Transcript for Episode 172 – Copyright + Licensing Attorney, Joshua Kaufman, Venable LLP (USA)

Recorded April 21, 2021
Published May 13, 2021

Full recording here: https://wisefoolpod.com/copyright-licensing-attorney-joshua-kaufman-venable-llp-usa/

Transcribed by https://otter.ai

Matthew Dols 0:12
Could you please pronounce your name correctly for me?

Joshua Kaufman 0:14
Well, you see, that’s not that is your question. I say Kaufman, most people say Kaufmann. My wife says Kaufmann my kids say Kaufmann my kids introduce us. This is my dad, Josh Calvin and my mom, then Kaufman, if you’re from New York is Calvin, if you’re from the rest of the country, it’s Kaufman. Since more people speak with a New York accent than any other specific accent by plurality, Kaufman is the correct pronunciation and the rest of the country is wrong.

Matthew Dols 0:46
Fair enough. You are an attorney is specializing in copyright licensing and so on. So the first thing I was wondering is like, how do people get created? Generally I talk to artists, but in this case, I’m talking to attorney so like, how did you find that niche of like any law in the world that you could have practiced that you found copyright and licensing and so on?

Joshua Kaufman 1:09
as you’ll hear from this interview, nothing in my life is simple. I had no intention of ever being a lawyer. I was an art and drama major in college, acted professionally and sculpted and did prints and had a little Art Gallery on the side to make ends meet. I took art Friday afternoons from students and went to this mall. They gave me the walls and I sold them over the weekend. We’re waiting sell every turn to the students on Monday. So I had no intention of ever being a lawyer. I was going to be an artist maybe or an actor. And then something happened called the Vietnam War. And going to law school was a deferment to the Vietnam War. And since my draft number was 37, I thought it was a very good idea to go to law schools and medical school. This, you know, didn’t fit in. So I applied to law school. Because it was a deferment. My dad had died a few years earlier. So I moved home to help with my mom went to law school with no intention of ever being a lawyer. I had worked as a tour guide in Europe that summer. And when I was in London, I went to this head shop that whole Carnaby Street, have a date myself, and found these incredible artworks, but a number of the prints came home, showed them to all my friends, and they all went ballistic. So I contacted the company and I became the first importer of MC Escher in the United States, and set up a whole business out of my mom’s basement and had half page ads and every issue of Rolling Stone we clicked in I people selling to museums, shops and bookstores, and that’s what paid for me going to law school. I sold the business at the end of law school and had no responsibilities money in the bank. So I did what anybody else did. I moved to Paris. I lived in Paris for a year, actually with the American Theatre Company of Paris sculpted at the Center for the Arts learn. I spoke no French when I got there, learned French learn to cook, learn to drink very cheap wine, and had a wonderful time. And one day a year later, I said, you know, everything’s really perfect. I should leave. So that was on a Thursday on a Tuesday I was in Bangkok and then spent another nine months hitchhiking to dollar a day, you know, local buses, trains all around Southeast Asia, Burma, Thailand, Laos, Java, Bali, Sumatra, you know. And during all the year in almost two years, I was making contact with artists and different artisans came back opened up two more art businesses. One was a retail Art Gallery in Warrens, a wholesale art business, from all the art that I found in my travels, did that for a while and then, you know, living with these two sisters, and I came downstairs and Rita was at dinner with a friend and I said, you know, I’m really tired to sell an art and I’ve been over like 10 years. I said, I don’t really know what to do. And she piped up and said, well, you’re a lawyer, you know? So I said, Yeah, but you know, when I went to law school, I didn’t do clerking I never planned on being a lawyer. I didn’t do anything. You know. So the Rita’s friend said, I think my husband’s looking for somebody that was Wednesday had lunch with him on Friday started working for him on Monday. It was a real small, general practice car accidents, a little cramped, a little mid Mal, a little divorce. miserable, hated it. And I figured though if I’m going to be a lawyer, I’ve got to figure out I this I can’t do this, you know, this is not my future. And so I made a list of what were the things in life that I enjoyed my parents were you typical no bueno. Active New Yorkers were their friends were writers and filmmakers and producers. And I was into I was a professional artist and a professional gallery owner, an actor. So I made a list. Oh, and I was an early computer geek too. So I made a list of, you know, what I want? You know what I’m interested in life. And I figured, okay, so I’m going to try to create this law practice that has art, entertainment, media, computers and those kind of things in their mind. I looked around and there was absolutely no such thing. This was before you know, IP even was a term there were no courses. There were no anything’s so figured out. How am I going to do this? So I found that the volunteer lawyers for the arts, there were three of us at the time, one in New York, San Francisco in Washington, where we provided pro bono legal services to indigent artists and low budget art organizations. And that kind of got me a platform, all of a sudden, people started inviting me not as young, you know, lawyer in this ridiculous practice. But as the executive director of the volunteer lawyers for the arts, I started giving speeches and writing articles and appearing on panels. And also, literally every night of the week, I really go to an art opening, I go to a theater opening, I go to writers session, I go to a computer thing, and I hand out cards. Now I’m a dance lawyer, I’m an art lover, a lawyer, I’m a computer, whatever it was, that’s what I was. In trying to build this type of practice. I found that the DC bar sports art and entertainment section, I found in the DC bars, computer Law Section, you know, these things just didn’t exist. And then I met this guy named I relo. He had heard about my volunteer lawyers. And Ira was probably if we were going to call people an art law, the first art lawyer. It was an art Lord was he used to date a lot of artists. He was older than I. But he also got friendly with the scene and one of his buddies who had named him who the executor of his will, was a guy named David Smith, probably the most well known sculptor in 20th century America. So David dies and Ira becomes his executor. And so Ira’s now, you know, big shot in the art world. So he and I had lunch one day decided to work together. He had this giant rent control apartment in Georgetown. So one of the libraries was his office. One was mine, a living room was the conference room. I was in the waiting room, the dining room became the conference room. The copier was in the kitchen. There’s a porch, the Secretary’s in the porch. And in the back part, there was another bathroom and bedroom where I lived. And we started practicing while he’d been practicing for a while I wrote was 30 years older than I was. And one of my first clients was Joe Hirshhorn from the Hirshhorn Museum, and he kind of adopted me, like his grandson would come over for, you know, Passover Seder to the house, you know, all that kind of stuff. And so every after party at all the museums because of Joe and other an iris context, are always at our offices, you know, the end of the opening and everyone come back to the office. So there I am just 20 something year old. They’re hanging out with everybody from, you know, Joe Hirshhorn to Larry rivers, to john Steinbeck. I mean, we were doing Freedom of Information Act on my clients who jumped by is Abbie Hoffman Amiri Baraka, Allen ginsburg. I mean, it was just it, you know, an incredible thing. And then we started to grow the practice. So I took the apartment next door, cut the drywall, in the closet from my office to work to the next department. So we expanded in there. And that’s where and now, you know, it’s it started long story, but that’s how it started. It was a twisty road, but deliberate road. It’s an excellent story. It’s a life worth lived there, for sure.

Matthew Dols 8:37
Okay, so now you are working, I would say sounds like a comparison to some of your early years, like now a bit more corporate. You’re working with a international sort of international group. And you’re doing really quite what I’m assuming is rather large stuff. But my big questions are always things like, Okay, my background is I’m a photographer. So I’m always interested in like copyrights model releases, all this kind of stuff. So like, when I was in school, because I’m 47. So we’re talking 20 some odd years ago, at this point, when I was in school, there were certain rules and laws and all this kind of stuff. But now of course, with the internet, social media, all this other shit, everything’s sort of out, I feel like is out the window. So like, let’s sort of start with something as simple. I was born and raised in the United States, but I’ve lived in the Middle East. I’ve lived in Europe. So like, I’ve been around a little bit. And one of the big questions of course, like starting with the foundation of it is intellectual property. So intellectual property. I’ve had the understanding that it’s sort of country by country. So like, if there are certain there are certain laws and certain countries but then even if you like copyrighted in that country, if you go to another country, or if somebody in another country steals it, and it doesn’t come into the country where it’s copyrighted, then it’s it’s kind of free rein, like I think, like, helped me out. educate me.

