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  • Friday, December 05, 2014 5:25 PM | Alma Robinson (Administrator)


    The California Resale Royalty Act (CRRA), which is under attack in the federal courts, has received strong support from Attorney General Kamala Harris. California’s AG filed an amicus brief in November, urging the US Court of Appeal to reverse a District Court ruling that found Civil Code 986 unconstitutional on a dormant commerce clause theory.

    The CRRA was introduced by former State Sen. Alan Sieroty, who was honored for his advocacy on behalf of artists at our 2013 Artistic License Awards in Santa Monica. The statute, which CLA helped to draft, was passed by the state legislature and signed by Governor Edmund Brown in 1976. If a work of art is resold for at least $1,000, and for more than the seller paid for it, the seller is required to pay the artist a 5% resale royalty. California is the only state in the United States that has enacted such a royalty for visual artists.

    The California law, Civil Code Section 986, applies to original drawings, paintings, sculptures, and works of art in glass if the work is sold in California or the seller is a resident of California. In addition, the artist must be a California resident or a US citizen. Although the royalty can be assigned to a third party in writing, it cannot be waived by the artist except for a larger percentage. The royalty applies for 20 years after the artist’s death, providing a legacy for heirs and estates.

    Los Angeles attorney Eric George sued Sotheby’s, Christie’s and E-Bay in 2011, claiming unpaid royalties on behalf of Chuck Close, Laddie John Dill, the Sam Francis Foundation and the estate of Robert Graham. The defendants claimed the law was an unconstitutional burden on interstate commerce. US District Court Judge Jacqueline Nguyen agreed, and dismissed the complaint on dormant commerce clause grounds.

    CLA’s amicus brief, which was prepared by attorneys Steven Hirsch and Katherine Lovett of the San Francisco law firm of Keker & Van Nest, and CLA Board Member Jack Davis, argued that such a significant constitutional issue should not be decided on a motion to dismiss. The defendants, we stated, needed to provide evidence of the administrative burden they claimed and show how it interferes with interstate commerce rather than relying on hypothetical arguments.

    The issue is now before the 9th Circuit Court of Appeal, which first heard oral arguments in April. Recently, the court announced that it would rehear the issues en banc on December 16 in order to consider two cases concerning the dormant commerce clause that were decided after Judge Nguyen’s dismissal of the CCRA case.

    The Attorney General’s brief argues that the CRRA does not prescribe the terms or conditions of any sale, but merely imposes financial obligations on California residents once a sale takes place. Furthermore, the brief states, “No facts have been developed that would show that any transactions at issue in the plaintiffs’ complaints do not take place at least partly in California.”

    A proposal for federal legislation, the American Royalties Too Act, was introduced earlier this year and is pending in Congress. The US Copyright Office, which opposed the resale royalty in its 1992 report on resale royalties, has since updated its research. In a second report issued in 2013, the Copyright Office reversed its previous position and now recommends the enactment of a federal resale royalty for visual artists. Because of a reciprocity requirement in the 1948 revision of the Berne Convention, American artists and their estates cannot obtain royalties from resales in foreign markets until we have a federal law, hence the name of the current proposal in Congress: “American Royalties Too.”

    The California law was modeled on the European droit de suite, which originated in 1920 in France, and is now in effect in more than 70 countries around the world as well as the Commonwealth of Puerto Rico. The law gives visual artists a future income stream similar to the royalties that artists working in other disciplines, such as music and literature, enjoy when their work is reproduced. 

    The en banc Court of Appeal may rule outright that the CRRA does not violate the U.S. Constitution.  Another possible outcome of the current California litigation is that the appellate court will remand the case to the District Court for evidentiary findings. In light of their compliance with similar laws in most major art markets around the world, the auction houses would have a hard time proving that their administrative duties under CCRA present an unconstitutional burden.


    Alma Robinson, Executive Director                                                                  

    California Lawyers for the Arts  


  • Wednesday, November 19, 2014 7:35 PM | Anonymous member (Administrator)


    Recently, we celebrated the premiere of She Sings to the Stars at the American Indian Film Festival in San Francisco with a reception for the film's writer/director, Jennifer Corcoran, producer Jonathan Corcoran, and two of the three actors, Fannie Loretto and Jesus Mayorga.

    CLA provided attorneys who advised the producer about how to structure the limited liability corporation, as well as production contracts, releases, music licensing agreements, chain of title issues, and a private placement memorandum for investors. CLA's panel attorneys, Lindsay Spiller and Richard Lee, were acknowledged in the film's credits.

    The premiere provided a homecoming of sorts for the star of the film, Fannie Loretto, who had relocated with her family from a reservation in New Mexico to San Francisco in the 1950s under the US government's forced relocation and termination policy. She was just five years old when her family moved to San Francisco from Jemez Pueblo, New Mexico. They lived in a housing project near the present site of Candlestick Park in San Francisco's Hunters' Point neighborhood. After five years of experiencing the trauma of displacement, her mother found a way for the family to move back to their pueblo.

