by PBI Intern Palak Srivastava
When you hear the name “Andy Warhol,” I am sure most of our minds immediately flip to a can of tomato soup; I know mine just did. An icon of the pop art movement, there is no doubt that Warhol has become a common household name. However, what may be less known in households is the recent Supreme Court case of the Andy Warhol Foundation for the Visual Arts v. Goldsmith, involving a claim by professional photographer Lynn Goldsmith, that Warhol’s silkscreen images based on her photograph of the musician Prince infringed her copyright. The case made it to the Supreme Court and, in a seven to two decision, the Court ruled against the Warhol Foundation.
Justice Sonia Sotomayor delivered the Court’s opinion, stating that “Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists.” The majority opinion goes on to say that because both Goldsmith’s original photograph and the Foundation’s use of the art were of a commercial nature, a fair use defense did not apply. With this ruling also comes the potential for more copyright infringement cases to arise alongside a requirement to analyze the purpose of an artwork. In her dissent, Justice Kagan writes that the Court’s decision has “troubling” consequences “for other artists” and “will stifle creativity of every sort” by inhibiting transformative uses of prior works. This case reminds us that although art and law may seem like completely disparate fields, they are intertwined.
The Supreme Court’s ruling presents a great opportunity to delve deeper into the relationship between art and law, and explore the important role that the law has on artists and their art. Though some artists may wish to create art and express themselves without any concerns for society’s laws, in reality, legal issues can stand in their way. For example, as the case of Rogers v. Koons further illustrates that artists can find themselves on the wrong side of a copyright infringement claim if they fail to recognize the limits of their ability to use prior works as inspiration. In the case of photographer Art Rogers, his photo depicting a couple holding a line of puppies in a row influenced artist Jeff Koons’s exhibit on the banality of everyday items, including statues based on the image. After Koons made a significant profit, Rogers sued Koons for copyright infringement. The United States Court of Appeals for the Second Circuit decided the case in favor of the photographer. Koons appealed, disputing the damages award, but ultimately agreed to a settlement with Rogers.
Trademark infringement is another common legal issue an artist may face and occurs when someone uses a trademark, service mark, or design of another company without permission. For example, fashion designers like Gucci have pursued trademark infringement claims against other designers for using marks similar to their logos. Some artists may face alleged privacy law violations, for example, when an artist’s photograph is shared publicly without the consent of the subject of the photograph. Artist royalty conflicts, and disputes over fair licensing agreements when granting access to original works, are more of the many legal issues that artists may have to face. Many artists are also entrepreneurs, who have legal issues common to small business owners, such as contract law and real estate, as well as unique issues, like selling art in the digital marketplace.
With such a wide variety of legal problems that many artists do not know how to address, lawyers can prove to be immensely useful.
However, access to legal services is more often than not an expensive endeavor which leaves many creatives in a tough position if they do not have the necessary financial resources. The last thing artists should need to worry about is being their own lawyer, and that is where pro bono work steps in.
Public interest and pro bono attorneys can provide legal assistance to artists in transactional property matters, copyright, trademark, business formation, contract preparation and review, negotiation, licensing, and more, which can make all the difference for some artists.
Here are some recent examples of how law firms and corporations have provided low-income artists and artistic institutions with the pro bono legal counsel they need to continue making society better through artistic expression:
- In 2023, Citizens Bank partnered with Volunteer Lawyers for the Arts (VLA) and Morgan, Lewis & Bockius*, as part of Financial Institution Pro Bono Day, a day of pro bono legal service for financial institutions hosted by the Corporate Pro Bono (CPBO®) project of Pro Bono Institute®. The volunteer attorneys staffed a brief advice clinic for emerging artists and nonprofit groups on their arts-related legal issues.
- Shearman & Sterling* staffs VLA legal clinics six times a year on issues regarding nonprofits, contracts, intellectual property, disputes, and more.
- In 2021, Womble Bond Dickinson* provided more than 700 hours of pro bono service to artists referred through California Lawyers for the Arts (CLA). The volunteer attorneys provided pro bono patent law services to inventors who have innovative ideas but lack the financial means to acquire legal representation for their intellectual property rights.