Joshua Kaufman 9:59
Well, first of all, One of the best things that happened to me that I was a computer geek, because so much of what I do constantly changes because of the technology. And at least I get to understand that I mean, NFT’s guide, how many conversations have I had in the last month. But you know, as we change from limited edition prints, where they all had to be huge warehouses full, you know, to print on demand, you know, from literary to ebooks, to music records, to CDs, the cassettes, to CDs, to downloads, you know, technology changes everything. And with the internet, it made a worldwide market, everybody’s a multinational, you don’t care if you’re in Prague, or Washington or London or Madagascar, if you post something to the internet, you’re posting it to the world. So you get these questions that you never had before, in terms of not only the intellectual property, but selling and labeling and warranties. I mean, all kinds of things come up. So everybody really is now a multinational corporation, although you know, we do it’s a mom and pop Actually, it’s not anymore. And there are a few international treaties and things but you’re absolutely right. IP law is, for the most part outside of the EU. National, the EU has some transporter type of rules. Wait, let’s go back one second, just because I want to make sure I’m even using the right terminology. Could you define intellectual property for Okay, intellectual property, I think breaks into four categories, copyright, trademark, patent, and probably rights and publicity. And sometimes people consider trade secrets, as well as you know, depending on how you’re defining it, these are the intangible rights basically intellectual property. So if you think of intangibles, I think might be another way of categorizing them. I don’t know a patent from all those. I have a zillion patent lawyers working my firm, they all have PhDs, and they all still have slot, you know, pocket protectors and you know, all kinds of stuff. I I defer to them. Yeah, they’re they’re wonderful guys and gals. I don’t know squat about it. But I do dealing a lot with copyright, trademark, right of publicity, you know, and some trade secret confidentiality stuff. That’s, that’s always built into everything, but don’t litigate most much of that. Back in the day when I was learning this stuff, like intellectual property. There were always the like,

Matthew Dols 12:33
I don’t know what like, what’s it called, like, old wives tales, or like? Yeah, like things like, oh, if you write it down and mail it to yourself, it’s somehow legally like done. And then there’s, there’s the, like copyright, like if you create it, that you then or that you are the owner of it naturally for seven years, but you have to file for a copyright on the thing, or else you lose the copyright. Like, I

Joshua Kaufman 13:01
mean, I’ve heard, they’re all wrong. So please, they are all 100%. Wrong. They are I mean, it is just, if you speak Yiddish, it’s nourish guide, otherwise, it’s all lifestyle, it’s Bs, whatever term you want to use, generally speaking, in most countries, to get a copyright, all you have to do is create a period, no more, no less, that’s the brush leaves the canvas, the fingers leave the keyboard or the clay, you snap the shutter, and you have a copyright period. And the story, you don’t have to do anything else. Now ideas are not generally protected. It’s the expression of the ideas. So if I tell if I say, Hey, man, Listen, I’ve got this really cool idea for this photograph. I’m gonna stand here when the moon is there. And this beautiful dogwood is flowering there. And I tell you all about it, you go and take the picture. I can’t do anything about it. I have no rights to my idea. Now you can have rights to ideas under their contractual type of things, saying, I want to share these ideas. And if you use them, I mean, you can protect them, but they’re not inherent. You can have a contract or have an agreement saying I’ll pitch this story idea to you for this TV show. But you can’t use it unless you have me as producer, you can do that. But if you don’t lay the groundwork, if I just shooting the shit and giving you ideas, I’m giving them away. Okay. So in copyright, you fix them in a tangible form that could be on a tape on a hard drive on a canvas on a keyboard on a piece of paper. Once you fix it, you have it. Now it varies depending on the medium and in the country’s general rule of thumb is life of the creating person plus 70 years. That is not universal summer countries are life plus 50. Some have shorter range for photography, but you know if you’re going to be talking About 85 to 90% of copyrights, they’re probably life plus 70, especially in the literary. And in the, in the visual arts, some countries with music and photography, like I say, shave it. And you know, it’s country by country, Europe, us, that’s all life plus 70. Another area where people get real confused, which in the United States, we have called work for hire. If you create something, and you’re an employee, and you’re doing it in the scope of your employment, the employer owns it, not you that there’s it’s a little less enforced in Europe than it isn’t the United States. And I can’t speak to all the European, you know, laws and other countries, but you do have this work for hire concept, but which might be the exception to the general rule. But you created period, you don’t mail it to yourself, you don’t renew it or anything else. Now, some countries have registrations, but that gets you additional benefits, that doesn’t get you your copyright in the United States, for example, you don’t have to register. But if you do it before, you can go to court and go after an infringer, you have to have a registration. If you want to get attorneys fees, you have to have a registration before the infringement began. If you want to get special damages, you have to get statutory damages, you have to have a registration before you know beforehand. So that you get enhanced the carrot is that they are asking you to register, and it gets you more benefits. But you don’t have to register now. So in terms of that jail mail with yourself for you know, any, you know, well, I guess if you mailed it to yourself, you never opened the envelope, if you wanted to prove when you created it, you could have the postmark. But I’m not sure that that gets you much in trademark, you get a trademark by putting whatever in the trademark is into commerce. Again, this is in the United States. And I think in most countries, once you have it on your product or on your website, or on your hang tag, and then that product is shipped into commerce, then you have a trademark and there’s no time limits on a trademark generally, they last for as long as you’re using them in commerce. So you could have a product that was created in 1850. As long as it’s still around, let’s say Coca Cola was created in the 1800s, its trademark is still good, because they’re using it once you stop using something for three years, it’s abandoned, and somebody else can pick it up, you know, and so you know, they’re all different rights of publicity, which is you can’t use somebody’s name or likeness or signature or such for commercial purposes. You don’t have that in England, for instance, and you have it really strong in the United States, but it’s not federal in the United States, you have 50 different right of publicity laws in the United States. And they’re different durations, and they go, so you know, it can get kind of cockeyed and you know, start looking well, whereas the person you know, living who’s law applies, oh, they’re dead? Well, well, when you die whose law applies, you know, and it gets it gets out there. So there is no one size fits all for any of this stuff.

Matthew Dols 18:04
When we’re talking about artworks, though, so like, let’s take it to the digital world because really, that’s what everybody cares about these days. Because when I started out I was I remember building websites trying to build watermarks, put metadata in it trying to do everything I can to like make it so people you know, make it to people couldn’t right click on my website, so they couldn’t steal my image and none of that shit works

Joshua Kaufman 18:26
well with a watermark will work if you have a nice good watermark on it and somebody tries to reproduce it. I mean, if you’re gonna sit there and try to pixelated piece by piece, there’s so many artworks that you can get knocked off, though technically it’s possible. It’s generally not worth a counterfeiter, as there’s literally hundreds of millions of images that they can knock off without having to deal with pixelate and then really putting it back in. So when you look at it, it really looks perfect. You know, because if you do it very well, it still doesn’t look right. Well,

