January 24, 2023

By Nikki Vafai.

To guide with the estate planning and legacy preservation process, in 2022, Center for Art Law hosted a virtual two-part “A Primer on Artist Trusts” series. The first part of the series, hosted on June 16, focused on the basics of setting up an artist’s trust and factors to consider when deciding whether to create one. The second part of the series took place on November 21; it dived into the nuts and bolts of setting up a trust. Both events are archived and available on demand.

This series was made possible with the collaboration of Julia Schwartz, Artist Legacy Foundation; Tracy Bartley, R.B. Kitaj Estate; Farley Gwazda, Gwazda Art Services; and contemporary art curator, writer and researcher Kristina Newhouse.

A Primer on Artist Trusts: Part 1

Speaker 1 – Melissa Passman, Esq.: Overview of Trusts

The first half of the program was led by Melissa Passman, an attorney at Day Pittney, who has extensive experience with tax, trusts and estates, and art law. Passman began the series with an overview of what trusts are and how they compare to other legacy planning entities.

Passman explained that estate plans are often desirable because without one, default inheritance laws will apply upon an artist’s death. Passman explained the different types of entity options available such as creating an LLC, S-Corp, trust, or private foundation. With an LLC, a single member is disregarded for income tax purposes and members of the LLC will not be held personally liable for obligations of the LLC. Additionally, an LLC provides ownership and membership flexibility. A trust is a private agreement whereby the timing of the beneficial ownership and division of title between different parties can be controlled. It is administered by a Trustee. A private foundation can be formed as a trust or corporate entity.

Passman then provided an overview of the basics of a trust and key actors such as the beneficiary, settlor/grantor, and trustee. A trust instrument is a document that names the settlor and the trustee and lays out the governing terms. Passman then gave an overview of the types of trusts available such as revocable, irrevocable, and charitable trusts. Revocable trusts do are trusts that can be revoked or amended but do not have any significance for income tax purposes. Meanwhile, irrevocable trusts may not be revoked or amended. They are immediate gifts of property and may be subject to gift tax and federal tax. Charitable trusts on the other hand are forms of irrevocable trusts established for charitable purposes and provide for income tax deductions. To conclude, Passman stated that the decision to choose a trust ultimately comes down to the artist’s goals.

Speaker 2 – Jamie Johnson: Real Life Experience Creating an Artist Trust

Jamie Johnson led the second half of the program, sharing her experience creating an artist trust. Johnson is the managing trustee for the William S. Dutterer Trust, which she created in 2018. Prior to that, she managed Dutterer’s estate.

Johnson was married to artist Dutterrer and when he passed away in 2007, he left all of his artwork to Johnson in his will. Johnson explained that initially, her two options were to declare no real value for the work or to throw out the work. After hiring a professional to assist her, Johnson considered different entities to manage the artworks. She noted that her main hesitation against establishing a foundation was the extensive regulations and management necessary. She therefore decided to create a trust because of the relatively minimal regulation requirements, affordability, and ease of management. Johnson created an irrevocable trust in 2018 and gathered legal representation, an art accountant, and board of directors.

Johnson explained the consequences of creating the trust such as the increased credibility of her work and her network within the art world. She concluded by describing the trust’s goals for the future and contextualizing their present position towards that goal.

A Primer on Artist Trusts: Part 2

Speaker 1 – Bennet Grutman, CPA: The Financial Basics of Creating a Trust

Speaker 2 – Caryn B. Keppler, Esq.: The Financial Basics of Creating a Trust

Caryn B. Keppler, Esq. presented the second part of the webinar. Keppler is a partner at Pierro, Connor & Strauss. She has experience in estate and trust planning as well as gift and charitable planning for a wide client base which include artists, collectors, and artists’ foundations. Keppler is a director of the Estate Law Specialist Board Inc.

Keppler began by weighing the pros and cons of creating a trust for artists. She stated that while trusts can provide for centralized control by a fiduciary, they are usually not the recommended option. She explained that there are other entities that provide for more control, better tax consequences, and are better for management for an artist. Problems with trusts include the restriction by the terms of the governing agreement, the inflexibility of amending them, and high tax rates at low income levels. Keppler suggested that business entities provide a better, more flexible means of managing an artist’s artwork. Separate entities are a great way to separate the intellectual property and the artwork. To separate the entities there are different entities that can be used such as LLCS, C Corporations, S Corporations, and charitable foundations. The most common and flexible form is the LLC. Some of the advantages of the LLC are the ability to have different classes of ownership and the fact that they may be treated as pass-through entities so that the income, expenses, and tax attributes are passed to the owners and members. However, LLCs require the artist to relinquish their artwork for membership interest and LLCs have attracted the attention and scrutiny of the IRS, in terms of income tax.

C Corporations provide a high level of protection from risk and allow for different classes of ownership but are disfavorable in terms of taxation and costs. S Corporations on the other hand, have more favorable tax treatment and state law liability of shareholders is limited. However, S Corporations disallow tax-free distributions of property and are limited in their ability to be owned by trusts. Artist foundations, Keppler explained, help preserve an artist’s legacy and can be created during the artist’s lifetime or after their death. It can be formed as a charitable trust or a nonprofit corporation. Foundations can also provide for income tax deductions and estate tax savings. However, there are strict rules regarding minimum annual distributions to qualified charities and against self-dealing, which make it very important to strategically select the board of an artist foundation. Keppler stressed the difficulty of estate planning and the importance of consulting with accountants and attorneys.

The audience for the sessions included artists, directors of estates, art professionals, young attorneys, established attorneys, undergraduate and graduate students. Some of the questions posed during the session included what the qualifications, experiences and skill set required from a Trustee in the case of Trust or from a Board member in case of an artist charitable foundation were and the commitments generally required of a trustee. Caryn Keppler responded that first and foremost, a trustee has to be a person once can trust. A trustee can always hire a team of experts to assist him/her/them – such as an attorney, accountant, investment advisor, art advisor. But the trustee has to be someone that one knows will be faithful to the terms of the trust document and fair to the beneficiaries. In New York, an individual trustee is entitled to be compensated pursuant to statutory rates: (a) an annual commission based on the value of the trust, and (b) 1% of all principal paid out during an accounting period when the trustee accounts to the beneficiaries. Of course, individual trustees can waive compensation but Keppler tells clients that are considering serving as trustees that it can be a lot of work and can open them up to a lot of potential liability so that they do deserve to be compensated. Corporate trustees such as banks are compensated based on their own published rate schedules. For foundations, board members should have some knowledge of the artist’s work and goals for the foundation, as well as working knowledge of the artist’s business. It’s a good idea to have an attorney, accountant, a financial advisor and family members on the board. If the artist has a staff, staff members are usually good additions since they have a working knowledge of the day to day workings of the business. Compensation will be dependent on the size of the foundation and the amount of hours and contribution that a board member puts in. When Keppler serves on a board, she usually asks to be paid on an hourly basis for her time. In both a trust and a foundation, the time involved will always depend on the size of the trust or foundation, the assets involved, the number of meetings (foundations should meet at least 1x annually if not more often if they are very active). And if the artist hasn’t properly inventoried their work before death, the initial work is substantial and could mean several individuals working full time for years just to get organized. That’s why creating a proper inventory and archive are the most important things that an artist can do for their estate and legacy.

Other questions asked by the attendees included:

• Who should one reach out to first in the process of establishing a trust? Whether to first reach out to an attorney, CPA, or appraiser.
• How do you move from an S corporation to an LLC corporation?
• What factors should an artist take into consideration when deciding which structure to set up?
• What are the requirements a beneficiary has to keep various interests separate? What happens when interests merge?
• How does one add art to a trust or other entities, especially if there are a lot of artworks or archival materials that have not been appraised or inventoried or have more cultural value than financial value?

Offered as part of the Center’s Estate Planning for Artists Clinic, the series aimed at addressing the different types of trusts and other entities including limited liability companies and foundations, to help artists or their family members think about the nuts and bolts of setting up a trust and calculating the costs associated with successful operation of these different trusts. The series underscored the importance of getting sound and experienced advice from legal and tax experts for creating a sound legacy plan, unique for each artist and providing the knowledge for them to satisfy their ideas for immediate and lasting needs.

Handouts for the event:

• Cases:
  • Architectural Body Research Found. v. Reversible Destiny Found., 335 F.
  • Supp. 3d 621 (S.D.N.Y. 2018).
  • Andy Warhol Found. for the Visual Arts, Inc. v. Federal Ins., 189 F.3d 208
  • (2d Cir. 1999).
  • Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 992 F.3d 99 (2d
  • Cir. 2021).
  • City Bank Farmers Tr. v. Arnold, 197 N.E. 288 (N.Y. 1935).
  • Georgia O’Keeffe Found. v. Fisk Univ., 312 S.W.3d (Tenn. Ct. App. 2010).
  • Grosz v. Museum of Modern Art, 772 F. Supp. 2d 473 (S.D.N.Y. 2010).
  • Johnson v. Smithsonian Inst., 189 F.3d 180 (2d Cir. 1999).
  • Meaders v. Helwaser, 436 F. Supp. 3d 766 (S.D.N.Y. 2020).
  • Mesbahi v. Blood, 172 A.D.3d 1580 (N.Y. App. Div. 2019).
  • Morgan Art Found. v. Brannan, 2020 W.L. 469982 (S.D.N.Y. 2020).
  • O’Keeffe v. Bry, 456 F. Supp. 822 (S.D.N.Y. 1978).
  • Rauschenberg Found. v. Grutman, 198 So. 2d 685 (Fla. Dist. Ct. App. 2016).
  • Reis v. Comm’r of Internal Revenue, 87 T.C. 1016 (U.S.T.C. 1986).
  • Rockwell v. Tr. of Berkshire Museum, 2017 W.L. 6940932 (Mass. 2017).
  • Simon-Whelan v. Andy Warhol Found. for the Visual Arts, Inc., 2009 WL
  • 1457177 (S.D.N.Y. 2009).
  • Thome v. Alexander & Louisa Calder Found., 70 A.D.3d 88 (N.Y. App. Div.
  • 2009).
• Treatises:
  • 75A N.Y. Jur. 2d Literary and Artistic Property § 35
  • § 2:18. Trusts and estates—Artists and Collectors, 1 Darraby on Art Law § 2:18
  • § 18:18. Gifts—Cy pres doctrine, 2 Nonprofit Organizations: Law and Taxation § 18:18 (2d)
  • § 27.36. Examples of estate planning case studies with the private
  • foundation, 24 Mass. Prac., Estate Planning § 27.36 (3d ed.)
  • § 871. Procedure—Parties—Costs and fees, Bogert’s The Law of Trusts and Trustees § 871
• Books:
  • Christine J. Vincent et al.,The Artist as Philanthropist: Strengthening the Next Generation of Artist Endowed Foundations, (Christine J. Vincent eds., Aspen Institute 2019).
  • Christine J. Vincent et al., The Artist as Philanthropist: A Reading Guide to the Study Report for Artists and Their Family Members, (Christine J. Vincent eds., Aspen Institute 2013).
  • Daniel McClean et al., Artist, Authorship & Legacy: A Reader (Daniel McClean eds., 2019).
  • Jeffrey L. Condon, The Living Trust Advisor: Everything You (and Your Financial Planner) Need to Know about Your Living Trust (2015).
  • Karl Trott & Loretta Würtenberger, Artists’ Estate: A Handbook for Artists, Executors and Heirs (2022).
  • Magda Salvesen, Artists’ Estates: Reputations in Trust, (M. Salveseen & Diane Cousineau ed. 2022).
  • Sotheby’s Institute of Art, Creative Legacies: Artists’ Estate and Foundations (Kathy Battista & Bryan Faller ed. 2000).
• Articles:
  • Patterson Sims, Hands On: Working with Artist-Endowed Foundations and Trusts, The Brooklyn Rail (Dec. 2018 – Jan. 2019), https://brooklynrail.org/2018/12/criticspage/Working-with-Artist-Endowed-Foundations-and-Trusts
  • Rachel Middleman & Alla Efimova, Preserving Artists’ Estates: A Professional Perspective, 76 Art J. 116 (2017).
  • Ralph Lerner, Valuing Works of Art for Tax Purposes, 28 Real Prop., Prob. and Tr. J. 593 (2012).
  • Sara Osinski, Case Review: Meaders v. Helwaser (2020), Ctr. for Art Law (Aug. 18, 2020), https://itsartlaw.org/2020/08/18/case-review-meaders-v-helwaser-2020/.
  • Susan Lyons, Tax Breaks for Artists’ Heirs, 6 ART & L. 24 (1980).
  • Taylor Barje, Case Review: Is There HOPE for the Estate of Robert Indiana?, Ctr. for Art Law (Jun. 9, 2020), https://itsartlaw.org/2020/06/09/case-review-is-there-hope-for-the-estate-of-robert-indiana/.
  • W.E. Scott et al., Estate planning for artists: will your art survive?, 21 Colum-VLA JL & Arts 15 (1996).
  • Atreya Mathur, Legacy and Lawsuits: An Overview of the Robert Indiana Estate Court Battles, Ctr. for Art Law (May 26, 2022), https://itsartlaw.org/2022/05/26/legacy-and-lawsuits-an-overview-of-the-robert-indiana-estate-court-battles/.
  • Aya Louisa McDonald, The Artist’s Widow Syndrome East and West: The Case of Foujita Kimiyo, 76 Art J.177 (1960).
  • Anna Sulkin, Landlord vs. Descendants: Who Has Right to Artist’s Estate?, Wealth Management (Feb. 23, 2022), https://www.wealthmanagement.com/estate-planning/landlord-vs-descendants-who-has-right-artist-s-estate.
  • Barbara Hoffman, Protecting the Intangible Assets of a Visual Artist’s Work: Estate Planning and Management of Copyrights to Create Value and Preserve Legacy (Part I), One Art Nation (Dec. 16, 2016), https://www.oneartnation.com/protecting-the-intangible-assets-of-a-visual-artists-work-estate-planning-and-management-of-copyrights-to-create-value-and-preserve-legacy/.
  • Christine J. Vincent, Artist-Endowed Foundations: Mapping the Field, The Brooklyn Rail (Dec. 2018 – Jan. 2019), https://brooklynrail.org/2018/12/criticspage/ARTIST-ENDOWED-FOUNDATIONS-MAPPING-THE-FIELD.
  • Diana Wierbicki & Kenley Stark, An Artist’s Estate Challenge, Wealth Management (Dec. 18, 2019), https://www.wealthmanagement.com/estate-planning/artist-s-estate-challenge.
  • Emily Lanza, In the Eye of the Beholder: Appraisals of Art for Estate Tax Liability, Ctr. for Art Law (May 19, 2017), https://itsartlaw.org/2017/05/19/in-the-eye-of-the-beholder-appraisals-of-art-for-estate-tax-liability/.
  • Gaspard Sebag, Dead Art Billionaire’s Son Cleared in French Tax Fraud Case, Wealth Management (Jan. 12, 2017), https://www.wealthmanagement.com/high-net-worth/dead-art-billionaire-s-son-cleared-french-tax-fraud-case.
  • Genista Jurgens, What Will Happen to Your Art After You Die?, FORMAT (Jul. 10, 2017), https://www.format.com/magazine/resources/art/planning-your-estate-an-artists-guide/.
  • Nicole Martinez, Estate Planning for Artists and Collectors, artrepreneur (Jan. 28, 2021), https://artrepreneur.com/journal/artbusiness/estate-planning-artists-collectors/.
  • Patterson Sims, Hands On: Working with Artist-Endowed Foundations and Trusts, The Brooklyn Rail (Dec. 2018 – Jan. 2019), https://brooklynrail.org/2018/12/criticspage/Working-with-Artist-Endowed-Foundations-and-Trusts
  • Rachel Middleman & Alla Efimova, Preserving Artists’ Estates: A Professional Perspective, 76 Art J. 116 (2017).
  • Ralph Lerner, Valuing Works of Art for Tax Purposes, 28 Real Prop., Prob. and Tr. J. 593 (2012).
  • Sara Osinski, Case Review: Meaders v. Helwaser (2020), Ctr. for Art Law (Aug. 18, 2020), https://itsartlaw.org/2020/08/18/case-review-meaders-v-helwaser-2020/.
  • Susan Lyons, Tax Breaks for Artists’ Heirs, 6 ART & L. 24 (1980).
  • Taylor Barje, Case Review: Is There HOPE for the Estate of Robert Indiana?, Ctr. for Art Law (Jun. 9, 2020), https://itsartlaw.org/2020/06/09/case-review-is-there-hope-for-the-estate-of-robert-indiana/.
  • W.E. Scott et al., Estate planning for artists: will your art survive?, 21 Colum-VLA JL & Arts 15 (1996).
• Videos:
  • What is Legacy Planning?: A Legal Perspective, R.B. Kitaj Studio Project (Apr. 6, 2021).
• Podcasts:
  • Hrag Vetanian, What Should Artists Do With Their Work After They Die?, Hyperallergic Podcast (Apr. 18, 2019).
• Sample Artist Trusts:
  • Edward Gorey Charitable Trust
  • Renate, Hans, and Maria Hofmann Trust
  • William S. Dutterer: Dutterer Trust

