Elliott Alderman, founder of Alderman IP, is an intellectual property counsel with years of experience working with creators, helping them to protect and license their intellectual property, and incorporate preexisting content. In an interview with Fine Art Shippers, he shared his expertise and provided advice to artists and other creatives.
Intellectual Property Rights in Art: Interview with Elliott Alderman
In your opinion, what are the most pressing intellectual property issues facing the art industry today?
Elliott Alderman: I think NFTs and digital art are the most sensitive issues in copyright and trademark law. The owner of a visual artwork, under copyright law, has the exclusive rights to publicly display and reproduce the piece or grant others permission to do so. The principal issue arises when the artwork is shared on the internet. Once it’s out there, it’s easy for anyone to capture the image precisely as it is or use it to create unlicensed derivative works for their own ends. NFTs raise particularly complicated issues for trademark holders since the tokens may make expressive use of a commercial product that may not also be trademark use.
Are there technical ways to track digital images and their use?
There exist numerous technical methods to comb the internet and locate an image, and many visual artists use watermarks on their images. However, every technical solution can eventually be bypassed with the help of another technology, and typically you don’t have contracts with internet infringers, so there isn’t a contract breach.
In addition to technology, the best way to protect visual art is through a combination of copyright registration and careful licensing. And if there’s a contract breach, you need to have a registration to sue to enforce your rights, whether you have a website or other platform’s terms of use, or an individually negotiating license.
Could you explain the key differences between copyrights, trademarks, and patents in relation to artists and their work?
Patents don’t typically apply to art unless new technological ways of creating art, such as AI, are involved. Trademark relates to products and services, protecting against what is called “confusing similarity.” An artist’s name could be trademarked, preventing others from using it, but this is subject to certain limitations. Also, commercial products may be used expressively in visual art without trademark violation.
As I mentioned earlier, the best way to protect intellectual property is copyright, which involves exclusive rights to reproduce, publicly display, and create derivative works, or to authorize others to do so. For graphic artists who might not earn significant revenue from selling their artwork, these rights become even more critical.
What should an artist do if they suspect their work has been used without their permission?
The first crucial step in protecting your intellectual property is registering the work. In the event of an infringement, having a copyright registration allows an owner to sue in federal court to enforce their rights. You may reach out directly to an alleged infringer, but I recommend using a lawyer for this process.
Failure to register can make the enforcement process either extremely costly or entirely unachievable. Therefore, a combination of registrations and well-drafted contracts is crucial. It might appear as a costly expense but as someone who works with creators, especially visual artists, I know that the costs of intellectual property breaches produce incomparable financial damage. So investing in protecting your rights is essential for those who make their living through art.
Can you talk about any legal challenges or grey areas when it comes to artists using “found materials” or existing art in their own work, such as in collage or appropriation art?
The question of how much of someone else’s work an artist can use is very complex. I have several clients who are appropriation artists, and the general guideline is that permission is required, or the adaptation must fall under fair use. A secondary user may be permitted to transform a work so it serves a different purpose and is not infringing, but navigating through substantial similarity and the copyright owner’s derivative work rights is extremely complicated.
I am currently writing an article about a recent Supreme Court case, Warhol Foundation v. Lynn Goldsmith, which I believe has narrowed the concept of fair use. This case involved Andy Warhol using an image by Lynn Goldsmith without permission and transforming it into his own art. The central question here was whether Warhol’s use was transformative.
Judges often gravitate toward the concept of transformation. However, this focus could potentially undermine the derivative work rights of original creators. For instance, parodies, which reference the original work, can use more of the original content without infringing on copyright. This concept was highlighted in the case of Campbell v. 2 Live Crew, where the parody version of a Roy Orbison song did not substitute for the original work and was not seen as impacting the original’s market.
What are some common misconceptions about intellectual property laws in the art industry?
I would say, a common misconception is that protecting your work merely involves storing it somewhere safe. But as we have seen, physical safety is not enough. Registering your work is essential, as it allows you to fully benefit from copyright protection, including the ability to file an infringement lawsuit.
Furthermore, it enables lawyers to take on contingency cases and ensures fixed statutory damages without the need to prove the value of the work. These damages can range from $750 to $150,000 per work, depending on the willfulness of the infringement.
How does international law come into play when dealing with intellectual property rights in the art world?
When it comes to the protection of artists’ rights internationally, there are several things to consider. For global platforms, such as websites, terms of service typically dictate how users can engage with the content and local jurisdiction and venue.
Trademark protections aren’t extraterritorial, meaning you must have registrations in all the countries where you want to protect your trademark. Copyright, on the other hand, is more global due to a series of international treaties. If countries are part of these treaties, they are obligated to protect foreign works at an agreed minimum standard.
My recommendation to artists who are making a living from their work is to consult with a lawyer for overarching advice on protection schemes, licensing, and more. Often, people don’t seek legal advice until they are in a crisis, but it would be more cost-effective to address potential issues early on. Protecting your intellectual property should be viewed as an investment and insurance for your assets.
Interview by Inna Logunova