Illinois Law
Illinois Arts, Entertainment & Sports Law
Arts, Entertainment & Sports Law
Artists' Rights and Obligations
The right of an artist to create or not create a work is included in moral rights. Disputes over the right to create usually arise when an artist refuses to create or complete a work for which he or she was commissioned. Artists rarely are forced to create because courts are reluctant to force the performance of services and because the party contracting for the work also may be reluctant to have the artist forced to finish the work. However, an artist who fails to fulfill his or her duties under a contract is liable for damages.
In 1990, the federal Visual Artists Rights Act (VARA) was passed. This act applies to paintings, drawings, prints, or sculptures, and amends federal copyright law by providing certain artists with attribution and integrity rights. VARA permits an artist to claim credit for the work he or she has created. If an artist's work is distorted, mutilated, or modified, the artist also has the right to stop the use of his or her name as the artist if such use becomes prejudicial to the artist's honor or reputation.
VARA also provides the artist the right to prevent destruction of a work of recognized stature. What constitutes a work of recognized stature is determined by scholars, curators, and collectors. This protection may be limited if the work is placed on a building.
An artist's economic rights give the artist the right to receive profits from resale of his or her work. Authors and entertainers typically enjoy royalty payments from subsequent reproduction and syndication. Fine artists, on the other hand, receive payment upon the initial sale only and, unfortunately, fail to receive profits from resale. Neither the United States nor Illinois provide statutory economic rights to artists. If an artist includes in a sales contract a provision requiring a share of profits from any resale, enforcement of such a provision may be a problem.
Although the United States Constitution guarantees the freedom of expression, this right has limitations, some of which are especially applicable to artists and entertainers. Obscene material is not entitled to constitutional protection. The United States Supreme Court created the following test to use in determining whether material is obscene: the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. This standard is difficult to apply in the abstract, and can vary widely from community to community.
Injudicious speech sometimes can lead to a defamation suit. Defamation is a false statement that damages another person's reputation or character, such as false accusation of a crime, dishonesty in business, or unchastity. Libel is written defamation and slander is spoken defamation.
A defamatory statement must be a statement of fact, not a statement of opinion, to be actionable. There is a difference between stating a person is "a jerk" (opinion) and stating a person is "a convicted murderer" (fact). No matter how damaging a statement may be, if the statement is true there is no action for defamation (although there may be grounds for a different lawsuit, such as harassment). The defamatory statement must be communicated to a third party (publication), and must identify the party being defamed.
Once a plaintiff in a defamation case has proven that the defendant published a false, defamatory statement of fact about the plaintiff, the plaintiff must prove that the statement was made with actual malice or with negligence. The standard used depends on whether the plaintiff is considered a public figure or a private person. A public figure is a celebrity, politician, police officer, or citizen active in public policy. If the plaintiff is a public figure, he or she must prove that the defendant acted maliciously by deliberately failing to verify the defamatory statement. A plaintiff who is a private person only must prove that the defendant was negligent in publishing the statement and should have known that the statement was false.
Contracts
Shopping Agreement
A shopping agreement is an agreement that an artist or a group of artists (such as a musical band) makes with an agent or manager who then "shops" around trying to find work for the artist(s). A shopping agreement should clearly spell out how long the contract is in effect. The time period should be long enough to give both parties time to evaluate each other, but not so long as to restrict the parties to a clearly unsatisfactory arrangement. A shopping agreement also should state in what manner the agent or manager is to be paid (usually a 10 to 20 percent commission) and who is responsible for expenses.Management or Booking Contract
When an artist or group of artists is managed and/or promoted by another party, the parties should execute a management or booking contract. The agreement should sufficiently define all the rights and responsibilities of each party. Items of particular importance include specific commitments by the manager or agent to promote the artist's or group of artists' career; the management fee or commission; how the manager or agent will settle any disputes regarding conflicting booking obligations; and how the agreement will be affected if a group changes its name, members, or artistic style.Performance Agreement
A performance agreement is an agreement between a performer and an organization or person producing (paying for) the performance. A performance agreement should at least state the basics: who will perform; where and when the performance will take place; the manner and hours of the performance; amount of compensation for the performance; and the manner and form of promotion of the performance. A more detailed agreement may include who will pay attorney fees for any disputes and the manner in which disputes will be settled (e.g., arbitration, mediation). Performers also should make certain that the person signing the contract is the person responsible for making payment after the performance, or an authorized representative thereof.Mutual Release Agreement