    Returning to San Francisco for the first time after 50 years, Fannie was nominated for a best actress award for her role as Mabel at the American Indian Film Festival, now in its 39th year.

    In the feature-length film, Mabel, a Native American grandmother, lives alone in the desert and inhabits a timeless world that her half-Hispanic grandson and an aging white magician discover as they reconnect after a disturbing encounter.

    Jennifer Corcoran, who wrote, directed and edited the film, described her creative process: “I first met Mabel, the grandmother character in the film, in a dream,” she recalled. “Mabel said, ‘It's time to sing the song. Listen. It will take you four years.’ I followed the clues, constructed three life-size, newspaper-stuffed dressed figures of the characters and listened to them whisper the bones of the story.”

    “The 21st Century finds us parched and hurried," she continued. "Mabel is not in a hurry; as a grandmother she is a container, the keeper of timelessness reflected by an expansive desert, an endless night sky. She holds the nurtured seeds for us to take forward, reminding us that we belong to something greater than our limited ideas of ourselves. Little seems to happen in her world, yet in this container of timelessness - now, and only now - anything is possible.”

    With Jennifer, a resident of Ballydehob ("the ford at the mouth of two rivers"), Ireland, and her brother Jonathan, who lives in Monkton, Vermont, anything, indeed, is possible…

    And as we like to say at CLA as we start our 40th year of legal services, educational programs and advocacy for the creative sector, "Your success is our success." Congratulations!

    Alma Robinson, Executive Director
    California Lawyers for the Arts

  • Thursday, May 01, 2014 9:31 AM | Alma Robinson (Administrator)
















    CLA Group at the Google Complex in Paris

    As we were preparing for our recent professional development program, Lights on Paris: Intellectual Property and Cultural Policies in the Digital Age, my colleague Bob Pimm recommended a new book, How Paris Became Paris: The Invention of the Modern City by Joan DeJean. This sweeping review of the history of Paris' development as a unique cityscape with its stunning bridges, public squares, sweeping gardens and grand boulevards, also highlights the visionary leaders and city planners who, starting in the 17th century and continuing through successive generations, determined that Paris would be the most beautiful and admired city in the world.

    Consistent with the enhancements of a built environment devoted to beauty and public enjoyment, Paris also welcomed the infrastructure that would support culture, not only nationally, but globally. UNESCO, the international organization that supports cultural rights and world heritage preservation, is based in Paris, as well as CISAC, the umbrella organization that represents the interests of more than three million artists around the world, serving 227 authors' rights societies in 120 countries. 

    The legal framework supporting artists' rights was born in France. The world's first copyright law, which was enacted by the Constituent Assembly of France and ratified by King Louis XVI in 1791, stated: "The most sacred, the most unassailable and the most personal of all properties is the work, the result of the thought of the writer." 

    A generation later in 1829, the world's first organization established to collect artists' royalties, SACD, the Society of Dramatic Authors and Composers, was formed in Paris. Fast forward to the 20th Century: The resale royalty right for visual artists, enacted only by California in the US and currently the subject of contentious litigation in our federal courts, has been a right of French artists and their heirs since 1920.

    No wonder that Google chose to build the Google Cultural Institute, the showplace for its digitization of works of art, in Paris.  During our visit to the Institute, which is not open to the general public, we were indeed "wowed" by a digital rendering of the famous Marc Chagall painting which was hung from the ceiling of the Paris Opera in 1964.  The Google image, shown here, can be manipulated to show details that are not normally visible.  

    Upstairs, the Institute's first artists-in-residence were plowing their imaginations: Adriana Ramic is adapting Google Translates to the task of interpreting communication pathways between insects (yes, ants, for example), while Yousef Bushehri is designing portable pop-up structures that can be built with 3D printers for a variety of uses, such as displaying art in public spaces.    

    Later that afternoon, our group visited the Opera House at the Palais Garnier, where we strained to view the original Chagall canvas, installed more than 80 feet above the orchestra section. We were convinced that art lovers as well as art historians, conservators, and students will benefit from the detailed observations which Google has enabled through technology. Unseen by any outsiders, except through Google's camerawork, was a pool of water in the basement that, we learned during our tour at the Garnier, was installed as the response to a fire that burned down the previous opera house in 1873.

    Speakers at our seminars, which were held at Orrick's office in Paris, deftly described the latest developments in trademark, copyright and patent practice in France and the European Union. Corey Salsberg, Senior Legal Counsel at Novartis in Basel, Switzerland, discussed efforts to establish pro bono patent programs in developing countries. This project, which aims to assist low-income inventors, is similar to CLA's California Inventors Assistance Program.

    Gadi Oron, the General Counsel of CISAC, reported that global collections of royalties for authors of all genres totaled $11 billion during 2012. Representatives of SACEM, the French collecting society for musical artists, and ADAGP, which represents visual artists, as well as SACD, outlined changes in royalties collections in the various art disciplines. California Attorney Eric George spoke about current resale royalties litigation against international auction houses on behalf of California artists and estates.

