Guide to Laws for Artists in California

California Artist Law

Guide to Laws for Artists and Creatives in California

Photo credit: Death to Stock Photos

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.

How do I protect my art and brand while spending the least amount of money?

It depends on how much protection you want. If you are OK with minimal protection, you can get that without spending anything, at least upfront. Protecting your art mostly falls under copyright law. As soon as you create the art, whether you draw a drawing or paint a painting, you automatically have the rights to the work.

Protecting branding falls under trademark law, and it works similarly. As soon as you start using your branding, whether a business name or logo, in connection with your business, you automatically secure rights to the branding, as long as nobody else was using it first.
Then, if anyone infringes on your work or your branding, you could enforce your rights against them by first writing up your own cease and desist letters and sending them out to infringers.

And if the infringer is non responsive, you will have to take them to court to enforce your rights. Even here, it’s possible to do this on your own, by going to small claims court for claims under $10,000. The only real cost with any of this is the small claims filing fee which is under $100.

But all of this requires you to really know what you’re doing. If you don’t, you may not get very far with this.

The other issue is that it’s minimal protection. So if you just rely on the “automatic protection,” it may be hard to prove that you actually have the rights to the work or the branding. The next level of protection would be to register your works, and register your trademarks. Again, you can do this on your own, for $55 per copyright registration, and $250 per trademark registration. But these registrations can be tricky without some help from a lawyer.

You may be able to get free or low-cost legal help, for example from the California Lawyers for the Arts, or other organizations. That would probably be the best place to start.

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 Law.

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.