About the Author: Nikki Vafai is a law student at the University of Maryland Carey School of Law and holds a B.A. in International Affairs and Art History from the George Washington University. Nikki served as a 2022 fall legal intern at the Center for Art Law.

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By Hanna Tudor

“I have this dream my daughter-in-law kills me for the money

She thinks I left them in the will,

The family gathers ’round and reads it

And then someone screams out

“She’s laughing up at us from hell!”…”

~Taylor Swift, from “Anti-Hero” (2022)

In Taylor Swift’s 2022 track and visual “Anti-Hero”, the viewer is invited to the artist’s deepest intrusive thoughts and fears as viewers are taken to her “funeral” while she sings of her heirs reading her will. While Swift’s slightly satirical, but very real nightmarish skit is a fun play on the artist’s personal fears within inheritance and wills, her point poses an interesting question. But in all seriousness, what happens to artist’s estates, copyrights, and originals when they die?

The subject of inheritance continues to be a focal point in many artists’ legacies. Family feuds, severed ties, and convoluted legacies can often end as a result. While we see these stories take shape globally from Picasso to Rothko, the artist and children’s book illustrator Tasha Tudor (Aug 28, 1918 – June 18, 2008) specifically comes to mind as her legacy was built on the foundation of family and the peaceful whims of a cottage-core lifestyle.

Tasha Tudor – Select Biography and Works

Tasha Tudor was born and raised in New England, a location that set the stage for playful imaginative children’s book stories with beautiful sceneries inspired by living in the countryside. She began her work with stories like “Pumpkin Moonshine” and eventually went on to illustrate popular novels such as The Secret Garden and The Little Princess by Frances Hodges Burnett. Her works of art carried a whimsical air that continued into over one hundred of her published illustrations. She also found other mediums to curate this idealistic imaginative lifestyle into her reality specifically through her motherhood and raising her family. Many of the magazines and stories she created were based on the reality of her own life she created in her home and with her children. From marionette shows, to holiday festivities, this lifestyle was ingrained into not only her art, but her everyday being.

Tasha Tudor’s legacy and brand was built off of the idea of childhood, love of nature, and homemade living. She always thought of creative ways to entertain her family, even designing several small magazines where her children could buy clothing items and other things by trading buttons as money. Many of the illustrations also drew from personal memories such as pushing a flowered cake down the creek for birthday celebrations. While her and her family of five grew up with the animals on the farm, making homemade recipes, and living the naturist lifestyle she curated, she eventually translated all of these collective works through her illustrations, cookbook, fan magazines (Take Joy!), documentaries, and the Corgiville world. She brought her home to life for her fans as she toured and released monthly articles that inspired those around the world with her way of living.

The Case: Estate and Family Feuds

While Tasha Tudor’s literary and visual world evoked a charming and harmonious imagery, the later years of her family’s everyday life and connection to her saw otherwise. In 2008, after the artist’s death at the age of 92 in Marlboro, Vermont, questions arose over the ownership of her art and the $2-million-dollar estate that was originally built by her two sons, Thomas and Seth Tudor. This began a relentless dispute between her four children. Her eldest son, main caretaker, and the current director of the majority of her lifestyle and artwork record keeping, Seth Tudor, inherited a large portion of her original artwork and copyrights, as well as her estate, while the remaining children were “disinherited.” $1,000 USD was given to both of her daughters, Efner and Bethany Tudor, and a vintage highboy was given to her youngest son, Thomas Tudor. ^{While the original will in 2001 divided up all her works, originals, and properties between her sons and her grandson, the amended will in 2002 left most of the estate and copyrights to her son Seth.}

Her second son Thomas Tudor noticed changes in his mother’s will, he contested these changes in court, claiming his older brother Seth Tudor unduly influenced their elderly mother in her later years. The defense argued that the will was just and fair, having only been changed due to disinheritance. Thomas Tudor rebutted, noting key witnesses from his sisters to a close friend of Tasha Tudor’s argued that communication to reach Tasha Tudor had been cut off and that Seth was profiting off her legacy. ^{The suit lasted for two years and was meant to be directed to a Probate Court Trial in Vermont, but in turn eventually led to a private settlement. Thomas Tudor drew objections from the will and estate after the settlement and a judge-ordered division of Tasha Tudor’s ashes were cut in half between family members. Currently, Seth Tudor and his family continue to run the estate as a museum and integrate her legacy and lifestyle through their own life in order to promote her world.}

How to Protect and Plan for Estate and Copyright

While this family-filled estate drama seems intensely specific, it is a very common occurrence amongst artists. Although family feuds often go much deeper than the division of an estate, there are some important preventative steps to conflict and ways that artists can continue to cultivate their legacy. While settlements are the “ideal” case in terms of legal battles and family affairs, cases do not always end in this way. During will planning, artists may want to consult lawyers, such as estate lawyer Matthew Erskine, on both how to create more clarity so as to avoid feuds in the planning process and how to clearly manage the legacy of the artist after their death. In an interview conducted with Matthe Erskine, on Tuesday October, 11, 2022, Erskine provided important advice on beneficial ways to navigate this common issue, it is necessary to prepare and meet with a lawyer who can help organize and map out the process of copyright and estate transfer in order to minimize contention between family members, organizations, and other actors such as gallerists. He also suggests considering a transfer of the originals and copyrights by forming a publishing company with a Limited Liability Company (LLC) in order to avoid complicated and lengthy bureaucratic processes. This allows beneficiaries to pool resources to manage, assign shares in the company, and access certain royalties that one gets as the publisher. Artists should never contract away their intellectual property, moral rights, or copyrights. ^{While these copyrights can be licensed, they cannot be transferred unless noted so in the will. “Copyrights may also be bequeathed by will in whole or in part and may pass as personal property by applicable laws of intestate succession”.}

This calls into question one of the next important measures that Erskine mentioned, which is archival procedure and ensuring that all pieces are preserved and possible making them more available to the public. As families inherit copyrights or estates, some things to consider with both the archival processes and preservational work is to reach out to museums, galleries, or large archival institutions such as the library of congress in order to bring light to the works of art. ^{Archival procedures become key to the maintenance of the artist’s legacy. As we are deep in the digitized era and metaverses, it is important for artists to find organized ways to record, keep, and memorialize their work digitally. While the process of archiving and organizing can be daunting in an artist’s life work, it is this procedure that can prevent fallout. Resources such as the Center of Art Law’s Artist Legacy Clinic can be helpful in this aspect of estate and copyright planning. Especially in a time where art is often considered in digital spaces and re-molding through this element, it is important that artists ensure their legacy remains how they wish it to be represented to the best of their abilities through thorough copyright and estate planning.}

Conclusion

Family feuds and relations will always be a particularly tender subject that adds an extra layer to will and estate planning. As Taylor Swift mentions in her song “Anti-Hero”, this can be a recurring and very real nightmare. While this process can be very layered and complex, there are nuanced and effective ways for artists to organize and archive this process. It is always in the artist’s best interest to seek professional advice as soon as possible to both archive and protect the legacy of the work. When an artist dies, the will is what remains of the legacy; In order to protect this, turning to a professional can help guide an artist through the many obstacles or legalese, complicated legislation, state specific and global specific statues, as well as convoluted familial affairs. Through the work of lawyers and programs such as the Artist Legacy Clinic here at our center, provide a great first step in maintaining legacy and planning for the future. It is the work of art professionals generally that secure the wishes of artists while they are still living, thus preserving their interests well before their passing. In doing so, artists will have no need to worry about those dreading nightmares of family fights breaking out over the will becoming reality. Ironclad estate planning and legacy protection will create the clarity and transparency needed to keep the art alive and well for years to come.