    Our experts also included Judge Anne Elisabeth Crédeville from the French Court of Cassation, who represents the judiciary on the CSPLA, the Higher Council of Literary and Artistic Property. This committee was founded in 2000 to advise the French government on copyright matters during the development of internet and digital media.

    UNESCO Program Officer Rochelle Roca-Hachem described how various treaties and directives that protect cultural rights internationally are implemented.  She was followed by CLA's founding executive director, Hamish Sandison (now practicing law in London), who analyzed the relationship between international cultural rights and the rights of individual artists. 

    Patrick Hauss, European Regional Director of Corporation Service Company, informed us that the internet map is about to get more complicated. New sets of domain names based on cities, such as .Paris and .Berlin, as well as corporate brands, e.g. .Intra-Bank, and activities, for example, .sport are going to be authorized later this year by ICANN, the Internet Corporation for Assigned Names and Numbers. 

    A panel on fashion law described how luxury goods, many of which are based in Paris, defend their brands from counterfeiting. Consistent with artists' challenges in the U.S., jewelry designer Géraldine Valluet shared the difficulties that individual designers confront in protecting their work from knock-offs.

    Wrapping up our seminar program, efforts to defend against counterfeiting and internet fraud were described by speakers from Hermès, Google and U.S. Homeland Security,which plays a role in combating internet piracy while working with Interpol and other international agencies to return stolen art and artifacts to their countries of origin.

    It was challenging to follow up our Welcome Dinner in a private room at the Bistro Vivienne, which was sponsored by Novartis, but we certainly tried. At the Duc des Lombards, a legendary jazz club, we were enthusiastically acknowledged ("California Lawyers for the Arts is in the house!") by master guitarist Ed Cherry, whose resume includes work with Dizzy Gillespie, while we feasted on a four-course meal that featured Magret de Canard.

    And how do you end such a stimulating week of information and sensual delights? With a sip of Cognac, of course. For a very special last day in France, Moët Hennessy offered our travelers a tour of their facilities in Cognac, only a 2.5 hour rapid train ride from Paris to Angouleme in the Southwest.

    Following a seasonal lunch with roasted guinea fowl, hosted by Maurice Hennessy (shown here with Alma Robinson in a photograph by Benjamin Goldenberg) at the family estate, we ended the day with tours of the vineyards and secured facilities where 200-year old Cognac is stored in aged barrels. Consistent quality has been assured for two centuries by the Fillioux family, which has been at the head of the tasting and blending committee since the early 1800s, working right alongside the Hennessys for seven generations.
                
    Alma Robinson, Executive Director
    California Lawyers for the Arts





  • Tuesday, February 04, 2014 12:58 PM | Alma Robinson (Administrator)
    Just when the "liberal" arts in higher education began to look like a losing cause due to the stampede to Wall Street, we discovered a report on empirical research, published in the journal, Science, and reported in the New York Times, that shows that people who read literature are better able to discern the nuances of others' behavior and feelings, demonstrating more empathy for others. 

    And why is this important?  In these critical times, when growing income inequality threatens the promise of the American dream, a dose of empathy could remind us all that we are indeed our "brother's (and sister's) keeper."

    Consider the current political impasse in Washington, DC over a parcel of "women and family" issues:  affordable child care, early childhood education, minimum wage, unemployment insurance and paid sick leave.  These are things we would all want for ourselves and our families.  In a rational world is, the next question is, do we not also want these benefits for everyone, even for people who don't look like ourselves or think like we do? 

    How to get this menu of family-friendly benefits approved by a House divided is the number one question for our political leadership.  On Saturday, while they were celebrating a new stamp commemorating Rep. Shirley Chisholm at Mills College, US House Leader Nancy Pelosi joined Rep. Barbara Lee and Mills President Alecia DeCoudreaux in proclaiming that "When Women Succeed, America Succeeds." 

    Barbara Lee, who represents Oakland in Congress, spent years getting the US Postal Service to issue a commemorative stamp honoring Shirley Chisholm, the first African-American woman elected to Congress and the first woman candidate for president. Poignantly recalling how Chisholm inspired her to get involved in politics, Lee also shared how she had needed food stamps for her family when she was a student at Mills. Retired Rep. Lynn Woolsey of Petaluma told how her failed marriage resulted in enrolling her family in AFDC (Aid to Families with Dependent Children, aka "welfare") in order to support her children.  

    These safety nets are under attack by people who evidently don't care enough about those who need help sustaining their families through hard times.   

    "It's about respect," declared Pelosi.

    And maybe, about the lack of empathy that the growing class divide exacerbates.  

    Shirley Chisholm had signed a poster with a challenge: "Help US advance."  When we learn to see all of our people as family, we might develop the essential empathy and desire to see all of US advance.

    And who is "us?'  There is a simple answer. Genealogical researchers are concluding that --  surprise --  many of us are related through family ties. We are all cousins to some degree -- removed or not.  We are all in this family together and we'd better start looking out for everybody.

    And in the meantime, for insurance, since reading literature helps develop deeper empathy for "the other,"  let's keep English classes on the list of required courses for all students, with a double dose prescribed for those studying business and political science.

