Art Law on a Grand Scale

An Interview with New York Attorney, Adrienne Fields

This is the second in a series of ‘virtual’ interviews with attorneys working in unique and interesting areas of intellectual property law.  See also Jessica Tipton’s interview with trademark attorney extraordinaire, Scot Duvall.

Adrienne Fields is a New York attorney and counsel for the Artists Rights Society of New York (ARS).  We at The Brand first came into contact with Adrienne in her capacity as representative of the Andy Warhol Foundation for the Arts.  Through ARS, The Brand has a license from the Warhol foundation to feature Andy Warhol’s portrait of Justice Brandeis on this website (link to Warhol article).

Interview by Auric Steele

1.    Can you tell us about the purpose and history of the Artists Rights Society, and who the Society represents?

Artists Rights Society (ARS) was founded in 1987 for the purpose of representing the intellectual property rights of visual artists, including painters, sculptors and architects.  Through a series of reciprocal agreements, ARS is the exclusive U.S. representative of the repertories of more than thirty international sister societies, spanning the globe from France to Australia. In turn, these foreign sister societies are the exclusive representatives of ARS members in their countries.  Among the over forty-thousand artists whose rights we represent are: Pablo Picasso, Henri Matisse, Marc Chagall, Rene Magritte, Fernand Leger, Salvador Dali, Joan Miro, Andy Warhol, Sol LeWitt, Louise Nevelson, Willem de Kooning, Bruce Nauman, Richard Serra, etc.

2.    What is CISAC and what is the Artists Rights Society’s relationship with that organization?

ARS is a member of the International Confederation of Societies of Authors and Composers, known as CISAC, which serves to increase the recognition and protection of creator’s rights while uniting authors and composers from around the world.  More than two hundred authors’ rights societies from over ninety countries are members of CISAC.  Specifically, ARS and its sister societies are members of CIAGP, the visual arts division of CISAC.

3.    Can you tell our readers a little bit about the “rights clearing” process and what you find most interesting about that process?

ARS is contacted by individuals, publishers, media companies, merchandisers, etc. for permission to reproduce our members’ works in conjunction with their books or projects.   ARS uses its discretion in granting permission for interior publication uses and certain online uses.  For all other requests, ARS obtains as many details as possible about the proposed uses of the works and consults with its members to determine acceptable fees and conditions for permission and use. Such conditions often include the submission of layouts and proofs.  What I find most interesting about this process is learning about when and why members decline to grant permission.  Often this decision involves the integrity of the artist’s works or reputation.  Estates commonly reject requests they believe the artist would have been opposed to during his or her lifetime.

4.    Now, can you tell our readers about the “watchdog” or “policing” aspect of ARS and any particularly interesting or challenging experiences you have had dealing with infringers?

ARS generally relies on its staff, artist members, and sister societies, to monitor the uses of our members’ works. To counter unauthorized and illicit uses of works, we use traditional measures such as demand letters in an effort to promptly resolve these matters.  In the past year, I was involved in the takedown of a Google logo appearing on multiple Google websites that included elements of works by Joan Miro.  Of the online uses that we have been asked to respond to, this particular removal gained more press and public reaction than I had ever anticipated.

5.    Did you always have an interest in visual art?

I developed an interest in the visual arts during a post-high school summer internship at the Metropolitan Museum of Art.  I often spent my lunch and coffee breaks wandering though the galleries and discussing art with my colleagues. I sought to travel to the source of the art, to create my own art, and most importantly, to write about my observations and analysis. I quickly declared Art History as my major and French Language and Literature as my minor at Brandeis University.  I strove to seek opportunities to get experiences in all facets of the art world, interning throughout college at two auction houses, Christie’s and Sotheby’s, and an arts organization that facilitates traveling exhibitions.  After graduation, I continued my arts education by pursuing an M.A. in Connoisseurship and Art Market Studies at Christie’s Education.  This program allowed me to develop a keen eye, provided me with business knowledge, and served as a transition into the study of law.

