Post Co-Authorship and Past Congeniality: Creative Relationship Spoils

By Colby A. Meagle*

Screen Shot 2017-06-28 at 10.51.01 AMSynergy is the sharing of talent and ideas, the combining of two or more minds in order to produce a product superior to anything one is capable of creating alone. Partnerships may look like a constructive arrangement, one where everyone benefits, and maybe that is the case at the beginning, but what happens when the relationship falls apart? What is the consequence of that fleeting love affair, or late night bar fight? In the context of art law and partnerships dissolving, who gets custody of the “kids”, a.k.a. the artwork? Artists are romanticized for their passionate relationships that include both personal and work related matters. But all too often these fiery affairs go up in flames and the issues of authorship and ownership are brought front and center. The following is a review of three recent legal battles that have highlighted these difficulties, as well as a brief discussion on the prominent applicable laws that underlie the arguments.

Cases & Controversies

In a pending case Chan v Schatz, authorship is in dispute.  Generally, to determine if work has been co-authored courts look at the intention of the parties to create a joint work. If the intent is lacking, it is likely not a joint work, but they also consider if there were substantial contributions made to the work, and the extent of control exerted over the work (Aalmuhammed v. Lee). Artist Eric Chan, well known for his abstract paintings and sculptures, is in the midst of a divorce from Heather Schatz. The split has prompted him to take precautionary actions by filing suit for a declaratory judgment naming him the sole creator of his works, therefore excluding Schatz from a co-authorship claim. He, represented by Lindsay Elizabeth Hogan of Grossman LLP, and she, now represented by Andrew Berger of Tannenbaum Helpern Syracuse & Hirschtritt LLP, were married in 1992. The suit encompasses 1139 works created during the span of their quarter century marriage.

While Chan and Schatz lived and worked together Schatz appears to have provided assistance in managing the studio. While Chan admits Schatz occasionally provided advice, and suggested concepts for pieces, he maintains in his complaint that, “her contributions were not themselves fixed independent creative expressions.” Furthermore, Chan “never intended that [his wife] would be his co-author,” rather, throughout the entirety of the relationship his understanding was that he was unequivocally the sole author of his works. This is despite the fact that the work was and is displayed under the joint name “ChanSchatz,” which he claims was merely a homage to his relationship and love for his wife.

However, Schatz feels differently. She asserts that her contributions were significant, as proven by the use of the joint name and their long history of working together publicly. As such, Schatz feels entitled to be credited as a co-creator of the work. So, while Chan maintains there was no intent for co-authorship, Schatz claims that her contributions were material.  

Chan is seeking to resolve this controversy by approaching the court for a declaratory judgment “that he is the sole author of all of the Chan Works” (Chan Complaint). A ruling in his favor would grant him status as the only author, and to full intellectual property rights over the art. Conversely, if the court side with Schatz, then the rights and credits will be shared between the two now-estranged lovers. The case is to be tried to a jury, with amended complaints due in July, 2017.

Another couple that frequently appears in the public eye, Marina Abromović and Frank Uwe Ulay, have also faced their fair share of legal issues. Following their tear-jerking reunion at Marina’s retrospective, Ulay filed suit as a citizen of Holland in Dutch courts in retribution for a breach of contract relating to joint works created before the duo’s split in 1988. Ulay was eventually awarded twenty percent of the net sales of their work by Amsterdam courts, in accordance with the contract they signed in 1999, along with legal fees and backdated royalties (theguardian.com). Abramovich v Ulay highlights how important it is for artist couples to document their arrangements. Without the contract, Ulay would have faced a more difficult legal battle in the pursuance of receiving fair compensation for his contributions.