    Alma Robinson, Executive Director
    California Lawyers for the Arts


  • Saturday, January 18, 2014 6:21 PM | Alma Robinson (Administrator)

    Before diving deeper into our challenges for the new year, we need to pay tribute to two generous souls, recently departed, who were significant in the development of California Lawyers for the Arts:

    Jerry Carlin, our founding president, who left a career managing legal services for poor people at the San Francisco Neighborhood Legal Assistance Foundation to become a professional artist, paused to create Bay Area Lawyers for the Arts with Hamish Sandison in 1974. Through BALA, Jerry created an organization that brilliantly married his passions of law and the arts. Sandison wrote that "Jerry did as much as anyone to ensure that artists and arts organizations in the Bay Area today are able to obtain...legal advice to support them in their careers--regardless of their ability to pay. In addition, he campaigned successfully through BALA for state legislation to protect artists in their dealings with galleries and to secure them a return on the resale of their works of art--then and now the first and only resale royalties legislation in the United States."

    In 1981, Jerry offered me the job of executive director of BALA. I had been hired the previous year to design and implement our national model program providing alternative dispute resolution services for the arts. Jerry continued to work with me in my new role and was hands on when we needed him. I recall one afternoon when we worked together on a grant proposal for the San Francisco Foundation. With sharpened pencils and clean erasers, he added up numbers for the budget while I worked on the narrative. By his example, he also encouraged me to value the relationships with BALA's initial funders, including the Gerbode Foundation and the California Arts Council as well as the San Francisco Foundation, beyond the transactional aspects of grant applications and reports. More recently, he and his wife, the noted actress and director Joy Carlin, arranged for us to meet with state Sen. Loni Hancock of Berkeley to discuss funding for the arts. Jerry passed on January 7, 2014. Until the end, he continued to be a champion for arts and justice, and was one of our most loyal donors. In our last conversation, Jerry was urging CLA to provide more estate planning services for artists in the twilight of their careers.

    Helen Major, who was an artist and development professional, helped craft our strategy to expand BALA from a regional organization serving the San Francisco Bay Area, to a statewide arts service organization. When we reached out to Volunteer Lawyers for the Arts-LA with our plan, I followed much of Helen's recipe. Starting with "Relax with Tax," we started offering workshops in Los Angeles in collaboration with VLA-LA. We then surveyed artists, which documented the need for our services and laid the foundation for philanthropic support. Meanwhile, the members of the VLA-LA board were being primed with conversations led by our common board member, Amy Neiman, an LA attorney who had been a law student intern at BALA. Finally, the board members of VLA-LA were invited to join the BALA board, led at that time by Stephen Camber, which had already agreed to change the name of the organization to California Lawyers for the Arts. As a result, we inherited several prominent board members, including California State Senator Diane Watson, who subsequently became a member of Congress; Richard Koshalek, then the director of the Museum of Contemporary Art in Los Angeles; and Daniel Grover, a business affairs executive at Creative Artists Agency who had previously been a member of the staff of BALA.

    With our expanded board, we were in a position to obtain grants to deliver services to artists in the Los Angeles area. Early support for capacity building and programs from the California Community Foundation, the LA Cultural Affairs Department, the LA County Dispute Resolution Program and the James Irvine Foundation provided credibility as well as financial resources. We were on the way. Following Helen's common sense approach, we had avoided the complications and liabilities of a formal corporate merger. In my last visit with her just days before her death in October, she asked me how the organization was doing. She was particularly excited when I told her about our work with women in the San Francisco jail as part of our arts-in-corrections demonstration project. She immediately encouraged me to approach women's foundations in order to continue this project. Helen was the mother of San Francisco's third Poet Laureate, devorah major, who is also a CLA mediator, facilitator and consultant on program planning and evaluation.

    Both Helen and Jerry were artists who believed strongly in the mission of lawyers for the arts and inspired me to become excited about CLA's institutional development. The strength of their vision and their organizational sensibility, as well as their passion for justice, challenged me to find the way forward through the inevitable peaks and valleys of the non-profit arts landscape. With their energy and support, I always felt that our organization could be a more vital resource for meeting the changing needs of artists and the communities we serve. I miss their presence, but their lessons are very much alive in our work at California Lawyers for the Arts.

    Alma Robinson, Executive Director
    California Lawyers for the Arts


  • Wednesday, September 11, 2013 3:34 PM | Alma Robinson (Administrator)

    As part of our effort to demonstrate the power of the arts in rehabilitation, California Lawyers for the Arts is working with the William James Association to provide arts classes in county jails and state prisons.  In August, with the support of San Francisco Sheriff Ross Mirkarimi, we started a new gospel music choir for women at the SF County Jail. Leah Garchik wrote about the class in her column on culture and politics in the SF Chronicle.     

    While the choral singing is led by Emma Jean Foster, who facilitates a group in "Healing Thru Negro Spirituals" at Glide Memorial Church, I provide conflict resolution and communications skill-building exercises drawn from our mediation program. Larry Brewster, Professor of Public Administration at the University of San Francisco, is administering "pre and post" surveys designed to evaluate the effectiveness of the arts-in-corrections project.

