"UH OH, I THINK I NEED A LAWYER"

Transcription

1 "UH OH, I THINK I NEED A LAWYER" LEGAL ISSUES IN KILN GLASS FOR ARCHITECTURE! "##$%&'()*+&,-./0)12 Presented by: Brian J. Posewitz Attorney at Law 8508 SE Eleventh Ave. Portland, OR Phone: brianposewitz@comcast.net

2 3-4)5.&6-7/(/8! Intellectual Property Copyrights Moral Rights ( VARA rights)! Tort Liability Negligence Strict products liability! Contracts! Preparing Contracts

3 9..:/.&;-1&6-7/(/8&! International Law! Construction Law Building Codes Lien rights! Transportation Law Liability of shipper! Artist gallery laws! Other intellectual property law Trademarks Patents

4 <).5=*)>/(.%&/15?! General rules have exceptions and nuances! Law is not science (room for argument and inconsistent decisions)! Law may vary from state to state! Copy of presentation

5 D/+/(*=&,()+5)4=/.! Copyrights protect creative expression ( original works of authorship ) from unauthorized copying [O]riginal works of authorship include pictorial, graphic, and sculptural works (also architectural works ) Examples of copying: creating similar work of art based on another s, copying another s work of art into a different medium (photo to painting), photographing

6 D/+/(*=&,()+5)4=/.& E5-+1?F! Copyright projection limited for works of artistic craftsmanship and useful articles [F]orm but not... mechanical or utilitarian aspects Artistic features existing separately and independently from utilitarian aspects For example, a carving on the back of a chair or a floral relief design on silver flatware could be protected by copyright, but the design of the chair or flatware itself could not. (Copyright Office Circular 40.)

7 D/+/(*=&,()+5)4=/.& E5-+1?F! Copyrights protect original expression, not facts or ideas in that expression! Exist without registration or a copyright notice Must register to sue for infringement Remedies better if registered before infringement Notice can help prove willfulness of infringement! Owner: initially the artist Unless work is for hire (primarily work prepared in course and scope of employment) then employer owns

8 D/+/(*=&,()+5)4=/.& E5-+1?F! Owner continues to own after sale unless written agreement says otherwise! Copyrights eventually expire Generally, life of artist plus 70 years Different for works for hire (95 or 120 years)! Possibly different rules for older works (before March 1989)

9 G*)(&H./! Multiple factors, including: purpose of copy (commercial or noncommercial), amount of work copied, impact on market for protected work! Examples: Filming of protected work in background in movie scene Copying portion of photograph in a collage painting Newspaper photo of protected work in background of events being reported

10 9+I()+A/>/+1& 6=*)>.! Claim for copyright infringement must prove: Ownership of valid copyright Unauthorized copying (resulting in substantial similarity )! Can prove unauthorized copying by showing access and substantial similarity! Remedies Actual damages (including profits of infringer) Statutory damages $200 $150,000 per work Only if registered before infringement Injunction against further copying, distribution, etc. Attorney fees Only if registered before infringement

11 3(*+.I/(&-I&J)AB1.! Owner can transfer copyrights Can transfer all copyrights Can give permission to copy (a license ) License can be exclusive or non exclusive; limited or unlimited! Most transfers must be in writing Exception: non exclusive license! Transfers subject to termination after 35 years! Transfer can be recorded with Copyright Office Recording helps establish priority over conflicting transfer

12 KL*>4=/&E"##MF! Left copied right! Access and copying admitted! Lower court prohibited left from making or selling a vertically oriented, colorful, fanciful jellyfish with tendril like tentacles and a rounded bell encased in an outer layer of rounded clear glass

13 KL*>4=/&E"##MF& E5-+1?F! Court of Appeals reversed: [Right] may prevent others from copying the original features he contributed, but he may not prevent others from copying elements of expression that nature displays for all observers, or that the glass in glass medium suggests to all sculptors.