Payment was not the only issue addressed in the Dutch filings:  attribution for future displays and documentations was also resolved. The question of whose name comes first may seem insignificant, but to many artists it is of the utmost importance, marking one as superior or more influential if named first. The courts decided that works from 1976 to 1980 be listed as by “Ulay/Abramović” and those from 1981 to 1988 as “Abramović/Ulay.” It is possible that the courts considered, based on the evidence presented, whose artistic vision was dominant in creating the work during those times to determine this order, although their reasoning for this specific division was not explicitly stated. Regardless, the suit is evidence that even the seemingly minute details, such as the name order, can cause conflict, and should be considered when drafting a partnership contract.

Artists involved in romantic relationships are not the only ones at risk of authorship and credit-related legal issues: friends and acquaintances can face similar  difficulties. Moi v Chihuly Studio, inc., is instructive. In his complaint, Michael Moi alleges that renowned glass artist Dale Chihuly not only took credit for work they created together but refused to pay him at all over a period of fifteen years. Plaintiff Michael Moi worked as studio assistant to Chihuly from 1999-2014. His contributions included helping in the creation of paintings, which he claims to have co-authored, as well as forging Chihuly’s signature– under the direction of the artist — on numerous pieces. The visual works he helped produced were consequently sold to the benefit of and attributed only to Chihuly. During his time working for Chihuly, Moi was “repeatedly and consistently” promised future compensation, and Moi relied on their friendship as assurance that this was true, and that he would eventually be paid. However, the complaint puts forth that, at no point did Moi receive the promised payment. Chihuly denies the claims, stating that he has long employed studio assistants, and that the suit is merely an attempt to extort him. Moi is seeking the recovery of damages for the missing payments and proceeds of his work under the Copyright Act and the Visual Artists Rights Act (VARA).

The lack of an employee contract is important here, because without it Moi may not have any claims to the intellectual property. Under the typical contract for work or contributions to work, the creator remains the author, and the owner/contractor of the work retains all the economic rights to the work, including its copyrights. Thus, a pivotal point in the case for his claims under the Copyright Act, may be whether he was a partner and co-author of the work, or an employee of the studio.    

Conflict Foresight/Preparation

How might disputes over authorship between collaborators (spouses or business partners) have been avoided? One possibility was to have a private agreement detailing the nature of their working relationship, including exactly who would be credited as the author of the works. The agreements could also have covered various other issues of copyright ownership for the works, along with ownership of the physical pieces if a split were ever to occur. The value of the initial challenges forming these contracts would far outweigh the difficulties the pairs now face in resolving their disputes.

Artists Jack Beal and Sondra Freckelton provide an example of this forward-thinking precautionary action. Sondra was a successful sculptor in the 1970’s before she transferred into watercolor painting. Her husband Jack Beal was an American realist painter until his death in 2013. The two included a written agreement in their marriage certificate to provide that they would have an equal partnership in both marital and artistic endeavors. Sondra felt that this agreement was extremely important to maintaining her valued independence as artist, as well as to ensuring that her husband and his career would not overshadow her own.

However, the reality is that most artists, and people in general for that matter, are not anticipating the demise of a relationship upon its commencement. For this reason, contracts are rarely drafted, and often one partner could even feel insulted by the other for asking for official documents to be created – seeing it as a testimonial to the relationship’s inevitable demise. So while the creation of a contract in every working relationship is ideal, the frequency of their actual existence is much smaller. Even if one does manage to make a contractual agreement, there may still be issues of enforcement depending on the contract’s nature and terms, as evident by the Abromović – Ulay suit.

That is not say that one can’t go overboard with preparation. One couple made Internet news, when their specific contract request went viral. The couple was getting married and in need of a wedding photographer. The odd part is, they wished to include a clause in their contract stipulating that if they ever got divorced they would receive a full refund for their photographs, as they would no longer need them. Needless to say, they had quite a difficult time finding someone willing to accept such an agreement (PetaPixel.com). So, while planning is encouraged, it is possible to go too far. One should find a happy medium, somewhere between a fully stocked fallout bunker and never getting a flu shot, perhaps the contract equivalent of a first aid kit.       