6.    Did you have this type of work in mind when you began to pursue your legal career?

I was open-minded when I began law school, however, I hoped to combine my interest in the arts with my interest in practicing law.  I took on an internship as a Research Assistant for the Art Law Handbook during my first year of law school.  Through assisting the editor by drafting footnotes on law review articles, I gained my first exposure to the complexities of intellectual property law.  I realized that my arts background and interest in the art historical concepts of ‘critical theory’ as they apply to art translate well to the practice of intellectual property law.  Specifically, this type of art historical analysis relates to notions of originality and authenticity of works of art and is used to understand post-modern works. Assessing the quality of a work of art through these methods is akin, to some extent, to analyzing the strength of a trademark.

7.    Where did you attend to law school, and did you take intellectual property law classes or otherwise study or research IP law while in law school?

I attended Brooklyn Law School, where I had the opportunity to take a variety of intellectual property courses that provided a solid base for my professional challenges.  I sought opportunities to write about art-related topics throughout law school.  I fulfilled the writing requirement through a lengthy paper on the application of trademark law to the arts, and also wrote papers on art contracts and art fraud in other courses. During an Art Law seminar, I had the unique opportunity to assist in the organization of a small museum.

8.    How did you come to work for Artist Rights Society?

I interned at ARS after my second year of law school and learned the essentials of my current position from the two attorneys who were working at ARS during that time. The internship proved to be a valuable experience and I was very glad to be extended the opportunity to return to ARS after graduation.

9.    What is the most interesting part of your regular work?

I most enjoy interacting with artists, helping them with their licensing agreements, and answering questions involving their upcoming projects. Such matters have varied from concerns about future installations in Times Square to inquiries on whether and how to register one’s literary works with the U.S. Copyright Office.  I also have the opportunity to work with and learn from my counterparts from around the world in determining how to most effectively resolve international legal matters.

10.    Personally, who are a few of your favorite visual artists, and why?

I could not possibly narrow my favorite artists to a select few, however, suffice it to say that my expertise lies in installation art and my undergraduate honors thesis and my Master’s thesis were both dedicated to the expansion of art from the constraints of the pedestal to the expansion into space.   I go out of my way to visit institutions where large-scale sculptural works reside and I am fascinated by how visitors react once they are either absorbed or encountered by a massive sculptural structure designed for a specific context and space.  ARS represents many brilliant artists who create such multimedia and sculptural installations.

11.    Other than what we’ve already discussed, what do you see as the biggest challenge to protection of the intellectual property rights of visual artists?

The digital environment has enhanced the facility of using of images in creative and fascinating ways.  However, it has also created new challenges for rights management.  It is increasingly difficult to keep up with the new uses of works and we have continued to educate ourselves on topics such as pod-casts, web-streams, e-books, and the like.  From the permissions perspective, we try to translate these uses into traditional methods to come up with appropriate licensing schemes, for example, choosing when to apply traditional print limitations based on the number of copies (print run) and territorial distribution for e-books rather than permitting use for a term of years (applied for general online uses).   From a legal perspective, there are many forms of unauthorized commercial uses now that online businesses have become mainstream enterprises and also a means for non-traditional publishers / sellers to market their goods for supplemental income.  Such online sellers are often unaware that intellectual property laws exist or that such laws would apply to their unauthorized uses of our members’ works.  This change in both the individuals using the works and the manner in which the images are used create significant challenges.

12.    What advice would you give a law student who is interested in working in art law?

Art law is an umbrella term encompassing multiple legal practice areas as they apply to the arts.  For example, even attorneys practicing tax law may have opportunities to work on art-related cases.  If employment in an arts organization, museum, or law firm with clients in the art world is unavailable immediately after law school, it is important to follow a path that leads to captivating legal experiences. This may present a lawyer with some opportunities to get involved in the world of art.  For example, any attorney interested in donating their time may participate in Volunteer Lawyers for the Arts programs.

For more information on The Artists Rights Society of New York go to www.arsny.com

The Art Law Handbook, edited by Roy S. Kaufman, is published by Aspen Law & Business, New York, and can be ordered directly from www.aspenpublishers.com.

Auric Steele is a graduate of the University of Louisville: Louis D. Brandeis School of Law, class of 2007.