    At the end of one recent class, I complimented the group on their impressive growth in listening skills and their ability to pay attention during our 3 and 1/2 weeks together. I asked the group to reflect on what they were taking away from the workshop.  Our soloist responded, "Team work--we're all making suggestions and no one is putting anyone down."  I reminded them of our "yes/and" versus "yes/but" exercise from a couple of weeks ago.  Another participant said she had learned that it was okay to make a mistake.  I responded that we all make mistakes.  (Our musical form is gospel, i.e., "call and response"--right?)  

    Another singer said she felt so much support from the group, that "we have each other's backs and look out for each other."  Another said they can sense when something is wrong with one of their mates, and we discussed how to be supportive, to help each other stay off the "edge."   A woman who had, at the beginning the class, shared a conflict that she's having with a staff member, said that she was going to take away the simple chart that I'd handed out at the beginning -- "win/win"   "win/lose"  "lose/win" or "lose/lose" -- and consider how she could work with that concept going forward.  We ended the session with a couple of minutes of silence and deep breathing. 

    Finally, I invited them to think about the simple word, thank you, and use it, try it out on people you think are giving you a hard time.  I then thanked our coordinator, Yolanda Robinson, for making it possible for us to have the class.  Some participants thanked Emma Jean for leading the chorus.  Many agreed that thank you is an important word to use.

    Emma and I had a chance to debrief as we left the facility.  She said she almost cried when listening to their reflections. I shared that after speaking about this transformation as "theory" for two years, I am now experiencing it first hand, and it truly is amazing.

    You could provide many of these same "conflict resolution skills," which we're organizing as five-minute tuneups for this context, in classes on anger management, restorative justice, etc., and they are no doubt helpful.  But when you use the arts as a metaphor, and build off of everyone's best effort to contribute to a greater good, you have found a path to these life lessons-- to harmony -- which is heartfelt and joyful.  

    I feel privileged to be able to do this work as part of our mission at CLA--it's really all coming home for me. I also believe that we can have no greater calling in the arts, than combining teaching the arts with critically needed problem solving skills.  If we lift up the most disadvantaged members of our society, we also help lift up their families and our communities. 

    We have also had glancing conversations about "recidivism."  A week ago, I challenged one woman who was complaining about being moved from one pod to another because of her behavior:  "This is not your home.  This is temporary."   She processed that and responded, "Yeah, it's like camp."  Everybody laughed. And my response: "And you're not coming back, right?"

    We also help inmates who are released with their transition back into their communities. One of our participants approached Emma Jean and asked if she could join her choir at Glide after her release.  There, she will find a supportive group of singers who will help to welcome her home.

    In July, Craig Watson, the director of the California Arts Council, and I met with Dr. Jeffrey Beard, the Secretary of the Department of Corrections and Rehabilitation. The CDCR is seeking ways to re-institutionalize these programs with the support of CAC leadership and administrative infrastructure. Current negotiations between the State Senate, led by President Darrell Steinberg, and Governor Brown have focused on rehabilitation, providing an opening for including the arts in strategies to reduce recidivism.

    If this was a storm, we could say we are in the eye of it.  But--no, "and"--while the storm of realignment is still passing through--the tides of punishment versus rehabilitation are shifting--and the light of civilization is peeking out. Through the fog, we can almost see the bridge.   

    As Sen. Loni Hancock said at a public meeting two years ago responding to my nearly breathless description of the value of arts-in-corrections:  "if it works in corrections, it might work in education!"   And the choir said, silently, "Amen!"

    Alma Robinson, Executive Director
    California Lawyers for the Arts


     
  • Thursday, May 09, 2013 5:06 PM | Alma Robinson (Administrator)

    California Sen. Curren Price, Chair of the Joint Committee on the Arts, presented an informational hearing on arts-in-corrections on May 3 at the Grammy Museum in Los Angeles. A video of the full hearing is embedded in an article published on-line in the Los Angeles Times

    Stating that he wanted to examine ways to reduce the "prison pipeline," Sen. Price challenged the audience of more than 100 persons: "We need to use all our tools to help identify the problem and come up with solutions...Keeping in mind the victims of heinous crimes, we also want to rehabilitate those who have gone down the wrong path. Upon release, we want this to be a one-way ticket."

    A roster of passionate speakers at the hearing included actor Tim Robbins, artistic director of The Actor's Gang, and musician and songwriter Wayne Kramer, who will receive CLA's Artistic License Award in Santa Monica on June 30. As a co-founder of Jail Guitar Doors and an ex-offender, Kramer has provided musical instruments and facilitated music lessons for incarcerated persons throughout the country.

    Based on his work for the past six years with The Actors Gang Prison Project, Robbins stated that the arts are an essential component of rehabilitation and create the "fundamental change" needed for ex-offenders to adjust to the pressures of life when they are released.

    With a recidivism rate of 70%--possibly the highest in the nation--and a federal court mandate to reduce the severe overcrowding in our state prisons, California needs to implement every rehabilitation strategy that works in order to make sure that those who are released have a solid chance to live productive lives outside.

