The intersection of law and the arts presents unique challenges calling upon different aspects of intellectual property law. A particular artistic problem may involve elements of copyright, trademark and even patent law.
However, before the practicalities of representing an artist are dealt with, the attorney must first listen to the artist. The key initial step in assisting an artist with a legal problem is to really listen to the artist for her or his explanation of that problem. Artists are by nature sensitive and perceptive people. Usually an artist is not the loudest voice in the room, but the artist’s observations will be among the most subtle and likely to assist the attorney in obtaining a favorable outcome. Often the solution is not only monetary; it involves obtaining peace of mind so the artist can continue to work.
Once the artist’s concerns and observations are taken into account, it is time to consider all of the legal tools available in the situation. For instance, an artist whose iconic image has been appropriated for commercial use will need to consider–at least–copyright, trademark and unfair competition law. If the work may have been made for hire, the state law of agency or contract may come into play. Thus, the successful art lawyer cannot simply be a copyright or contract attorney.
To take another example, a graphic artist may ask inquire of the attorney whether it is desirable to obtain a copyright registration on a drawing used to create a functional object. Unbeknownst to the artist, the best protection may be in a design patent or trade dress. Only a lawyer who knows patent law will recognize this issue.
Finally, the term “artist” should not be constrained to visual artists, but should also include writers, musicians and even choreographers and architects. (Also, the issues regarding photography are increasingly complex as anyone with a digital camera can produce thousands of copyrightable images in one day.) For instance, a writer may have an obvious copyright issue in his or her story, but there may also be more subtle problems of trademarks, signature characters and the elusive concepts of “branding.” Only a firm with the breadth of experience in all of intellectual property law can “see the whole field” of art law. The attorneys at Karish & Bjorgum have that experience.
Representative art law matters and clients include:
1. Twitchell v. United States, et al.: This case was an epic battle by muralist Kent Twtichell to raise awareness and obtain vindication of his rights after the government and its contractors unceremoniously wiped out his 70 foot high “Ed Ruscha Monument” in downtown Los Angeles. Karish and Bjorgum attorneys assisted in obtaining a public settlement under the obscure Visual Artists Rights Act was more than five times the next largest settlement under that law. The case has re-energized the public art community in Los Angeles.
2. Baum v. Marder: This case involved a dispute amongst ostensible co-authors of the famed “Letters from a Nut” series of books, which are widely rumored to be written by Jerry Seinfeld. Karish & Bjorgum lawyers represented the Defendant, Barry Marder. Even though he was sued, Mr. Marder walked away with all copyrights in the books and the trademark rights in its principal character that have allowed him to publish three more books, sign multiple production deals and develop a thriving Internet business — all with intellectual property that had lain fallow for years because of a soured personal relationship.
3. “Ring of Fire” Investigation: Following the death of Johnny Cash’s first wife, Karish & Bjorgum lawyers were enlisted to investigate the writing of “Ring of Fire.” Their findings were detailed in the epilogue to the paperback edition of Vivian Cash Distin’s posthumous biography “I Walked The Line.” Though the investigation cast doubt on the traditional “Ring of Fire” story, no formal legal action was taken, as the benefits of such action would have been outweighed by familial turmoil. This is an instance of Firm attorneys putting the overall interest of the client ahead of immediate financial gain and notoriety.
4. Edward Colver Representation: Firm attorneys have represented underground rock photographer and controversial artist Edward Colver as he has fought to solidify his legacy amidst a sea of illegal copying and misunderstanding of his work. Since obtaining the services of Firm lawyers, Colver has stopped copying of his work by a major shoe company, has developed a relationship with a noted gallery and has launched a provocative brand of clothing. Key to this success was the initial legal protection of Colver’s rights and an overall understanding of the underground music community.
5. Str8t Up, Inc.: In a very recent success, client Str8t Up, Inc. has had its first offering (“Alaskan Bush Pilots”) picked up for production by The History Channel. Firm lawyers operated in association with other counsel to review contracts from a fresh, non-industry and pro-intellectual property perspective. Oftentimes, typical Hollywood contracts that have been passed down through generations of attorneys can benefit from a fresh review–especially by attorneys who are not beholden to the studios or the “talent” for their livelihood.