14 KL*>4=/&E"##$F! Architect met artist at a party and discussed ideas; artist produced drawings! Artist visited art glass business; discussed project; got estimate for fabrication; reviewed portfolios! Glass business got the project ($29,000)! Artist claimed infringement of drawing; business claimed artist s drawing infringed work in business portfolio, etc.! Court: too many factual questions to resolve without a trial! Lessons: get a clear agreement before you do the work; be careful with what you receive and share

15 KL*>4=/&ENOO"F! Sculpture (bottom) copied photograph (top)! Sculptor liable for copyright infringement! Lesson: copyrights are a two way street for artists

16 KL*>4=/&E"##PF! Bottom painting copied top photo from fashion magazine! Fair use Use was commercial but was transformative commentary Only a portion copied (not background) No impact on market for copied work (copied work not being marketed)

17 Q-(*=&J)AB1.&C Generally: rights of artist to control use of name with work and prevent misuse or defacement of work (rights of attribution and integrity )! Previously asserted under a variety of state and federal laws! Now subsumed for visual art in federal Visual Artists Rights Act ("VARA") of 1990

18 Q-(*=&J)AB1.&C RSJS! Applies to work[s] of visual art existing in a single copy or 200 or fewer copies (if signed and numbered)! Rights owned by artist Regardless of who owns work or copyrights Can t be transferred but can be waived (in writing)! Rights exist for life of artist! Exceptions include works for hire and applied art Generally, applied art is two and three dimensional ornamentation or decoration that is affixed to otherwise utilitarian objects Eg: sculptural work attached to floors, walls and ceilings in building lobby not applied art, but artistic building directory, steps and lights are applied art

19 Q-(*=&J)AB1.&C RSJS&J)AB1.! To claim credit for work and prevent use of name in connection with work not yours! To prevent use of name after distortion, mutilation, or other modification prejudicial to [artist s] honor or reputation! To prevent (entirely) intentional distortion, mutilation, etc., if prejudicial to [artist s] honor or reputation! To prevent destruction if work is of recognized stature! To sue for violation (essentially same remedies as copyright infringement)

20 Q-(*=&J)AB1.&C RSJS&E5-+1?F! Works made part of a building: If can be removed without destruction, distortion, mutilation, or other modification Certain VARA rights don t apply if owner made diligent, good faith attempt without success to notify artist or notified artist and artist didn t remove or pay for removal within 90 days. Artist can record identity, contact information, etc. with copyright office If can t be removed without destruction, distortion, etc., certain VARA rights don t apply if: Artist consented to installation before VARA; or Artist and owner of building sign written statement after VARA saying installation may subject the work to destruction, etc.

21 Q-(*=&J)AB1.&C KL*>4=/&ENOOOF! City urban renewal project destroyed sculpture! Artist established work as having recognized stature primarily through evidence of media attention for work! Destruction violated artist s VARA rights

22 3-(1&T*0&U ;/A=)A/+5/! Failing to act reasonably to prevent foreseeable risk of harm to people or property! Impact of laws (statute, code, regulation, etc.) Violating is almost always negligence But compliance doesn t necessarily protect from negligence claim! Governed by state law with subtle variations among states

23 3-(1&T*0&C V1()51&,(-8:51& Seller in the business of selling a product is liable for personal injuries or property damage from product in a defective condition unreasonably dangerous to the user or consumer or to his property! Key difference from negligence: claimant does not have to show seller knew or should have known product was dangerous! Governed by state law with subtle variations among states

24 6-+1(*51.&U A contract is a promise supported by consideration (something in return)! A contract can be oral or written, although many types of contracts must be in writing (e.g., transfer of copyrights, sale of goods for $500 or more)! Generally governed by state law, with subtle variations among states

25 6-+1(*51.&U 9+1/(4(/1*1)-+! Courts attempt to determine intent of parties! Most states will determine intent solely from written agreement if the terms are unambiguous! Generally, courts give words in contract their ordinary meaning

26 6-+1(*51.&C H+)I-(>&6->>/(5)*=& 6-8/! All states have adopted Uniform Commercial Code (with some variation)! Applies to contracts for sale of goods Goods "all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale"; i.e., most glass artworks are "goods"

27 6-+1(*51.&C H+)I-(>&6->>/(5)*=& 6-8/&E5-+1?F! Significant features of UCC Requires contract in writing if price is $500 or more Confirming memo may be enough if both parties in business of dealing in type of goods involved Numerous exceptions (including contract already performed and specially manufactured goods for which seller has made substantial beginning or commitments for procurement )

28 6-+1(*51.&C H+)I-(>&6->>/(5)*=& 6-8/&E5-+1?F! Significant features of UCC (cont.) Implied warranties (i.e., don t have to be written in the contract) Fitness for particular purpose (if the seller... has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods ) Merchantability (including fit for the ordinary purposes ) (if the seller is in the business of selling goods of the kind involved) But contract can disclaim implied warranties

