Know Your Rights: A Tool for Artists

Spencer Tunick, Arrow To Washington, NYC, 1995. Gelatin silver print, 48x60 inches. Edition of 6.

Spencer Tunick, Arrow To Washington, NYC, 1995. Gelatin silver print, 48×60 inches. Edition of 6.

We spoke with Joy Garnett from the Arts Advocacy Project at the National Coalition Against Censorship about a new artist education tool, Artist Rights.

Jenny Gill: How did the Artist Rights site come to be? Who compiled the resources and research available there?

Joy Garnett: Artist Rights was created to address questions that artists may have about their rights under the First Amendment. The site is a collaboration between the National Coalition Against Censorship (NCAC) and the Center for Democracy and Technology (CDT). Previously, NCAC put together an art law database with help from a lawyer and five law students, and the CDT had built a site to address artists’ online rights. The Artist Rights site brings together the content of these two resources into one cohesive, easily navigable site.

The impetus for creating Artist Rights was an incident involving an artist who received a letter demanding that their work, which included nudes, be removed from an exhibition in a public space. The letter contained legalese that the artist found confusing and intimidating; had he been able to penetrate the jargon, he might have realized that the assertions in the letter were incorrect and that he was well within his rights. And so the idea for the website was born.

Artist Rights offers answers to the many different questions artists may have about their rights, as well as a glossary of legal terms and examples of case law involving different forms of censorship with clear explanations for lay people. The idea is to make legal concepts and issues legible to ordinary people.

We’ve also set up a page with a form for questions and comments so that artists can contact us directly about potential controversies or issues they may already face.

It is important to emphasize that the Artist Rights site is intended as a quick reference tool and not as a stand-in for legal advice. While it provides basic information so artists can get a sense of some of their rights under the First Amendment, the information on the site is not a substitute for advice from a lawyer.

Jenny: How can artists use this site to answer questions about censorship and free speech?

Joy: The site is structured around four free speech and censorship issues:

Artists can navigate through these categories using the site’s left sidebar, which contains drop-down menus.

For example, if an artist is worried that their work might be perceived as obscene or pornographic, they can click the drop-down menu under “protected vs. unprotected speech” and go to the section “obscenity & nudity”. There they will find the legal definitions for—and distinctions between—obscenity, pornography and nudity, and a list of links to relevant cases.

Another example: if an artist is selling their work in a public space and is told to shut down and move on, they can refer to the drop-down menu under “speech regulated for its content of viewpoint” and consult the “time, place and manner restrictions” or the “public forum” section.

Jenny: What about public performances or speech acts? What protection is there for artists who work in public spaces?  

Joy: The government can regulate speech in public places up to a point. Here’s an excerpt from the public forum page, to clarify:

“A public forum is public property that historically has been associated with the exercise of First Amendment rights such as pamphleteering, public debate, and picketing. The public forum category includes streets, sidewalks, town meeting halls, and parks, among other locations. Because of the historic relationship between the public forum and free expression, the government cannot ban expression in a public forum. However, a public forum may be regulated by time, place, and manner restrictions as long as they are content-neutral, narrowly tailored to serve a significant government interest, and they leave open alternate channels of communication.”

Further down on that page is a list of links to relevant cases with brief descriptions. One of the cases listed, Tunick v. Safir, involves the photographer Spencer Tunick, who claimed that New York City shouldn’t be able to interfere with his photo shoot of 75-100 naked models on the grounds that it was part of a public showing of a work of art. When you click through, you come to a page with a longer, detailed description of the case, including any decisions and appeals:

“The court agreed that the city could not interfere with Tunick’s photo shoot because Tunick showed he would incur irreparable injury if he could not conduct the photo shoot and he was likely to succeed with his claim that this exhibition fell within one of the exceptions to the state law prohibiting public nudity.”

Barbara Kruger, Untitled (It’s a small world but not if you have to clean it), 1990. Photographic silkscreen on vinyl, Dimensions variable.

Barbara Kruger, Untitled (It’s a small world but not if you have to clean it), 1990. Photographic silkscreen on vinyl, Dimensions variable.