SUGGESTED RESOURCES

ABOUT THE AUTHOR

Hanna Tudor is currently in graduate school at New York University studying Art Politics and Public Policy. She majored in Art History & Visual Culture as well as Political Science, which drew her towards the field of Art Law. She is the granddaughter of the artist mentioned, Tasha Tudor. A majority of this article is first hand information, but any additional information will be listed above and in suggested readings. Her love for art law is centered on its ability to strengthen artist voices and create bridges to protect those who are vulnerable to the institutions that attack certain salient rights to creative expression and cultural heritage

1. The author of this article is the granddaughter of Artist mentioned, Tasha Tudor ↑
2. Curren, John. “Sons of VT. Author Settle Over Her $2 Million Dollar Estate”, BOSTON.COM, Nov. 9, 2010, accessed. http://archive.boston.com/news/local/vermont/articles/2010/11/09/sons_of_vt_author_settle_fight_over_her_2m_estate/ ↑

3. “Tasha Tudor’s Heirs Squabble Over Will”, CBS NEWS, Feb. 22, 2010, accessed https://www.cbsnews.com/news/tasha-tudors-heirs-squabble-over-will/ ↑

4. Ibid. ↑
5. Office, U.S. Copyright. “Fair Use (FAQ): U.S. Copyright Office.” Fair Use (FAQ) | U.S. Copyright Office. Accessed January 12, 2023. https://www.copyright.gov/help/faq/faq-fairuse.html. ↑

6. “Transfer Copyright Ownership.” Copyright Alliance, June 30, 2022. https://copyrightalliance.org/education/copyright-law-explained/copyright-transfers/transfer-copyright-ownership/#:~:text=Rights%20can%20be%20transferred%20by,applicable%20laws%20of%20intestate%20succession. ↑

7. Bart. “Archives Preservation – Copyright.” CopyrightUser, April 25, 2020. https://www.copyrightuser.org/educate/intermediaries/archives/. ↑

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By Atreya Mathur

“By far, the greatest danger of Artificial Intelligence is that people conclude too early that they understand it.” —Eliezer Yudkowsky

Again and again, artificial intelligence (AI) has demonstrated its sheer power to create and tell stories by making visual art, writing poems, code, composing music, and even testing astrological compatibility. ^{Or has it? AI seems to be (machine) learning and doing it all—perhaps, it has taken a step even further to play a little on the human psyche and create “magic avatars” envisaging who one may want to be. If one has ever imagined what they might look like if they were Monet’s or Van Gogh’s muse or if they were animated by artists from Disney or Pixar— AI has got it covered. Now, one can get stunning portraits of all these and many more at the low cost of $10 and likely a few morals here and there — if one is willing to ignore some major ethical red flags (as tempting as that may be…) as well as concerning legal and privacy issues.}

In the recent past, AI-generated art has become increasingly ubiquitous owing to the quick turnaround time and detailed prompts to collaborate and create artwork. With the accelerated rate of improvement and enhanced neural networks, AI is becoming more talented, more quickly. AI software (or the people behind the code) like DALL.E 2 among others, is now being accused of stealing artists’ protected works without consent to generate “new” images. ^{Only days after South Korean illustrator Kim Jung Gi passed away (October 3, 2022), his work was fed into an AI model and reproduced. A 34-year-old Polish artist, Greg Rutkowski also stated that AI models should exclude the work of living artists after learning thousands of AI-generated images were copying his fantasy style and the fact that his name was searched over 93,000 times while the images were being produced. Lensa’s “magic avatars” is one such AI model that is being accused of copying artists’ work to create “magic avatars” or AI-generated portraits. Lensa’s magic avatars grant instant gratification to those who want to see themselves exactly as they desire, making it an instant darling of the digitally savvy… while possibly/probably referring to works of real artists’ and our contemporaries’ styles, leading living artists and artists’ estates to ask for accountability.}

Screenshot of the download window for Lensa AI on the iOS App Store

What is Lensa?

Launched in 2018, Lensa is a product of Prisma Labs — a company based in Sunnyvale, California that recently topped the iOS app store’s free chart. Though it was created in 2018, the application did not become popular until Prisma Labs introduced its “magic avatar” feature in 2022. ^{Lensa uses artificial intelligence to digitize and generate users’ portraits in a variety of categories, from anime to fantasy to what they call “stylish” which most closely resembles an oil painting. The app itself is free, but the portraits require an in-app purchase. With a seven-day “free trial,” users can upload 10 to 20 selfies and then select a package of unique avatars, ranging from 50 for $3.99, 100 for $5.99, or 200 for $7.99. A year-long subscription is $35.99.}

How does AI create the avatars?

To create “magic avatars” Lensa uses Stable Diffusion, an open-source AI deep learning model, which draws from a database of art scraped from the internet. ^{Stable Diffusion has been around since 2020 and was founded by Emad Mostaque but released to the public only in August 2022. Stable Diffusion draws from a database called LAION-5B, which includes 5.85 billion image-text pairs, filtered by a neural network called CLIP ( also open-source). Other recent applications to now employ Stable Diffusion include Canva. An independent analysis was conducted by researchers and tech experts Andy Baio and Simon Willison, where they explored 12 million images used to train Stable Diffusion and found out the websites where it pulled images from, along with the artists, famous faces, and fictional characters found in the data. They employed Willison’s Datasette project to make a data browser to explore the images and traced the origins to platforms like Blogspot, Flickr, DeviantArt, Wikimedia, and Pinterest. Pinterest, of which is the source of roughly half of the collection. This essentially implies that the AI has been trained on unadulterated internet images with minimal filters and restrictions, and that have been taken from across the internet regardless of whether they are copyright protected works of other artists or not. Stability AI, the company that funds and disseminates the Stable Diffusion software removed “illegal content” from Stable Diffusion’s training data, including child sexual abuse material. Additional changes to their policies were also made in late 2022 to make it harder for Stable Diffusion to generate certain types of images that include nude and pornographic output, photorealistic pictures of celebrities, and images that mimic the artwork of specific artists such as the case of Greg Rutkowski. But who makes these decisions as to which artists are fair game and which are off limits? Perhaps it should not be AI…}

What makes the avatars so “magical”?

Unlike other filters or photo-editing applications to edit or modify photos, Lensa generates images that do not necessarily look “real,” but rather lean into a new kind of photo distortion rooted in its other-worldliness and dreams. ^{The application requires a minimum of 10 photos (with a maximum of 20) and demonstrates examples of “good” and “bad” selections of “selfies” to upload. A good selection is an up-close selfie that showcases natural features while a bad selection is a distanced pose, or a group photo. There are explicit instructions to not upload any group photos or photos with any sort of nudity. (It does seem concerning to note that while no images are uploaded with nudity, the AI generated images contain nudity…) After the photos are selected, the application takes up to 20 minutes to generate the portraits in 10 styles: fantasy, fairy princess (or prince), focus, pop, stylish, anime, light, kawaii, iridescent, and cosmic.}

The “portraits” have a striking similarity to the user of the application, but there is something both dream-like and dystopian in the similarities and differences of the output. ^{As an example below, Lensa accurately captured the user’s dark hair with bangs and brown eyes. What was most unsettling was the accuracy with which it captured the user’s “winged eyeliner,” red lips and somewhat closed-mouth smile that was present in many photos and is present in real life. The differences whether in terms of length of hair or the clothes or poses were also deliberate as to imagine something of a fantasy.}

LensaAI generated “magic avatars”

Ethical, moral and legal concerns

Some of these are simply fun and whimsical. But you can probably also imagine how easily this technology could be used to create deepfakes or pornography, whether or not you have permission to use someone else’s images. ^{As a means of prevention, Prisma Labs highlighted that if one specifically tries to provoke the AI into generating NSFW (not suitable for work) images, it might, but that it is implementing filters to prevent this from happening accidentally. Users are on the notice that the “Terms of Use (Clause 6) and Stability AI Terms of Service (Prompt Guidelines) explicitly prohibit the use of the tool to engage in any harmful or harassing behavior. Generation and wide usage of such content may incur legal actions, as both the US and the UK regard an act of sharing of explicit content and imagery generated without consent as a crime.” Lensa provides guidelines that stipulate image requirements, and the use of any explicit depictions is strictly prohibited. They also state that they expect the app’s users to follow the guidelines to receive the best possible results.” Prisma Labs also “launched a new safety layer” that was “aimed at tackling unwanted NSFW content.”}

While millions of users around the world began generating and falling in love with their vanity… and narcissus-like magic avatars, concerns grew within the artist communities online. Not only were these AI-generated portraits taking away commission opportunities for digital artists, but some of those artists’ who rely on commissions of artworks were being used to train the AI model that generated them, and often without their permission.

Screenshot of tweets by Prisma Labs

A number of artists who spoke out against Lensa, including Jon Lam who stated that “Lensa uses Stable Diffusion which is still using Datasets from stolen data and art all over the internet. This is how it knows how to mimic art styles. It’s unethical, and Big Tech is behind this ripping off artists everywhere for $8 a pop. This is what normalizing data/art thievery looks like. It’s malicious apps disguised as fun trends. If you are an artist, or truly appreciate us, Stop messing with this.” ^{Digital artist Meg Rae posted a warning stating “Do not use the Lensa app’s ‘Magic Avatar’ generator. It uses Stable Diffusion, an AI art model, to sample artwork from artists that never consented to their work being used. This is art theft.”}

As mentioned earlier, Lensa does employ a copy of the open-source neural network model Stable Diffusion to train its AI. This means anyone has access to the open source data without any restrictions. The model taps into a pool of billions of images from all corners of the internet, which are compiled into a dataset called LAION-5B. Stable Diffusion then uses these images to learn techniques that it applies to generate new works, which Lensa claims “are not replicas of any particular artist’s artwork.” ^{While this is ethically dubious, the copyright law regarding these datasets is still murky. LAION’s website states that the datasets are simply indexes to the internet, i.e. lists of URLs to the original images together with the ALT texts found linked to those images. While LAION downloaded and calculated CLIP embeddings of the pictures to compute similarity scores between pictures and texts, they subsequently discarded all the photos. This means that because the datasets only contain URLs of images, they serve as indexes to the internet, which do not violate copyright law. It may be interesting to compare this to the US Court of Appeals decision stating that Google’s creation and display of thumbnail images does not infringe copyright and that Google was not responsible for the copyright violations of other sites which it frames and links to. The rationale was that Google does not store the images; its own page simply provides HTML instructions that direct a user’s browser to access and display a third-party website. Scraping public images from the internet, even copyrighted ones, to create something transformative would likely be fair use and be a defense against copyright infringement but only if the copyright infringement was levied against a human-made image not something created by a machine. In fact, the images generated are not copyright protected until the human authorship can be proved in the magic avatars. In addition, the open-source nature of Stable Diffusion means that any copyright infringement is the end-user’s responsibility. Even if AI art can clear these legal obstacles, the ethics are of course still deeply concerning.}

Lensa’s app has been trained on artwork created and posted by artists across the internet, and some artists claim this not only devalues their own work by AI mass producing 50-100 images at a fraction of the cost of a commission, but it is also potentially appropriating their work, including their signature. ^{Artists and others pointed out that in the AI-generated images one could see the mangled fragments of the artists original signatures in the corners of the portraits, as seen in the images below. Arguments were made against the same as well, stating that this is not what the “signatures” were. “This is the AI noticing that its training dataset always has signatures and reproducing that element.” One person pointed out that it was “entirely possible that these are watermarks from photography studios, which would be more likely since people are seeding this AI with photos” while another reiterated that “copyright applies just as much to photos as it does to drawings and paintings” and regardless this work could be infringing an artist’s rights. Another commented stating that the worst part is that “future updates can be tweaked to avoid this.” It is interesting to think back to a simple rule-of-thumb jest attributed to Bob Oliver, “if you steal from one man, it’s plagiarism. If you steal from several, it’s research.” And who is better at doing research than a machine processor capable of processing hundreds of thousands of images. Is this theft? or is it simply “research” to create something new?}

Screenshot of tweets by Lauryn Ipsum with signature fragments of artists on LensaAI generated “magic avatars”

Example of an AI-generated “magic avatar” with fragmented signature of artist on the top left

Artists in online communities like DeviantArt, which produce the kind of art that Lensa refers to, usually self-regulate. ^{If someone posts art that looks like another artist’s work, that person is usually criticized for copying and ostracized from the community. But it’s more difficult to attribute responsibility when an algorithm generates the artwork. As of now, original artists are not receiving any payment from Lensa for the use of any images. And concerningly, if people become accustomed to paying so little for so many portraits, it may be a challenge for artists to produce artwork and be paid their dues for the same. Who can compete with machine making seemingly intricate portraits?! Is this the dawn of the new prete-a-…. fashion? the ultimate Vanitas?}

In December 2022, a digital artist named Ben Moran tweeted that moderators of r/Art (a 22 million member art forum on Reddit) banned Moran from the subreddit for breaking their “no AI art” rule. ^{Moran had posted an image of their digital illustration, titled “a muse in warzone,” and moderators removed it and banned them from the subreddit stating it was an AI design or generated piece. Moran responded that they could provide a process or the PSD file of that painting to prove that Moran was the artist and that they were not using any AI-supported technology. Moran further stated that the punishment was “not right” and provided a link to their portfolio on DeviantArt. A moderator for r/art replied that they did not believe him and “Even if you did ‘paint’ it yourself, it’s so obviously an Al-prompted design that it doesn’t matter. If you really are a ‘serious’ artist, then you need to find a different style, because A) no one is going to believe when you say it’s not Al, and B) the AI can do better in seconds what might take you hours. Sorry, it’s the way of the world.” Moran’s response to this was that “Being accused of being an AI artwork is just like telling me that I’m a random guy and all of my job is just typing some words to have a painting in one or two hours. I think it’s not a good comparison.” Since AI is churning out artwork at a fraction of the time and cost and websites are (with good intention) trying to ban AI works on art websites to protect artists, who is able to differentiate between AI artwork and human produced work like in the case of Moran? Are human artists being reprimanded and devalued for work they have been creating long before AI?}

In addition to potential deep fakes, art theft and copyright infringement, the AI applications could also infringe privacy rights. Eager first-movers, sign away significant rights when the terms and conditions necessary to use the application are accepted. Users might just want to use the app to create a new profile picture, but Lensa’s original privacy policy allowed the company to use their “face data” to train their AI algorithm further. The user agreement stated that the user grants Lensa a perpetual, revocable, nonexclusive, royalty-free, worldwide, fully-paid, transferable, sub-licensable license to use, reproduce, modify, adapt, translate, create derivative works from and transfer the user content, without any additional compensation and always subject to additional explicitly consent for such use where required by applicable law and as stated in their privacy policy. In Prisma’s terms and conditions, separate to the privacy policy, the company also declares that the user retains all rights in and to the content but immediately deploys something here known as a “Company License,” “for the limited purpose of operating, developing, providing and improving Prisma and researching, developing and improving” their existing and new products. By using the product, the user grants this license to the company. This means that one is purchasing the portraits and essentially allowing the company to use the AI-generated image– and there is likely not much that can be done about it if it is incorporated into a digital advertisement or if used on a porn site.

