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.     

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

 

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

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

 

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

What can we do to prevent the warped development of these twisted egos? The "strict fathers" have responded that more laws won't help. Governor Mitt Romney said he favors a "common sense" approach: "I do believe that we need to do a much better job of identifying people who present a risk to others, and how to go about doing that is something that is going to require a lot of introspection and a lot of effort."  But, could we find them before they succumb to the void?

Recently I attended a theatre workshop presented by Tim Robbins and Sabra Williams of The Actors' Gang with residents at the California State Rehabilitation Center in Norco. These men had completed an eight-week course learning the techniques of Commedia del'Arte.  In rapid sequence, masks representing anger, fear, sadness and joy were put on and removed.  This skill usefully transfers to real life as one participant reported that he had learned how to manage emotions: "I will use this emotion and not be a victim of it."   Said another:  "This is what I've learned--I'm a master of my mind and not a victim of my thoughts."  

I asked if they thought their lives would have been different if they had had the opportunity to develop their artistic talents when they were in school. Yes, several nodded in response. Hands shot up.

We don't yet know the Joker's full story. But we can imagine that his talents could have employed to direct a different plot line if better opportunities for self-expression had been in his path.

In his speech to the National Urban League, President Obama continued: "It’s up to us to spend more time with them, to pay more attention to them, to show them more love so that they learn to love themselves -- (applause) -- so that they learn to love one another, so that they grow up knowing what it is to walk a mile in somebody else’s shoes and to view the world through somebody else’s eyes. It’s up to us to provide the path toward a life worth living; toward a future that holds greater possibility than taking offense because somebody stepped on your sneakers."

In Roman mythology, Aurora is the Goddess of the Dawn. Would that we could realize a gleaming light of hope, and the much needed rebirth of American civilization, by transforming this dark tragedy into an opportunity to protect all of our children from the madness that is erupting across the land.

Alma Robinson, Executive Director

California Lawyers for the Arts

The San Francisco Law Library, the first in the state, is at risk of being closed due to lack of funding. If this can happen in literate, progressive San Francisco to an institution that is 140 years old, it can happen anywhere in the State of California. Are your alarm bells ringing?   There is a pattern here, as the resources that we depend on for our democratic way of life--the free flow of information, educational institutions and quality journalism are receiving diminishing support.  Just go to the internet, we're advised.

In addition to doing personal and organizational research, I have frequently referred members of California Lawyers for the Arts to the law library to find the answers to their inquiries about legal issues. To cite one extraordinary example, I encouraged the late Jo Hanson, an artist who was concerned with a tax audit, to go to our public law library in order to research relevant tax regulations and rulings.  She used her findings to write a unique book, which was sold nationally, to help artists prevent and prepare for IRS audits.

CLA's board of directors voted a resolution in support of adequate financing for the San Francisco Law Library at our last meeting on June 2. If you are concerned, please write to members of the San Francisco Mayor and the Board of Supervisors to ask for their support for adequate funding for the library. It's a democratic cause.

Alma Robinson, Executive Director

California Lawyers for the Arts

CLA received a noteworthy mention in Alec Baldwin's Nancy Hanks Lecture at Arts Advocacy Day yesterday in Washington, DC.  Describing the federal 2009 "Economic Stimulus" Program which provided $50 million to the National Endowment for the Arts to help arts organizations preserve 5,000 jobs, Baldwin noted that a Fox News contributor had attacked a list of NEA grantees:  

"Her list focused on grants to groups such as: a Center for Puppetry, an International Accordian Festival, the Maine Indian Basketmaker Alliance, the California Lawyers for the Arts, all attacked without reference to quality, as if just words like 'puppetry', or 'basketmaker', or 'accordian' or 'lawyer' were to be ridiculed. It seemed like the rest of her list focused on any organization or project that had words like nude, gay, lesbian, ritual, or California in them."

Baldwin then challenged the assembled arts advocates: "You know what I want all of you to do now, don’t you? I want you to go home tonight and write a poem that contains the words basketmaker, accordion, lawyer, nude, gay, lesbian, ritual, and California in it. C’mon. It’ll be fun!"

We sent this exercise to devorah major, 3rd San Francisco Poet Laureate and a CLA mediator and facilitator par excellence, who quickly rose to the occasion:

It is a taxing day

tho’ neither gay nor lesbian

I've still the stress of April dues

I’d love to be nude

lying in the sun 

turning a walnut brown

a ritual of summer 

on some California beaches

but instead I am looking for

an accordion file to sort my receipts

so I’ll not need a tax lawyer down the way

perhaps this would be a good time

to become a basketmaker.

It, at least,

would be fun.

© 2012 -- devorah major --All Rights Reserved.

It must be time to start advocating for additional arts funding so that we can save more jobs in our communities, keep our kids in school instead of juvenile halls and inspire our best analytical thinking.  On Capitol Hill, Alec Baldwin called for a $1 billion expenditure for the arts, arguing: "You can't find the spending in federal dollars that has the resonance that these programs do." 

Arts funding is good for our communities, good for the soul, and good, as well, for our national economy and revenue base.  After all, working artists pay taxes!

Alma Robinson, Executive Director

California Lawyers for the Arts

Pick your passion--Latin jazz, salsa dancing, delicious seafood, vintage cars, historic preservation, tropical baseball, contemporary art, Hemingway trails, environmental restoration, religious fusion, colonial history, comparative law or international relations---and you can find your bliss in Cuba.