Art & Law COVID-19 Roundtable: Frequently Asked Questions

May 15, 2020

This is a summary of the Art & Law COVID-19 Roundtable hosted by the Artistic Freedom Initiative, the Center for Art Law, and Mana Contemporary on May 8, 2020, where four attorneys addressed recurring pandemic-related legal questions as they pertained to the creative field, ranging from employment, immigration, housing, copyright and contract issues.

Disclaimer: The following information is intended for purely informational purposes only and should not be construed as legal advice. The information provided herein does not create an attorney-client relationship and does not replace seeking advice from an experienced attorney. Most of the information contained herein concerns US federal law as well as New York State law. Information is subject to change.

Employment Law with Tana Forrester
Associate at Kessler Matura P.C.

What are my rights as an independent contractor?

The difference between an employee and an independent contractor lies in the level of control, direction, and supervision that someone else has over the work performed, which depends on a variety of factors. The major difference is that employees have a right to get time and half for all work performed over 40 hours. The situation of independent contractors, often referred to as “gig workers” or “freelancers” being more precarious than employees, it is important to be sure that you are classified correctly. “Misclassification of employees is rampant, particularly in the arts,” says Tana Forrester; so if it turns out that someone is not an independent contractor, he or she is entitled to back pay and damages. It should also be noted that, under the New York City Human Rights Law, both employees and independent contractors in NYC now have the right to be protected from discrimination, harassment, unequal pay, and retaliation. However, the law does not apply to the rest of New York State. Finally, in New York City, under the Freelance Isn’t Free Act (“FIFA”), all freelance contracts going over a period of 120 days must be confirmed in writing if the compensation is over $800; further, freelancers have the right to get paid within 30 days after completion of work; if not, freelancers are entitled to receive twice the full amount of the contract, plus attorney fees.

Can I apply for unemployment if I am NOT an employee? e.g. I am a gig worker, I was paid in cash, was paid partly on/off the books, I was not working last year, I work for myself, I worked a combination of W2/1099 jobs

Under the CARES Act, freelancers, as well as students and part-time workers can claim unemployment benefits for lost income during the Coronavirus crisis. It must be noted that every state administers its own unemployment systems. In New York State, if you are not receiving income or your income has been reduced to under $504 per week, you are eligible for unemployment benefits and non-employees can file claims online or over the phone. One thing to note is that claimants can group all 1099 income as one employer, under “self-employed”; however, all W2 income must be treated separately. More guidance on how to apply for unemployment benefits here.

What are my rights if my employer has implemented a salary reduction or furloughed all the staff?

Rights of workers depend on their type of work contract. Workers who have suffered a salary reduction but do not have a written contract or are an “at-will” employee have limited rights; further, furloughed workers do not hold a “right” to get work back. However, if you suspect that you have been selected to not return to work based on a discriminatory reason (e.g. race, nationality, gender, sexual orientation, caregiver status, disability, age, religion or any other protected category) or because you complained about the health and safety conditions of your workplace, you should consult an employment attorney. On the other hand, reductions of salaries for employees cannot fall below a certain threshold which varies depending on the county. If you an “exempt worker” meaning exempt from overtime pay, you cannot make less than the salary threshold regulations listed on the New York State Department of Labor.

Housing Law with Norrinda Hayat
Associate Clinical Professor of Law and Director of the Civil Justice Clinic at Rutgers Law School

What is an eviction moratorium? What happens if I do not pay my rent? Can I break my lease?

Housing law is regulated at the state level and some laws are more protective of tenants than others. Generally, an eviction moratorium, which should not be confused with a rent moratorium, is a pause in evicting tenants for not paying past rent. In New York City, landlords must wait until at least August 21st to commence such proceedings before a court, for both commercial and residential space. Furthermore, tenants cannot be given late fees for paying rent past due. While advocates are calling for a rent moratorium or cancellation for lost income, as of today, no US state has enacted such a provision into law.

My landlord wants to force me to share my apartment with someone that I have not approved, and I am concerned about health and safety. What can I do?

A rent agreement, or lease, lays out the rights and obligations of the tenant and of the landlord. Ordinarily, a lease gives the tenant exclusive legal possession over the space that is leased. This means that the landlord cannot enter that space and cannot lease the space to someone else. However, if the lease concerns only part of the property, such as a roommate situation where the tenant leases only part of an apartment (e.g. a bedroom), the landlord may rent the rest of the dwelling, including other bedrooms, without the tenant’s prior consent.

Do you have any tips for negotiating with my landlord to lower my rent, creating payment plans etc.?

