Your Web Site is Illegal
Joshua Kaufman © 1999
I recently had the opportunity to speak at the inaugural meeting of the Art Publishers Association (APA). It is a new association being formed by print publishers the inaugural meeting was held at the ABCs show in Atlanta. Over 100 print publishers were in attendance.
In choosing my topic I searched for one that with be of interest to the wide variety of publishers in attendance. Online issues clearly came to mind. It seems that each time I turned on my computer or read a trade magazine I am being informed of a new Web site being formed by an art related entity. Each time I answer my phone it seems to be someone needing assistance in creating their web based business. Publishers, galleries and even artists are all establishing their own presence on the Web. Some are taking the independent routine and acquiring their own domain names and setting up stand-alone site. While others are joining forces in one of the various art portals or in art malls. Each format presents strengths and weaknesses and the format one chooses needs to be based on their own evaluation of their market there are no one size fit all cookie cutter solutions.
However, one thing does apply across the board, all the laws that apply in the real world apply in cyberspace. Copyright, trademark, trade secret, contract, print disclosure laws and consumer protection statutes all apply in cyberspace. This rather important point however seems to be lost on most individuals and entities setting up Web sites. In my review of scores of sites I can say that without exception each and everyone was in violation of one art related law or another.
Almost universally none of the Web sites were in conformity with the various fine art print disclosure statutes. Readers of this column know many states have enacted Print Disclosure laws. These laws require that at the point-of-sale (or the offering for sale) disclosure information must be provided to the prospective seller of a limited edition. Limited edition can be a print, photograph or sculpture. The disclosure generally take the form of Certificates of Authenticity. Their strict requirements set out in the various statutes outlining what must be on the Certificates of Authenticity (size of the edition, all other uses of the imaging, prior uses of the imaging, how the prints were made, the name of the printer, how the signature was affixed by the artist to the print, size of the prints, etc. For complete information on the print disclosure laws you can purchase a monograph I have written on the topic which has the statutes, an explanation, a sample Certificate of Authenticity, a grid of the statues and more for $25 . Send check to me at 1615 L St. NW Suite 400 Washington, DC 20036 ).
In order to comply with the Print Disclosure laws it is not sufficient to ship the prints with a certificate of authenticity. The statutes require that this information to be provided to potential purchasers went a print is offered for sale. It is incumbent upon each web site to either have this information set out next to the print or have a link from the image to a Certificate Authenticity. A copy must be shipped with the print as well. It would be my guess that is this juncture there are at least 10,000 potential lawsuits lurking in cyberspace for violation of this statute alone.
Copyright laws are violated on web sites onto regular basis is well. Some of the violations are intentional and others results from a lack of understanding by a web site owners of the limitations of the rights they currently possess. In most instances in order to post images on your web site you will need a license from the copyright owner. There are instances where under the fair use doctrine permission would not be necessary. However, in the majority the cases permission should be sought. It is important to understand that uploading an image to a Web site is considered the making of a copy, downloading an image is considered the making of a copy, e-mailing and attaching an image is considered making a copy. Scanning an image is also considered making a copy as is printing out to the image. Each of these activities is consider the making of a separate and distinct copy and permission must be obtained from the copyright owner. In a recent case an ad agency scan in an image and manipulated it so that a brand-new image was created. The court found that there is not copyright violation in regard to the creation of the new image that it was sufficiently original, however, the court held that the agency violated the artist's copyright because of the initial scan.
Galleries and publishers need to go back to their original contracts with their artists in order to ascertain whether or not to their contracts are broad enough to cover Web usage of the images. It would be quite risky for a publisher gallery to simply assume it has the rights to post images on the Web sites simply because there is some broad provision in their underlying contract to market the works. Certainly this argument could be made. It is possible that the Web is a simply a format for marketing and that permission for posting images to the Web site is covered by marketing clauses. However, I do not believe for one to see how arguments could be made to the contrary.
Before a gallery posts an image on its Web site it should make sure that its agreement with their publishers do not limit mail-order sales nor are they restricted to sales in a certain region or out of a specific location. Web site sales in most instances would violate those type of limitations.
The secondary art market provides for an interesting to set of legal questions. Can one post an image of a work that they’re trying to sell to a Web site without the permission of the copyright owner? If you asked two different copyright lawyers this question you’ll receive three different answers all while being billed at a high hourly rate of course. Trademark law certainly applies in on line art sales as well. If an artist normally deals through authorized galleries and the public has come to understand that when they’re buying a work of that artist that they dealing with an authorized dealer then the sale by an unauthorized dealer on the Web can be a violation of section 43(a) of the Lanham Act. This law states that one may not to act in the matter which misleads as to an association, affiliation or sponsorship when none exists. Unless there are clear disclaimers posted on the Web site stating that the Web site is not affiliated with the artist a Lanham Act is very likely.
In regard to trademark law an artist’s name and signature can also be considered trademarks and using them on a Web site without the authorization of the artist can also be a violation of their trademark rights. Links the other sites are generally permissible however, if the link is designed in such a way as to cause people to believe that there isn’t affiliation between the two Web sites or the link uses the other sites logo and again Lanham Act and trademark violations can ensue.
Art auctions are beginning to become very prevalent on Web sites. Copyright questions as to whether or not the posting of an image for the purpose of an on-line auction catalog is permissible it is also an interesting question. Most copyright lawyers would probably argue that it is a fair use. But be warned that would be true only in United States. A recent case in France held that auction houses were liable to pay royalties to artists for the reproduction of their works in their auction catalogs. As the Web is international your Web site will be available of for viewing in France. The posting of an image will in all likelihood l violate French law. If it is the work of French artist and if you have any business dealings or assets in France potential problems loom large.
Due to the international nature of the Web a whole slew of new problems arise. Picture that are sexually oriented but benign by American standards could easily violate the obscenity laws of many Moslem or other countries subjecting the Web site operator and artist to both civil penalties and criminal prosecution if they ever travel to those countries. Comparative advertising something we are quite accustomed to in United States is the legal in many countries in Europe. Therefore ads on a Web site which declare product X is better than product Y would also be a violation of the laws in other countries. These issues are not to theoretical. CompuServe last year was criminally charge for violating obscenity laws in Germany. Barnesandnoble.com and Amazon.com were recently cited in Germany for violating its hate laws for selling the book, Mein Kamp, out of their United States and British unit.
The selling of art on the Web provides an international market however, it also provides an additional set of problems. If the art being sold turns out to be stolen or forgeries what courts have jurisdiction, what law will apply, what jurisdictions are Web site owners liable in. Does the hosting of a Web site and selling throughout the United States cause you to be liable to be sued in all 50 states. can you be hauled into court where you made a sale? Whose laws would apply, what state, what countries? When a deal goes bad because of the art or there is a problem with collecting the fees what to do the forger or deadbeat are thousands of miles away from the site of your terrestrial home. Each of these key e questions and many, many more need to be considered by everyone hosting or participating in a web site. Contracts need to be reviewed, revisited and all business arrangements need to be closely scrutinized as never before.
Speaking of technology this entire column was produced without my touching my keyboard (well almost) using the newest version of Dragon Dictate (version 4.0) which retails for under $60. I have a number of articles posted on my website, www.jjkaufman.com, which address many of the issues outlined above. Please feel free to visit.