    In 2009, a federal judicial panel ordered California to reduce the state's inmate population by 33,000 persons; this order was affirmed by the US Supreme Court in 2011. Through "realignment," the state has shifted many offenders to county jails, while reducing the flow of new inmates convicted of non-violent crimes to state prisons. While steady progress has been made, the state still needs to reduce the prison population by about 10,000 persons. Decreasing recidivism would help.

    The Correction Department's own longitudinal study of parolees between 1980 and 1987 showed that released inmates who had been engaged in arts-in-corrections programs had significantly better parole outcomes and lower rates of recidivism. One year after release, arts-in-corrections participants had a “favorable” status rate of 74.2% compared to 49.2% for state parolees as a whole. Two years after release, 69.2% of the AIC parolees retained their favorable status in comparison to a level of 42% for all released inmates. Why wouldn’t we want to increase this “medicine?”

    The California Arts Council, the National Endowment for the Arts and several private foundations are now supporting a demonstration project organized by California Lawyers for the Arts in collaboration with the William James Association. Updating his 1983 research that showed that arts-in-corrections programs reduce disciplinary incidents in correctional facilities, Dr. Larry Brewster of the University of San Francisco is conducting a "pre and post" evaluation of arts participants to measure changes in behavior and attitudes.

    Assemblyman Ian Calderon, Vice-chair of the Joint Committee on the Arts, underscored the power of art to address recidivism in the state corrections system. The Arts, Entertainment, Sports,Tourism and Internet Media Assembly Committee which he chairs has approved a $75 million allocation for the California Arts Council, which could include substantial funding for arts-in-corrections and a number of other needed community arts programs.

    Carol Hinds, the mother of an inmate and Secretary of the Inmate Family Council at California State Prison-Sacramento, described how her son had been greeted by gangs seeking his affiliation when he entered age 18. After three years of violence, he was moved to a different yard, where he was recruited into arts-in-corrections programs. He discovered musical talent that he did not know he had and has performed classical guitar pieces in a recital for visitors. Fighting tears, she said, "I have my son back. I don't have him for Thanksgiving and birthdays, but I have him back."

    Alma Robinson, Executive Director
    California Lawyers for the Arts

     

  • Wednesday, February 20, 2013 1:06 PM | Alma Robinson (Administrator)

    At the direction of Congress, the US Copyright Office is investigating the potential of setting up small claim procedures for copyright disputes. If enacted, this would be the biggest change in the legal infrastructure of intellectual property in decades.

    The third and final request for comments ends on April 12, 2013.

    In written comments to the Copyright Office and at an hearing at UCLA in November, California Lawyers for the Arts supported the concept of special procedures for adjudicating small claim copyright disputes as an access to justice issue. Copyright issues are exclusively a matter of federal jurisdiction, but taking a case to federal court, with its arcane local rules and discovery procedures, can be expensive and time consuming. A survey by the American Bar Association showed that the average cost of a copyright infringement lawsuit in Los Angeles through the end of discovery, was $292,000; the average cost through the end of trial and appeal was $517,000.  Unless actual damages are truly substantial, the copyright holder will be without an effective remedy in federal court.

    Copyright litigation is also a hazardous business. If an infringed work has not been registered with the Copyright Office within three months of original publication or before the alleged infringement, whichever is later, the copyright holder will be out-of-pocket for attorneys' fees and costs. And the promise of attorneys' fees if the copyright holder (and alleged victim) registered the work prior to infringement is still a risk. A losing plaintiff may have to pay the attorneys' fees of the defendant. Furthermore, if the copyright holder fails to accept a federal "Rule 68" settlement offer that proves to be equal or greater than the amount of the judgment, the copyright holder will be responsible for litigation costs, which, as noted above, can be quite expensive. A small claims process could well serve to provide a forum for legitimate claims that avoids these financial hazards.

    Many interesting procedural questions are being teased out by the legal policy staff at the Copyright Office: the amount in controversy (suggestions ranged from a maximum of $10,000 to $50,000), whether parties can be represented by attorneys, should the process be mandatory or voluntary, who will make the decisions, can they be appealed and if so, to what body? Should there be filing fees? How much discovery should be allowed? Should there be injunctive relief, which allows the claimant to stop an alleged infringement? Stripping the process of costly motions and discovery, how would evidence be presented?

    What kinds of work should be included? At hearings in New York and Los Angeles, representatives of some music publishers argued for an exception for music, stating that their own agreements with artists provide for adequate enforcement of copyright claims. Along with Parliament Funkadelic singer-songwriter George Clinton, who participated in the Los Angeles hearing, I argued for including music along with all the other artistic genres.

    CLA and many others, mindful of the need to reduce travel time and expense, envisioned a national court with telephone or video appearances and electronic document submission. Such a national small claims court would also eliminate the possibility of local rules and procedures sprouting up in federal courthouses around the country.