Matthew Dols 18:57
there’s now software that can remove watermarks very well,

Joshua Kaufman 19:00
he saw. Yeah, they’re the digit Mark kind of things. But there are things that you know, you can try to do, but I encourage people to watermark it because your run of the mill infringer is not gonna bother, you know, it’s just it’s just not worth their while. It’s there’s so many other things, you know, to knock off. But yeah, no, I mean, one of the things about the internet is, on one hand, it’s giving you a world market. So you’re an artist in Prague, and you know, you can sell to somebody in Cape Town without leaving your apartment, which is terrific, but that means you know, somebody in Capetown or China or in Russia more likely can rip you off as well. And most countries are a lot of countries, most countries where the big infringements come you don’t get governmental support. If somebody rips you off in China or in Russia and other places like that, or Bulgaria, you know, that number of places. You know, you’re pretty much without a remedy there, but at least under US law, which I can speak to you Everybody in the chain is liable. So the person who manufactured the knockoff in China’s liable the shipper to the United States is liable for distributing without consent, the importer in the United States is liable. The distributor in the United States is liable. And the store that sells it in the United States is liable. And I’m pretty sure that’s similar in Europe. So that way, I may not be able to sue the guy in China. But I can sue anyone over all those five people in the United States or in Europe that I can reach, I can sue the store, I can distribute, and I can get pick and choose. Now this one has no money, I’m not going to bother suing him or her it, but I’m going to sue this one because they have money, I can pick and choose if nothing else is their profits. And you know, so I go all of a sudden, to the importer, and I say, okay, you made $10,000 on importing this infringing thing. Well, your distributor, may $12,000, and the retail store may 25,000, was, you know, everybody marks him up. So you want to settle this case, I want $75,000, he goes but only made 10. I said, that’s your problem, or else I’m gonna sue your customers. And then they’re gonna, you know, they’ll indemnify upstream. So I’ll sue the big box, they’ll sue the distributor who’s going to sue you. So you can either pay me the 75,000, and be done with it, or ruin your relationships with everybody, and then pay the $75,000 in a year and a half from now after we go to court. So you know, usually takes a few phone calls to sink in and stuff. But then they get pissed at the guy in China, who sold them the infringing goods. And you know, they then tried to get the money from the guy in China. that’s their problem. I don’t worry about it, or they stop doing business with the guy in China, you know, so that, you know, you can have some backward pressure, although it’s nominal. I know, I think so even though, if the sales are occurring in jurisdictions that do police, you’re not without remedies, even if you can’t get to the source in a country that doesn’t enforce IP, or encourages the theft of IP as the case may be.

Matthew Dols 22:04
How does that equate to like social media and all that kind of stuff? Because I at one point, I remember Instagram was saying they had a thing, and they’re causing any picture you put on Instagram, they have the right to use for advertising.

Joshua Kaufman 22:18
Oh, yeah. Yeah. I mean, you people don’t read terms and conditions, you go on a website, you click I accept, and you go from there, and nobody reads the terms and conditions. website. Again, this is US law. If there’s no I accept click button, if it just says terms and conditions and tiny little printed, you know, in gray at the bottom, and you have to click, those are not enforceable. So if those terms and conditions say that, but once you do I accept, right, I agree, or whatever, those kinds of click, we call it click licenses, those are enforceable. And yeah, a lot of people were real surprised when they saw some of these websites that in their terms and conditions said, you grant me the right to do this, and you grant me the right to, you know, to do that. And you’re you’re granting a license, you know, and then backlash. Some of them have backed off on it. But I mean, I litigated cases, you know, representing infringers on certain Twitter terms and conditions, you know, which granted rights and stuff like that. So, read the Terms and Conditions are you going to be unpleasantly, you know, surprised? They, you have to understand when you you know, you go on something free you when your stuff is the product, they’re not giving you anything for free, they’re selling, you know, your your data, your imagery, and everything else, that’s that they’re there to make money not to provide a public service. So, you know, you have to think through how they are going to make money. And, you know, besides selling every detail about your life, they’re going to sell your product if you’re not careful when you post it.

Matthew Dols 23:48
Yeah, I know. It’s what’s the saying they’re using these days, it’s like, if you’re not paying for the product, then you are the product

Joshua Kaufman 23:56
and that is the little cube bus line. Yes, that’s out there.

Matthew Dols 23:59
Isn’t that cute? It works. Its member?

Joshua Kaufman 24:02
Yes. Oh, yeah, absolutely.

Matthew Dols 24:04
I want to know a little bit more about like, sort of the fine arts industry that you sort of help out with, it could be literary, it could be visual arts, of course, I’m visual arts, that’s my biggest interest. But like, do you what are most of your work? Like? Do you work on behalf of artists on behalf of collectors institutions, or the opposite direction like as suing institutions or collectors or artists?

Joshua Kaufman 24:28
I’ve worked across both sides of the thing Oh, video, more likely than not I represent artists, collectors and galleries. And then you go she ate on the other side with other collectors. You know, we’re buying this stuff. And I also do a lot of negotiations with auction houses. I mean, people think auction terms are written in stone and if you’re the seller, they’re not if you’re the buyer, you’re stuck. But there’s lots of negotiations there. You know, loan agreements, you know are all your rep And artists who, you know, high end artists who have, you know, galleries who want exclusives, you know, those kind of deals, loan agreements, a lot of art licensing, art licensing is an $8 billion a year business in the United States alone. You know, that could be from screen savers to mouse pads to postcards, the poster is to puzzles, to imagery on sheets and pillowcases and on plates. I mean, it’s, it’s an it’s an unending thing. And you know, so there are all kinds of, you know, I sort of present most in most of those artists. And in that business, a lot of most artists have agents, because it’s this the nature of the beast. artists don’t know plate manufacturers and they don’t take out booth set to the licensing shows and stuff. I more than anything, I end up representing the creator side. But you know, the user side as well. You know, my firm Venable is 850 lawyers, you know, with offices in New York, LA, Washington, Chicago, you know, we’re all in the United States so that we have a very large international set of business as well. But we represent some, you know, some of the top, you know, fortune 100 companies and 500 companies, and I’m called in a lot to help on the IP parts, it could be a merger, and you know, what rights can you do? And what rights Can’t you do? You know, it could be we’re doing an ad campaign, and they need to know, you know, getting releases from people. You know, there’s just so I work a lot with major corporations through my partners, and generally not my particular clients, but I’m called in to help out on movie deals. And, you know, in the last few years, there’s a lot of termination, right issues. We’re on the US law, again, I can’t speak anyplace else after 35 years, authors and authors under copyright are musicians, writers, everybody, they just called authors under the Copyright Act. They’re all the creative people after 35 years, they have a right to terminate any license or assignment of copyright and recover it because it’s recognized that the generally the unbalanced playing field that an artist or an author or a musician have especially early in their career. So if that product still has legs, if the 35 years and obviously 90 whatever percent Don’t you know, they come in they go, but you know, this look, think all the Beatle music that’s all over 35 years old. I mean, if you start going back, there’s, you know, a lot of stuff that’s there. So in the United States, you have a right, it’s a very complicated Well, it’s not a complicated, it’s a interesting procedure to terminate assignments and licenses after 35 years. And you cannot by law, waive that, right? Any contract that says I waive my termination rights is void. I mean, I mean, the statute specifically says that, because at the same time, if you have no leverage, when you’re negotiating the first contract, of course, they’re gonna say, and you waive your rights as well. So you know, you, you can’t those those things are not enforceable. So that, you know, isn’t the 19 78x. So 35 years has come up in the last few years. So we’ve been doing a bunch of termination rights work as well, on both sides, people terminating our clients trying to figure out a way not to get their rights terminated.

Matthew Dols 28:16
That’s interesting, because my grandfather was the scientist does this, this is go to sciences, as well as the just like, the,

Joshua Kaufman 28:24
this is copyright. The termination, right is, is copyright. So if he wrote, you know, articles about it, or books about it, that could you know,

Matthew Dols 28:33
oh, no, he created 1000 Island dressing, but he was working for McCormick foods. And under his employment, it’s there’s,

Joshua Kaufman 28:41
again, no work for hire, the employer is considered the author, right? So the actual human is doesn’t exist in a work for hire situation. And so this right only goes to individual authors rights are musicians, it doesn’t the corporations don’t get a second bite at the apple. We’re not worried about their, you know, their ability to negotiate a fair deal for themselves up front. So it only goes to the individual authors, and they don’t exist in a work for hire situation.

Matthew Dols 29:09
Fair enough. All right. What’s the what’s the one thing that you’ve noticed through your career that most creative people are completely unaware of legally?