A mutual release agreement outlines how to manage the legal and financial aspects of an artistic group's break-up. Having a mutual release agreement is especially important if the departure of a member is not voluntary. Important elements include the departing member's rights to use the group's material; the departing member's right to future royalties; and which member, if any, has the right to continue using the group's name.Consignment Agreement
A consignment agreement is an agreement between an artist and an art dealer (or gallery owner) whereby the artist delivers a work of art to an art dealer for the purpose of sale. Upon selling the artwork, the art dealer usually receives a commission or some other form of compensation. In an effort to protect artists from bankrupt or unscrupulous gallery owners or art dealers, Illinois law requires that all consignment agreements be in written form and include the following provisions:- The proceeds of the sale must be delivered to the artist at a schedule agreed to by the artist and the art dealer
- The art dealer is responsible for the stated value of the artwork in the event of loss or damage while the artwork is in possession of the art dealer
- The artwork will only be sold by the art dealer for an amount at least equal to that agreed to by the artist in writing
- The artwork may be used or displayed by the art dealer only with prior written consent of the artist and only if the artist is acknowledged in such use or display
- An artwork delivered to an art dealer for the purpose of sale or exhibition, and the artist's share of the proceeds of any sale by the art dealer creates a priority in favor of the artist over any claims, liens, or security interests in the artwork by creditors of the art dealer
Forming a Business
Sports Law
Standard Player's Contract
Contracts in sports define the rights of the players, the teams, and the leagues or commissioners of various sports. The standard player's contract specifies the rights, duties, and obligations of the player. Despite the name, most such contracts favor teams, not players. Generally, they allow teams to terminate players "for cause," which means players can be let go if they are injured or out of shape, cannot pass the team physical, or no longer fit with the needs of the team. These contracts further specify that the league or commissioner can fine, suspend, or discharge players for violation of league rules.Players are not totally defenseless, however. Leagues usually have players' unions that negotiate collective bargaining agreements on behalf of players. In addition, many players are represented by agents who attempt to get the best deals possible for their clients. Athletes who are uniquely skilled or have attained "star" status have a greater ability to negotiate and to modify these standard contracts, adding provisions that increase income and job security. Some of the perks agents derive for their clients are signing bonuses, performance incentive clauses, and the right not to be traded unless agreed to by the player.
Sports Agents and the Standard Representation Contract
There are a number of areas in which sports agents can assist the athlete. In addition to contract negotiation and public relations, an agent might contract to be a client's money manager or financial planner. Product endorsements and public appearances generally are handled by an agent. Agents may serve as career advisers and personal development counsel. Sometimes, an athlete's agent also is the athlete's attorney.The standard representation contract establishes the rights and responsibilities between the player and the agent. Most such contracts contain language concerning disclosure of any conflict of interest, good faith negotiation, and arbitration, as well as a clause stating which state law controls the interpretation of the contract. When the athlete is a college student, the standard representation contract may require additional provisions and usually is subject to further regulation.
In Illinois, any person who gives money or any other thing of value to an athlete enrolled in an institution of higher learning and attempts to represent the student in future negotiations for employment with a professional sports team commits a Class A misdemeanor.
Resources
To order an Illinois copyright application write to the Illinois Secretary of State, Department of Business Services, 213 State Capitol, Springfield, IL 62756, (217) 782-9520.
United States Department of Commerce, Patent and Trademark Office, Washington, D.C. 20231. For General Information, call (703) 308-HELP; for Automated Information, call (703) 557-INFO, TDD: (703) 305-4487.
For Illinois trademark registration information, contact the Illinois Secretary of State, Department of Business Services, Trademarks Section, 213 State Capitol, Springfield, IL 62756, phone: (217) 782-9520.
Patent and Trademark Depository Libraries, where searches can be made for conflicting patents or trademarks, are located at the Chicago Public Library, 400 South State Street, Chicago, IL 60605, phone: (312) 269-2865, and in Springfield at the Illinois State Library, 300 South Second Street, Springfield, IL 62701-1976, phone: (217) 782-5659.
Lawyers for the Creative Arts, 213 Institute Place West, Suite 411, Chicago, IL 60610-3125, phone: (312) 944-ARTS, toll-free: (800) 525-ARTS.
Volunteer Lawyers for the Arts, One 53rd Street East,
Sixth Floor, New York, NY 10022. It is an informal
nationwide network of legal assistance programs for
artists. The organization maintains an Art Law Line
to assist artists with legal problems and provide lawyer
referrals at (212) 319-2910. Call (212) 319-2787 ext.
25, for the following publications:
The Musician's Business and Legal Guide
VLA Guide to Copyright for Musicians and Composers
A Writer's Guide to Copyright
The Writer's Legal Companion
The Rights of Authors, Artists, and Other Creative People
VLA Guide to Copyright for the Performing Arts
VLA Guide to Copyright for Visual Artists
Trademark: How to Name a Business and Product
Licensing Art and Design
John M. Fotiades, You're the Judge!: How to Understand
Sports, Torts and Courts (Edgeworth & North Books,
Worcester, MA, 1989).
Gary A. Uberstine, Law of Professional and Amateur Sports
(Clark Boardman Co., New York, NY, 1988).