stefan and Tobias Timm, Art & Crime: the fight against looters, forgers, and fraudsters in the high-stakes art world ($23 on Amazon)
Today, with prices in the hundreds of millions, and billionaires' collections among the most conspicuous and liquid of their assets, crime is more rampant than ever in the world of art. Increased prices and globalization have introduced new levels of fraud and malfeasance into the art world. However, the extent of the economic and cultural damage that results from criminality in the global art scene rarely comes to light. In Art and Crime, art experts Stefan Koldehoff and Tobias Timm tell stories of high-stakes, brazen art crimes–everything from "artnapping," to forgery and tax fraud. The authors also provide a well-founded analysis of what needs to change in the art market and at museums.
Finkelstein, Claire Finkelstein, Derek Gillman and Frederik Roséne, eds., The Preservation of Art and Culture in Times of War ($99 USD)
Today, systematic exploitation, manipulation, attacks, and destruction of cultural heritage are involved in most violent conflicts across the world. With an increasing awareness of the role cultural heritage plays in war, scholars and practitioners have progressed from seeing conflict-related destruction of cultural heritage as a cultural tragedy to understanding it as a vital national security issue. This volume seeks to deepen public understanding of the evolving nexus between cultural heritage and security in the twenty-first century. Drawing on a variety of disciplines and perspectives, the chapters in this volume examine a complex set of relationships between the deliberate destruction and misuse of cultural heritage in times of conflict, on the one hand, and basic societal values, legal principles, and national security, on the other. Available here...
Bonadio, Enrico and Christiana Sappa, The Subjects of Literary and Artistic Copyright.
This book examines to what extent copyright protects a range of subjects which are engaged in the creation and management of literary and artistic works, and how such subjects use copyright to protect their interests. Providing a starting point for future research paths on copyright practices in art and literature, this book will be of interest to legal academics looking to expand their knowledge of literary and artistic copyright.
Walasek, Helen, Bosnia and the Destruction of Cultural Heritage
The massive intentional destruction of cultural heritage during the 1992-1995 Bosnian War became a seminal marker in the discourse on cultural heritage. It prompted an urgent reassessment of how cultural property could be protected in times of conflict and led to a more definitive recognition in international humanitarian law that destruction of a people's cultural heritage is an aspect of genocide. With numerous case studies and plentiful illustrations, this volume considers questions which have moved to the foreground with the inclusion of cultural heritage preservation in discussions of the right to culture in human rights discourse and as a vital element of post-conflict and development aid.
Cuno, James, ed., Cultural Heritage and Mass Atrocities ($83.65).
Cultural Heritage and Mass Atrocities assembles thirty-eight experts from the heritage, social science, humanitarian, legal, and military communities. Focusing on immovable cultural heritage vulnerable to attack, the volume’s guiding framework is the Responsibility to Protect (R2P), a United Nations resolution adopted unanimously in 2005 to permit international intervention against crimes of war or genocide. Comprehensive sections on vulnerable populations as well as the role of international law and the military offer readers critical insights and point toward research, policy, and action agendas to protect both people and cultural heritage.
Repatriation of Sacred Indigenous Cultural Heritage and the Law examines the ways in which law can be used to structure the return of indigenous sacred cultural heritage to indigenous communities and aims at developing legal structures that align repatriation with contemporary international human rights standards.
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