By
Craig R. Blackman, Esq., and Brian P. Rothenberg,
Esq. Stradley, Ronon, Stevens, & Young, LLP
1. What is the
difference between copyright and trademark?
A trademark is a
word, phrase, symbol, or design, or combination
thereof, which serves to identify and
distinguish a source of goods or services of one
party from another. A copyright protects
original works of authorship, including
literary, dramatic, musical, artistic and
certain other intellectual works.
2. How do I
copyright my work?
Copyright
protection starts from the time the work is
created in fixed form, and, with some
exceptions, immediately becomes the property of
the creator of the work. However, in order to be
in the best position to protect and enforce your
copyrights in a work, registration of the work
with an appropriate copyright office is
recommended. There exist specific procedures and
guidelines for doing so, which are available
through the United States Copyright Office.
3. My gallery
gave me a contract and I don't understand it.
Where can I have it explained to me?
It is strongly
recommended that an artist obtain the services
of a legal professional to review any legal
document before signing it. This can be done
through the use of private counsel or, depending
upon economic circumstances, through pro bono
counsel, such as organizations like the
Philadelphia Volunteer Lawyers for the Arts.
4. If I put
images of my work on the web do I still control
the rights to those images?
Posting
copyrighted work on the web is much like any
other "publication" of copyrighted
works. You should, at minimum, provide
appropriate notice of copyright along with such
works (for example "Copyright © 2001 by
[insert your name]. All rights reserved.").
However, it is important to note that given the
dramatic breadth of access on the web,
controlling the unauthorized use of your
otherwise copyrighted work becomes much more
difficult and that inability to control may
ultimately impair your assertion of ownership
and control over the work. Therefore, before
posting proprietary, copyrighted works onto the
web, you should seek legal advice in order to
best protect your rights.
5. What is the
law on videotaping or photographing strangers?
Is it true that it is illegal to do this? Is
there a way to obtain permission?
Privacy laws vary
from state to state, and may in fact vary within
a state, depending upon the jurisdiction. There
are certainly situations where videotaping or
photographing of strangers without their express
permission is illegal. There are easy ways to
obtain express permission. However, given the
varying nature of the applicable rules, you
should investigate this issue in the context of
a specific state and seek counsel appropriately.
Needless to say, it remains a good rule of thumb
always to seek express written permission before
videotaping or photographing an individual,
particularly when that individual can be
recognized from your videotape or photograph.
6. My landlord
found out that I run my studio in my apartment,
and now he is threatening eviction. Is it
illegal to have a studio in your residence?
Once again, the
answer to this question may vary widely from
jurisdiction to jurisdiction. In the first
instance, you should look to your lease in order
to determine whether this issue is addressed.
Even in the absence of express discussion of
this issue in your lease, applicable real estate
zoning may in fact make it illegal to run a
commercial activity in a residentially zoned
area. In the face of this type of claim, you
should seek immediate legal advice based upon
the specifics of your circumstances.
7. What are
the requirements for being an independent
contractor and/or self-employed? Is there a
minimum income required? Which tax forms will I
need?
Let's start with
the easy answers first. There is no minimum
income required. As for tax forms, the schedules
attached to your tax filing will vary depending
upon the elements comprising your income.
Accordingly, appropriate tax and accounting
advice is strongly recommended. As for being an
independent contractor or self-employed, the
elements are not consistent. For example, one
may be both an employee and an independent
contractor, depending upon the subject
relationship. For more details on this, see the
answer to question number 10, below.
8. How do I
incorporate? Is it the same process for
non-profit or for-profit? What are the
advantages to each?
To incorporate,
you would file either Articles or a Certificate
of Incorporation with the applicable office in
the state in which you desire to organize your
company. The process of incorporating a
non-profit versus a for-profit company is
basically the same, although a non-profit often
requires certain additional filings that vary
state by state. Although there may exist certain
tax advantages to being a non-profit
corporation, not all corporations qualify for
non-profit status. You should seek appropriate
counsel to determine whether your venture meets
these requirements.
9. Is it
better to be a sole proprietor or to be
incorporated?
Generally, it is
preferable to incorporate in order to limit your
liabilities. However, by incorporating you may
incur additional taxes. You should seek counsel
to assist you in determining the most
appropriate construct for your entity.
10. What
constitutes an employee relationship versus an
independent contractor relationship?