Most landlords are aware that payment of rent is a current issue and some may be open to negotiation. “Being explicit as early as possible and being realistic are important aspects of the negotiation” says Professor Hayat. In some states, landlords are being required to engage in “reasonable negotiations” for the repayment of rents. Some states, such as New Jersey, allow landlords to use security deposits and apply them to missed rents. Information on which states have enacted such rules is available at evictionlab.org.

Contracts and Copyright Law with Megan Noh
Partner and Co-Chair of the Art Law Group at Pryor Cashman LLP

While the art world has gone digital, how can I protect my work that is being exhibited virtually?

There are many things that artists can do to protect their works, whether they are exhibited in-person or virtually.

• Registering a copyright provides the creator (i.e., “author”) of a work with certain advantages. While a copyright exists from the moment of creation of a sufficiently original and fixed work, a lawsuit cannot be initiated to enforce rights in a copyrighted work unless registration has been processed by the U.S. Copyright Office. Registration of a visual work may be accomplished online at copyright.gov, where an author uploads an image of the work and pays a fee as low as $45. Processing may take 3 months to a year; there is a way to expedite the process, which is more expensive ($800). Once copyrighted, the holder can claim statutory damages and may ask a court to stop (i.e. “enjoin”) the infringement or rule for the seizure (i.e. “impoundment”) or even destruction of infringing work. The best practice is to register before the work is exhibited for the first time.
• Before agreeing to allow someone to digitally display his/her artwork, an artist should also consider drafting a short agreement outlining what is and is not permitted. The permission to display or otherwise use the image of an artist’s copyrighted work is a “license” outlining the scope of the use and exposure, including its duration, geographic area, and the agreed upon fee (if any). A copyright need not be registered to be the subject of a valid license, although prior registration will aid the artist in seeking damages if the licensee violates the terms of the license.
• While the use of digital and social media platforms is a great alternative to showing and promoting one’s work at a gallery–particularly given the logistical challenges presented by COVID-19–Megan Noh warns that “there is a higher risk of unauthorized display” of one’s work online through such informal channels.
  • When an artist’s work is displayed on a website that hosts user-uploaded content, the Digital Millennium Copyright Act (“DMCA”) provides an excellent self-help remedy. Under the DMCA, copyright holders can submit a “Takedown Notice” via the service provider’s posted procedure––most providers have a reporting function or contact info for a DMCA administrator on their website. Takedowns are designed to be quick and effective for removal of unauthorized use without the need for a copyright holder to resort to expensive litigation. Moreover, a copyright need not be registered to be the subject of a Takedown.
  • However, a DMCA Takedown will not be effective if the artist who owns the copyright in the disputed image has inadvertently granted a broad license to another person or entity to sub-license the work. Artists should be aware that under some social media platforms’ Terms of Use, the platform reserves the right to permit other parties, such as related websites, to display its own members’ public content. The recent case of Sinclair v. Ziff Davis, involved a photographer who uploaded images to Instagram and held that Instagram’s account terms (to which the photographer had agreed by creating an account) permitted the platform to sub-license her photos to the website Mashable.com, even though she had denied permission when they inquired of her directly.

What is “force majeure”? How does it apply to the current crisis? What can I look out for in contracts to protect myself?

In contract law, force majeure allows for one or both parties to be excused from performing their contractual obligations because unexpected events make it impossible to fulfill the obligations. Courts in many jurisdictions interpret such clauses strictly, looking only to the specific language of the parties’ contract for the trigger events that have been listed. It is uncommon for force majeure clauses to include language that would encompass a pandemic or quarantine, and so for many contracts with boilerplate force majeure clauses, COVID-19 will not excuse performance.

However, the doctrine of impossibility may still relieve a party of its obligations, if the party can demonstrate that (1) the trigger event was unforeseeable, and (2) his/her obligation is truly impossible to fulfill–not that it is merely “more difficult” or “more expensive” to do so. Given the unprecedented series of governmental restrictions on business operations and public gatherings across the United States that have been implemented as a result of COVID-19 (including New York Governor Cuomo’s “New York on Pause” Executive Order), contractual parties may be able to argue that performance has indeed been made impossible where such restrictions are the direct cause of their inability to, for example, hold a public art exhibition or sale.

In negotiating a contract with a force majeure clause, parties should consider the applicable standard of discretion for declaring a trigger event (i.e. “reasonable” versus “sole”), the mutuality of the right to make such a declaration (i.e. who decides that a “force majeure event” has occurred), and what the parties’ obligations should be with respect to notice of a force majeure situation, as well as with respect to mitigation (i.e. trying to reduce the negative impact of the force majeure situation, whether by providing a substitute product/service or delaying performance).

What happens if I am unable to complete a commission due to COVID-19 implementations? How might one prevent a commission from being canceled completely? Can I be paid for the work I did even if it is not finished?