The updated privacy policy for the app clarifies how user data is used to train the company’s AI. Lensa’s previous policy (dated June 6 2022 and November 14, 2022) stated the app uses uploaded photos and videos to train its algorithms to perform better, but the latest version (dated December 15, 2022) explains that no personal data is used to generally train Prisma Labs’ other artificial intelligence products. The app’s privacy policy was updated to “provide a higher degree of clarity to our customers, specifically when it comes to the use and understanding of legal language and terminology.”

Additionally, the updated policy provides more detail on privacy rights for residents of California, Colorado, Connecticut, Utah, and Virginia—the only five states with comprehensive privacy laws, some of which go into effect in the new year. ^{For example, users in those states can request information about what user data is collected and to have it deleted. The legal team at Prisma Labs decided to add the state-specific section for the benefit of its core user base and after conducting a review of soon-to-be required legal notices.}

Apart from the usage of machine generated images, since the application employs facial recognition to generate the portraits, the question lingers as to how long and where the original photos are ultimately stored. According to the applications’ previous privacy policy, it used “TrueDepth API technology” and user photos to “train” the algorithms to perform better and show better results.” FaceTune, another application used for editing photos faced a class action lawsuit in Illinois claiming that the app illegally collects, stores and uses consumer data as a violation of the Illinois Biometric Information Privacy Act (BIPA), which is pending. ^{While Lensa maintains its privacy promise, there is a lot that remains unknown. As for the somewhat ethical and psychological concerns posed by such photo-editing apps, legal action might be tricky, as the app inherently involves visual distortion.}

Finally, while users may or may not own the rights to the photos generated by “magic avatar,” individuals may still have a right of publicity. The right to publicity prevents someone’s likeness, including their image, from being used commercially without permission. ^{By granting rights to images through these applications a user could end up seeing their face on the developer’s website or marketing materials without granting explicit permission.}

Screenshot of tweets of Prisma Labs

Conclusion

The issue with artificial intelligence is that there really seems to be no precedence… yet. (No doubt that in time there may be more lawsuits and complaints to peruse through!) AI is doing more than we know and a majority of it remains unregulated. There are no laws that strictly lay down any standards for ownership of work or liability and accountability of actions. Terms and conditions, privacy policies and good practices assist in ensuring that there are some standards followed and that basic violations of privacy do not go ungoverned but they can be vague and riddled with loopholes. It is important to note that one cannot copyright a “style” of work, only a piece of work itself. If the AI-produced work is ‘transformed enough’ from any original source input, it will be challenging for an artist to claim infringement. However, if the AI work is substantially similar to any artists’ prior work or that it appears to be copied, then infringement may be present and legal remedies would likely be available. “Theft” of art work through machine learning at least at this point seems to lack legal backing though ethical considerations must be taken into account. While the law does not prohibit sampling work to transform it (like using the fair use doctrine), is it moral to continue engaging with AI models to purchase mass produced and cheap art? Or are different “fair use” standards required for AI generated artwork?

Will AI artwork ever truly replace traditional art or the work of digital artists? While it may be relatively simple to make an artwork that looks aesthetic enough using AI, it is still difficult to create a very specific work regardless of detailed text-prompts, with a specific subject and context. So while apps like Lensa may be fun and trendy in the short run, the personality of the artist remains an important context for their work especially if commissioned. It is interesting to think of whether Lensa or similar apps could replace the market. Would a person who wants to purchase a high quality commissioned portrait rather employ a human artist or would they choose AI? It seems unlikely that AI would carry the same prestige or value but it remains challenging for artists who feel increasingly ripped-off.

As of now, behind all the AI software(s) is a human-run company which can be held accountable and liable for violation of any laws. At a minimum, perhaps these companies should seek informed consent for the data that they use to train their machine learning algorithms as the artworks are not public property just because they may be publicly available online.

Read more: What else is AI upto these days?

Screenshots from the Co-Star App

Co-Star: AI is now being used to chart out astrological stars and predict compatibility. After one inputs their information, including their place and time of birth, Co-star gives detailed daily readings as well as compares the user’s astrological charts with friends on the application to guide relationships. While access to most information is free, for more detailed readings one can make an “offer” of a certain sum of money from $1 – $20 to receive the full and “complex” reading. See more here: https://www.costarastrology.com/

Images generated on DALL•E 2 using text prompt: oil painting of a robot holding a paintbrush and painting a portrait

DALL•E 2: AI art platform creates images from text descriptions in seconds. One can input a detailed text prompt for which an image is generated. 50 credits are allotted to a user per month to generate a number of images at no cost. The app is available for $36 and bypasses hefty legal fees usually charged by lawyers. See more here: https://openai.com/dall-e-2/

DoNotPay: An artificial intelligence bot is set to defend a human in court for the first time ever in February 2023. The world’s first robot lawyer will help a defendant fight a traffic ticket in court. The Artificial Intelligence (AI) bot developed by DoNotPay will run on the defendant’s smartphone. It will listen to court arguments in real time and advise the defendant on what to say via an earpiece.The defendant will only say what the AI instructs them to say in court. To use the service, one has to input basic information about a specific legal issue and the information will be processed using AI to generate a legal document tailored to those specialized needs. DoNotPay was initially developed to help people contest parking tickets in London. Since its launch in 2015 where it was initially a chatbot, it has expanded to cover a variety of legal issues. See more here: https://donotpay.com/

Suggested Readings

• Atreya Mathur, Art-istic or Art-ificial? Ownership and copyright concerns in AI-generated artwork, Center for Art Law (November 2022), available at https://itsartlaw.org/2022/11/21/artistic-or-artificial-ai/
• Haje Jan Kamps, UPDATED: It’s way too easy to trick Lensa AI into making NSFW images, TechCrunch (December 2022), available at https://techcrunch.com/2022/12/06/lensa-goes-nsfw/
• Hillary K. Grigonis, New AI Apps Raise Questions About Copyright and More, Rangefinder (December 2022), available at https://www.rangefinderonline.com/news-features/industry-news/new-ai-apps-raise-questions-about-copyright/
• Madeline Garfinkle, What is Lensa AI? And Does it Pose Privacy and Ethical Concerns?, Entrepreneur (December 2022), available at https://www.entrepreneur.com/business-news/what-is-lensa-ai-app-and-is-it-dangerous-for-your/441148#:~:text=Lensa%20uses%20artificial%20intelligence%20to,portraits%20come%20at%20a%20cost
• Nicolas Clark, Lensa’s viral AI art creations were bound to hypersexualize users, Polygon (December 2022), available at https://www.polygon.com/23513386/ai-art-lensa-magic-avatars-artificial-intelligence-explained-stable-diffusion

About the Author

Atreya Mathur is the Director of Legal Research at the Center for Art Law. She was the inaugural Judith Bresler Fellow at the Center (2021-22) and earned her Master of Laws from New York University’s School of Law where she specialized in Competition, Innovation, and Information Laws, with a focus on copyright, intellectual property, and art law.

Related

By KimberMarie Faircloth

At the intersection of politics and culture there is usually a robust repelling force keeping the two from fully understanding one another. This force is made up of partisan policies, modern-day climate concerns, and economic issues all mingling with vestiges of history. On November 15, 2021, a long running conflict was brought to a head when a proposal for enacting a 20-year moratorium on oil and gas drilling around Chaco Culture National Historical Park (Chaco) was announced. ^{Advocates who have been working for such a ban for decades cheered while opponents grumbled. At the center of the issue is a cultural landmark with a birthdate of approximately 850 A.D., outlasting either side of the current debate.}

To understand the importance of such a proposal by the Biden Administration, the importance of Chaco must initially be understood. This article will briefly attempt to first explain the history and cultural significance of the historic park and then summarize the legislative build-up to the current moratorium as well as what it actually calls for. Finally, a short synopsis will be provided looking at the reasoning behind both the proponents and opponents of the drilling ban and buffer. From a birds-eye view, this is an attempt to better understand the various influences affecting policies which aim to protect the integrity of cultural heritage.

What is Chaco Culture National Historical Park and Why Does It Matter?

Chaco refers to a southwestern United States’ cultural complex containing over 4,000 archaeological sites on the Colorado plateau of the San Juan Basin in New Mexico. ^{It was designated as a World Heritage Site by UNESCO for its “monumental public and ceremonial buildings and architecture,” the remarkability of which is due to the level of preservation maintained in such a climatically harsh geographic area as well as the level of craftsmanship by the creators. These sites are associated with Paleo-Indian, ancestral Puebloans, Navajo, and Euro-American interactions and occupations.}

In 1907, Chaco became a national park after President Theodore Roosevelt signed the Antiquities Act of 1906. ^{In fact, it was Chaco that initiated the enactment of such legislation due to the damage being done to it at that time which alarmed archaeologists. Such an enactment granted the park federal protection in preserving Chaco’s “extensive cultural system,” which included landscaping and architecture oriented “in accordance with solar, lunar, and cardinal directions potentially to capture the various solar and lunar cycles.”}

If one still wonders what exactly makes Chaco so important, beyond its historical and cultural significance mentioned previously, it remains a sacred site for Native Americans to this day. ^{The descendants of those who inhabited Chaco are the modern-day Hopi, Pueblo peoples of New Mexico, and the Navajo. According to President of the Navajo Nation Russell Begaye, in a 2017 press release, “We are descendants from the Chaco Canyon area. We are connected to these lands spiritually. The voices of our ancestors live in this area and any disturbance to this area is culturally and morally insensitive.”}

What is the 20-year moratorium on oil and gas drilling around Chaco?

To understand the moratorium that has been proposed is to understand the years of advocacy and push-back that led up to its inception. In 2018, the former Secretary of the Interior Ryan Zinke delayed a lease proposal in an attempt to protect 4,000 acres of Chaco while requesting that more cultural research on the land take place. ^{Zinke’s efforts were made moot when the Trump Administration approved leases for drilling to take place on 2,300 oil and gas wells. This action was subsequently followed by Congress enacting a moratorium for a one-year period on drilling. Any further efforts by Congress to create a permanent barrier around Chaco via legislation failed, but hope was restored in the new Department of the Interior’s Secretary Deb Haaland and her position’s authority to create such a barrier granted by the 1976 Federal Land Planning and Management Act.}

Finally, at the White House Tribal Nations Summit of last year, President Biden and Secretary Haaland introduced the executive order that would, in theory, put into action the long sought after moratorium. The goal of the summit was to provide “an opportunity for the President and senior leaders from his administration to meet with tribal leaders and engage in Nation-to-Nation dialogue on critical issues in Indian Country.” ^{This executive order by President Biden would direct the Bureau of Land Management (BLM) to begin protecting the federally owned lands within the 10-mile radius around Chaco from future oil and gas drilling. The Biden Administration summarized the efforts to protect Chaco in the Summit’s Progress Report published by the White House:}

“For the past decade, Pueblos and Tribes in Arizona and New Mexico have raised concerns about encroaching oil and gas development threatening sacred and cultural sites, and Congress has passed a series of actions to temporarily defer new leasing. In the coming weeks, the Department of the Interior will initiate consideration of a 20-year withdrawal of federal lands within a 10-mile radius around Chaco Culture National Historical Park, protecting the area from new federal oil and gas leasing and development. The proposed withdrawal will not apply to Individual Indian Allotments or to minerals within the area owned by private, state, and Tribal entities. The action will also not impose restrictions on other developments, such as roads, water lines, transmission lines, or buildings. To support conservation of the area, the State of New Mexico Land Office has implemented a moratorium on new state mineral leases within a 10-mile radius of Chaco Culture National Historical Park.”