Joshua Kaufman 29:21
It’s an interesting one. since college, so many people in the arts are so clueless to any of their rights, it’s hard to pinpoint one. It’s, you know,

Matthew Dols 29:31
you can say you can say multiples,

Joshua Kaufman 29:33
that’s fine. You see the thing, it’s an interesting thing, because when I first started practicing, it was like, considered a bad thing to worry about your business as an artist or something. It was, Oh, it’s too commercial. And all the dealers would say, Oh, my handshake is my bond, you know, and would be insulted. You know, when you actually put one in to put something in writing, of course, they were ripping you off blind. And you know, God forbid you, you know, you would call them on Didn’t say, Well, can we just put that down in writing that, oh, I never would do that. That’s changed a huge amount, you know, since I’ve been practicing, that is no longer the norm. Now people expect things in writing and artists have become a lot more savvy to their rights, you know, many times, it’s, you know, you get ripped off once, and you’ll learn your lesson, it often takes getting ripped off, you know, like, why really recommend people register in the United States, their coverage for the additional protections, and none of the artists want to bother doing it. It’s very inexpensive, it’s easy to do, it’s on now it’s online and everything. And then all of a sudden, they come to me with a perfect infringement case, you know, there’s no question they got ripped off and everything else. And they haven’t, they don’t have a registration. So first of all, I have to get the registration in order to file suit. But because of the backlog, it may take six months to get the registration, so he can’t follow suit for six months, you get an injunction. Now, if you want to do it upfront, you can get an expedited, but that’s $810. And that would be per image. So if you got knocked off for a few minutes, it starts getting expensive. Instead of $6. In image, if you do 10 on publish on one application, or $8 at this point, you know, then then you have to wait. And then they say, okay, we contact the other side, we find out that they sold there is profit. So we find out that their profit on this was $10,000 $20,000. You know, we nipped it in the bud. It wasn’t a giant thing. And my client, you know what, let’s sue him. I said, Well, your legal fees are going to be more than $20,000. I mean, yeah, you have a perfectly good case. But you know, I can negotiate this for a few grand. But if they don’t want to play ball, if they say so sue me, it’s going to cost you more than you can earn. Now, if you had filed a registration, like I told you to, you can get attorneys fees, and you get up to $150,000 in damages, no matter what they are. So you know, they go through that once and they learned their lesson and they start filing for their copyright registrations. You know, it’s, it’s a lesson learned more often than not the hard way. But you know, a lot of art schools I know, I taught at the Corcoran for years, you know, of course, I know you I know. You went I saw that. Yeah, I was a required course for a number of years. And I brought in accountants and gallery owners. And it was a real survival curriculum. We call that when did

Matthew Dols 32:23
you do that? Because I one of my big complaints about the Corcoran was that I never learned any of that stuff.

Joshua Kaufman 32:28
It was probably in the late 70s or early 80s. One of the deans said this is important and made it a mandatory course. No one wanted to take it sure. Everybody was delighted. At the end, a new dean came in and made it an elective, and no one signed up for it. So it was probably in the early. Yeah, it’s probably in the early 80s, I guess is when we did that. But I’ve spoken at literally countless art groups, different places, art schools, and stuff like that, where it’s not a course. But I taught for 29 years art and entertainment law, two different courses at American University and law school for a while at GW law school. Today, there’s zillions of books out there, there are classes online. I mean, today to get the basic education you need. You know, there’s I mean, I co wrote licensing for Dummies. I mean, they’re dummies books out there. I mean, you go online, you know, you do art law book, legal books for artists, and you’re gonna get 30 off from popping up. So the info is there.

Matthew Dols 33:28
I agree. But it’s always hard, because I feel like that’s maybe just a me thing. But I feel like every, like every case is so unique, like so they reading these, these vague overview ideas of like what a law can and can’t do, is always a bit too obtuse. And it’s never, you never go like, Oh, it’s exactly that that is what I have my legal problem with. And so it’s really hard to get that sort of differentiation of like, without Of course, a legal knowledge, your your skills, like knowing whether or not there’s actually a legal case there or not. And then of course, the big problem is the being a big knowing whether it’s financially worth the effort.

Joshua Kaufman 34:08
Yeah, I mean, you know, people having one off problems, I agree with you, I have a lot of clients who I’ve trained, you know, we’ve gone through this year after year, and they’re real good at it. There’s certain kinds of things that are really nuanced and everything else, but your run of the mill infringement. Once you you know, do so today was one of my clients, very, very well known artists, one of the top artists in the world, he has a staff where we do probably anywhere from 150 to 300 takedowns a month for him, you know, where people putting his stuff up, and you know, we do so we’re doing a training for their staff, so that the staff can do it in house. I’ve done countless trainings on copyright registrations for you know, it can be just a couple of people or large companies so they can do it in How serious is that oxymoron reasonable attorneys fees, there is no such thing. So, you know, when we do it, it costs them money. So a lot of my clients, you know, learn how to do it in house, my licensing clients, you know, I draft them a basic form, we go through it, I explain every clause and say why you don’t want to take it out, or why you can take this one out or not, you know, and then after a couple of times, you know, I do the first few, then you know that we jointly do them, and then they run with it, and then they just call me up and say, this one’s a little different, I’m not quite sure how to handle it, or somebody, they’ve asked the changes, no one else has ever asked to change that. But you know, they learn most of the deals people have similar from deal to deal to deal, it’s the nature of the business, they have a business. And so there’s a lot of repetition. So they can be trained pretty well to do it on their own, you know, a lot of things and then but always know, if you’re the least bit concerned that something’s a little different than pick up the phone, have a 10 minute call with me or whoever your lawyer is not looking for business, your 10 minute call for you know, with your lawyer, and just say, look, there’s is one point, you know, they want to change doesn’t matter. And you can say, and that was a, you know, a giveaway, or no, you definitely don’t want to go there, that’s really important. You know, sometimes in the form contracts, we put stuff in that we know, we can give away, you know, as part of the negotiation strategy, you know, you don’t want to budge on these, you can budge on these. So when they asked to budge on this, give them that don’t give them this, you know, it’s just part of the thing. And I beat up my clients regularly. When they asked me for a form contract, I said, I will draft you on it, I will kill you, if you ever use it. You know, forms are good for everything. They’re good for nothing, you know, you have to look at every single deal. And you know, put I mean, I see people do you know, use? Oh, yeah, I got this form off the internet, or I use this form 10 years ago, and it doesn’t apply. And you know, it’s not, you know, you go nuts and so forth. scare me. You know, I draft them all the time, but they scare me. Okay, wait,

Matthew Dols 37:01
I want to know, like, from a legal standpoint, because I’ve never actually asked an attorney this. So this is great. When let’s say you read a contract. So let’s say you’re an artist and a gallery or doing a licensing fee, whatever it is, doesn’t matter. How many signatures what form of signatures like what what makes it a legally binding document.

Joshua Kaufman 37:23
So let’s start backwards. You cannot bind by silence. Okay. So if you send somebody something and saying, and if I don’t hear from you, I assume you agree, that doesn’t work. Period, you cannot buy you can bind by action, though. Or by signature, and signatures today again, in the US electronic signatures are okay. So people sign stuff, make a PDF and send it We also talked about counterparts where I sign one page, I signed a signature page and you sign a separate signature page, and we send the PDF, you know, to everybody else. And then essentially, you literally or figuratively staple the pages together, you know, so you have two signature pages, or five signature pages, that all works. Well. Like I’ve also had like word like some people say initial on every page, that’s a matter of so someone could swap out the page. In other words, I’ve seen that happen to you know, here’s a contract. That’s not my page three, somebody has changed page three on you. And yeah, so the initialing is just an evidentiary thing, it’s not a binding, very few contracts. Again, I don’t know in Europe, you know, with no tour and stuff, you don’t notarize things in the United States unless it’s going to be a recorded document. So when people send you a licensing agreement, artists gallery agreement, a book publishing agreement, there’s a notary cause that says, somebody doesn’t know what they’re doing, you don’t notarize those, you don’t need to notarize those documents expressing the age of COVID, where then no one could go out for a year. I mean, that was really a headache, when people would say, Oh, this needs to be notarized. No, we’re not gonna die for your, you know. So But no, basically, you want something signed. Now, the different kind of electronic signatures. I mean, again, in the United States, if you send an email and you have slash s, slash, and then type your name, that’s considered an electronic signature, I signed things and then scan them in generally, you know, you have DocuSign. I mean, there are a lot of all those things, at least in the United States that literally, their statutes, the electronic signatory act and stuff that allow that, you know, other countries, you know, that are more paper high bound, you know, you still might have to get, you know, things signed in triplicate and sealed and stuff for, you know, by, you know, some bureaucrat or something like that. I can’t say that, you know, you know, I’ve heard of, you know, people saying, Well, I have to hit the notaire and then this and then, you know, that other countries, but in the US, you can do anything, you can also bind by action saying that, I will send you the money and then, you know, you know, you agree to this and if you cashed the check that you know, you agree and then when you cash the check, that is binding, that’s an action You can bind by action. You can bind by forbearance, if you have the legal right to do something, and you don’t do it, you that can also be a binding contract. But it has to be some kind of action be you’re writing your name down, you’re typing your name down, you’re doing something affirmatively, you’re not doing something affirmatively that you have the right to do. And we’re planning on doing those can all bind you in a contract, which you can’t do is silence that’s, you know, and people do I say, I, you know, I see that all the time. If I don’t hear from you, I assume you agree. And that’s very dangerous to depend on that.

