Navigating the Intersection of Art and Copyright: Insights from the Inaugural Art & Copyright Law Clinic

May 31, 2024

By Atreya Mathur and Patrick K. Lin

Introduction and Objectives of the Art & Copyright Copyright Clinic

In the ever-evolving landscape of artistic expression, the intersection of art and copyright law has become increasingly complex. From traditional mediums to emerging technologies, artists face a myriad of challenges in protecting their creative works. To address these challenges, the Center for Art Law hosted its inaugural Art & Copyright Law Clinic on April 10, 2024, offering a platform for artists to navigate copyright regulations and emerging issues such as generative AI.

The Art & Copyright Law Clinic serves as a vital resource for both emerging and established artists, providing them with the necessary tools and knowledge to safeguard their intellectual property rights. In an era where digital technologies have revolutionized the way art is created, shared, and consumed, understanding copyright law is paramount for artists to protect their creations from unauthorized use and exploitation. At the heart of the Art & Copyright Law Clinic is the mission to empower artists with the knowledge and resources needed to navigate the complexities of copyright law. Through a keynote presentation followed by one-on-one confidential consultations with volunteer attorneys, artists gain insights into the legal frameworks governing their work, including the rights afforded to them under copyright law and strategies for protecting their creations in an increasingly digital world. Artists have the opportunity to ask questions about copyright in relation to their work directly to attorneys in an affordable and accessible manner.

Issues and Challenges Discussed during the Clinic

One of the pressing issues discussed during the inaugural session of the clinic was the proliferation of generative AI and its implications for artists’ copyright. With the advent of AI-driven technologies like Midjourney and Stable Diffusion among many others, artists are confronted with new questions regarding ownership, licensing, and the boundaries of artistic expression. The Clinic looked into these issues, exploring whether generative AI represents a tool for artistic creation or a potential threat to artists’ rights.

While digital artists face unique challenges with generative AI, many of these issues echo longstanding concerns in traditional copyright cases. Unauthorized use and reproduction of artwork have long plagued traditional artists, with instances of their work being used without permission for commercial purposes or copied by others. Digital artists using generative AI face similar issues, as their AI-generated creations can be easily replicated and disseminated without proper attribution or compensation. Additionally, the ease of creating derivative works using AI poses challenges in identifying and enforcing copyright infringement. Plagiarism and unauthorized copying are common concerns for traditional artists, who may find their original creations reproduced or imitated without credit or acknowledgment. Digital artists using generative AI may encounter instances where their AI-generated works are copied or replicated by others, blurring the lines of authorship and ownership. This raises questions about the originality and uniqueness of AI-generated creations and the rights of the artists who use such technology.

Enforcing copyright and addressing infringements can be challenging for traditional artists, particularly when dealing with infringers operating in different jurisdictions or countries. Digital artists using generative AI may face similar jurisdictional challenges in enforcing their copyright, especially when infringing activities occur across borders or on decentralized platforms. The global nature of digital content distribution complicates efforts to monitor and address copyright violations effectively.

Traditional artists may struggle with monitoring and tracking instances of copyright infringement, particularly in offline contexts where unauthorized use may go unnoticed. Digital artists using generative AI may encounter challenges in monitoring and tracking unauthorized reproductions and alterations of their AI-generated works online. The rapid proliferation of digital content and the anonymity of online platforms make it difficult to identify and address instances of infringement in real-time.

Third-party exploitation of artwork is a common concern for traditional artists, who may face unfair contracts, deceptive practices, or misrepresentation of their rights by galleries, agents, or publishers. Digital artists using generative AI may also be vulnerable to exploitation by third parties seeking to profit from their AI-generated creations without adequately compensating or crediting the artists. Issues such as unfair licensing agreements or unauthorized commercial use of AI-generated content can undermine the rights and interests of digital artists.

In summary, while digital artists using generative AI face unique challenges related to the nature of AI-generated content, many of these issues parallel longstanding concerns in traditional copyright cases which the Art & Copyright Clinic focuses on. By recognizing these similarities and understanding the evolving landscape of copyright law in the digital age, artists can better navigate the complexities of protecting their creative works and asserting their rights in an increasingly interconnected world.

Keynote Presentation by Juyoun Han,partner at Eisenberg & Baum LLP

Another highlight of the Art & Copyright Law Clinic was the keynote presentation by Juyoun Han, a partner at Eisenberg & Baum LLP. Drawing on her expertise, Han provided insights into cases involving artists and the evolving landscape of copyright law in the digital age. Her work in challenging bias and discrimination in automated decision systems underscores the importance of addressing ethical considerations in the intersection of art and technology.