    Whether parties can be represented by attorneys in the proposed small claims court is a thorny issue. While state courts vary on this question, attorney representation is not allowed during small claims court proceedings in California. In any case, I recommended putting in place a system of legal advisors who could help claimants evaluate their cases and prepare for trial. This has worked well for small claims court claimants in California. In the meantime, at CLA, our statewide attorney panel helps evaluate any potential litigation, including small claims, with fees based on three income tiers--pro bono, modest means or regular.

    Citing CLA's experience with alternative dispute resolution since 1980, I argued for establishing a robust alternative dispute resolution (ADR) program that potential claimants would learn about before initiating litigation, perhaps through a small claims adviser. With participants in many locations, and even abroad, CLA's Arts Arbitration and Mediation Services has administered many mediations and arbitrations by telephone. In January, with the participation of U.S. District Court Judge Thelton Henderson and Howard Herman, the director of the court's highly regarded ADR program, we presented a mediation training for intellectual property attorneys who are interested in serving as neutrals, regardless of the outcome of the small claims proposal for copyright disputes.

    So, when are the proposed small claims procedures likely to be implemented?

    This discussion was initiated by a representative of a photographers' organization in 2006 when the Copyright Office was investigating the issue of orphan works. The House Judiciary Committee subsequently asked the Copyright Office to submit a report on small claims issues and possible solutions by September, 2013. There have been two comment periods and two public hearings, and the Copyright Office has issued one final request for comments. At the hearing in Los Angeles, we learned that the US Patent and Trademark Office is beginning its own investigation into the feasibility of small claims procedures for patent and trademark disputes.

    Stay tuned.

    Alma Robinson, Executive Director
    California Lawyers for the Arts

    with contributions from 
    MJ Bogatin, Co-Chair of the CLA Board of Directors


  • Sunday, December 09, 2012 3:07 PM | Alma Robinson (Administrator)

    The US Copyright Office has been asked by Congress to review how the current copyright legal system affects and supports visual artists; and how a federal resale royalty right for visual artists would affect current and future practices of groups or individuals involved in the creation, licensing, sale, exhibition, dissemination, and preservation of works of visual art.

    California Lawyers for the Arts responded with a statement emphasizing our strong support. CLA, then Bay Area Lawyers for the Arts, advocated for the passage of the California Resale Royalty Act, which was enacted in 1976 and went into effect in 1977. 

    Our organization has vigorously defended the law because we believe that it provides a important economic incentive as well as remuneration for visual artists whose work increases in value over time. In fact, more than 80% of the visual artists who responded to our recent survey said that the resale royalty is an important incentive for them to continue working as visual artists. Through US copyright protection, statutory and industry standards, musical, literary and performance artists benefit from the continuous resale of their works. Singularly, visual artists have not had a national framework for reaping such rewards. California remains unique in the nation in providing visual artists with the resale royalty, which was modeled on the European "droit de suite." 

    California Civil Code Section 986, the California Resale Royalty Act (CRRA), provides that an artist is entitled to a resale royalty of 5% if the work is resold for a profit and for a gross sale price of at least $1,000. The royalty can only be waived in a written agreement for a higher royalty. The work must be an original work of visual art (defined as a painting, drawing, sculpture or original work of glass). The royalty is due if the seller resides in California or the sale takes place in California and the artist must be a US Citizen or a California resident for at least two years.

    When a group of art dealers and collectors sued in federal court challenging the constitutionality of the CRRA in Morseburg v. Balyon v Mayer, BALA was an amicus and provided the artist-intervenors with representation in an effort led by BALA Board Member Jack Davis and Hamish Sandison, then Executive Director. The US District Court upheld the law in 1978. Judge Robert Takasugi praised the law "as the very type of innovative lawmaking that our federalist system is designed to encourage. The California Legislation has evidently felt that a need exists to offer further encouragement to and protection of artists." In 1980, the US Court of Appeals affirmed the lower court's judgment. 

    Once again, the CRRA is being challenged in federal court. Artists Chuck Close, Laddie John Dill, and Robert Graham claimed in a lawsuit that Sotheby's Christie's and EBay were not paying royalties. On a motion to dismiss without any evidentiary hearings, US District Court Judge Jacqueline Nguyen held that the Act is unconstitutional based on the Commerce Clause of the US Constitution. L.A. attorney Eric George, who represents the plaintiffs in the class-action suit against the auction houses, told the LA Times: “For a single federal judge to invalidate the law, more than 35 years later and without allowing any evidence to be taken, marks a departure from established constitutional law. We are confident, as both sides have always believed, this case will ultimately be resolved by the Ninth Circuit Court of Appeals, which already upheld this very statute in 1981.”

    Arguments that the requirement to pay resale royalties would drive the art business outside the state of California have not been validated over time. A federal resale royalty law will obviously eliminate any remaining arguments that the resale royalty interferes with interstate commerce. Furthermore, a federal law would align the United States with Article 14ter of the Berne Convention, “Droit de suite” in Works of Art and Manuscripts, which provides the following:

    (1) The author, or after his death the persons or institutions authorized by national legislation, shall, with respect to original works of art and original manuscripts of writers and composers, enjoy the inalienable right to an interest in any sale of the work subsequent to the first transfer by the author of the work.