Matthew Dols 40:37
But I want to be like extremely pedantic about this. The What I’m talking about is when, let’s see, like, so like, in the old days, I used to do model releases. And so the I would sign it, and the model would sign it, and then we would have a witness sign it. And then we would also put addresses of that witness. I think, like it means like, how elaborate you have to be

Joshua Kaufman 41:00
that’s evidentiary. That’s later if the model says I never signed it. That’s not my signature.

Matthew Dols 41:07
Well, that is always the concern that,

Joshua Kaufman 41:09
ya know, the evidentiary part is it now certain things like wills require by statute, in some states, it’s to sit witnesses, and some, it’s three, you know, so there are statutes where there are things but in your regular contract, those things are just for the purpose of being able to prove it later on. Also, sometimes you see, in perin, the word seal after a signature, that’s a real old fashioned thing that is certain can, if it’s under seal it, I think the statue limitations is longer there, you know, there’s certain kinds of things that you don’t see it much anymore. But periodically, you still see an old form that pops up with under seal. Yeah, no, but all that stuff, name magic, you know, it’s nice to have it all there. So you know, who to send the W, you know, the tax form to if you need to contact them later on about, you know, you granted me a release the uses in a magazine, now somebody wants to use it online. So you know, how to find the person. It’s a practical thing. It’s the signature, you know, because if you just have some squirrelled signature, that’s not my signature, you know, yeah. And, you know, people signed with their left hand on purpose when the right handed to make the signature, you know, not look right, but you know, you know, you’re the, you’re the photographer, you know, you got a model to sign it, you don’t know if she signed a King Kong, you know, you haven’t paid any attention to it. So it’s for those kinds of purposes.

Matthew Dols 42:29
One big question I have now, my parents are getting older, and they have a little bit of an art collection. I’m an artist, and I of course, have my all the work I’ve made throughout my life. And so I’m starting to begin to think about what I’ve been told is like legacy planning, or sort of estate planning for both collectors as well as your practicing artists, what what is some advice or some information you can give me on like, what we while we’re still sort of smart and and cognizant that we should do to try to make that go easier and smoother.

Joshua Kaufman 43:04
So again, I’m going to talk you know, I’m assuming it’s similar in other countries, but US law, if you don’t have a will, you actually do have a will, it’s just you don’t get to dictate the terms of it. You die intestate, without a will. Every state in the United States has a statute which says if somebody dies intestate, this is how their state is going to be divided. So that becomes your will. And it may not be your will pun intended, you know, the way you wanted it to go. Contact renewal, that’s the fancy term, it’s the for how things are divided up, it’s the rule of content renewal, you know, half the spouse if there is no surviving spouse, to the children in the share, and if there’s no children to the nieces and nephew, again, you know, you may hate your spouse, or you may hate your, you know, your brother, and they’re going to get half your estate, I mean, so, if you wanted, they wrecked what’s going to happen to your art, or your literary, your copyrights, or your book copyright, you want to have a will. And a will is a living document, you change it, like I’m in the process right now of changing my will probably probably the fourth time I’ve changed it in my life, you know, because my kids are now older and their needs are different than so we’re, you know, we’re going to switch things around. So you should think of you will, again, is a living thing periodically, you know, and I had specific requests to certain, you know, one of the things in mind that my personal executor or personal representative executor should give a gift of special meaning. And I list like seven or eight friends, you know, just yeah, it wasn’t my eggs, you know, I’ve big art collection of all kinds, you know, just give them well, I took two people off the list and added somebody else because I’m not as friendly with those people anymore. You know what I mean? And I haven’t somebody else I’ve gotten friendlier with. So I mean, it could be, you know, all kinds of thing, you know, where one of your kids is doing incredibly well and another kid is not doing so well. So you know, you don’t want to have an equal district. Have you seen anymore, or one of your kids is a became an accountant and one became an art dealer. So you want the accountant son or daughter to become the personal representative as to the financial, but you have a second personal representative to handle your copyrights, your artistic your literary works. So that way, the person who knows, you know, and then you, you know, has the artistic sensibility to do it, and but you’d never want him or her to touch your money, you know, and so you have the other you know, your your cousin, or whoever to, you know, the accountant to, you know, take care of that, you can do all these things in your will, you know, I want to give this to this, I don’t want to do this, this and this one, I want to take care of it. But you do want to plan now, a lot of it is tax motivated, you know, and how you, you know, when you get how many give stuff away, rather than have it in my estate. And you know, there are different kinds of things like that. Also, selling things, and giving the money to your kids end up paying a certain tax, but if they inherit it, they don’t have to pay income tax. I mean, there are all kinds of different things that one should be aware of when they’re doing it. If you’re an artist of so one of the things artists are collectors, this happens not infrequently. I’m going to leave this to this museum. Have you talked to the museum about it? No, you have any clue if they want it? Well, of course they want it, it’s a wonderful collection, you talk to Museum, No, thank you. And sometimes they don’t even you know, they just say I’m leaving it to this museum. And then we even leave the Santa Claus. And if they don’t want it any other tax exempt music, you know, it’s just to this. So then you leave in your personal representative in terrible quandary. The museums, most museums don’t want your stuff, okay? Bottom line, they don’t trust me, I’ve gone through this. So many, so many times, most museums don’t want your stuff, I don’t care how wonderful and terrific it is and how many years you spent collecting it, they don’t want it, okay? Unless, of course, you’re going to give them a nice big check to endow it, then they’re happy to take it, you will put it in the basement, they will never see the light of day, and they will take your money and use it for good purposes. That’s the reality of you know, donating to a museum. Now, if you do have a kind of collection or artworks in a museum, once, you know, I would talk to them ahead of time, you know, work it out. Now museums, of course, if you have something or eager to get some kind of document signed, that is irrevocable, that is binding on your heirs, because you know, they’re concerned that you might change your mind. Now, if you’re representing the collector, you don’t want them to sign that. You want them to have you know, the ability to change their mind. If you’re observing the institution, of course you want to you know, you tied them. Museums now are selling art much more than they ever did in the past used to be a total No, no. So now if you’re making a DD gift, you may want to put that in now. Also, collectors and artists, even if they’re giving it to somebody who wants it, they start putting all these restrictions on it has to be shown and it has to my my name on it. And that’s a mostly atomic kiss of death, I’ll say thank you, but no, thank you, we don’t want gifts with strings attached. So there’s often negotiation as to you know, the more strings, the less likely anybody wants you stuff. If you want to control it after death, you may be buried with the painting. Just don’t get cremated. Because that violates a moral rights of the artist and you can’t destroy the works. Like zoom you and yeah. So you know, no. So there’s this should be planning that. Basically, you can end up doing pretty much anything you want, you know, if you plan it, right? Oh, and the other thing is artists, you know, they put values on their artwork that they’ve never sold them for. But they sold one piece for $2,000. So they, the whole 200 pieces in the attic are now worth $2,000 apiece, they’ve never sold anything besides that one piece for more than 50 bucks at a local show. Well, they die in the IRS says okay, 2000 times, you know, 200 pieces in your attic. That’s, you know, yo estate tax on that in the county, we can’t sell this stuff for 50 bucks, what are you? Well, that’s what they they valued it at. So you want to be careful on how you value stuff as the artist or as the, you know, you know, it’s just problematic. And of course, you know, if you say it’s worth nothing, but you’ve been insuring it for a lot, you know, the IRS can say, well, let’s look at the insurance policy. And that works both ways. People do want to avoid estate tax, so they don’t list stuff in the state tax returns. It’s called the empty nail syndrome. You know, they do mom and dad died and they take the painting off the wall. So all that’s left is an empty nail. So they think no one’s gonna know about it. And you know, they might get away with it. Of course, you know if it’s been insured for the last 20 years, and the IRS sees the insurance policy with this painting listed on it. And there’s no gift return or no estate return listing this painting or sculpture or whatever, you know, you can get busted. Yeah, there are lots of different issues with estate planning for artists and collectors. If you’re in the high end, you probably have some very good tax people working, you know, with you and stuff like that. But everybody who’s an artist, or an author or musician owns intellectual property should think of after they’re going, what do they want to, you know, they want to donate it, or who do they want to be charge of, you know, do what your jingle, your song to be used on, you know, on a jingle for this kind of product? And you say, yeah, if it makes money, great art God, no, you know, so you should have somebody who understands your sensibilities instead, the exploitation of your intellectual property.