As technology continues to reshape the artistic landscape, the need for artists to navigate copyright law with confidence and clarity has never been greater. The Art & Copyright Law Clinic stands to support artists, offering them the guidance and expertise needed to protect their creative endeavors and navigate the complexities of the digital age. By fostering dialogue, providing resources, and offering expert guidance, the Clinic reaffirms the Center for Art Law’s commitment to supporting artists and upholding the integrity of artistic expression in all its forms.

Upcoming Art & Copyright Law Programming

The Afterlife of Art: Posthumous Moral Rights & Copyrights

June 11, 2024 at 12:00 PM EDT

Following an artist’s death, it is their works that live on and preserve their legacy. At first glance, posthumous moral rights and dead-hand control over a deceased artist’s work may safeguard that artist’s work and legacy. However, the variability of posthumous moral rights and restrictions placed on reproducing artwork after the artist’s death can run counter to both the artist’s interests and the goal of copyright law. How should legal systems balance the artist’s interests with societal interests? What approach should artists take with respect to their copyright after their death?

Join the Center for Art Law for a discussion that grapples with these important questions, featuring the co-editors of Posthumous Art, Law and the Art Market, Sharon Hecker and Peter J. Karol, as well as two of the authors of the book, Eva E. Subotnik and Guy A. Rub. The panel discussion will be moderated by Patrick K. Lin, the Center for Art Law’s 2023 – 2024 Judith Bresler Fellow.

Workshop: Exploring Copyright Ownership, Work for Hire & Generative AI

June 18, 2024 at 12:00 PM EDT

A work for hire refers to works whose ownership belongs to a third party, usually an employer, rather than the original creator. What rights do artists have when a work of theirs is designated a work for hire? How does the use of generative AI in the art and creator market impact this copyright issue?

Join the Center for Art Law and Max Hass, an entertainment, intellectual property, and business attorney and founder of Holon Law Partners, for a workshop discussing copyright law basics as well as legal considerations artists should be mindful of with respect to work for hire and generative AI.

Additional Reading Resources

Articles

• Atreya Mathur, Patrick K. Lin, Irina Tarsis, U.S. Copyright Office, Comment from Center for Art Law (Nov.1, 2023)
• Atreya Mathur, A MSCHF-ious Take on Copyright, Fair Use and Appropriation (Center for
• Art Law, Mar. 14, 2024)
• Olivia Zinzi, Appropriation or Art? Court Orders Richard Prince to Pay Damages in Highly Anticipated Copyright Lawsuit (Center for Art Law, Feb. 28, 2024)
• Paul C. Rapp, An Introduction to Copyright Law (Graphic Artists Guild, Sept. 27, 2023)
• Atreya Mathur, Copyright Registration for AI Generated Works: Zarya of the Dawn and the Dawn of a New Creator (Center for Art Law, July 6, 2023)
• Gordon Firemark, Understanding Copyright Law: What You Should Know About Using Artwork Found Online (Apparelist, June 27, 2023)
• Atreya Mathur, Art-istic or Art-ificial? Ownership and Copyright Concerns in AI-generated Artwork (Center for Art Law, Nov. 21, 2022)
• Azmina Jasani and Emelyne Peticca, The Tension Between Copyright Law and Appropriation Art: Where is the Line Between Artistic Innovation and Stealing? (The Art Newspaper, Sept. 29, 2021)
• Holland Gormley, What I Wish They Taught Me About Copyright in Art School (Library of Congress Blog, Sept. 1, 2020)
• Isaac Kaplan, Art Copyright, Explained (Artsy, Aug. 4, 2016)
• Atreya Mathur, The Intersection of AI Art & Law: Protecting Artists while Promoting Innovation (Art and Museum Magazine, Apr. 9, 2024)

Guides

• Copyright Basics (U.S. Patent and Trademark Office)
• Registration Tutorials (U.S. Copyright Office)
• What Visual and Graphic Artists Should Know About Copyright (U.S. Copyright Office)
• Artists Rights 101 (Artists Rights Society)
• U.S. Copyright Office Fair Use Index (U.S. Copyright Office)

Sample Agreements

• Copyright License Agreement (Rocket Lawyer)
• Copyright License Agreement Template (Aura League)
• Copyright Assignment Agreement (eForms)