The proposal will be subject to a public comment period, environmental analysis, and formal tribal consultation during the first two years of the moratorium on creating new oil and gas drilling leases in the 10-mile buffer around Chaco. ^{This concern over protecting Chaco follows President Biden’s administration’s restoration and expansion of protections over other culturally important parks such as the Bears Ear National Monument and the Grand Staircase-Escalante, both of which are located in Utah.}

Who are the opposing teams in support of and opposing the ban?

For those in support of the moratorium, the cultural, historic, and environmental significance of preserving the park is obvious. ^{Fracking has been and continues to be a controversial method for extracting natural gas from the earth. In regards to Chaco, the main concern is that drilling could cause beyond-the-surface damage, destabilize underground structures, and potentially cause earthquakes underneath important Chaco architecture.}

Yet, for the opposing side, concerns of arbitrary political maneuvering and a lack of accurate tribal representation outweighs the need for such a buffer zone around Chaco. ^{In regards to the amount of land being protected in the buffer zone, Robert McEntyre, New Mexico’s Oil and Gas Association representative, questioned the “arbitrary limits on development in the region [which] will only disrupt the largest and most successful part of New Mexico’s economy. Other concerns expressed by figures such as Bruce Westerman, a representative of Arizona, also focus on the economic impact of “[s]hutting down safe, reliable pipelines” and thus, “eliminating thousands of technical jobs and thwarting energy development at every turn…”}

Those somewhere in between supporting the proposal and opposing it question whether the ban itself will have any effect on actually protecting Chaco and if it is too late already. ^{“[I]n 2014, NASA satellites detected clouds of methane gas from thousands of leaking wells and pipelines” in the area along with approximately 30,000 inactive wells from drilling in the area that “will never be plugged and reclaimed.”}

Beyond just being concerned with the physical effect on Chaco, there is an equally, if not greater, alarming factor involved: lack of tribal representation and consultation. ^{The Navajo Nation ultimately withdrew their support of the proposed moratorium since it would also take away their agency to lease their lands as they see fit. This is yet another move by the federal government, in a long line of moves regarding tribal lands, done without thorough consideration of tribal voices. A press release from the 24th Navajo Nation Council stated their position:}

The Biden Administration bypassed previous requests to Congress for field hearings and for leaders to hear directly from our Navajo families affected in the Chaco Canyon region. The position of the Navajo National Council is for the creation of a 5-mile buffer within and around this sacred site. It is important that the federal government consider and work with our Navajo allottees to further advance development. The Administration must respect our tribal sovereignty and what the government to government relationship entails.

Conclusion: is there a middle ground?

It is safe to say that no branch of government – nor person, ever – will create a law or policy that satisfies everyone. There is no political panacea. Yet, without such structures, a vital aspect of our democracy will crumble. It is a fact that Chaco Culture National Historical Park holds unparalleled cultural and historic value, not just for the United States but for global society as well. It is also true that sustaining economic opportunities for American citizens is important. Perhaps, then, the issue is not in choosing one over the other but in discerning the means by which we can achieve both ends. The means of which must include those directly involved and descending from Chaco ancestors: Tribal Nations. Voices of whom have been repeatedly ignored for centuries and could provide solutions that are able to strike a balance between economic and cultural priorities.

About the Author: KimberMarie Faircloth is a law student at Elon University School of Law and has a B.S. in Anthropology from the College of Charleston. KimberMarie interned for California Lawyers for the Arts this past summer, is currently a Staff Member for Vol. 16 of the Elon Law Review, and co-hosts Law School Crucible, a podcast for first-generation law students.

1. Joshua Partlow & Darryl Fears, Biden proposes 20-year drilling ban around Chaco Culture National Historic Park, a sacred tribal site. The Washington Post. (Updated Nov. 15, 2021 at 2:59 p.m.) https://www.washingtonpost.com/climate-environment/2021/11/15/chaco-canyon-drilling-biden/. ↑






2. New Mexico: Chaco Culture National Historical Park, National Park Service (last updated Aug. 7, 2017). https://www.nps.gov/articles/chaco.htm. ↑






3. Id. ↑






4. “Chaco Culture,” UNESCO World Heritage Convention, https://whc.unesco.org/en/list/353/. ↑






5. Id. ↑






6. New Mexico: Chaco Culture National Historical Park, National Park Service (last updated Aug. 7, 2017). https://www.nps.gov/articles/chaco.htm. ↑






7. Richard Moe, The Treasures of Chaco Canyon Are Threatened by Drilling, The New York Times (published Dec. 1, 2017) https://www.nytimes.com/2017/12/01/opinion/chaco-canyon-new-mexico-drilling.html. ↑






8. Id. ↑






9. New Mexico: Chaco Culture National Historical Park, National Park Service (last updated Aug. 7, 2017). https://www.nps.gov/articles/chaco.htm. ↑






10. Press Release: “OPVP Protect Chaco Canyon Region Through Collaboration with all Pueblo Council of Governors,” Office of the President and Vice President of the Navajo Nation. For immediate release (Feb. 24, 2017). http://www.navajo-nsn.gov/News%20Releases/OPVP/2017/Feb/OPVP%20PROTECT%20CHACO%20CANYON%20REGION%20THROUGH%20COLLABORATION%20WITH%20ALL%20PUEBLO%20COUNCIL%20OF%20GOVERNORS.pdf. ↑






11. New Mexico: Chaco Culture National Historical Park, National Park Service (last updated Aug. 7, 2017). https://www.nps.gov/articles/chaco.htm. ↑






12. Press Release: “OPVP Protect Chaco Canyon Region Through Collaboration with all Pueblo Council of Governors,” Office of the President and Vice President of the Navajo Nation. For immediate release (Feb. 24, 2017). http://www.navajo-nsn.gov/News%20Releases/OPVP/2017/Feb/OPVP%20PROTECT%20CHACO%20CANYON%20REGION%20THROUGH%20COLLABORATION%20WITH%20ALL%20PUEBLO%20COUNCIL%20OF%20GOVERNORS.pdf. ↑






13. Joshua Partlow & Darryl Fears, Biden proposes 20-year drilling ban around Chaco Culture National Historic Park, a sacred tribal site. The Washington Post. (Updated Nov. 15, 2021 at 2:59 p.m.) https://www.washingtonpost.com/climate-environment/2021/11/15/chaco-canyon-drilling-biden/. ↑






14. Id. ↑






15. Id. ↑






16. Bruce Babbitt, Chaco Culture National Park is under siege, Writers on the Range (Published Sep. 27^th, 2021) https://writersontherange.org/chaco-culture-national-park-is-under-siege/. ↑






17. The White House Tribal Nations Summit Progress Report, Nov. 15-16, 2021. Prepared by The Domestic Policy Council. https://www.whitehouse.gov/wp-content/uploads/2021/11/WH-Tribal-Nations-Summit-Progress-Report.pdf ↑






18. Joshua Partlow & Darryl Fears, Biden proposes 20-year drilling ban around Chaco Culture National Historic Park, a sacred tribal site. The Washington Post. (Updated Nov. 15, 2021 at 2:59 p.m.) https://www.washingtonpost.com/climate-environment/2021/11/15/chaco-canyon-drilling-biden/. ↑






19. The White House Tribal Nations Summit Progress Report, Nov. 15-16, 2021. Prepared by The Domestic Policy Council. https://www.whitehouse.gov/wp-content/uploads/2021/11/WH-Tribal-Nations-Summit-Progress-Report.pdf ↑






20. Coral Davenport, Biden to Bar New Drilling Around a Major Native American Cultural Site, The New York Times, (published Nov. 15, 2021). https://www.nytimes.com/2021/11/15/climate/biden-bans-drilling-chaco-canyon.html ↑






21. Id. ↑






22. Bruce Babbitt, Chaco Culture National Park is under siege, Writers on the Range (Published Sep. 27^th, 2021) https://writersontherange.org/chaco-culture-national-park-is-under-siege/ ↑






23. Richard Moe, The Treasures of Chaco Canyon Are Threatened by Drilling, The New York Times (published Dec. 1, 2017). https://www.nytimes.com/2017/12/01/opinion/chaco-canyon-new-mexico-drilling.html. ↑






24. Coral Davenport, Biden to Bar New Drilling Around a Major Native American Cultural Site, The New York Times, (published Nov. 15, 2021). https://www.nytimes.com/2021/11/15/climate/biden-bans-drilling-chaco-canyon.html; “Navajo Nation Opposes Withdrawal for Development Chaco Canyon, Tribal Consultation Ignored.” The 24^th Navajo Nation Council, Office of the Speaker. Press Release (Nov. 16, 2021). https://www.navajonationcouncil.org/wp-content/uploads/2021/11/Chaco_Opposition_2021.11.16.pdf. ↑






25. Joshua Partlow & Darryl Fears, Biden proposes 20-year drilling ban around Chaco Culture National Historic Park, a sacred tribal site. The Washington Post. (Updated Nov. 15, 2021 at 2:59 p.m.) https://www.washingtonpost.com/climate-environment/2021/11/15/chaco-canyon-drilling-biden/. ↑






26. Coral Davenport, Biden to Bar New Drilling Around a Major Native American Cultural Site, The New York Times, (published Nov. 15, 2021). https://www.nytimes.com/2021/11/15/climate/biden-bans-drilling-chaco-canyon.html ↑






27. Mark Armao, In Chaco Canyon, a moratorium on oil and gas leases might be too little too late.” Grist (published Feb. 17, 2022). https://grist.org/indigenous/in-chaco-canyon-a-moratorium-on-oil-and-gas-leases-might-be-too-little-too-late/ ↑






28. Bruce Babbitt, Chaco Culture National Park is under siege, Writers on the Range (Published Sep. 27^th, 2021) https://writersontherange.org/chaco-culture-national-park-is-under-siege/ ↑






29. “Navajo Nation Opposes Withdrawal for Development Chaco Canyon, Tribal Consultation Ignored.” The 24^th Navajo Nation Council, Office of the Speaker. Press Release (Nov. 16, 2021). https://www.navajonationcouncil.org/wp-content/uploads/2021/11/Chaco_Opposition_2021.11.16.pdf ↑






30. Mark Armao, In Chaco Canyon, a moratorium on oil and gas leases might be too little too late.” Grist (published Feb. 17, 2022). https://grist.org/indigenous/in-chaco-canyon-a-moratorium-on-oil-and-gas-leases-might-be-too-little-too-late/ ↑






31. “Navajo Nation Opposes Withdrawal for Development Chaco Canyon, Tribal Consultation Ignored.” The 24^th Navajo Nation Council, Office of the Speaker. Press Release (Nov. 16, 2021). https://www.navajonationcouncil.org/wp-content/uploads/2021/11/Chaco_Opposition_2021.11.16.pdf ↑

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By Nikki Vafai

At only 33, Inigo Philbrick managed to quickly rise in the art world and become an extremely prominent blue-chip art dealer, specializing in postwar and contemporary art. He not only owned two art galleries in Miami and London, he also dealt with some of the most sophisticated collectors in the world. However, unbeknownst to those dealing with him, the young dealer had sprinted to his position in the art world by masterminding a scheme that defrauded countless collectors, investors, and lenders. Just as quickly as he rose to prominence, his scheme unraveled. By 34, he was already sentenced to seven years in prison.

