Guide to Laws for Artists in California
What areas of law should artists know about, in order to protect their work and avoid legal trouble? The most important areas are “intellectual property” law, freedom of speech and expression, privacy and publicity law, and laws for independent contractors and freelancers. Most of this is nationally applicable law, so be sure to check out our Guide to Laws for Artists in the U.S.
Here are some additional laws that apply in California.
1. Protecting artistic work
What is intellectual property?
Intellectual property refers to the legal protections for certain work product. There are four main categories of intellectual property: copyright, trademark, patent, and trade secret. For more on this, see our Guide to Laws for Artists in the U.S.
2. Issues regarding subject of an artwork
What does an artist need to know when people are the subject of a piece?
Another major issue for artists comes up if your art depicts real people. These laws vary by state, but in California, individuals have the following rights.
Using a person’s likeness
In general, you can’t use another person’s “likeness” for a commercial purpose without their permission. See more at our Guide to Marketing and Merchandising.
Rights of privacy
There are also rights of privacy issues. There are 3 categories of privacy issues:
- Intrusion: Individuals have a right to protection against unwarranted intrusion upon their solitude and private affairs
- Public Disclosure: Individuals have a right to protection against the public disclosure of embarrassing facts about their private lives
- False Light: Individuals have a right to protection against publicity that places them in a false light
Basically you can’t photograph something that a person has a reasonable expectation of keeping private, even when the person is in a public area. Although quite often there is no “reasonable expectation of privacy” in most public places, so you can usually photograph or record people in these situations.1Cal Penal Code §§630–638; Sanders v American Broadcasting Cos. (1999) 20 C4th 907
Exceptions to both “right of publicity” and the rights of privacy are when the subject is “newsworthy” or in the public interest.2See Dora v Frontline Video, Inc. (1993) 15 CA4th 536, interpreting Civ Code 3344(d) which exempts use “in connection with any news, public affairs, or sports broadcast or account”
See our Guide to Privacy Law for more on this.
What does an artist need to know about creating potentially offensive or politically sensitive art?
Controversial art pieces are usually protected by freedom of speech and expression in the 1st amendment of the U.S. Constitution. But when a piece potentially may harm the reputation of a person, this may be considered “defamation.” See our Guide to Free Speech in California for more on these issues.
3. Independent contractors, freelancers, and other business issues
Are artists considered independent contractors or employees?
Under the new law AB 5, many artists may now be considered employees rather than freelancers (independent contractors). See the full explanation here.
What do artists need to know about business law?
Many artists work on their own, either commissioned to create a work of art, or creating their own art to sell. Commission based work usually means the artist is an “independent contractor” aka “freelancer,” performing work for a “client.” Generally if you work as an independent contractor, you maintain all the rights to the work, unless you have a contract that states otherwise.3CA Labor Code Secs. 2870, 3351.5(c))
But often clients will require that a work be done as a “work for hire,” which essentially means the artist would give up all of their rights (including “moral rights” – see above). See our Guide to Freelancer Law for more on this.
If you are an artist creating your own art to sell, you are essentially a small business, and must follow the relevant California business laws.
Exercise Your Rights
These issues can get complicated, so it’s best to discuss with a lawyer who focuses on intellectual property, free speech, and/or business law.
See all Legal Guides
Photo credit: Death to Stock Photos
|↑1||Cal Penal Code §§630–638; Sanders v American Broadcasting Cos. (1999) 20 C4th 907|
|↑2||See Dora v Frontline Video, Inc. (1993) 15 CA4th 536, interpreting Civ Code 3344(d) which exempts use “in connection with any news, public affairs, or sports broadcast or account”|
|↑3||CA Labor Code Secs. 2870, 3351.5(c))|