    (2) The protection provided by the preceding paragraph may be claimed in a country of the Union only if legislation in the country to which the author belongs so permits, and to the extent permitted by the country where this protection is claimed.

    (3) The procedure for collection and the amounts shall be matters for determination by national legislation.

    It is time for the United States to take its place in the community of nations on this issue.

    Alma Robinson, Executive Director
    California Lawyers for the Arts


  • Wednesday, September 19, 2012 10:57 PM | Alma Robinson (Administrator)
     
    In this political season, we have great opportunities at every level of government to stoke the flames for strengthening the arts in our schools and communities and as part of our everyday lives. The party platforms that were approved at the Republican and Democratic National Conventions have given us a starting place.

    Arts for LA, citing Americans for the Arts, noted that the Democratic Party calls for “continuing public funding for the National Endowment for the Arts, for the National Endowment for the Humanities, and for programs providing art and music education in primary and secondary schools.”  The Republic party platform does not state a position on arts and culture, according to Arts for LA, but does emphasize that education "in which all students can reach their potential is critically important to America’s future." Since we support public funding for the arts and we like working with potential, so far, so good. 

    But can we hold their feet to the fire?

    Every candidate for elected office should be asked what they intend to do, if elected or re-elected, to support arts funding and programs in their jurisdictions, whether that position is on the City Council, the County Board of Supervisors, the School Board, the State Assembly or Senate, or the US Senate or House of Representatives. And let's not forget the candidates for District Attorney, County Sheriff, Mayor, Governor (we don’t have a Governor’s race this year in California, but 11 states do) and for President!

    The best four-letter message during this time of fiscal constraint is SAVE: The arts save money and save lives. 

    Students whose schools offer arts education are more likely to stay in school and graduate from high school on time. Findings from Staying in School, a 2009 study of New York City schools by The Center for Arts Education, showed that the schools in the top third in graduation rates offered their students the most access to arts education and other resources supporting the arts, such as field trips and strategic partnerships with arts organizations.
     
    How the arts save money and lives: Students who finish high school are more resilient to delinquency, are less likely to become engaged with the criminal justice sector and more likely to become taxpaying, productive citizens. 

    The cost of maintaining people in California's correctional facilities (estimated at $50,000 to $60,000 a year) should inspire policy makers to seek ways to strengthen the infrastructure of the arts in our communities and our penal institutions as well as in our schools. Research by Dr. Larry Brewster of the USF School of Public Administration has shown that arts programs save money by reducing the costs of disciplinary infractions incurred by state prisoners.  In coordination with the William James Association and California Lawyers for the Arts, he is designing a new study to examine behavioral and attitudinal changes experienced by residents engaged in arts programs.  In the context of California's court-mandated "realignment" of prisoners from state facilities to county jails and probation programs, arts programs can contribute to the kind of quality rehabilitation which is needed in order to reduce recidivism and save the state money in future years.

    The arts also provide life-long health benefits. Research from the Auditory Neuroscience Laboratory in the Communications Department at Northwestern University shows that early music training enhances brain functions for life while Richard Powers of the Stanford Dance Department reports that social dance can enhance defenses against dementia as well as help with physical mobility.

    Need more evidence? The California Arts Council maintains an on-line research library that lists hundreds of reports organized by interest areas. 

    An easy way to identify the elected officials and candidates in your district is to use The Americans for the Arts Action Center. This site sorts inquiries by zip code and provides users nationwide with contact information, profiles, donor lists, and other information about elected officials and candidates. A Capwiz portal for California residents is maintained by California Arts Advocates

    Local candidates' forums are useful for framing issues for the voters, who can then compare the candidates' commitments and hold them accountable going forward.  For example, candidates for the San Francisco Board of Supervisors were recently invited to respond in person to questions about their commitment to the arts at the San Francisco Arts Town Hall. In addition, the candidates’ written positions were submitted in advance and posted on line.

    As a 501(c)3 tax-exempt, non-profit organization, California Lawyers for the Arts can’t support specific candidates for public office, but we sure can vigorously advocate for arts funding as a public policy priority. 

    Following the cost saving argument, here's the second part of our pitch:  The arts enhance the quality of life for all of us as individuals and strengthen the community bonds that make our nation great. 

    Shouldn’t every kid have a chance to learn a musical instrument or to write poetry or to choreograph a dance piece or to be in a play -- skills as fundamental and challenging as reading and math? Furthermore, learning through the discipline of the arts provides a strong foundation for learning reading and math.  Music, you might say, is structured as a set of mathematical exercises.

    Don’t our seniors deserve opportunities for a better quality of life through arts activities? 

    And doesn’t everyone deserve a chance to be creative, and to have opportunities to experience art and expand their cultural empathy? If this "secret sauce" is just for the privileged and talented, and is not accessible to all of our people, we will have only ourselves to blame for the demise of American civilization.

    If we speak up, will you?

    Alma Robinson, Executive Director
    California Lawyers for the Arts


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