Matthew Dols 50:34
But okay, so but as practicing artists that are still alive and able to effectively and efficiently sort of plan out this future, after we’re dead kind of thing, like what what are some things that that you’ve seen it that artists have made mistakes, so that we can learn from other people’s mistakes, to not do incorrectly,

Joshua Kaufman 50:59
either not have a will or have some kind of boilerplate will that they’ve gotten offline or from, you know, from a friend or somebody else that doesn’t deal with the artistic elements in it? Now, copyrights and although they are considered property, so if you don’t mention them, your will, and every will has any will that’s even rudimentary, has a residuary clause in it, which is all the rest of the remainder of my estate, I hereby you know, give this divided, whatever. So if you don’t mention, your intellectual property, your paintings, your copyrights in your books or anything, it falls into the residuary clause and is divided accordingly. So now you have three of your kids, all co owners of the copyrights in your book. And you know, this one wants to license it to a movie, this one doesn’t. This one wants to do a sequel, this one, because you haven’t given it any thought. So now you have your three kids fighting over how to exploit your, you know, should we sell the artwork? Do we donate the artwork? You haven’t planned it, you haven’t done anything. So it’s going to go into the residuary estate. And, you know, it’s a free for all at that point. What you really want to do is think about it and plan, you know, what, what you want, you know, everybody’s different, you know, they have different siblings, different kids that, you know, you know, some people couldn’t care less what happens after death, others don’t want to pay the tax person, a penny, and they’ll go through incredible hoops, to the detriment of everything else not to pay taxes. Other people say, I, this is what I want to happen. And if you have to pay more taxes, fine, I don’t care that but this is what I want to happen, you know, and there’s no right or wrong. It’s just you, if you don’t plan, it’s not going to go well, for your kids, your spouse’s, your you know, or anybody your art, your artistic properties are probably not going to be managed the way you want. And you’re looking for a family fight that you’re going to cause.

Matthew Dols 52:56
Fair enough. All right, you brought up on having your own art collection. I’m always interested. So like, what kind of art do you collect?

Joshua Kaufman 53:03
I think most of it have been gifts, I probably have about 350 by now I have 350 pieces, because actually this year if it was one of my COVID projects, yeah, going online doing your auction searches or just you know, going to websites where they’re selling the art trying to figure out what it’s worth can’t really ask somebody Well, sometimes you can depend relationship you know, that gift you gave me how much is worth, you know, it’s for insurance varies. It’s still tacky, but I would say probably added my 350 pieces 300 word gifts. So it’s everything you can imagine from the most abstract and the most photorealistic you know everything in between some very well known artists to incredibly talented, no names, you know, it’s also the you know, you’re talking about art licensing. I you know, I have some gifts for my collection, incredible works. These people have never had a gallery show, make $500,000 a year licensing their imagery, on checks and on T shirts and on greeting cards and on, you know, all kinds of properties never heard of them. Totally wonderful. And they were not artists with a capital A Don’t tell me what to do. I’m creating, you know, somebody says, I need a sweet looking kid pulling a radio flyer red wagon, you know, in a farm setting, and they create a beautiful one. And it’s on a zillion products, you know, and they’re you know, and they’re doing quite well I think the most that I have had a client had one client who had $75 million with a licensed products on the shelves now that’s not what they made, but that was it retail in any given year. So you know, he was making for those things that say average about 5% which is the royalty you would get on 75 million, you know, so that’s what he was making every year just on licensing. He also had a you know, some stuff in galleries, but So, you know, they’re different. There are a lot of different art worlds, you know, out there, there’s the one we all read about the New York art world, the auction, the big thing. Most people buy their art, you know, at Bed Bath and Beyond, you know, you know, frame things for 6995. I mean, that’s where most people get their art from poster stores, if you’re going to go high, and they buy a limited edition print for 250 bucks, you know, they go to an art fair on the street and buy works for 150 bucks. That’s where most people get their art. I mean, we don’t read about that, of course, we read about the, you know, babies $65 million for us, NF T and Coons, you know, just broke the record. But that’s the veneer. I mean, the real art world in terms of most people who buy art, that’s not the art world that they deal in. And, you know, I deal in that world a lot. But I also deal in the other world, you know, where most people, you know, get thrown over a lot of clients, you know, who basically sell posters, you know, and they sell them by the millions every year, you know, you walk into a hotel, we do a deal with Hilton, it’s 10,000 posters, you know, different artists, and puts a lot of money in the artists pocket, you know, and when more people see that art in the hotel room, then see something on the wall of somebody on Park Avenue, you know, so,

Matthew Dols 56:16
yeah, indeed, oh, yeah. When I was just out of college, I worked at a stock photography agency. And one of the clients of the agency they saw, they took the stupidest most boring, like uninspired photos I’ve ever seen in my entire life. But they at bat at that time have been like, what 1995 they were making a million dollars a year profit. By taking this horribly unknown, interesting somebody licensed them to like, textbooks, and just like any publication that just needed an image to illustrate

Joshua Kaufman 56:52
somebody had a copier machine, right? Everybody who sells copiers, everybody has an office, you know, they wanted anybody who’s marketing anything like office, they need a photograph of somebody or two people standing at a copier. But they’ll sell 100,000 licenses for people standing at the copier at 50 bucks apiece, or 75 bucks apiece, you know, these aren’t high end, but you multiply 10,000 you know, sales at 50 bucks apiece, that’s real money. Even though each individual one isn’t, again in the art licensing it to a great extent it’s a penny business, the average license anywhere from four to 10% you know, of the wholesale price, so if you have that’s not for prints or cards, that’s a different thing. But let’s say you know, you have a beach blanket right with an image on it, the beach blanket goes for 20 bucks, wholesale is 10 bucks, so you’re obviously getting 50 cents, you know, on a $20 sale. But if they sell 200,000 blankets and you’re getting 50 cents a blanket you just made $100,000 just on that blanket. So it’s a penny business but but it’s a volume business. And there are a lot of artists who’ve done very well never seen the inside of a gallery now and it’s a different part of the art world.

Matthew Dols 58:06
Alright, last of all last a formal question. Certificates of authenticity, because you talked about like the you know, the the art the auction houses, the galleries, the collectors, all this kind of stuff. How elaborate should they be? Because like, I, when I was young, I’d probably didn’t do them at all. But these days, I’m rather obsessive about my certificates of authenticity. Okay, you’re holding up a book Fine Art print disclosure laws. That sounds like it would cover I can’t I can’t Did you write this? Yeah,

Joshua Kaufman 58:40
that was my I can’t speak to again outside the United States In the United States, 14 states including New York and California. The ones that really matter, have fine our print disclosure laws which require they mandate certificates of authenticity, they mandate what has to be in those the other 14 states you know, do it as well. Okay, wait,

Matthew Dols 59:04
hold on. This is just for print, multiples, all

Joshua Kaufman 59:07
multiples, multiples prints and sculptures. Most anything Limited is a limited edition.