Philbrick’s scheme thrived with the help of others, such as his business partner Robert Newland, who pleaded guilty to a count of conspiracy to commit wire fraud. ^{The case heard in the Southern District of New York left many wondering how a young dealer could deceive individuals who were experts in their own right and how lasting the damage of the Philbrick machinations would be.}

FACTS

In 2013, Philbrick decided to launch his independent career in the art world. Philbrick built his business by operating in the secondary market, collateralizing and reselling fractional shares in contemporary art. ^{From about 2016 to 2019, according to the Department of Justice, Philbrick is alleged to have made material misrepresentations and omissions to art collectors, investors, and lenders. His actions include selling more than one-hundred percent ownership in an artwork to multiple parties without their knowledge and selling or using artworks as collateral on loans without the knowledge of the co-owners or disclosing the ownership interests to the buyers and lenders. Philbrick also presented fraudulent contracts and records to investors in order to inflate the artwork’s value and fraudulently used the identification of others.}

Over the years, to which he pleaded guilty, Philbrick obtained over $86 million in loans and sale proceeds. ^{However, in 2019, investors and lenders began to learn of the fraudulent records they had been provided by Philbrick and the material misrepresentations and omissions he had made. In October 2019, one lender notified Phibrick that he was in default, and shortly after, various investors began to file civil lawsuits in various jurisdictions.}

Philbrick’s galleries in Miami and London closed and Philbrick fled the country to Vanuatu, but in 2020 he was arrested by U.S. Marshals. ^{Philbrick was charged with one count of wire fraud and one count of aggravated identity theft.}

ARGUMENTS

With regards to the first count charged, wire fraud, the U.S. prosecution argued that Philbrick, with others, devised and intended to devise a scheme defrauding collectors, investors, and financial lenders by providing false information and false documents regarding the sale, ownership, and provenance of artworks. ^{The U.S. government claimed Philbrick obtained funds through wire transfer.}

As for the second count, aggravated identity theft, the prosecution argued that Philbrick knowingly and unlawfully used the identification of someone else. ^{They revealed that Philbrick used the name and signature of an officer of a Pennsylvania-based company to create a false art sale contract.}

In its complaint, the U.S. prosecution described Philbrick’s various unlawful activities such as his misrepresentations of Jean-Michel Basquiat’s “Humidity” and Christopher Wool’s “Untitled.” ^{The U.S. prosecution also highlighted Philbrick’s fraudulent activity with regards to Rudolf Stingel’s “Picasso,” selling a total of more than one-hundred percent ownership in the painting to three investors.}

Philbrick originally entered a plea of not guilty but eventually entered a plea of guilty to Count 1, wire fraud. ^{Many court documents in the case have been sealed, so the defense’s exact arguments are unknown.}

COURT RULING

On May 23, 2021, Philbrick pleaded guilty to count one, wire fraud, in the indictment. ^{He was sentenced to seven years in prison. The court recommended to the Federal Bureau of Prisons that Philbrick be admitted to the Residential Drug Abuse Program, if he meets the requirements for the program. The court also sentenced Philbrick to two years of supervised release upon completion of his imprisonment. The court ordered Philbrick to pay forfeiture in the amount of $86,672,790.00 and restitution in the amount of $82,592,367.00.}

TAKEAWAY

While Philbrick’s web of lies ultimately unraveled, the case highlights the consequences of greed and sheds light on the institutions and actors who knowingly or unknowingly facilitate such schemes. There has been much debate surrounding the transparency of the art market, and schemes like Philbrick’s leave the question of what more can be done in order to prevent such schemes from occurring in the future and increase confidence in the art market.

About the Author: Nikki Vafai is a law student at the University of Maryland Carey School of Law and holds a B.A. in International Affairs and Art History from the George Washington University. Nikki is a 2022 fall legal intern at the Center for Art Law.

1. Business Partner Of Art Dealer Inigo Philbrick Pleads Guilty To Defrauding Art Buyers And Financers, The United States Department of Justice, (September 23, 2022), https://www.justice.gov/usao-sdny/pr/business-partner-art-dealer-inigo-philbrick-pleads-guilty-defrauding-art-buyers-and ?
2. Former Art Dealer Sentenced To 7 Years For $86 Million Fraud Scheme, The United States Department of Justice, (May 23, 2022), https://www.justice.gov/usao-sdny/pr/former-art-dealer-sentenced-7-years-86-million-fraud-scheme ?
3. Id. ?
4. Former Art Dealer Sentenced To 7 Years For $86 Million Fraud Scheme, The United States Department of Justice, (May 23, 2022), https://www.justice.gov/usao-sdny/pr/former-art-dealer-sentenced-7-years-86-million-fraud-scheme ?
5. Id. ?
6. Judd Tully, Inigo Philbrick’s 7-Year Sentence for $86 Million Fraud Has Rattled the Art World, ARTnews, (May 26, 2022), https://www.artnews.com/art-news/news/inigo-philbricks-7-year-sentence-for-86-million-fraud-has-rattled-the-art-world-1234630012/ ?
7. Eileen Kinsella, Dealer Inigo Philbrick Gets Seven Years in Prison for ‘One of the Most Significant Frauds’ in Art-Market History, artnet news, (May 23, 2022), https://news.artnet.com/art-world/disgraced-dealer-inigo-philbrick-is-sentenced-2119879 ?
8. Bob Van Voris, Art Dealer Inigo Philbrick Gets 7 Years in Prison for $86 Million Fraud, Bloomberg, (May 23, 2022) https://www.bloomberg.com/news/articles/2022-05-23/art-dealer-philbrick-gets-7-years-for-86-million-fraud ?
9. Complaint at 1-2, U.S. v. Philbrick, No. 1:20-cr-00351 (S.D.N.Y. Apr. 30, 2020). ?
10. Complaint at 1, U.S. v. Philbrick, No. 1:20-cr-00351 (S.D.N.Y. Apr. 30, 2020). ?
11. Complaint at 2, U.S. v. Philbrick, No. 1:20-cr-00351 (S.D.N.Y. Apr. 30, 2020). ?
12. Id. ?
13. Complaint at 6-7, U.S. v. Philbrick, No. 1:20-cr-00351 (S.D.N.Y. Apr. 30, 2020). ?
14. Complaint at 8, U.S. v. Philbrick, No. 1:20-cr-00351 (S.D.N.Y. Apr. 30, 2020). ?
15. Docket Report, U.S. v. Philbrick, No. 1:20-cr-00351 (S.D.N.Y. Apr. 30, 2020). ?
16. Id. ?
17. Judgment, U.S. v. Philbrick, No. 1:20-cr-00351 (S.D.N.Y. Apr. 30, 2020). ?
18. Id. ?
19. Id. ?
20. Id.; Order, U.S. v. Philbrick, No. 1:20-cr-00351 (S.D.N.Y. Apr. 30, 2020). ?

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By Wenni Iben

Introduction

Today, Henry Darger (1892-1973) is known to the world as an artist celebrated for vibrant and vividly-colored drawings that now command up to $800,000. During his lifetime, however, Darger’s talents were unknown to the world; a custodian by day, Darger kept his art to himself. In 1972, Darger moved out of the Chicago, IL apartment he’d rented from Nathan and Kiyoko Lerner for over a decade, leaving behind thousands of pages of drawings, paintings, and collages. Darger passed away one year later in a Chicago nursing home, with no known family or close friends, but his work soon took on a new life in the public eye. 

Darger is often referred to as an ‘outsider artist:’ an artist with little formal training in the arts and little or no contact with the professional art world. Only upon Darger’s death were his works published, promoted, and ultimately celebrated thanks to the efforts of Kiyoko and Nathan Lerner, who salvaged and promoted Darger’s works in lieu of disposing of them with the other items Darger left in the apartment. Since Darger’s death, the Darger works have been shown at the Museum of American Folk Art, The Center for Intuitive and Outsider Art, and various other museums and galleries. The Darger works now command hundreds of thousands of dollars and have been sold through auction houses like Sotheby’s and Christie’s for hundreds of thousands of dollars.

In recent years, however, the legality of the Lerners’ handling of the Darger works has been challenged. Darger died intestate, meaning he did not bequeath his artworks or their copyrights by will to anyone, including the Lerners. In the state of Illinois, when an individual dies intestate with no known kin, the contents of the deceased’s estate go to the state. However, two factors have complicated the matter of who legally owns the Darger estate. First, Kiyoko Lerner maintains that Darger transferred the ownership of his artwork to her during his lifetime, though no written record of this transfer exists. Secondly, several distant relatives of Darger have emerged through the forensic genealogy company HeirSearch. These relatives filed a lawsuit against Kiyoko Lerner (Nathan Lerner passed away in 1997) this past July, seeking compensation for what they allege is unlawful exploitation of Henry Darger’s artwork.

Walkthrough

On September 30, 2020, lawyers representing a group claiming to be Darger’s relatives emailed Kiyoko Lerner to inform her of their intentions to recover the physical Darger artworks, the associated intellectual property, and any revenue generated by Kiyoko and Nathan Lerner through what they allege is “misappropriation and unlawful exploitation of the Darger artwork.” 

The email alleges that Lerner has no valid right, title, or interest in any physical embodiment of or copyright to the Darger artworks. Furthermore, the email alleges, any claim Lerner makes that Darger gifted his artworks to her husband is “questionable at best–given his deteriorating mental state and conflicting contemporaneous accounts.” Even if Darger did gift his artwork to the Lerners, the email continues, “any such gift would have excluded any intellectual property rights.”

In January 2022, the claimants petitioned the court for probate of the Darger estate. In May 2022, Christen Sadowski, one of the claimants, was named Supervised Administrator of the Henry Darger Estate. The claimants, known as the Estate of Henry Darger, then promptly filed a complaint with the district court against Kiyoko Lerner for the following infractions: 

1. copyright infringement;
2. unfair competition and false or misleading description or representation of fact;
3. a declaratory judgment under the Declaratory Judgment Act;
4. unfair competition under Illinois common law;
5. deceptive trade practices;
6. unjust enrichment under Illinois common law; 
7. an equitable easement; and 
8. conversion under Illinois law.

A Closer Look: Does Kiyoko Lerner Legally Own the Darger Works and Copyrights? 

In the United States, laws concerning the transfer of property from a deceased person to their heirs is subject to state law and thus varies depending on the state in which the deceased person resided upon their death. As Darger died intestate in Chicago, the question of who lawfully owns the physical Darger artwork is determined by the state of Illinois. 

According to Kiyoko Lerner, when Henry Darger moved out of the Lerners’ Chicago apartment in 1972, he “said they could do whatever they wanted” with the contents he left behind in the room. By the Illinois Lifetime Transfer of Property Act, as long as Lerner’s recollection of Darger’s statement that she and her husband ‘could do whatever they wanted’ with the contents of the room constitutes a valid transfer of property, she legally owns the artwork Darger left in his room.  

Without any known written evidence of this exchange between Darger and the Lerners, the plaintiffs contend that this interaction between Darger and the Lerners does not constitute a valid transfer of property. The plaintiffs question the accuracy of Lerner’s claim that Darger gifted his artwork to her and her husband and furthermore question Darger’s soundness of mind at the time Lerner alleges Darger gifted his artwork to her husband. Unless Kiyoko Lerner can find a way to corroborate her claim that Darger, in sound mind, transferred ownership rights of his artwork to her or her husband, it will be difficult for her to prove that Darger transferred his artworks to her.

However, there is another avenue Lerner can take to show that she rightfully owns the physical Darger artworks. In the city of Chicago, when a tenant moves out of a rented property and leaves items behind on the premises, the landlord is required to store the property for seven days after the tenant leaves the property. After seven days, the landlord is free to dispose of the property as they please, including through sale of the property. As Darger lived for another year after moving out of the Lerners’ Chicago apartment and did not pick up his artwork within seven days of moving out of the apartment, the Lerners have a strong case that they had the right to do what they wished with the physical Darger artworks. 

Aside from the question of who owns the physical Darger works, there remains a separate question as to whether Kiyoko Lerner owns the copyrights to Darger’s art. In the United States, copyright ownership does not transfer with the ownership of the physical object. Furthermore, under federal law, a transfer of copyright ownership is not valid, other than by operation of law, unless an instrument of conveyance, a note, or a memorandum of the transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. The plaintiffs contend that Lerner is not the valid copyright owner of Darger’s artwork. The law is on the side of the plaintiffs, in this case: since Darger did not transfer the ownership of the copyrights to his artworks to the Lerners, and since the Lerners are not kin to Darger, Kiyoko Lerner likely has no claim to the copyrights of the Darger artworks. 

If not Kiyoko Lerner, Who Owns the Darger Copyrights? 

While he was alive, Darger, as the creator of his artworks, owned the copyrights to the Darger works. The copyrights to any work exist for 70 years after the death of the creator and may be inherited by the creator’s heirs. Because Darger died intestate, Illinois state statutes determine who lawfully inherited his work upon his death. By 755 ILCS 5/2-1, since Darger died without a spouse, living parents, siblings, or children, the estate goes to the descendants of any kindred to Darger. 

It appears that Christen Sadowski, the plaintiff who was named supervised administrator of the Darger estate this past May, is one of these descendants. According to court papers, upon being granted this role, Sadowski was authorized to take possession of the physical Darger artworks and their associated copyrights. The plaintiffs seek relief in actual damages, the actual amount of which, they have specified, they want to be determined at trial.

