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Ask Lola's Lawyer
by Adam Bobker
Recently, I was at a show that included mixed-media interactive work using used menstrual pads. The artist is 88 years old and claims all the work is autobiographical and RECENT. How can I prove she is not substituting or misrepresenting her materials? Unchecked, this could set a questionable precedent. How do we ensure collectors get what they pay for?
Signed, J. Budinski (London)
Dear J. Budinski,
Why are you on this crusade? You haven't disclosed any personal stake in whether a collector is misled by the artist's possible misrepresentation, but one seems to lurk beneath the surface of your question. You were not deceived by the suggestion that the work contains bodily fluids, so why would a collector? The artist is 88 for god's sake. If a collector was deceived, it would be an issue for the gallery, the artist, and the collector. Also, you should be aware that it is a tort to intentionally interfere with another person's contractual relations. If you intentionally cause a collector to back out of a purchase by suggesting that the artist has misrepresented her work, she may be able to sue you for the lost sale. Be careful before you start messing with other people's business.
I am a stock broker who loves art so much I borrowed my clients' trust money to buy a very expensive Agnes Martin painting, which I just had to have. The little old ladies have started asking difficult questions about their money. I am planning to pay it all back with commissions I earn managing their accounts. I just don't have any money right now and I don't want to lose that Martin painting. Can I just say that I gave it to my boyfriend, Marvin?
Signed, Monte Towers (Toronto)
Dear Mr. Towers,
What you are talking about is called creditor proofing Ü protecting your assets from creditors. This can be done by putting assets in other people's names. From a legal point of view, it is the same as giving the assets away, forever. The strategic part is to give them to someone who you expect will be willing to allow you to continue to use the assets, like your spouse or lover. However, in order to be effective, creditor proofing must be done before you know you are going to run out of money. You cannot give the Martin painting away with the intention of defeating your creditors. This is called a fraudulent conveyance. More to the point, since you purchased the painting with trust money it does not actually belong to you, you are holding it in trust for your clients. On the other hand, it will be difficult and expensive for the little old ladies to prove that you used trust money to purchase the art. I suggest you come clean. Give the money back as quickly as possible. This problem is not going to go away, you should be focusing on making sure you avoid jail time.
I am a photographer and I was commissioned to do a shoot for a tango dance troupe in exchange for a year's worth of lessons. My concept was designed to convey the passion of the dance. A dancer in a short skirt has one leg raised high and her back arched, and she is supported by a dashing man in a mask. They are both leaning up against an alley wall and above their heads is the word "Tango" written as graffiti. The image is a signature for the troupe. Now another troupe has copied the idea. Their picture is not identical, but they've used the same concept. Can I sue? How much can I get?
Signed, Dipped Off (Mississauga)
You're right that photographs can be the subject of copyright. You created the image by directing the subjects and by choosing the angles and lighting, so the concept and look of that image is protected under copyright, regardless of the medium. But since you did the work in exchange for lessons, it's likely the troupe, and not you, owns the rights. Your troupe could sue for an injunction, preventing the other troupe from printing any more of the infringing images. They might also have to deliver up any infringing copies they still have. If a judge is satisfied that the infringement was done knowingly, the judge could also award damages. One measure of the damage would be the cost of a year's worth of lessons, since that it is how much it cost your troupe to have you create the image. I say, go for it.
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Disclaimer: THIS COLUMN IS WRITTEN FOR ENTERTAINMENT ONLY. These situations are fictitious. Any similarity to any one you know of is a coincidence. Every case is different. These are NOT legal opinions. YOU rely on the ADVICE contained in the answers at YOUR OWN PERIL. IF YOU HAVE A REAL LEGAL PROBLEM, CALL A LAWYER. Bobker really is a lawyer.
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