29 6-+1(*51.&C 6=*)>.! Breach of contract claim: Party failed to do what contract required Breach not excused by prior material breach of other party! Damages: put non breaching party in same position as if no breach (e.g., lost profits as well as costs) But contract can limit remedies! Sometimes (although rarely) can compel performance of contract! Generally, can recover attorney fees only if contract says so (but that usually means paying other side s fees if you lose)

30 ,(/4*()+A&6-+1(*51.&C,-..)W=/& 6-+1(*51.! Upstream Artist Fabricator Artist Supplier Artist Shipper! Downstream Artist Owner Artist Contractor Artist Architect! Multiple party contracts Artist Owner Fabricator Contractor Architect

31 ,(/4*()+A&6-+1(*51.&C D/+/(*=& 3)4.! Do you need a custom written contract? Amount at issue (price and potential liabilities) Negotiability/bargaining power! Give some thought to who the parties should be Contract binds only the parties who sign it! Say what you mean and mean what you say Use plain language (not copied legalize you don t understand) Be clear (a third party should be able to understand the agreement without oral explanations)! Consider using a lawyer Consider cost relative to amount at issue (price and potential liability)

32 ,(/4*()+A&6-+1(*51.&C 9..:/.&1-& 6-7/(! Parties Use full and correct formal name of each party (can follow with defined shorthand)! Clear statement of basic agreement what each party agrees to do Eg: Artist agrees to create work; Client agrees to pay! Clear specifications for artwork Dimensions Materials Conformance with existing plans/designs Leave a little room for variation (e.g., substantial conformance )

33 ,(/4*()+A&6-+1(*51.&C 9..:/.&1-& 6-7/(! Review and approval process Design review and approval? Intermediate reviews? Final review? Rights of parties on non approval! Timetable Design/progress reviews Payments Completion of work! Allocation of responsibilities Shipping Installation Ensuring code compliance Ensuring appropriateness for location (safety, etc.)

34 ,(/4*()+A&6-+1(*51.&C 9..:/.&1-& 6-7/(&E5-+1?F! Ownership of copyrights Completed work, but also models, designs, etc. Generally, artist (or artist s employer) will own copyrights unless a written agreement transfers them to another party! Copyright licenses License to photograph for promotion, etc. (limited, nonexclusive license)! VARA rights Artist retains unless waived in writing

35 ,(/4*()+A&6-+1(*51.&C 9..:/.&1-& 6-7/(&E5-+1?F! Risk of loss (fire, theft, vandalism, unknown) Typically allocated based on time/location (e.g., during fabrication, during storage before installation, in transit)! Waivers and amendments (change orders, etc.) Do they have to be in writing (certainty v. reality)! Integration Clause Eg: This Agreement is the sole agreement of the parties regarding the subject matter and supersedes all prior negotiations and agreements, oral and written Don t use if it s not true (if there are other agreements)

36 ,(/4*()+A&6-+1(*51.&C 9..:/.&1-& 6-7/(&E5-+1?F! Warranties Really just one from of promise by a party Eg: Artist warrants the work against defects in materials and workmanship of which Artist is notified within year(s) from the date of delivery! Indemnity One party agrees to defend and pay certain claims against another party Eg: Provided Artist completes the work in substantial conformance with this Agreement, Owner will defend, indemnify and hold harmless Artist against any claim by any third party relating in any way to the work, including but not limited to any claim related to its installation or display location.

37 ,(/4*()+A&6-+1(*51.&C 9..:/.&1-& 6-7/(&E5-+1?F! Limitations of warranties/remedies Disclaimer of warranties Eg: Except as stated in this Agreement, Artist disclaims all warranties, express or implied, including any implied warranty of merchantability and/or fitness for a particular purpose. Make this conspicuous (e.g., bold and larger typeface) Additional language may be required if work sold for personal, family or household purposes ( consumer goods ) Limitation of remedies Eg: Buyer s remedies for any breach of this Agreement are limited exclusively to return of the work and repayment of the price or to repair and replacement of any nonconforming aspect of the work

38 ,(/4*()+A&6-+1(*51.&C 9..:/.&1-& 6-7/(&E5-+1?F! Risks you can t limit or disclaim by contract Liability to non parties (e.g., a person using a public place where the artwork is located) Liability for personal injuries (in most cases) Liability that you don t have the bargaining power to assign to another party Liability for property damage and personal injuries related to the work Liability for risks of loss at certain stages! For these risks, there s insurance Rick Allen

39 J/.-:(5/.! Copyrights United States Copyright Office ( ) United States Code ( USC ), Title 17 (17 U.S.C. 101, et. seq.)! Moral Rights VARA, 17 USC 101, 106A, 113