Guide to Laws for Artists in the United States
What areas of law should artists and creatives know about, in order to protect their work and avoid legal pitfalls? The most important are “intellectual property” law, freedom of speech and expression, privacy and publicity law, and laws for independent contractors and freelancers.
1. Protecting artistic work
What is intellectual property?
Intellectual property refers to the legal protections for certain work product. There are four main categories of intellectual property: copyright, trademark, patent, and trade secret. See our Guide to Intellectual Property for more.
How do I legally protect my work?
In general, once you create any sort of original creative work – painting, drawing, photography, video, music, etc., you automatically obtain certain rights to that work, including the right to prevent others from copying or using the work without your permission. This is called having the “copyrights,” which is the primary type of protection for artistic work.
See more at our Guide to Copyright Law.
If someone commissions me to create an artwork, who owns that?
As the artist, you own the intellectual property of the work, unless you have a contract that states that the person commissioning the art owns it. This does not mean you own the physical object. You only own the rights of your work.
What exactly does this mean? Let’s say you paint a painting for a patron, and it is not specified who owns it. The patron would own the physical painting and canvas, but you actually own the copyrights. So, the patron cannot then copy, photograph, or display the painting publicly without your permission.
But you could copy, photograph, or publicly display copies of the painting, without the patron’s permission. That said, patrons often don’t realize this and may not be too happy about it, so it’s best to clear all this up ahead of time.
See more at our Guide to Copyright Law.
Are there any other protections for artists?
Yes. In addition to intellectual property, certain art can be protected by “moral rights,” which include the requirement of author attribution and preventing the destruction of the art.
These moral rights were created by the Visual Artists Rights Act, which applies to various forms of art, including paintings, sculptures, murals, and authorized street art15pointz case or graffiti (it does not protect illegal graffiti).217 U.S. Code Sec 106A; English v BFC & R East 11th Street LLC These can apply even if the artist has no copyrights in the work. But they do NOT apply to “work for hire” (see below).
If a building owner wants to remove graffiti that was placed there with permission, what must the owner do?
To comply with the Visual Artists Rights Act, the building owner must give at least 90 days notice to the artists before the owner can remove or destroy the street art. This notice requires a “good faith effort,” which is usually satisfied with a mailing with return receipt.317 U.S. Code Sec 113 If the building owner does not comply with this law, it can mean serious money for the artists. In one case in New York, the owner was forced to pay the artists $6.7 million.
Can moral rights be transferred or waived?
They can be waived, but not transferred.417 U.S. Code Sec 106A(e)
Does an artist have rights to a work that was created illegally?
This often comes up with graffiti art that was created without permission from the property owner. In terms of moral rights, the answer is generally no, you don’t get moral rights to a work illegally placed on the property of others without the property owner’s consent.5English v BFC & R East 11th Street LLC
As for copyrights, at this point the question has not been clearly answered by the courts, but at least one case has suggested that illegal artwork may not be eligible for copyright protection.6Villa v Pearson Education
For more on this, see our blog post about H&M’s use of illegal graffiti.
2. Avoiding Infringement of Others’ Work
Help! Someone is claiming I infringed on their work!
Is it illegal to make fan art?
Maybe. See our Guide to Fan Art.
3. Issues regarding subject of an artwork
What does an artist need to know when people are the subject of a piece?
Another major issue for artists comes up if your art depicts real people. These issues are based on state law, so the details vary from state to state, but most states provide for the following rights.
Using a person’s likeness
In general, you can’t use another person’s “likeness” for a commercial purpose without their permission. See our Guide to Marketing and Merchandising.
Creating a painting or drawing of a celebrity, and selling it, may be OK. See more about this here.
Rights of privacy
There are also rights of privacy issues. There are 3 categories of privacy issues:
- Intrusion: Individuals have a right to protection against unwarranted intrusion upon their solitude and private affairs
- Public Disclosure: Individuals have a right to protection against the public disclosure of embarrassing facts about their private lives.
- False Light: Individuals have a right to protection against publicity that places them in a false light
Basically you can’t photograph something that a person has a reasonable expectation of keeping private, even when the person is in a public area.
Exceptions to both “right of publicity” and the rights of privacy are when the subject is “newsworthy.”
See our Guide to Privacy Law for more on this.
What does an artist need to know about creating potentially offensive or politically sensitive art?
Controversial art pieces are usually protected by freedom of speech and expression in the 1st amendment of the U.S. Constitution. But when a piece potentially may harm the reputation of a person, this may be considered “defamation.” See our Guide to Free Speech for more on these issues.
4. Independent contractors, freelancers, and other business issues
What do artists need to know about business law?
Many artists work on their own, either commissioned to create a work of art, or creating their own art to sell. Commission based work usually means the artist is an “independent contractor” aka “freelancer,” performing work for a “client.” Generally if you work as an independent contractor, you maintain all the rights to the work, unless you have a contract that states otherwise.
But often clients will require that a work be done as a “work for hire,” which essentially means the artist would give up all of their rights (including “moral rights” – see above). See our Guide to Freelancer Law for more on this.
If you are an artist creating your own art to sell, you are essentially a small business, and must follow the relevant business laws.
Exercise Your Rights
See options for getting legal help on issues like intellectual property, free speech, and/or business law.
Photo credit: Death to Stock Photos