“Those who do not want to imitate anything, produce nothing.” – surrealist painter Salvador Dali.
Some say that art belongs to everyone and that an artist cannot truly own its creation. Once a note is played on an instrument or a painting hangs on a wall, then the work seeps into the soul of the masses.
And while that’s true in an emotional sense – nobody can take away how you feel experiencing art – it’s not necessarily true in a legal sense. You can’t cover a song without paying royalties and you can’t put someone’s painting on a T-shirt and sell it on a street corner.
But today’s generation, raised on file-sharing services for music and Web sites that use photographs without permission, doesn’t seem to understand the ownership behind art.
That’s where Randall Cloe comes in. The attorney opened his practice in the Carmel Arts & Design District so he could help up-and-coming artists protect their creative work.
“I love clients who are finally experiencing success, such as a painter who sold their first big painting for five or ten thousand dollars and they are an upstart and now they have to learn how to protect their assets,” he said.
“Whether you succeed or not is irrelevant, there is no such thing. Making your unknown known is the important thing.” – painter Georgia O’Keeffe
Cloe, 41, understands copyright law from many different angles. That’s because he used to be a kind of artist himself.
After graduating with his undergraduate degree from Ball State University, Cloe worked as a graphic designer in advertising and marketing.
“I think I fell into the majority that just don’t understand copyright,” he said. “There’s just this general idea that, ‘I can just take a little bit. Maybe if I just take the colors or the concept but it looks different.’ When creative types are making that decision, they can get themselves into trouble.”
As he progressed in his career, the Wabash-native started to think about what he liked most about the job. And it turns out he liked to look at the big picture.
“When I was important enough to be at the big kids table and sit down with the client, I realized that’s what I wanted to do,” he said. “I wanted to be helping people come up with solutions.”
Layoffs came at his company and he decided to go back to school. He graduated with his law degree from the Indiana University Robert H. McKinney School of Law.
About a year and a half ago, Cloe opened his law firm for small business intellectual property and internet law on Range Line Road in the Carmel Arts & Design District so he could be close to his clientele. He lives in Zionsville with his wife and two kids but he was trying to decide between his current location and Massachusetts Avenue in Indianapolis. There already was an arts attorney on Mass Ave. so he made, “the best decision I could ever make to start my practice.”
“An artist is not paid for his labor but for his vision.” – painter James McNeill Whistler.
When you delve into it, there are plenty of interesting wrinkles to intellectual property law.
Singer-songwriter Sam Smith won a Grammy in February for his song, “Stay With Me,” right after a court declared that the song was similar enough to musician Tom Petty’s “Won’t Back Down” that Smith has to now pay royalties to Petty.
It brings an interesting debate among people. How similar is too similar? How can you prove that you thought of an idea first? When is it “fair use” to use someone’s song or painting and when isn’t it allowed?
Cloe isn’t dealing with anyone as big as Sam Smith and he doesn’t have to go to court very often. He specializes in giving advice to small artists to help them prevent headaches later on.
For example, art galleries throughout Main Street sell paintings to people, but just because you hang a picture on a wall, it doesn’t mean you own the copyright. The artist does. You can’t now reproduce the work of art on coffee mug to sell.
“I’d say most art sales are completed without any thought about who owns the copyright,” Cloe said.
Cloe said he’s had musicians come in who are so worried about people stealing the music that they are afraid to put their songs online. He advises them on how to feel secure promoting their work.
And of course there’s photography. Someone can take a photo of you, but it doesn’t mean you own the photo. You own the print. So if you want more copies of your wedding day to give to friends, then legally you need to order the prints from the copyright holder which is the photographer.
There’s also a new budding legal industry though, Cloe said, where people take “unflattering” photographs of their ex-girlfriends and then post them online to get revenge. Sure, they may own the copyright, but you can’t harm someone’s reputation by using the photos in that way.
“There are just so many aspects to the law that it’s really best to consult with a lawyer if you’re unsure,” Cloe said. “I’m a small firm. It’s just me. So I don’t charge an insane amount to people. I really try to make it affordable and approachable so people can come to me for help before they have a problem.”
Five Tips for Success in the Arts:
- Be intentional about what you do. Arts is a career, treat it like a career.
- If you are getting requests, you should be thinking contracts and liability. And possibly forming a formal business.
- Once you’re in business, understand you don’t get the protection of an LLC or a corporation unless you treat it like a business. You can’t use your business account like your personal account.
- Surround yourself with people who know more than you. A lawyer can introduce you.
- Know what you don’t know. Don’t assume you’re protected. It’s better to ask and be sure.