Distribution of Assets: Tangible and Intangible

When relationships end, many artists may be surprised to learn that in most states, artwork is considered marital property unless provided otherwise in a prenuptial agreement. This means that during a divorce, artwork is part of the property that is divided 50/50.

In relation to works created by one or both partners, the first step is to make an accounting of all the works made and sold during the marriage and their location. It is worth remembering that works in progress should be included. This step should be taken seriously since in the case of an accidental omission, one could face charges for fraud, and the other spouse could either keep the omitted work or all the profits from its sale. The work must also be assigned a value, perhaps a touchy subject. But if both sides can agree, it can be much simpler and faster to have a single appraisal completed than arguing over whose is correct.

Copyright should also be kept in mind during the distribution of assists. Although the work may be going to both parties, the copyright remains with the original creator and must be transferred separately to the new owner. This becomes important if the spouse who holds the work but did not create it wishes to sell the work or license it, as they will need the corresponding rights. The transfer of which must be explicitly detailed in the allocation of the artworks during the proceedings. It is also important to note here, that in the case of co-authors, each author has equal copyright rights.   

Lastly, there are issues that may arise under VARA (the Visual Artist Rights Act of 1990). VARA provides some protection to the artist’s work regardless of ownership. It allows, among other rights, “the right to prevent distortion, mutilation, or modification that would prejudice the author’s honor or reputation”. This means that in the case of a rather heated divorce you shouldn’t plan on keeping your spouse’s work only to burn it in a fit of rage or revenge, to do so would be a violation of their rights and you could face charges (not equal in value to the fun of your bonfire).

Conclusion

In summary, matters of heart and business are complicated, throw art into the mix and you have a recipe for calamity. Whether it is determining who receives credit for the work, or who ultimately gets to keep the work, small steps along the way in contractile prep paired with a little legal advice can lead to less headache, if not less heartache in the long run.

Select Sources:

  1. Complaint, Moi v. Chihuly Studio, inc., (Wash. Super. 2017).
  2. Complaint, Chan v. Schatz, 1:17-cv-03042 (S.D.N.Y. Apr. 26 2017)
  3. THE VISUAL ARTISTS RIGHTS ACT OF 1990, 136 Cong Rec E 3716
  4. 17 U.S.C.S. § 101 (LexisNexis, Lexis Advance through PL 115-37, approved 6/2/17)
  5. Ben Quinn and Noah Charney, Marina Abramović ex-partner Ulay claims victory in case about joint works, Sep. 21, 2016, available at https://www.theguardian.com/artanddesign/2016/sep/21/ulay-claims-legal-victory-in-case-against-ex-partner-marina-abramovic
  6. Nichole Martinez, What Happened to Art in a Divorce? [Hint: Get an Art Appraiser], Nov. 8, 2016, available at https://artlawjournal.com/art-appraiser-divorce/
  7. Daniel Grant, Love and Marriage, Artist Style, Dec. 17, 2010, available at http://www.huffingtonpost.com/daniel-grant/love-and-marriage-artist-_b_784179.html
  8. Christies, How deep is your love?, last visited Jun. 12, 2017, available at http://www.christies.com/features/10-most-famous-art-couples-of-20th-century-7062-1.aspx
  9. Noah Charney, Ulay v Marina: how art’s power couple went to war, Nov. 17, 2015, available at, https://www.theguardian.com/artanddesign/2015/nov/11/marina-abramovic-ulay-performance-art-sued-lawsuit
  10. Columbia Law School, Keep Your Copyrights, available at, http://www.law.columbia.edu/keep-your-copyrights/copyrights/know-your-rights/joint-works
  11. PetaPixel, Wedding Photographer Asked for Refund Guarantee in Case of Divorce, (2017), available at https://petapixel.com/2017/06/07/wedding-photographer-asked-refund-guarantee-case-divorce/
  12. Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000)

*About the Author: Colby Meagle is a 2019 J.D. candidate at Pepperdine University School of Law. Prior to law school, she received her B.A. in Arts Administration and B.F.A from Elon University in 2016. She can be reached at colby.meagle@pepperdine.edu

Disclaimer: This article is intended for educational purposes only and is not meant to provide legal advice. Any views or opinions made in the linked article are the authors alone. Readers are not meant to act or rely upon the information in this article and should consult a licensed attorney.