- During the pandemic, Paul, Weiss, Rifkind, Wharton & Garrison* collaborated with VLA, Advance**, and Condé Nast to host virtual pro bono clinics for low-income artists and freelancers, to provide limited-scope legal advice on a range of issues artists face, including copyright issues, incorporation matters and licensing agreements.
- In 2021, Proskauer* hosted a virtual clinic with VLA to provide legal consultations for low-income artists. One of the clients was a young filmmaker who needed assistance navigating his first collaboration agreements. The firm also helped another VLA client, an author, to license the rights in her book to a playwright intending to create a musical adaptation.
- Cahill provides pro bono representation for several arts and cultural institutions in NYC. Cahill has a long-standing partnership with the Lincoln Center for the Performing Arts and provides pro bono legal assistance on a range of matters that includes compliance advisory, contracts, and litigation matters as well as projects to support Lincoln Center. Additionally, in 2021 the firm provided urgent legal advice to assist in evacuating students and faculty of the Afghanistan National Institute of Music (ANIM) from Afghanistan.
There are many organizations in the United States (and globally) dedicated to advocating for artists and protecting their rights through legal services, that partner with pro bono volunteers, such as these:
- Arts Law Centre of Australia is a not-for-profit that provides free or low-cost legal advice, education, and resources to Australian artists and arts organizations. As part of the Arts Law Centre, volunteer lawyers can be a part of their document review service panel where they are to advise subscribers on behalf of the Arts Law or can be available for referrals in situations where the caller is not eligible for Arts Law’s services.
- California Lawyers for the Arts (CLA) serves artists and innovators including through arts advocacy, arts arbitration and mediation, the California Inventors Assistance Program, lawyer referrals for a variety of legal matters, and more.
- Colorado Attorneys for the Arts (CAFTA) serves artists, performers, cultural organizations, and creative businesses with a financial need for pro bono legal services. CAFTA’s volunteer attorneys address legal issues such as corporate and general business, intellectual property (copyright, trademark, and licensing), contract drafting, review, and negotiation, dispute resolution (mediation and negation), nonprofit formation and tax exemption, employment and labor, and landlord/tenant law.
- Lawyers for the Creative Arts (LCA), based in Chicago, provides pro bono legal services to financially eligible clients in Illinois in artistic fields, including visual, music, dance, theatrical, literary, digital media, and arts education. LCA offers clients assistance with their business structure and contract needs in addition to providing advice on how to protect all forms of intellectual property.
- Maryland Volunteer Lawyers for the Arts (MDVLA) refers eligible artists to volunteer lawyers to assist artists with a range of legal services including contract drafting, negotiation, review, and enforcement, business entity formation, copyright and trademark registration, commercial property issues related to studio or performance space, employment issues, privacy and defamation.
- Volunteer Lawyers for the Arts New York (VLA) provides artists with pro bono assistance regarding contracts, obtaining copyright licenses, defamation, and trademark infringement, and patent law pro bono.
- Washington Area Lawyers for the Arts (WALA) connects artists with legal help through education programs, legal clinics, and legal referrals. The most common types of referrals to volunteers include intellectual property (copyright, patent, trademark) matters, business formation matters, and drafting or reviewing contracts.
- For more information on organizations that provide pro bono services to artists in need, check out this national directory provided by Volunteer Lawyers for the Arts or this directory by Volunteer Lawyers and Accountants for the Arts.
Creative people and the art they create are the backbone of all societies and community enrichment. By empowering and supporting artists, pro bono lawyers are supporting the freedom of expression, cultural cultivation, and community healing. You may even help artists avoid a brush with the law that lands them before the Supreme Court!
Whether you are a visual artist like Andy Warhol, a photographer like Lynn Goldsmith, or any other type of artist, you have legal rights as an artist that need protection, regardless of income level (and fame). Pro bono attorneys can help artists with less money and fame secure their rights to create art.
* denotes a Law Firm Pro Bono Challenge® signatory
** denotes a Corporate Pro Bono Challenge® signatory
Hat tip to PBI intern Isabel Delgado-Betz for her contributions to this post.