Jenny: Are there protections for works that contain parody or critique of a public figure, a brand, or other copyrighted material? What do artists who create this type of work need to be aware of to avoid a lawsuit?

Joy: Your question brings up two important but distinct issues. Parody necessarily references existing work; it is classified as a fair use and is a protected form of expression. A description of what may constitute a fair use can be found in an overview of copyright & fair use:

Fair use is a statutory exemption to the rights granted by copyright law. It is a defense to activity that would otherwise be considered infringement. The doctrine permits the use of copyrighted works for many purposes, including scholarship, journalism, criticism, commentary, or parody (if the parody specifically criticizes or comments on the copyrighted work itself and not just on society in general).”

Public figures and their right to privacy is a separate issue, addressed in the section “privacy and publicity rights”:

“Artists cannot use a public figure’s image completely free of limitations. When the image is used for commercial gains, courts must balance the First-Amendment rights of the artist with the public figure’s publicity rights.”

An interesting instance of artistic expression trumping privacy rights is the 2002 case Hoepker v. Kruger:

“Hoepker, a German photographer, and his model sued Barbara Kruger for copyright infringement and invasion of privacy. Kruger, a well-known artist specializing in composite works combining photographs and texts, had taken Hoepker’s photograph of the model holding a magnifying glass over her eye, and superimposed the words “It’s a small world but not if you have to clean it” on top of it. With Kruger’s permission, the Museum of Contemporary Art L.A. and the Whitney Museum of American Art in New York (also defendants) publicized the exhibit in newsletters and brochures and featured the composite on postcards, note cubes, magnets and t-shirts and in exhibit catalogues.

“The Court found that the model’s right to privacy was not violated. To succeed on a right to privacy claim in New York, one must prove (1) the use of one’s name, portrait, picture, or voice; (2) for advertising purposes or for the purposes of trade; (3) without consent; and (4) within the state of New York. The Court found that Kruger had used Hoepker’s picture without consent within the state of New York but had not done so for the purposes of trade. Rather, Kruger’s work, when displayed in books or in galleries, was pure artistic expression (not commercial speech)…”

Jenny: Do you have any general advice for artists about free speech and anti-censorship rights? Is there anything they should know or do upfront that could help avoid censorship or legal action?

Joy: We’ve encountered many cases where artists will accept unfair and illegal demands without questioning them; these are usually instances where artists dare not risk pushing back for fear of the repercussions, such as having their work pulled from view. But artists should know that there are broad protections in place for artistic speech in this country. And government officials themselves are not always aware of the extent of these protections. So, to defend against ill-conceived, unwarranted, inadvertent or willful attempts at censorship, artists need to become more aware of their rights. The Artist Rights site is one resource they can use to inform themselves. They can also call us, or type in a question. We’re here, and we’re happy to help.

Joy Garnett is Arts Advocacy Program Associate at the National Coalition Against Censorship. Visit the Artist Rights website for more info: http://www.artistrights.info.

 

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This entry was posted in INTERVIEWS, TIPS & TOOLS: Resources for Artists and tagged , , , by Jenny Gill. Bookmark the permalink.
Jenny Gill

About Jenny Gill

Jenny Gill is Director of Communications at Creative Capital and editor of The Lab. Prior to joining Creative Capital in 2010, she produced educational programs and digital content for the American Craft Council. She has worked at numerous commercial and nonprofit galleries, including as Gallery Director at the University of the South (Sewanee, TN), Gallery Manager at Joan B. Mirviss Ltd. (New York) and Assistant Curator at Vanderbilt University’s Fine Arts Gallery (Nashville, TN). She also worked as a letterpress designer/printer at the historic Hatch Show Print, studied at the International Workshop for Ceramic Art in Tokoname, Japan, and was an artist assistant for Nashville sculptor Alan LeQuire. Jenny holds a BA in art and art history from Vanderbilt University, where she was awarded the Hamblet Award for studio art, and an MA from Bard Graduate Center for Decorative Arts, Design and Culture.