The IRS has
delineated 25 factors in its test to determine
whether you are an employee or an independent
contractor. Basically, the decision may involve
whether you have the right to direct how and
when work is to be performed, as opposed to
merely controlling the outcome of the work.
Nonetheless, it is advisable to seek appropriate
counsel in order to determine in which category
you fall and which category provides you with
the best benefits, under the given
circumstances.
11. What types
of insurances do I need as an independent
contractor?
The types of
insurance you need vary greatly depending upon
the particulars of your business endeavors.
Types of insurance to consider include general
liability insurance, first party property damage
insurance, medical coverage insurance both for
yourself as well as for business and
non-business invitees injured on your premises,
workers compensation insurance, etc. Once again,
it is strongly advised that you consult with
appropriate counsel or insurance brokers to
determine the appropriate package of insurance
for your given endeavor.
12. As an
employee, what types of insurance should my
workplace cover?
The question more
likely needs to be not what insurance should be
covered, but what insurance might be covered.
Other than such mandatory coverage as workers
compensation, very few legislative requirements
exist for providing insurance as a benefit to
employees. Insurance that is frequently provided
includes short and/or long term disability
insurance, life insurance, and premises
insurance.
13. If I am
injured on the job in someone's studio do I have
the same rights as someone injured in an office
workspace?
The response to
this question will be determined by the specific
facts of your working relationship, but there
are certainly circumstances in which being
injured while working in someone else's studio
space might put you in the same position as
someone injured in an office workspace. Once
again, the definitive answer to this question
will depend upon the specific facts of your
situation and will require appropriate
consultation.
14. When a
gallery wants to show my work, am I responsible
for the insurance or is the gallery?
While the answer
to this question may vary from state to state,
depending upon whether there are specific
statutes addressing this issue, as a general
matter, and in the absence of a specific
undertaking in the gallery/artist relationship,
the gallery will not have any liabilities to the
artist for loss or damage to artwork it
displays. You should address this issue in
writing before agreeing to have your work
displayed in the gallery.
15. Who should
be responsible if there is damage to the work in
shipping?
Generally, the
responsibility of damage to work while in
shipment will be governed by the shipping
contract. Ordinarily, you will be required to
procure and pay for insurance covering the value
of the artwork during shipment. Make sure you
have addressed this issue with your shipper
prior to consignment.
16. Are there
any hints you can give me to keep my legal fees
as low as possible if I feel that I do need a
lawyer to settle a dispute?
This is the sort
of question that any client ought to be asking
prior to engaging legal representation. As a
preliminary matter, in order to minimize future
legal bills, it is strongly recommended that you
consult with counsel before entering into
relationships or contracts that could result in
your requiring a lawyer's services. It will be
far less expensive to consult with counsel and
find out what your rights and obligations are in
advance of a transaction, than it would be to
have to retain their services in order to
protect yourself or fix a problem after it has
occurred. That said, in those situations where
you have found yourself in need of an attorney
after a loss-causing event, here are some
helpful suggestions. Concisely identify what
problems you are facing, summarize, in writing,
the relevant facts related to the subject
transaction, and attempt to remove yourself
emotionally from the conflict. That way, you
enable yourself to communicate dispassionately
and directly the relevant legal and factual
issues as you perceive them so that your counsel
can effectively respond and evaluate the issues
in the most efficient manner.
Craig R.
Blackman and Brian P. Rothenberg are attorneys
practicing in the Philadelphia office of
Stradley, Ronon, Stevens & Young, LLP. Craig
specializes in the areas of insurance and
intellectual property law, and Brian specializes
in emerging businesses and intellectual property
law. Craig and Brian can be reached at 2600 One
Commerce Square, Philadelphia, PA 19103.
Disclaimer:
Information contained in this writing should not
be construed as legal advice or opinion, or as a
substitute for the advice of counsel. The
materials are provided for educational and
informational purposes for the use of web site
viewers and others who may be interested in the
subject matter. Visitors of this web site should
not act on information posted here without
seeking specific legal advice from individually
qualified counsel based on specific facts.
Copyright ©2001
Stradley, Ronon, Stevens, & Young, LLP. All
rights reserved.
This FAQ was
originally created for TheArtBiz.com. It appears
on NYFA Interactive courtesy of the Abigail
Rebecca Cohen Library.