Matthew Dols 59:12
Okay. So like an original one of a kind painting does not need a certificate of authenticity, only something that’s done in multiples

Joshua Kaufman 59:19
under the statutes. If you sell just a one off painting, and it’s secondary market, obviously you’re buying from the artists you know, you get a bill of sale and it’s from the artist. So you don’t really need a whole lot of authenticity you’re getting from the artists, secondary market when you’re buying from a gallery from a collector on the invoice. You want to make sure that there are reps and warranties that they have good title that this is an original as you know, as described, they have the right to sell it I mean, there are a number of things that you want to get that with the gallery or the collector is repping making the representations In the warranties that you need to have somebody to go back because otherwise they’ll say I sold it as is I made no reps. You know, I didn’t know if it was real or not, you know, it’s sold as is. And you can again, if you’re not sure of stuff, you can write on there sold as is. And then you’re not making any reps with no reps, this is sold as is, you know, you can say, I have no knowledge of any claims. I have no knowledge that it’s not authentic. But I’m not repping it because I got it, you know, from 13 people, you know, before I have no idea, I’m selling it as is. So you can do that. The limited edition things back in the 70s and 80s, limited edition prints exploded before that Prince was a very kind of store tiny market of etchings and intaglios and wood cuts. And when I’m saying lithographs in the old sense with the big giant stones and stuff like that, it was a connoisseur market, then all of a sudden, everybody started making these limited edition prints evening offset or more fancy, you know, lithographs, there’s a lot of silk screens became big. And I noticed in college I was making, I did a few stones, mostly silk screens and stuff, which you could use your camera and do, you know, all kinds of things transfer it. So what happened was, you know, there’s money, there’s fraud, right? So you would go and buy a limited edition print. And you know, it’d be on the right hand side, there’d be a signature, the artist within a year and on the left hand side, there’d be a fraction, you know, three over 50, you know, 16 over, you know, 450? Which to most people, man. Okay, the bottom number is the size of the addition. And this is the number you know, in addition, of course, it was hype, depending on what the dealer had, oh, the low numbers are good. No, the high numbers are good. It was all bullshit. But you know what? Yeah. Oh, yeah, whatever number they had, there was a reason why that was the best number in the edition. But the problem was that the bottom number which in a sense, this scarcity, you know, so the smaller the edition theoretically, then. So what people would do is they’d make multiple editions, they would sell you an edition of 150, and then sell another edition of 150. Or they will change it slightly, they would call this one the standard collect edition, this one, the deluxe edition, this one, the European edition, this one, the remarked edition. So actually this edition of 150 Oh, then there, of course, would be 50 artists proofs, and then 50 printer proofs, you know, they have a P and P p on them and stuff. So all of a sudden, you think you’re buying an addition of 150. And you’re actually buying an addition of 1000. And then people would think they were signed by the artist, and they weren’t either signed by somebody else, or I loved I coined this expression, original signature mechanically applied for an auto pen. And, you know, they would say it was done at this hotel, yay, which was a famous one when it wasn’t inside, you know, there were what happens to the image afterwards. So all these things, so they would just lie. And then you have people like Dolly who signed 50,000 sheets of blank paper. So that, you know, people would then print his stuff. And so the, the market just went totally out of control. So the states that passed the fine our print disclosure laws basically said, you can do sub editions, but you’ve got to disclose the whole site. So in our example, it would say total edition size 1000, comprised of 150, Standard Edition 150, European, and they knew they were they were printed, was it posthumous, how it was signed, by whom? What are the uses of the image, you know, there were all these things, or at least 14 things generally on these certificates of authenticity that are mandated by the state. And like I said, some you know, some states, you have to say if it’s on acid free paper, for instance, you know, because other ones did. So this went to multiples, because that’s where the that’s where the just looking to see. Alright, so California,

Matthew Dols 1:04:02
says, we’re here while you’re looking, I want to throw this. I like for me with my certificate of authenticity, I actually do a hologram matching numbered hologram sticker on the back of the print and on the certificate breaker city to make sure that people know that they’re connected as well. Like, is this is that a legal thing? Or am I just being smart, being smart,

Joshua Kaufman 1:04:25
but also, the thing is what’s so funny is making lemonade out of lemons. So people had to do this certificates of authenticity. So they made them look like stock certificates. They put the artists picture on on the artist statement, their thumbprint so that they made it as part of their marketing was this really fancy cool looking certificate of authenticity, the hologram, you know, all gold. Great. That’s not required by any of the statutes, but it’s ultra but the interesting thing though, is and this is why probably every online A website that sells art is illegal, at least in the United States, because the 14 states that required Oh, by the way, the other states can still bless you for consumer fraud stuff, you know, if you say it’s this addition, so even though 14 states have specific statutes, if you’re doing misleading things, it’s unfair trade practices, it’s fraud, you know, so you could get busted in the other 36 states, also in probably in Europe and other places, but on more, you know, generic theories.

Matthew Dols 1:05:29
Okay, but wait, I have a question. Okay, so I’m a photographer. So let’s say I have a photograph. And I make an addition of 100 on a particular paper at a particular size. Now, what if like, 10 years later, I want to do another edition on a different paper on a different printer with a different technique, let’s say, at a different size, is that still constitute sort of like the same,

Joshua Kaufman 1:05:55
probably see what you would want to do on your stiphu authenticity, it’s in a little comment section, you reserve the right to use this image. In other manners, you know, not the same site, you know, just say, I won’t recreate this exact same print, but I reserve the right to use the image, you know, in other matters, because when you came out with your second edition, if it impacts the value of the first edition, you’ve got a problem, but it doesn’t really have any impact on the first edition, they could sue you. But they’re no damages, you know, saying Yeah, he came out with second edition. How are you damaged? I mean, you know, maybe foul no harm, you know, kind of thing. So yeah, I always put in, you know, the comment that when I’m writing is that you reserve the right to use it. Here, the artist retains the right to reproduce the image and other medium in any manner whatsoever, except no other limited edition print in any media in the same medium shall be created, you know, this just kind of thing.

Matthew Dols 1:06:52
Fabulous. Alright, wait, when it comes to certificates of authenticity, and these 14 points that are legally mandated to be in every certificate of authenticity in those 14 states, should the information be typed or handwritten?

Joshua Kaufman 1:07:06
Oh, that’s now that reminds me, you can provide it in any format. But the reason I said most websites are almost all our websites are violating the law is you’re supposed to provide the information prior to sale. You know, most people at best, stick it in the box, when you’re leaving this you know the gallery or when they mail it to you have this certificate, see that doesn’t provide the consumer with the knowledge that they need in order to decide whether to buy it or not. They don’t know when they bought it, that’s actually an addition of 1000 instead of 150, when you stick it in the box afterwards. So the statutes generally provided that no offer for sale can be made without So in other words, on an N, I’ve almost never seen this on an art website. Now, if you don’t have the certificate right there, you should at least be a link to this certificate. So that before I buy the thing, I can click on the certificate to see the extent of the rung basically, I’m just looking at the California statute and it says, an art dealer shall not sell or consign a multiple into the state unless a certificate of authenticity is furnished to the purchaser and his or her request or in any event prior to a sale or consignment, which sets for then, you know, it gives the list. So I can’t remember the last time I saw a website that actually had those things, you know, available?

Matthew Dols 1:08:30
Yes, Saatchi I don’t think does those at all.

Joshua Kaufman 1:08:33
And but you know, you know, again, there but basically the you can usually return an artwork. Sometimes some of the states say their triple damages. In other words, you get three, you can get up to three times the amount of a couple make a criminal. I don’t think I’ve ever heard of a state’s attorney, actually, criminally going after somebody. But for the big frauds, it’s, you know, they don’t know, you know, where they’re the frozen people get busted for the frauds not so much for violating the certificates. But the certificates, we’ve been a couple of clients, you know, we’ve gone back there people and said, We want my clients money back we don’t want to do and then we say well, you you can even return their money you’re gonna pick we’re gonna sue you for three times as much plus attorneys fees under the statute, immediately get your money back. It’s It’s nice.

