legal issues

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TO DONATE ART, OR NOT TO DONATE…THAT IS THE QUESTION…

Published September 4, 2017 by Gail Daley Writer & Artist

By the Practical Artist

http://www.thepracticalartist.com/the-practical-artists-blog.php

This is the time of year when creatives like us get tapped to donate our work to worthy causes. The phone rings, and some well-meaning fundraiser on the other end wants you to donate a work of art to their charity auction. Usually this goodhearted fundraiser will promise you a tax deduction, great exposure, enhanced publicity, and public exposure if you agree; sadly, most volunteer fundraisers don’t know what they are talking about as far as the actual benefits to you as an artist. Should you do it? This really depends on several things; how much do you support the cause itself? Are the benefits going to out-weigh the costs?

Well lets deal with the tax deduction benefit first. It’s not great. Generally speaking, you as the artist are allowed to deduct only the cost of creation (materials, etc.) unless you have had an appraisal done by a qualified art expert. This is no problem if you are a big name artist whose art is going to bring in thousands of dollars to the charity because the charity will usually have the art appraised by their expert, which you can then attach to your taxes. However, if you are donating to your child’s school, your church, local hospital, etc. chances are the charity is not going to pay for this appraisal because they can’t afford it. Sometimes the charity is worthwhile (in fact most of the time), but unless they follow my rules for donation, what they are really doing is training whoever comes to their event to devalue my art and disrespect me as an artist. This may sound really harsh but it has been proven to be true.

The next two items typically promoted by fundraisers are “enhanced publicity and public exposure” which sounds really good, but what exactly are they actually talking about? A line in the auction catalog and announcing your name when they bring up your art? Please. Remember that most of the fundraisers who do telephone contacts are volunteers with no actual experience in the field. In other words they really have no idea what they are talking about. Enhanced publicity should mean your name in the newspaper, on the radio or on the charity’s Facebook page with a link to your website. Public exposure should mean that instead of just pointing to your art and asking for bids, the auctioneer talks about you, what awards you’ve won, how good the art is, etc. to encourage the audience to bid higher. He or she should also mention your web site, and the brochures advertising you as an artist, which should have been available when the bidders were doing the walk-through.

Predictably, at most of these charity events, they practically give away the art because the bidders are not art collectors, they are there to support the charity and are looking for two things—something they can afford to bid on to satisfy their tax deduction and to support the charity. A lot of them might be even comparing your fine art to canvas prints they can get at a department store! Auctioning your art for much less than you normally sell for undermines the art market in general, and makes it seem as if the artist (you!) didn’t deserve the real selling price. Another negative side effect is to encourage your regular collectors and potential buyers to wait for events like this to buy your art cheaper than they could if they purchased it directly from you.

The “public exposure” thing is problematical; unless the auctioneer makes a really big deal about your art business and how valuable your work is, everyone present is likely to still think you have a nice hobby. I was once asked by my church to design a poster/logo for a women’s retreat. When the event coordinators husband saw it he remarked to her that it looked like a “real” artist had done it. I find that no matter how good the art I donate to their event is, my circle of acquaintances in my church, my children’s school and my family almost all still believe that my art is a hobby, so I don’t donate unless the charity agrees to the following ground rules:

 

  • I set a minimum price for original art. If it doesn’t sell, I get it back. This is absolutely essential because unless you have an appraisal from a respectable appraiser attached to the art; all that you can take off on your taxes is the cost of material used to create the art.
  • I qualify the event by making sure there will be folks there who can actually afford to purchase the art (this means getting actual names of who will be attending or at least who has been invited), and that the event will be well publicized: this means actual ads on TV, Internet, and Radio, hopefully with a mention of the art you are donating.

Once charities learned I stuck to these rules, I found that the requests dropped off dramatically. This doesn’t mean that I am wholly against art donations; I do donate my art to worthwhile charities, but I find that it usually pays better tax deduction-wise to donate a good quality print than the original. If you donate a print, you can deduct the entire printing cost, framing and matting which is a much better deal for tax purposes. To sweeten the pot for prospective buyers, I do always sign prints that I donate, and make sure I tape information about myself, my website and the art to the back of the print.
Good Luck

Gail

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Using Celebrities As Art Subjects

Published March 20, 2017 by Gail Daley Writer & Artist

The Practical Artist’s Blog

http://www.thepracticalartist.com/the-practical-artists-blog.php

Have you ever been tempted to include a celebrity portrait in your art portfolio? Say you are entering a theme show and there is a celebrity whose very image just screams “I am this theme” i.e. General Patton or Pappy Boynton for WWII, Clint Eastwood or John Wayne for western art, Mohammed Ali, or an Olympic swim star for a sports theme, etc.? Well if you do use a celebrity without gaining the proper permissions, you could be sued for copyright violations under something called “the right of publicity” laws.

I became curious about this when a young artist used a drawing of a western icon as an entry in a local art show. I remembered reading about the case of a company being sued when they used President Obama’s image advertising a product on their billboard. I did some on-line investigating and found some interesting information. I discovered that public figures could actually copyright their image under some state copyright laws. This was especially informative to me because I had always thought that copyright was a federal law, not a state one. In my research, I discovered that both are true. In other words, you have federal copyright laws and the states can make additions to these laws that could affect us as visual artists. Copyright law may also vary from Country to Country.

What exactly are the rights copyright concerning publicity laws in regards to public figures? Public figures include politicians, celebrities, and any other person who has put themselves in the public spotlight or has greater than normal access to the media.

Wikipedia: http://en.wikipedia.org/wiki/Personality_rights, defines these laws, as “The right of publicity, often called personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity. It is generally considered a property right as opposed to a personal right, and as such, the validity of the Right of Publicity can survive the death of the individual (to varying degrees depending on the jurisdiction). In the United States, the Right of Publicity is a state law based right, as opposed to federal based right, and recognition of the right can vary from state to state. The Celebrities Rights Act was passed in California in 1985 and it extended the personality rights for a celebrity to 70 years after their death.” There are other portions of California’s privacy laws to protect non-celebrity individuals but they not the subject of this blog and may be covered later.

Further reading tells me that even if your artistic source matter is a photograph taken by you of the celebrity or public figure in question, you might still be liable for violation of the right of publicity act if you invaded the privacy of the person in question to obtain the reference photo. An individual’s right of privacy or publicity is infringed when their name, voice, signature, photograph or likeness appears in a work of art and (a) can clearly be recognized as the subject shown in the work, (2) the subject has not consented to their image being used, and (3) the circumstances under which the photo was taken fit one of the following scenarios. Invading the subject’s privacy by encroaching into their private affairs. This covers events occurring in private or semi-private places: i.e. someone’s home or an invitation only event. Invading the subject’s privacy by the public disclosure of embarrassing facts not generally known. For instance if you take a photograph of a celebrity and then use the photo to paint them in the nude, or publish a photo of them embracing someone not their spouse this might be construed as being invasion of privacy. Invading the subject’s privacy by commercial appropriation. Using President Obama’s image to sell a product on the billboard was a clear example of this type of invasion.

Now I am not a lawyer, but common sense tells me why take the chance? Even if you win, a lawsuit is expensive and time-wasting and just being dragged into court over something like this could damage your reputation as an artist. If you would like more information on this subject, there are several good sites on the internet.

 

http://www.avvo.com/legal-answers/can-i-sell-my-own-artwork-depicting-a-celebrity–435063.html

This is a Case out of New York State concerning a sculpture using Cheryl Teigs legs in a sculpture. Recent verdicts expand artists’ rights in celebrity depiction …

http://www.owe.com/resources/legalities/7-issues-regarding-use-someones-likeness/

 

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