The short answer to this question is: it depends. Ideally, a commission agreement––which, as a matter of best practice, should be in writing––will outline what are the obligations of each party and how to mitigate issues encountered by the parties in performing their obligations. Some artist commission agreements include an express force majeure clause, and some provide for non-refundable deposits… but many do not.

That said, contracts can almost always be modified when both parties agree to do so. In the case of the commission of “unique goods” such as an artwork, there is good reason to believe that a party who was enthusiastic enough about an artist’s work to request a custom commission will also be willing to work with the artist to explore reasonable accommodations and resolutions. Accordingly, in the event that an artist is facing difficulties in making the commissioned work but still wants to complete the contract, the artist should reach out to the patrons and discuss a workable timeframe that incorporates COVID-related delays. Other options might include modifications to the concept or scale for the work, or to the materials used. Once the artist and patron have agreed on a new plan, it should be documented in writing.

Immigration Law with Sanjay Sethi
Founding Partner at Sethi & Mazaheri, LLC and Interim Executive Director of Artistic Freedom Initiative

Can I still file an immigrant or non-immigrant petition with USCIS? Can I adjust my status?

In the United States, the Executive branch has near complete power over immigration. Most recently, Proclamation 1004 is limiting petitions for immigrant visas, i.e. green card applications, received from US embassies and consulates abroad. It does not impact immigrants that are already inside the United States and who are seeking to apply for or renew a green card, nor does it impact non-immigrant petitioners (such as the O-1 or H1B).

I am on an O-1 Visa. What if I lose my job during the Coronavirus crisis?

If working for a single employer and laid off, O-1 visa holders will immediately fall out of status and after 180 days, their presence in the US will be considered unlawful and reentry in the future will be very complicated. If an artist works on a contract basis, “there must be an intact future contract to stay in status,” says Sanjay Sethi; if not, artists may extend their visa by showing a new itinerary with future events––which is tough considering the current situation where most art fairs and shows are canceled or postponed––or they must leave the country.

I was laid off because of COVID-19 closures and now I’m collecting unemployment. Does this look bad for my immigration application of any kind? Should I be concerned that getting health insurance could also negatively impact my application, in light of the new Public Charge rule?

The Public Charge rule should not affect COVID-19 related layoffs and collecting unemployment. As for health insurance, the rules are somewhat unclear but if an application for a federal health benefit (Medicare or Medicaid) also happens because of COVID-19, that is unlikely to block them for a future non-immigrant visa, an extension, or a green card. In short, “any federal benefit that an artist seeks has to be traceable to the current epidemic,” says Sanjay Sethi.

What happens if I was scheduled for an Asylum interview and it was canceled because of the Covid-19 crisis? And will this affect my eligibility for employment documents/EAD?

Canceled asylum interviews will be rescheduled when USCIS reopens (in early June or later). Normally, asylum applicants can apply for employment authorization documents within 150 days of their application; the fact that the interview has been canceled or delayed will not affect their ability to receive an EAD.

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Additional materials:

• Covey Law, FAQ: Artist Mobility to the U.S. during the COVID-19 pandemic
• Center for Art Law, Art Law in the Time of Coronavirus
• Artists At Risk Connection, COVID-19 Resources for Artists
• The Vera List Center for Art and Politics, COVID-19 Resource Toolkit for Artists and our Extended Communities

About the Speakers:

Tana Forrester is an associate at Kessler Matura P.C.Ms. Forrester advocates, litigates and negotiates settlements on behalf of employees in discrimination, harassment, hostile work environment, retaliation and unpaid wage claims. Ms. Forrester represents employees as individuals and in class actions in all areas of employment law. Her discrimination practice includes advocating for employees in pregnancy discrimination, sexual harassment, race discrimination and disability discrimination claims. Ms. Forrester’s wage and hour work includes representing employees misclassified as exempt from overtime laws and those forced to work off-the-clock. Ms. Forrester pursues claims under Title VII, Section 1981, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family Medical Leave Act, the New York State Human Rights Law, the New York City Human Rights Law, the Fair Labor Standards Act, and the New York Labor Law. Ms. Forrester received her law degree from the City University of New York School of Law, where she concentrated her studies on employees’ rights. As part of her clinical education at CUNY’s Workers’ Rights Project she represented employees as a student attorney in wage theft actions in federal court.

Prof. Norrinda Hayat is an Associate Clinical Professor of Law and the Director of the Civil Justice Clinic at Rutgers Law School. Prior to coming to academia, she worked as a trial attorney in the U.S. Department of Justice, Civil Rights Division, Housing and Civil Enforcement Section. While in the Civil Rights Division, Professor Hayat led a case that resulted in DOJ’s first combined police practices and fair housing settlement. Professor Hayat earned her B.A. from Dartmouth College and her J.D. from University of Virginia School of Law. After graduation, she began her career in private practice, specializing in white collar and insurance litigation with the firms Hogan & Hartson and DLA Piper. From 2006 through 2007, she was in private practice specializing in civil rights litigation with the firm Booth & Tucker in Philadelphia.