 

Realities of Fan Fiction: Paramout To Boldly Drop Lawsuit

By David Honig, Esq.*

Star_Trek_TOS_logo_(1)

In 1966 the world was introduced to the crew of the USS Enterprise NCC-1701! On September 8, 2016, 50 years will have passed since we joined that intrepid crew on its five year mission. Over the course of
a half century
Star Trek has amassed a following unlike any other. The original series, which only made it to the air because of Lucille Ball, lasted only three seasons before it was canceled. Gene Roddenberry’s tale of a future where humanity put its petty differences aside to unite and explore the stars did not end, however, when the last episode aired on June 3, 1969.

tumblr_o2awj8Rh0Z1rwjpnyo1_500After being canceled Star Trek spawned a franchise that consists of an animated television series, major motion pictures, comic books, novels, numerous spin-off shows and a Las Vegas attraction. But most importantly, Star Trek took firm root in the hearts of its fans. As a testament to their devotion, fans have learned Star Trek’s alien language Klingon, going as far as translating Hamlet, and a few other works, into their beloved alien tongue.

Like all good works of fiction, Star Trek developed a life of its own and inspired a parade of  unauthorized fan fiction. While a phenomenon like Star Trek lives and dies with the fans, it  exists as property owned not by the fans but by a major corporation. As such, Paramount and CBS have a vested interest in protecting the rights associated with their copyrights under 17 U.S.C. 106. Specifically, the copyright holder has exclusive rights to reproduce, create derivative works, distribute copies, and perform and display the work publicly.

Fan fiction regularly infringes a copyright because copyright often covers more than just the work itself. Instead, copyright has been extended to cover characters and settings as well as other literary elements, see Walt Disney Productions v. Air Pirates, 581 F.2d 751, 754-5 (2d Cir. 1978).

Fan fiction violates the exclusive rights of a copyright holder in two ways, expressly or through derivative works. A piece of fan fiction that incorporates a character or setting from the original work infringes – since, as just discussed, the character is subject to copyright protection and using the character violates the exclusive right to reproduce. Similarly, fan fiction violates the exclusive right to create derivative works even as  the fan-author creates her own story, because of familiar settings or characters derived from the original work. It is also worth noting that selling or distributing fan fiction does not change the fact that it infringes the original copyright. Commercializing a work, or more precisely the effect on the market for the original copyright, only comes in when determining whether the fair use exception applies not whether something infringes.

When deciding to prosecute copyright infringement the holder is faced with a Kobayashi Maru scenario – in the Star Trek universe, the Kobayashi Maru refers to a training exercise designed to place starfleet cadets in a no-win scenario. The copyright holder must decide whether it should allow the copyright to be infringed or enforce its rights and risk the ire of fans. The amount of money involved in fan fiction infringement is usually nominal compared to the risk of alienating fans. Additionally, because of the  uncertainty of fair use protection under 17 U.S.C. 107, fan fiction is often left alone even when the potential infringer is making money. This is a simple cost benefit analysis. However, there are instances where the holder does assert its copyright and recently some Star Trek fan fiction has fallen into that category.

Anyone who has ever been to a comic convention knows that there are people dressed up as starfleet officers, members of the United Federation of Planets or other Star Trek Characters. These fans are often wearing uniforms that they made themselves which include elements that are subject to copyright protection – such as the starfleet insignia. For various reasons Paramount and CBS will not go after these fans, the damages are de minimis

In addition to wearing costumes, many of these fans will also create their own movies, comics or other form of art – even the Internal Revenue Service is not above creating such a video. These videos are usually viewed as harmless since they have no impact on the market for the genuine article and if anything they endear fans to the source even more by allowing them to continue to engage in ways that traditional content does not allow. There is a limit, however, to what the Star Trek copyright holders will accept before they begin enforcing their rights. It seems that a fan project that raised over a million dollars and was set to be released the same year as Paramount’s next installment in the Star Trek motion picture franchise was too much.