Conclusion

Kiyoko Lerner has held that, while Darger was alive, she and her husband often checked in on him to ensure that he had sufficient food and proper living arrangements. Despite pressure from neighbors to cease renting to Darger due to his disheveled appearance, the couple continued renting to Darger, even lowering his monthly rent from $40 to $30 so that he could afford to stay. With no kin to care for Darger, it was the Lerners who arranged for Darger to move into a charity nursing home in 1972, after which time Kiyoko Lerner claims they approached Darger to see what he wanted done with his materials, including his artworks. 

And yet, without a will to communicate Darger’s wishes, the ownership of Henry Darger’s artworks and their copyrights has gone to Christen Sadowski and other relatives who Darger never knew. These relatives, contending that Lerner unlawfully exploited Darger’s artworks, seek to be awarded with all profits the Lerners made in managing the Darger artworks as well as punitive and statutory damages and other forms of relief for the Lerners’ alleged wrongdoings. 

Since the Estate of Henry Darger seeks a jury trial to determine the actual amount of damages they receive, the outcomes of this case are not easily predictable. It may be possible that Lerner’s description of her personal connection to Darger will be a more significant factor to the jury in determining the amount of damages owed to the Darger Estate than it was for the judge who granted Sadowski supervised administrator of the Darger Estate. Perhaps this trial will be an opportunity for Darger’s wishes concerning the inheritance and use of his work to be considered.

Select Sources: 

• Robin Pogrebin, A Henry Darger Dispute: Who Inherits the Rights to a Loner’s Genius?, The New York Times (Feb. 7, 2022) https://www.nytimes.com/2022/02/07/arts/design/henry-darger-estate.html.
• Christie’s, “Henry Darger,” Auction results. https://www.christies.com/en/lot/lot-6187836
• Robin Pogrebin, Hearing on Henry Darger Estate Dispute is Postponed, The New York Times (Feb. 23, 2022), https://www.nytimes.com/2022/02/23/arts/design/henry-darger-hearing.html
• Amber Holst, The Lost World, Chicago Magazine (June 26, 2007), https://www.chicagomag.com/Chicago-Magazine/November-2005/The-Lost-World/

About the Author:

Wenni Iben (Columbia University, B.A. 2023 expected) is a student of Economics and Philosophy. She is the Fall 2022 Undergraduate Intern at the Center for Art Law. 

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Dear Center for Art Law Visitors and Friends,

Over the last few days you might have noticed that our site has been undergoing some changes. We have a “new look” which we are pleased to share with you, and we are troubleshooting some of the development issues. Our super talented designers and developers are working from Ukraine. They have done their very best to reorganize our decade+ of content while dealing with blackouts and rocket strikes. During our call today, Ukraine was attacked by numerous Russian air strikes and part of the team was left without power.

While we are working to get the site in a perfect working order, please feel free to reach out to us if you have questions, and we thank you for your patience and understanding.

Very sincerely yours,

Irina Tarsis, Founder & Managing Director

Photo: Banksy’s work in Borodyanka, Ukraine

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By James Parker

The Supreme Court waited 27 years after deciding the 1994 landmark case of Cambell v. Acuff Rose to revisit the issue of fair use in Google LLC v. Oracle America Inc. Decided in 2021, the court took an expansive view of the doctrine of fair use, agreeing that Google “reimplemented,” technology in a new context. ^{Now, less than two years later, the Court in Warhol Foundation v. Goldsmith is again considering the scope of the fair use doctrine in copyright law. Center for Art Law has followed the case with great interest, written at great length on the issue of fair use, and has covered the oral arguments made by both sides of the Warhol v. Goldsmith controversy; this article revisits the facts of the matter as well as attempts to explore the possible ramifications ahead of the Supreme Court’s decision.}

Following three years of litigation, the Andy Warhol Foundation (AWF) successfully petitioned the Supreme Court to review a copyright infringement case that has garnered the attention of the public as it made its way from trial to the court of appeals. At its center is a decades-old photograph of the pop star Prince, a series of pieces by Andy Warhol based on that same image, and the doctrine of fair use.

“Let the little things that would ordinarily bore you suddenly thrill you,” said Andy Warhol, visual artist and champion of the pop art movement. ^{Beginning his career at a time when beauty embraced realism and elevation, Warhol couched his philosophy in the exact opposite by finding beauty in the mundane and the ordinary. Warhol’s musings remind us of the axiomatic, that inspiration can be found anywhere, and could even allude to a cornerstone of copyright law that receives all that which has been sufficiently transformed as artistic creation.}

The controversy stems back to 1984 when Vanity Fair decided to publish an article about Prince in a magazine. ^{Vanity Fair reached out to a licensing agency that managed Lynn Goldsmith, a celebrated rock photographer, in search of a photograph of Prince. The agency, on a one time basis, granted the use of a particular photograph. Vanity Fair then commissioned Andy Warhol, just three years before he died, to create a piece to accompany the article based on the licensed photo. Warhol made a number of screen prints, though only one was selected for the Vanity Fair article.}

Prince died in 2016 and Vanity Fair decided to publish a special article about his legacy as an artist. ^{Vanity Fair then contacted the Andy Warhol Foundation, a New York nonprofit that licenses the artist’s works. It was during this exchange that Vanity Fair learned that Warhol had created multiple prints based on the Goldsmith photo of Prince provided in 1984 for the original article. Vanity Fair then chose a different screen print of the selection to use in their special article. Goldsmith saw the special issue and contacted the Andy Warhol Foundation about her copyright claim and immediately registered the photo of Prince as an unpublished work (VAU001277562 / 2016-11-17).}

Preemptively, the Andy Warhol Foundation sued for declaratory judgment, confident that the work selected had been sufficiently transformed and was not substantially similar, thus avoiding infringement of Goldsmith’s copyright. ^{The trial court granted the foundation’s motion for summary judgment claiming fair use and denied Goldsmith’s cross motion for summary judgment claiming copyright infringement. The trial court reasoned that Warhol’s treatment of the Prince image conveyed new meaning and message noting numerous artistic differences, particularly Warhol taking no more than what was necessary for his transformation.}

Goldsmith appealed the trial court’s ruling and brought their reasoning before a panel. ^{Contrary to the trial court’s decision, the panel found that the photograph was not transformative and concluded, in addition, that judges are ill-suited to decide “the meaning or message” of art works. The panel provided that, in assessing the degree of transformation a piece has undergone, judges must compare the pieces side by side and consider, if outside of the artist’s intent, whether the resulting work is fundamentally different and new.}

Using the test enumerated above, the panel concluded that Warhol’s Prince Series still retained essential elements of its source material and the Goldsmith photo, despite the artist’s attempts to imbue it with new meaning, remains the recognizable foundation of the piece. ^{The panel further reasoned that while the pieces occupy different markets, Warhol’s rendition still harms Goldsmith’s ability to license the photo to publications and to other artists so that they might create derivative works.}

Individuals and organizations alike wrote amicus briefs ahead of the case’s arrival to the Supreme Court. Most notably, the Copyright Office, based in Washington D.C., has aligned itself with the National Press Photographers Association and the American Society of Media Photographers backing Goldsmith and urging the court to rule in her favor. Collectively, they advance that “the fair use defense was never meant to give infringers a pass so long as they claim some new subjective ‘meaning or message’ in their derivative use regardless of how it is used … [AWF’s] argument that a derivative use of a copyrighted work should be found ‘transformative’ so long as it adds any cognizable echo of ‘new meaning or message’ ignores the plain language of the Act and invites the fair use exception to swallow the derivative use rule.”

Conversely, museums, professors of art and law, and organizations such as the Robert Rauschenberg Foundation and the Roy Lichtenstein Foundation have drafted amicus briefs in favor of AWF. Overwhelmingly, they emphasize the importance of copying to visual art and its link to creativity. ^{Those siding with AWF argue that they intend to protect artistic progress, and by consequence, they recognize that artists must have room to build on, be inspired by, and transform works that came before them.}

At present, Chapter 17 of the United States Code provides that copyright protection “subsists, in … original works of authorship fixed in any tangible medium of expression.” ^{The standard for originality is not expressly provided for in Chapter 17. The court in Bleistein v. Donaldson, however, ruled that original meant “created organically by an author [with] some degree of creativity.” 17 USC 102(a) define works of authorship as literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial graphic and sculptural works, motion pictures, audiovisual works, sound recordings, and architectural works. Finally, fixed, according to 17 USC 101, means “perm[inence] or [the ability] to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”}

The fair use provision, Section 107 of the Copyright Act, states:

Notwithstanding the provisions of section 106 and 106a, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, purposed such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include – (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Whether you find yourself siding with Goldsmith or AWF, it is important to acknowledge the implications of the Supreme Court should it decide against adhering to its own standard. Primarily, a decision contrary to precedent puts the onus on judges to inspect the similarity of two works of art. Should the judge be unable to look past visual similarities then the argument is moot, regardless of training or expertise. ^{Historically, art is filled with pieces that are similar since aspiring artists naturally study the works of masters and those they look up to. What is more insidious and harrowing, however, is the sudden triumph of copyright over the right to free speech, where the Supreme Court has made it clear time and again that it is inviolable. A ruling in favor of Goldsmith allows copyright to overreach, thus chilling the rights of artists who express themselves through image. The doctrine of fair use is just as germane to copyright as it is to free speech.}

It is important to understand that while AWF has raised fair use as a defense to copyright infringement, it is more than an affirmative defense. Fair use is the crux of copyright. If the purpose of the copyright clause in our constitution is to encourage the continued proliferation of creative works then fair use ensures that artists can create new works that continuously build on the works of their predecessors and draw inspiration from the world around them – this is the essence of creativity and the goal of copyright law itself. As the Supreme Court has enunciated in the past, fair use is a first amendment “safeguard,” functioning to ensure that copyright is an engine to freedom of expression, not a hindrance.

About the Author:

James Parker is a recent graduate of New York Law School, class of 2022. While in law school most of his studies orbited Intellectual Property law drawing a particular interest in copyright. Parker recently sat for and passed the July 2022 administration of the Bar and is Center for Art Law’s current Judith Bresler Fellow.

Suggested Readings :

• Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S. Ct. 1164, 127 L. Ed. 2d 500 (1994). https://www.newyorker.com/magazine/2020/06/08/untangling-andy-warhol
• Christophe Geiger, Freedom of Artistic Creativity and Copyright Law: A Compatible Combination?, 8 U.C. Irvine L. Rev. 413 (2018). Available at: https://scholarship.law.uci.edu/ucilr/vol8/iss3/3
• GOOGLE LLC v. Oracle America, Inc., 141 S. Ct. 1183, 593 U.S., 209 L. Ed. 2d 311 (2021).

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By Atreya Mathur

Credit: DALL·E 2; text prompts (left to right): painting of a robot holding justice scales; painting of a robot-artist painting flowers; painting of a robot reading a law bookWhat does it take to be an artist in the 21^st century? Can one create art with paint brushes, watercolors, or oil pastels? Or can one simply think art into existence? ‘AI’ artwork generators like DALL·E and Stable Diffusion, offer users the ability to quickly create detailed images based on prompts, which can be anything you think of— An astronaut surfing in Times Square? A lawyer relaxing on the beach? (one could dream!) or a robot learning the law… in the artistic style of Da Vinci? You got it. However, when the idea is realized and the masterpiece has been generated– who owns it? who is the maker? the ‘AI’ or a copyright holder that the artwork is based on? Who has a perfected (or any) claim of co-authorship? Who can commercialize these images? Can someone be sued for infringement if they use the image without permission?