Megan Noh is a Partner and Co-Chair of the Art Law Group at Pryor Cashman LLP. With 15 years of combined experience in private practice and both in-house legal and business positions in the auction world, Megan has extensive knowledge of the complex issues impacting today’s art market. Her clients include auction houses, collectors, galleries, individual artists, estates and non-profits, whom she counsels on a range of transactional and litigation matters. During her time at the international auction house Bonhams, Megan served as the sole legal officer, handling all day-to-day U.S. legal affairs, including drafting and negotiating auction, private treaty, advance loan and other contracts, insurance inquiries and claims resolution, and questions of cultural property, provenance and intellectual property. Prior to Bonhams, Megan spent over four years at another major international auction house, and before that, she worked in the Art Law Group at Hughes Hubbard & Reed LLP, where her legal practice also focused on arts-industry clients. A recognized speaker on art authenticity and pre-transaction diligence, Megan lectures regularly for professional and academic audiences and has been quoted in the New York Times, Wall Street Journal, Forbes, Financial Times, Artnet, and other art industry publications. She has authored scholarly articles for the Columbia Journal of Law & the Arts and the Institute of Art & Law’s journal, Art Antiquity and Law, and contributes to the course material for the Art Litigation and Dispute Resolution Institute, for which she is a Program Chair.

Sanjay Sethi is the co-managing partner at Sethi & Mazaheri, LLC, practicing in a wide range of areas, including family-based green cards, asylum, removal defense, Federal Court litigation, and appeals. He earned his Bachelor’s Degree from Northwestern University, his Master’s Degree in International Affairs from Columbia University and his JD from the University of Miami School of Law. He also earned a Certificate in Russian and East Central European Studies from Columbia University’s Harriman Institute and a Nonprofit Management Executive Certificate from Georgetown University. Sanjay is admitted to practice law in New York, New Jersey, Washington D.C., and the Southern District of New York. Recently, Sanjay co-founded the Artistic Freedom Initiative (AFI), a nonprofit organization dedicated to providing legal services and resettlement assistance to artists who are censored or persecuted in their countries of origin. He is currently serving as the interim Executive Director for AFI, where he has built and managed AFI’s legal program providing pro bono services globally to over one hundred artists at risk. Prior to founding Sethi & Mazaheri and AFI, Sanjay served as a prosecutor in Union County, New Jersey, and a law clerk in the criminal division of the New Jersey Superior Court. Sanjay’s interest in and commitment to public service are rooted in his work experience at the United Nations Children’s Fund and the International Labour Organization in Moscow, Russia, as well as at Columbia University’s Public Interest Law Initiative in Budapest, Hungary, where he served as a Research Fellow.Mr. Sethi received his BA from Northwestern University, his MA in International Affairs from Columbia University and his JD from the University of Miami School of Law. He is admitted to practice law in New York and New Jersey. As an Indian-American Lawyer, Mr. Sethi remains active in the South Asian community.

About the Organizers:

Led by immigration and human rights attorneys, Artistic Freedom Initiative (AFI) facilitates pro bono immigration representation and resettlement assistance for international artists at risk. Dedicated to safeguarding the right to artistic freedom, AFI was founded on the notion that artists are uniquely situated to positively and powerfully affect change, provided their voices can be heard. As artists are increasingly censored, imprisoned, restricted from moving freely across borders, tortured, or even killed, it is more critical than ever that we safeguard the right to artistic freedom and zealously champion the courageous artists who exercise it. AFI directly assists artists who have experienced persecution, censorship, or other restrictions on their freedom of expression, and supports artists who have demonstrated a commitment to advancing progressive social change and fundamental human rights.

The Center for Art Law is a New York-based research and education nonprofit that offers resources and programming for the advancement of a vibrant arts and law community. Through its website and monthly Art Law Blast newsletter, the Center disseminates information and keeps readers updated about art- and law-related news, events, cases, and publications. The Center partners with law firms, galleries, graduate schools, and fellow nonprofit organizations to organize educational events and workshops, at little or no cost to artists.

Founded in 2011, and anchored by cultural centers in Jersey City, Chicago, and Miami—Mana Contemporary is dedicated to celebrating the creative process, supporting artists, and serving as a bridge for creative communities worldwide. A nexus of progressive thought and practice, Mana Contemporary’s digital platform champions emerging voices, creativity, and conversation through a uniquely personal approach. Interactive webinars, live events, and conversations foster a profound sense of community and support.