Star Trek: Axanar, a fan film set before the original 1966 television series, raised over a million dollars on Indiegogo and Kickstarter. The film, which follows a successful short that raised over $100,000 on Kickstarter in 2014, raised its funds with some encouragement from Star Trek alum George Takei. With a mounting economic incentive, on December 29, 2015 Paramount and CBS filed a lawsuit against the producer of the film, Axanar Productions (“Axanar”), alleging copyright infringement.

george_takei_sulu_star_trek

George Takei as Sulu on the set of Star Trek

Among other aspects of Star Trek such as history and characters, the complaint claimed a copyright over languages. What might have seemed to be one more violation to the copyright holder and its attorneys ended up developing a life of its own.

First Axanar, responded by filing a motion to dismiss claiming that Klingon, a language invented for Star Trek, could not be protected by copyright law under Baker v. Seldon, 101 U.S. 99 (1879), because it is an idea or system. In response, Paramount claimed that the Klingon language isn’t useful, wholly fictitious and “there are no Klingons with whom to communicate.” After Paramount responded to Axanar’s motion the Language Creation Society submitted an amicus brief in support of Axanar.

The brief begins with a curious footnote quoting Marc Okrand, author of The Klingon Dictionary and creator of the language, claiming  Okrand “has asserted that the Klingon language, tlhlngan Hol, was received by him from a captured Klingon named Maltz.” The brief thus concludes that Plaintiffs cannot claim otherwise in this litigation, citing to Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1075 (2d Cir. 1992), to support its position. The Language Creation Society does not pull any punches stating, “Feeling ownership and having ownership are not the same thing.”

The Language Creation Society’s brief is quite an enjoyable read. The brief quotes Star Trek: The Next Generation, recognizes there is a child who was raised as a native speaker of Klingon and intersperses Klingon phrases written in the Klingon alphabet throughout. What might appear as gimmicks actually make the Language Creation Society’s point stronger – Klingon is a real language spoken by real people so much so that it can be used coherently in a brief amicus curaie. If the point of filing this brief was to argue that Klingon has taken on a life of its own as a communication system then there truly is no more powerful tool to prove this postulate than by showing Klingon can indeed act as a communication system instead of just reporting on its wide use.

Alas, the issue will not be adjudicated, at least not in this case. On Friday May 20, 2016 J.J. Abrams, the director of the first two Star Trek reboot films, announced that the lawsuit against Axanar would be dropped. The announcement was made during a fan event to promote the third installment of the rebooted Star Trek franchise, which Abrams serves as a producer, Star Trek Beyond. Unfortunately, this voyage is not yet over.

Abrams merely announced that Paramount WOULD drop the lawsuit not that the lawsuit WAS dropped. In fact, four days after the announcement Axanar an answered amended complaint and filed a counterclaim to ensure it met court ordered filing deadlines. Additionally, CBS and Paramount are working on fan film guidelines and if Star Trek: Axanar, or some other fan film, does not follow those guideline then the Star Trek copyrights will most likely be enforced again. Clearly there is still work to be done before Axanar, its fans, and producers and fans of other Star Trek fan fiction can proclaim Qapla’.

About the Author: David Honig is a post graduate fellows at the Center for Art Law. He is a member of the Brooklyn Law School class of 2015. While attending law school he focused his studies on intellectual property and was a member of the Brooklyn Law Incubator & Policy (BLIP) Clinic. He is admitted to New York and New Jersey state bars. In the Fall of 2016 he will be pursuing an LL.M. in taxation from NYU Law.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advise. Instead, readers should seek an attorney.