Introducing DALL·E 2

Artists build autonomous robots to collaborate with– they feed algorithms with data, and train machines to generate different kinds of visual works. ^{Creators, such as Google Arts & Culture Lab, work with computer programs that mimic the human mind to generate a never-ending stream of unique artworks. Artificial intelligence has therefore emerged as a desirable collaborator in artistic creation. While AI-produced art has been around for some time, software released this year including, DALL·E 2, Midjourney AI, and Stable Diffusion, has allowed even the most inexperienced artists to produce intricate, abstract, or photorealistic compositions by merely typing a few words into a text box. DALL-E 2 is learned by an OpenAI model called CLIP (Contrastive Language-Image Pre-training) which functions as the main bridge between text and images. Through machine learning, AI is trained in data and is now able to create images and generate art by itself. The training data in this case is an aggregate of large datasets of images and tagged images labeled into a set of categories, across the internet, out of which most images are likely protected by copyright. The output images that these tools can generate are figurative-looking — in that it is believable that the artwork could have been created by a real person or artist.}

OpenAI, an artificial intelligence research laboratory, was founded in San Francisco in late 2015 by Carlos Virella, Elon Musk, Greg Brockman, Ilya Sutskever, Sam Altman and Wojciech Zaremba, who collectively pledged one billion U.S dollars. ^{OpenAI released its text-to-image generation model based on transformers architecture called DALL·E. The name of this model is inspired by surrealist painter Salvador Dali and the robot from Wall-E. OpenAI initially developed the GPT (Generative Pre-trained Transformer) model that its DALL·E software used in 2018, and just four years later the software is capable of generating imagery in myriad styles, manipulating and rearranging objects within its images and accurately designing novel compositions without explicit instruction. It has even proven to be capable of solving Raven’s Matrices – visual tests used to measure human intelligence – showing that DALL·E can express both geographical and temporal knowledge, where it has an understanding of places, concepts and how they change over time.}

DALL·E 2 (2022) is the new version of DALL·E (first released in January 2021)and can make realistic and context-aware edits, including inserting, removing, or retouching specific sections of an image from a natural language description. It can also take an image and make novel and creative variations of it inspired by the original. DALL·E was trained by learning the relationship between images and the text used to describe them. It uses a process called “diffusion”, which starts with a pattern of random dots and gradually alters that pattern towards a final output. ^{DALL·E “trained” on approximately 650 million image-text pairs scraped from the internet, learning from that dataset the relationships between images and the words used to describe them. But while OpenAI filtered out images for specific content, such as images that violate their content code including pornography and duplicates, and implemented additional filters at the API (application programming interface) level, for example for prominent public figures and likeness of individuals, the company admitted that the system can sometimes create works that include trademarked logos or characters. In their Press release dated April 6, 2022, the company stated that “the model can generate known entities including trademarked logos and copyrighted characters. OpenAI will evaluate different approaches to handle potential copyright and trademark issues, which may include allowing such generations as part of “fair use” or similar concepts, filtering specific types of content, and working directly with copyright/trademark owners on these issues.”}

Copyright, Contracts and Commercialization

It is safe to state that artificial intelligence generated art is here to stay. The success of the model has been such that OpenAI also announced that it will be commercializing DALL.E 2 and its image generation platform. ^{Credits can be purchased to make prompts to generate art. So once an AI-generated masterpiece is created, what’s stopping someone from claiming it as their own and using it commercially or preventing others from using it? Who owns these DALL·E outputs? Is it OpenAI? The person who writes the prompts? Or is it nobody’s at all?}

On top of existentially threatening the very concept of artists and creatives, AI-generated content raises several new legal issues. ^{Copyrights are a form of intellectual property protected by federal law. Owning a copyright gives the owner the exclusive right to reproduce, publish, or sell an original work of authorship, such as a book, a painting, or a song. Under current copyright law, artists using traditional mediums, such as paint, pen, or paper, are considered the authors of the work and generally hold copyright over their work by default. The fundamental question before addressing AI-created art is whether copyright can belong to anyone other than a human being. The Naruto Case throws some light in understanding the matter and answers this question.}

David Slater, a British (and very much human) wildlife photographer, set a camera up on the island of Sulawesi and had left the camera unattended. A handsome and rather curious young gentleman (a monkey) named Naruto clicked the button while looking at the camera, capturing selfies showing off his photogenic side. Following this, Slater published a book featuring the selfie and other pictures that had been taken by Naruto. In response, the People for the Ethical Treatment of Animals (PETA) filed a complaint against him and the publisher, representing Naruto, and argued that he had “the right to own and benefit from the copyright in the Monkey Selfies in the same manner and to the same extent as any other author.” Further, it was argued that while the claim of authorship by species other than homo sapiens may be novel, “authorship” under the Copyright Act, 17 U.S.C § 101 et seq., is sufficiently broad so as to permit the protection of the law to extend to any original work, including those created by Naruto. However, the US. Copyright Office stated that they “will refuse to register a claim if it determines that a human being did not create the work.” ^{The office also said that it would exclude works “produced by machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”}

Although copyright law doesn’t specifically address artificial intelligence, or even human authorship of original art, protection under the Copyright Act must meet the following requirements:

1. an original work of authorship;
2. fixed in a tangible medium;
3. that has a minimal amount of creativity.

If a work of art doesn’t meet all three of these requirements, then it does not qualify for copyright protection. Copyright cannot belong to the AI itself. Section 306 of The Copyright Act protects “original works of authorship,” which implies a human hand in the process. ^{The Act makes the human requirement clear: “The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being.“ This means that, under the current rules, AI-generated art has no owner.}

Copyright protection in art is given as soon as the work is created, so the creator has exclusive right to decide the future use of the work. But since machine-created may not need the criteria for copyright protection, ownership may not be clearly distinguished.

Apart from ownership rights of the AI-generated artwork, there are additional copyright concerns that may arise. There may be infringement claims on the final image based on copyrighted artworks inputted into the AI at the time of machine learning which may infringe the rights of copyright holders.

Under the current U.S law, owners of the AI technology itself may be the ones with cause for concern – potentially being at risk of copyright infringement lawsuits. ^{AI usually reviews or even contains reproductions of other people’s artwork that it uses to create new artwork, that new artwork could be an unauthorized derivative, which is an infringement– if the AI also stores a reproduction of that artwork, that too is an infringement. This concerns the owner of the AI who may ultimately be liable for infringement. But since copyright law does not protect AI-generated artwork, it is likely neither the AI nor the AI company has any rights in the image.}

Analysis of terms of use

So, what does this mean for images generated by DALL·E 2? The first place to go to answer these questions is DALL·E’s own terms of use. It is important to note that when using the tool, creators have two options, to either upload an image to have it modified by the AI or inputting a prompt to generate an image. The terms of use state the following:

“Your Content. You may provide input to the Services (“Input”), and receive output generated and returned by the Services based on the Input (“Output”). Input and Output are collectively “Content.” As between the parties and to the extent permitted by applicable law, you own all Input, and subject to your compliance with these Terms, OpenAI hereby assigns to you all its right, title, and interest in and to Output…”

“Similarity of Content. Due to the nature of machine learning, Output may not be unique across users and the Services may generate the same or similar output for OpenAI or a third party…Responses that are requested by and generated for other users are not considered your Content.”

According to the terms of use of DALL·E 2, OpenAI assigns the right, title, and interest in and to the final image to the creator, provided the terms have been complied with. Copyright assignment permits a third party to take ownership of the copyright from the owner, or assignor. This means that the creator, the person who inputs the text prompt, is the owner of the image and has the rights to the final image. The creator becomes the owner of the images, regardless of whether those images have copyright or not.

The second paragraph recognizes the possibility of other creators coming up with similar generated images based on similar prompts and attempts to bypass copyright concerns stating that any prompt generated by another user, which may be similar or the same due to the nature of the machine learning. But the terms simply state that the content would not belong to the creator if it has been generated by another user but provides no guidelines as to who the content then actually belongs to.

The sharing and publication policy ^{also states:}

“Creators who wish to publish their first-party written content (e.g., a book, compendium of short stories) created in part with the OpenAI API are permitted to do so under the following conditions….The role of AI in formulating the content is clearly disclosed in a way that no reader could possibly miss, and that a typical reader would find sufficiently easy to understand… People should not represent API-generated content as being wholly generated by a human or wholly generated by an AI, and it is a human who must take ultimate responsibility for the content being published.”

So, is there any possibility of copyright infringement while generating or using artwork generated by DALL·E 2? OpenAI precociously bypasses most copyright questions through contract and their carefully and cleverly worded terms of use, making rather evasive references to intellectual property ownership. ^{Additionally, OpenAI is taking measures to reduce potential infringement issues including: Rejecting image uploads that include recognizable faces; Rejecting generation prompts that attempt to recreate the likeness of public figures including celebrities and politicians, or realistic photos of real individuals; Improving their filters to block users from creating harmful or restricted content, which includes violent, adult, or political content, and also removing corresponding data from the software’s training itself; Implementing a new technique that is said to improve 12x the generation of diverse images of people, to help reduce bias; Using both automated and human monitors to supervise the platform and avoid misuse. These measures in totality may help filter copyrighted photos, or trademarks and logos or avoid right to publicity claims that are likely to cause intellectual property concerns among owners of the rights.}

Below, find an image generated on a text prompt including the name brand “Gucci.” The software has likely been inputted with alternate images that circumvent any identifying trademark or brand name or logo, but still make for interesting and even amusing artworks when certain terms are inputted. In this case, with subtle inferences to luxe looking hand bags and spoiled pooches. Art in its own sense, perhaps?

OpenAI also gives users full usage rights to commercialize the images they create with DALL·E, including the “right to reprint, sell, and merchandise.” ^{To be clear, this doesn’t mean OpenAI is relinquishing its own right to commercialize images users create using DALL·E. Deeper into the terms of service, you will find that “OpenAI will not assert copyright over Content generated by the API for you or your end users.” OpenAI is signaling to users that they are free to commercialize their DALL·E images without fear of receiving a cease-and-desist letter from a company that could sue them from profiting from the images created. This does not restrict a third party from suing the user of a DALL·E image or the sale of an AI-generated artwork. However, the terms of service also put users on notice that OpenAI “may change these Terms or suspend or terminate your use of the Services at any time.” Which means that the legal concerns can become more pressing in time. With the inherent lack of paternity or authorship of the work by the AI itself and potentially infringing datasets that AI has learned, the creators may ultimately be liable for infringement of copyright when the images are used.}

Conclusion

Ultimately humans are the ones that make the final decision to use art generated by a machine (to illustrate their articles for example); therefore, AI clearly cannot grant permission for use of the work or hold a copyright for the same. ^{The Naruto case was decided as it was for this reason. If there was substantial contribution from a team or a person who provided substantive inputs deemed creative enough for the ultimate output of the work, then they could potentially own copyright in the work. If the design, however, was significantly attributed mainly to the AI or the program, then the work would likely not be copyrighted and would possibly belong in the public domain. The future in terms of legal protection of these works is still questionable, as it is difficult to assess the full extent to which AI will be used in creative works. For now, it seems likely that creators can continue to use DALL·E 2 and generate images that can be used commercially with no fear of being sued from OpenAI or DALL·E 2, provided all the terms and content policy of the software are complied with. However, it would be wise to proceed with caution, especially if commercializing the images, keeping in mind that the final images produced may still infringe on another’s copyright or the likeness of a subject in the AI-generated images.}

In the meantime, any disputes arising from computer generated works by AI will need to be assessed on a case-by-case basis and will likely depend on the level of contribution of each of the parties in the creation of the work. ^{Stable Diffusion’s software allows for quite a range of user inputs and its creators have explained its functioning in detail. While joint authorship or co-authorship claims due to a collaborative role may be an interesting claim, a court will rule in favor of ascribing ownership to a human creator (which can be the developer of the software so long as they say they are the authors), rather than to a software which is not a legal entity yet. It is interesting to note the carefully worded terms of use in the case of DALL·E 2, where the rights have been explicitly transferred to the creator through a contract. The terms allow the creator access to the code and the creator has the power to input text prompts and put ideas together to generate the work. However, ideas are not protected under copyright law and the sharing and publication policy provides for similarity in content generation, stating that the creator will have no right in an image that has been generated by another person. So while one can own an AI-generated image due to the contractual transfer of rights from DALL·E 2, the copyrights surrounding it and confusion in ownership of images generated using similar text prompts still leave things unclear.}

In other intellectual property realms, the patent world is discussing whether an AI can be listed as an “inventor” on a patent application. ^{While not directly comparable, since the standards for “authorship” and “inventorship” are different, it is a notable step for understanding AI ownership rights, and as laws evolve with society, it isn’t beyond imagination that Artificial General Intelligence may find its way as a “legal person” or may have laws specifically drafted for its regulation and ownership in the near future.}

The risks associated with using models like DALL·E to generate art are still largely unknown as they have not been contested or substantially tested in any courts. The usage of any of these software or programs do come with their own contracts, terms of service, license agreements and limitations. Such terms can impose restrictions on who owns the final output, what can be done with the generated art, the content permitted to be generated, commercialization of artwork and risk and liability of using the artwork. Being aware of what is expressly permitted and prohibited when using such tools becomes critical as one’s ability to use it may be rescinded or considered infringing if the terms are violated. It may be wise to consider not using any artist’s name or work in the generation of artwork, and explicitly mentioned the artwork was created by AI — especially in cases where the styles or similarities to artists is still under copyright protection. ^{It may be argued that regardless of initial images inputted in, the artwork is transformative enough to be fair use of the artwork, but this is a defense against infringement and may be challenging to prove depending on the case. Without knowing the specifics of the AI and the prompts used, it will be difficult to give a definitive answer on when the work would be infringing and who has ownership of the artwork when similar artworks based on similar, or the same prompts can be generated.}

Suggested Readings and Videos:

About the Author:

Atreya Mathur is the Director of Legal Research at the Center for Art Law. She was the inaugural Judith Bresler Fellow at the Center (2021-22) and earned her Master of Laws Graduate from New York University School of Law where she specialized in Competition, Innovation, and Information Laws, with a focus on copyright, intellectual property, and art law.

Sources:

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