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.
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Article appears courtesy of New York Foundation for the Arts, www.nyfa.org