5 thoughts on “Know Your Rights: A Tool for Artists

  1. Thank you for this initiative. If someone fears being dragged into a civil case this site will be quite helpful. However, it has been Critical Art Ensemble’s experience that when we are doing actions in a public place we don’t get into civil trouble; we get into criminal trouble. Police handle the matter, not lawyers. The police do not care about anyone’s rights, and have numerous judgment-call charges (from minor charges to serious felonies) to arrest whomever they want whenever they want. Sure, you may beat the charge, but you have to fight in court which can be quite expensive and time consuming, and you will go to jail until you are bailed out. CAE was just wondering if a “real world” component could be added? What do you do when the police come? It could be a great Creative Capital workshop to have experienced artists and lawyers discuss the topic. We have had too many of students who are young enough to believe they have rights go to jail stunned that their rights were violated.

    • Hi CAE,
      Thanks. I can only add that we must understand our rights before we can know if they’ve been trampled. Violations of artistic expression and the contexts in which they occur vary widely, and one would be hard pressed to encapsulate the range of artists’ experiences with censorship.

      I cannot overemphasize this enough: the Artist Rights site is not a substitute for legal advice. It is a web resource for artists — a starting place.

      On that note, I think a workshop to address the legalities surrounding art in public spaces would be well worth organizing. Thanks for suggesting it!

      sincerely,
      Joy

  2. Aloha Jenny,

    RE: Arts Advocacy Project at the National Coalition Against Censorship about a new artist education tool, Artist Rights.
    I came across such enticing image of the women on the NewYork street. I will be visiting one of those streets soon in October in New York.
    I would like to know how I should analyze where my creativity rights is and how much of it I have as an artist, Pussy Riots director Viktoria Naraxsa and I will be working on our joint project March and April 2017 in Honolulu – at the Koa Art Gallery of Kapilolani Community College. Viktoria will give a performing art workshop. Her project – performing art workshop is four weeks project. At the end of the project Viktoria Naraxsa will direct, choreograph and perform in a play. How far can I stretch my creative freedom while focusing on documenting Pussy Riot in historical context. How far may be correct or not has been such a nagging question. This restless creative process issue has been the constant questions in my work. Hawaii is one of the most progressive states in the country. Fortunately I will be put on a test when I explore the them series. Freedom of speech and creativity, This most important current issue to be reflected in my new Gothic Triptych Series, perhaps called Pussy Riot/Paradise Prison Triptych Series. (tentative title). https://www.facebook.com/MasamiTeraoka. I hope to hear from you. Thanks!!!
    Aloha,
    Dr. Masami Teraoka in Fine Art

    • Dear Dr. Masami Teraoka:

      Could you give me some specific details on how the show at U Honolulu would be pushing boundaries? Are they boundaries of political expression? or sexual, nudity, etc? Looking forward to hearing more details. I can then point you to specific resources.

      Joy

  3. Thanks for this i have been waiting from some time to get this clear information information ;
    Last Feb 2016 my account was blocked from Vimeo /you tube /and Face book many times all for a content of nudity after some tedious process and so on 30 days face book punishment i had been forced not to show any nudity on this public site this has affected the way my art is and always wanted to be a public event. At this moment i can’t have a you tube account unless i open an account with someone else identity or a false one. From all of them vimeo has been the worst all i wanted to do was create my own archives of videos to create a body of work to re-create a mayor work on video. after month of back and forth letter with helping friends and accusing me of promoting my massage business on vimeo something i didn’t do except sending the info trough my massage Gmail account i lost all my videos and started again with a completely different name info and with someone else CC. My vimeo account is private now something i didn’t intend but needed to have for grant purposes.
    My other issue is feeling rejected in some of the space residencies as the CUNNY residencies recently ask about the accepting process and if the nudity on my work samples was an issue somehow felt like is a discriminatory process if the artist use nudity as part of there art. This was Alyssa Alpine Manager, CUNY Dance Initiative :
    Hi Antonio,
    We’re focusing our energies on finding space — quite literally — for a variety of forms of dance in the university system, and I will say that nudity is not usually going to fly at the CUNY campuses. We are a public institution and I don’t think that’s a fight to take on now. If this doesn’t seem to align with your work and artistic interests, I understand and wish you the best.
    more later .
    cheers antonio

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