The Art of the Law: Protecting Artists’ Right to Create
By Yayoi Shionoiri, Senior Counsel at Artsy
My name is Yayoi and I work at Artsy as Senior Counsel. I’ve been a lawyer since 2003 and an “art lawyer” since 2008. Before I started my legal career, I had very little idea of what an “art lawyer” did, learning later that they dealt with extremely varied (and fascinating) legal questions, and that there is not a single archetype for this job. I’ve been in this field for more than eight years now, and I have some thoughts on how the legal framework has affected art over that time — and where I think we’re going from here.
After five years as a corporate lawyer, I answered a cryptic classified ad in a Japanese community newspaper and ended up working for renowned artist Takashi Murakami, first as his translator and then as in-house counsel. This was not only my first art law job, it was my first art job, as well as my first in-house counsel job. With Murakami’s studio, I saw firsthand how technology and laws affected both the production and consumption of art.
The law serves to protect the work an artist creates, and at other times, can act as a restrictive condition to work around. For example, in Japan, no legal framework exists to ensure resale rights for artists, as exists in other areas, such as France and California. Together with Japanese intellectual property lawyers, I assisted and negotiated a settlement between Murakami’s art management company and a Japanese auction house in 2011 to disperse royalties to its artists when the auction house sold works in its printed or online catalogues using large images. It sounds obvious, but the laws are not uniform, and while some countries have a progressive attitude towards artist’s rights, others have to be pushed proactively.
After working for Murakami for three years, I transitioned to the Solomon R. Guggenheim Museum, handling exhibition management and non-profit issues for four years. Now, I’m the sole in-house counsel at Artsy (my Slack profile refers to me as “Legal Beagle.”)
My work at Artsy is broad: from “non-art” issues like forming subsidiaries for our international offices; issues related to corporate governance and sponsorships; and internal policies like Artsy’s parental leave guidelines. As a platform for the art world, Artsy has inherited some of the legal questions that this world has dealt with for a long time.
As mentioned in an earlier post by Artsy’s Head of Special Projects, Elena Soboleva, Artsy also creates in-real-life activations, so I’m deeply involved in negotiating artist letter agreements, commission agreements, ownership issues, and licensing, amongst myriad other concerns. As Artsy is an inherently global business, an overarching policy issue that interests me is how the U.S. economic and trade sanctions — not necessarily instituted to affect the cultural arena — still restrict our activities due to their blanket applications. Artsy relies on the free exchange of information across digital platforms, and as issues such as net neutrality and internet censorship continue to develop, my hope is that Artsy can continue to help users discover and learn about art from other areas of the world.
Because Artsy works in the digital realm, I deal with some particularly interesting legal issues regarding copyright. Copyright laws were established at the federal level in the U.S., and the last significant amendment was made in 1976 — well before individuals used the internet. The way people think about reproducing, combining, and disseminating images has really changed as it’s become much easier to access, manipulate, and distribute images online.
Because of these shifts, I have seen a sea change in the way that people think about image ownership. Whether it’s musicians paying homage to classic hits by sampling, someone taking a still from a movie and including text overlay that goes viral, or a corporation creating mass products appropriating images from artists, the era of “creative borrowing” is here to stay. It’s important to realize that some of these practices may not necessarily qualify under the current U.S. legal doctrine of “fair use.” Fair use serves as an affirmative defense towards the limited use of material created by others without obtaining permission from them (requiring an analysis into what is being copied for what purpose, how much is being copied, and the effect on the copied work). It also remains to be seen whether any changes in U.S. copyright law will deal with these issues that have become more prevalent as our digital lives have grown.
I have noticed that individual creators have become more attuned to the legal framework and how it might protect them, and it’s heartening to see artists think through licensing, permissions, and written agreements when they create and disseminate work. Much of the art being created today uses digital tools as a primary medium. I think of “new media art” as artwork that uses new technologies as varied as computer graphics and animations, robotics, and biotechnology to provide viewers a unique experience. The work might be static or interactive, and it might also have components of virtual, augmented, and mixed reality.
From a legal perspective, the ownership and sale of such works can be more complicated than a single painting on a wall. When such a complex work is created, is it the artist’s intention to create editions (i.e., multiple copies of a work that are each considered an original copy which form part of a series)? When it’s then sold, what does the collector purchase (e.g., the rights to exhibit it? The right to show snippets of it? In what context? The right to make exhibition copies so that the master doesn’t degrade over time?)? What happens to the work when the technology used to make it becomes obsolete? It’s possible that the idea of the primary significance of the original is an outmoded idea. However, this also means that assumptions about collecting artwork are changing rapidly.
More broadly, and as it relates to my current work, it has been inspiring to see more and more users experience Artsy. Ten years ago, it would have been hard to predict confidently that people would use the internet to look at and learn about, inquire about, and purchase art online in large numbers. Despite the perceived limitations in the current legal framework affecting the copying and transmission of images, and despite the difference in experience between viewing a piece of art in person and online, more and more people are using the internet to do so. We want to make art as ubiquitous a part of culture as music, and to allow everyone with an internet connection to access all the world’s art. The journey has been super exciting so far, and we hope it continues, legally.