BUYING ART On-Line: The Issues

As the Internet develops, its impact on the art world is growing. The number of Web sites dealing with the arts is exploding across the board. Hundreds of art galleries, dealers, artists and publishers are putting up Web sites in the hopes of giving better service to existing clients and to draw new clients from an unlimited worldwide marketplace.

An art dealer from Minnesota, for example, hopes to pick up clients in Germany. And the independent artist who cannot get gallery representation, is finding buyers for his or her works via a Web site.

I do not know whether these economic expectations will come to fruition or if the Web sites' owners will reap the desired economic benefits. I believe it will take a while longer for us to find out. Regardless, many legal issues are arising as a result of these art Web sites.

Last week a client called me very distressed. A company with whom he had no relationship whatsoever was selling his works through its Web site. They reproduced the artist's art, used his name and had a photograph of the artist posted under the section titled, "Artist Selling Their Works."

We were able to shut this site down (as it applied to my client) based on several legal theories. First, there was a violation of Section 43(a) of the U.S. Lanham Act, which states that you cannot have a misdesignation of association, affiliation or relationship. Clearly this Web site, by stating that the artist was selling his works through the Web site when he was not, created a false impression and violated the Lanham Act (which is part of the federal trademark law).

Additionally, most states recognize a "right of Publicity," which provides that you cannot use anyone's name or likeness for commercial purposes without their permission. By posing his picture and name on the Web site in its attempt to sell the artist's work, the company violated the artist's right of publicity.

The trickier question is the one of copyright - whether or not posting reproductions of artworks in this manner violates the artist's copyrights as well. In this case the artworks that were posted were actually owned by the Web site operator and were for sale. An argument can be made that if an individual is selling artworks which he/she owns and reproduces it for the limited purposes of selling the piece, then that type of reproduction would be a fair use. However, I believe that a number of copyright and art lawyers would disagree as to whether or not it is permitted use.

Now, if the Web site operator was not actually selling those works, I think it would be harder to argue that this posting was a type of fair use and not an infringement.

Fair Use of Pictures Online

Another client of mine posts auction house records of art sales and often includes a picture of the work sold as part of its information. In this case my advice to the client was that his activities constitute a fair use. The nature of the posting was factual, educational and did not impact on the market for the underlying works. The fact that it was online makes it no different than if it was a hard copy treatise on auction house trends and records complied over the last decade.

As you can see, the issue of when it's legal to post images without the artist or copyright owner's consent is often based on nuances and circumstances. One should exercise caution, and only after obtaining sound advice, post any image on the net without permission.

Many publisher/gallery agreements require that the galleries sell artwork out of specific retail locations only, and also prohibit mail order sales. What impact does having an artwork on the Web sites have on these agreements? Obviously, one would have to look at specific contract but, it is certainly likely that posting artwork for sale on the Web would violate a location limitation clause and also probably a "no mail order" restriction.

Artists who have exclusive deals with galleries or publishers are often prohibited from studio sales. If an artist creates a Web site and offers work for sale through it, that would also in all likelihood violate an artist's exclusivity agreement with his/her gallery or publisher. What if a publisher or gallery's contracts are silent as to Web sites and CD-ROM; can a dealer post and/or include an artist's image without permission under their Agreement right to market and promote?

Personal Jurisdiction

Another issue that might at first blush seem rather dry (a lawyer-only type of issue) is whether personal jurisdiction is acquired for a lawsuit as a result of Web site. In real life this issue can have serious implications.

Normally, in order to sue somebody in a specific location they have to be doing business in that locale. Therefore, if a gallery in Chicago and an artist based in California have a dispute, the artist generally must sue the gallery in Chicago and not in California. The courts of California would lack jurisdiction over the Chicago gallery. In order to have jurisdiction in California, the court would have to find that the gallery does business in California.

S U M M A R Y B O XAs the Internet develops, its impact on the art world is growing.

Several issues have arisen -- such as fair use of pictures online, online copyright, and personal jurisdiction -- which will impact the way you develop and use your Internet site.

Many people in the art industry are most concerned about posting their images online and having them knocked off. This brand of piracy has not come to fruition. The high-tech infringer's tool is the scanner and not the Web.

Soliciting business and making sales is usually considered doing business. Therefore, if a Chicago dealer has a Web site which can be accessed in California and starts selling art to California residents via the Web, it would in all likelihood find itself subject to California jurisdiction. The California artist could then sue the Chicago gallery in California. The psychological and financial impact of such a maneuver on a lawsuit can be great. Doing business on the Web could have the effect of making art dealers vulnerable to defending law suits all over the world.

Industry's Biggest Concern

In my dealings within the art industry, I have found that the biggest fear in posting images on the Internet is that someone will download the images and knock them off. Let me reassure you, that brand of piracy has not come to fruition. There are still technological limitations on the posting of high-quality images on the net. As a result, low resolution images are posted, and even if someone downloads them form the Internet, they cannot be effectively reproduced.

The high-tech infringer's tool is the scanner and not the Web. An ironic aspect to the posting of art on a Web site is that while it makes it easier to sell bootlegs or unauthorized copies of an artist's work, it also makes detection easier. One has to simply conduct a properly crafted search using an artist name and in all likelihood they would be directed to the various Web sites which feature the artist's work and can easily track down a copyright infringer or renegade dealer.