Matthew Dols 1:09:21
Okay, advice from a legal standpoint for let’s say, practicing artists that are alive, you know, what they can what they should know or do or something that you feel like we always neglect

Joshua Kaufman 1:09:34
places that have copyright registrations, I think, you know, you should, should always put a copyright notice on your work. And if you’re still have the old school, you don’t want to put it on the front, no, which just be the seed the circle your name, and the year put it on the back, because it lets people know it’s a protected work. So if somebody posted online, you know, if they cut it off, which by the way in the United States on the DMCA that is illegal to cut off the copyrighted information or the artists name It is actionable, at least in the US. But you know people know that it’s protected people know who to go to for permission. So you know, you want to do that you do want to, you do want to register. If you’re working in a studio environment, make sure all your assistants sign off on a document saying they claimed no rights to your work or copyrights or joint authorship. There have been a number of lawsuits. Generally the main artist is one but not always, you know, whose studio it is. There was a case with Cerulli recently, though is came out this year to hooli because of an offhand disfigurement and an accident never makes any of his glassworks. He sits there and tells people what to do and what a 30 year manager assistant, you know, just claimed to be joined author Chahal, the one that one but there have been other cases where went the other way. I had a case where a representative Renoir’s errs against Buenos Aires, Guido was Renoir’s assistant when he had arthritis in his last years, and he was doing sculptures. And at the time, kwena was some young talent, the guy who had no style of his own, so he’d sit there with Renoir, and Rosie do this and do this, and the guy would literally in front of them, you know, sculpted, and all that kind of stuff. And you know, for generations, it was, these are Renoir sculptures, and at best, and it’ll be a footnote with the assistance of gluino ogino, sued successfully in France, to be named a joint author. And then we got into litigation in the United States where I got it. I didn’t get involved in that as to the rights between gluino and you know, Renoir’s errs here. So if you’re running a studio and you have assistance, nope, besides confidentiality stuff, it doesn’t hurt that you don’t go in, you know that. I don’t know that noncompetes help. But I would certainly have make sure that they waive and assign any and all IP rights to you.

Matthew Dols 1:11:51
Have you had any issues with repatriation?

Joshua Kaufman 1:11:54
Oh, I’ve dealt with that. Over the years and good number of times, stolen art, cultural art, all of those. Yeah, they come up. Those are always at least for mine. I’ve always been very close to just quiet private things. And none of them have ever seen the light of day, summer settlements, summer returns. Sometimes it’s been stolen from museums, sometimes it’s Holocaust, so they don’t do much on the Holocaust stuff. fakes, forgeries, stolen art comes up fairly regularly, this line of work, I’ve generally been on the reputable end. So we’ve everything has been taken care of properly. You know, I haven’t represented the guys who ripped it off the wall or made the fakes. But yeah, but that, you know, their statutes. And again, it depends where it’s happening. You know, in Switzerland, if you buy stolen stuff in good faith, it’s yours. In the United States, if you buy stolen art, I don’t care what good faith it is, thief can’t pass title. So you, you buying nothing. You know, so there’s, you know, the good faith, purchaser laws vary by country to country. So, you know, if you want to buy stolen stuff, go to Switzerland, don’t come to the United States, you know, sometimes a statute of limitations, which you don’t sue early enough, you technically don’t own it. But they can’t sue you for it, because the statute is run, of course, until you try to sell it and then the statute runs again, you know, and the next sale. But you know, there are all kinds of, you know, quirks to it. But yeah, really, that depends on country to country, Switzerland is notorious. That’s why you have the giant free port in Geneva full of hundreds of 1000s of stolen pieces of art I imagined to get out of there.

Matthew Dols 1:13:31
I’ve heard stories that if you if you buy a piece of art in Switzerland, and never exhibited or put it up in your home, and then resell it, you never have to pay taxes on but

Joshua Kaufman 1:13:44
that has to do with the free port. That’s, that could be a TV also, only it depends, I’m again, getting too technical. In the United States, for instance, we have sales and use taxes in all but five states. So if you buy the art and such in one of those five states, you don’t have to pay sales tax. But when you take it home, you have to pay the use tax, which is the same as the sales tax. But in California, it only goes to new property, not used property. So what we do is we have our clients buy stuff, let’s say in New York, we have it shipped to Oregon, we work out a deal with the museum where they exhibited for 90 days, it’s now considered used, then it shipped to California, and we’ve saved it’s almost 9% sales use tax in California, and you’re talking about you know, a $10 million piece you’ve just saved $900,000 by having it exhibited which also enhances the value in a museum in one of these five states. So you know, they’re all and it’s totally legal and kosher. There’s nothing wrong with it in any way, shape or form.

Matthew Dols 1:14:47
morally questionable that no

Joshua Kaufman 1:14:49
everybody knows about it, they do it you make a donation to the museum, you know, as a gift to them as a you know, to help

Matthew Dols 1:14:56
What are the five states so Oregon, Delaware,

Joshua Kaufman 1:14:59
those are the only two that Matter, the other ones, you know, like Montana, you know, whatever, there’s no museums or anything, Oregon has some good museums, Delaware, is right next to New York. So if you’re really in the not, I don’t care, I never going to hold it in my house, I just want to buy this as an investment. You buy it in New York, or California, wherever you’re going to buy it, and you should have it shipped. Because if you ship it out of state, you don’t pay the sales tax. So you ship it into a warehouse in this great Fine Art warehouses in Delaware, you ship it in Delaware, it sits in Delaware to you sell it, and then you ship it from Delaware to wherever. And then you know, that’s an income tax, that’s sales and use tax, which is anywhere from, you know, six to 9%, that gets in the United States, the state taxes. So what you’re talking about in Geneva is probably a comparable thing with the vat. And the other kind of taxes that you have in Europe, it’s sent to a free port, which is not a taxing is it sits there and then it’s shipped out of the free port. So none of those are bad. You know, that subject transactions? I’m no expert in bad side. Yeah. But that’s the general theory.

Matthew Dols 1:16:07
Okay, yeah, you’re my first attorney, guest, I’ve been looking, I’ve been looking for an IP attorney for like, a year as a guest. Because I’m fascinated by all of this stuff,

Joshua Kaufman 1:16:16
ya know, it’s like a, you know, it’s an interesting field, you know, for me, it took me about 15 years before I could blow off all the divorces, and car accidents, and all the other kinds of, you know, cases to like to just do this. And, you know, it’s been a, you know, been a great run, you know, run. You know, I deal with a lot of wonderful, interesting musicians and writers and filmmakers and actors and visual artists, and protecting their rights, knocking, you know, getting rid of infringers, and making collectors get good deals at the auction houses, you know, and the technology keeps me on my toes, where I mean, I spend no less than a half hour every day, just reading cases and journals and stuff on stuff. And there’s always every day, there’s some new twist to it, all of a sudden, now all the photographers are suing everybody, because the technology such with the click of a button, they can search the entire internet for a photograph. And it’s now automated. So they upload 1000 photographs and like in a minute and a half, every place has been you know, you right clicked on it 10 years ago, and put it on your website or on your brochures and stuff. And what they’re doing now is they automatically find it, they automatically generate a cease and desist letter, they then take a multiple of what they normally would license it for, let’s say three to 10 times that’s automatically generated, send you this letter, automatically an email, or to the website where they found the thing demanding you stop using it, and you pay this sum. And they say, but they don’t even do any checking said, but if you have a license or some let us know. I mean, you know, they send these letters for fair uses, they send the letters to people who have licenses, you know, I mean, and then when you don’t respond, they have attorneys who automatically generate a nasty legal letter, which now the money is more, but it’s almost always less than it would cost you to hire a lawyer. So you know, it’d be $500.15 $100.20 $500, where it’s just not worth your while to go to a lawyer to have to tell you what Nick say you owe it, but they cannot say no, yeah. So they the numbers are always there. So it’s automatically generated. And you know, we get these all the time, because everybody in the grandmother, you know, up until recently, when this started happening, just right click on any picture they saw on the internet, you know, did a paste, and then I mean, did a cut and then pasted it into their websites, their brochures, you know, or whatever else. And we got away with it for generations, because there was no way for photographers in the past. To do it. If you want to see an example. No, I’m not plugging any company, but 10 i ti n e y e.com. I think they have a commercial thing, but they have a free one at a time. So you take any picture, any image you want, you upload it, and it’s it, you know, you just, you know, browse, and you click on it. I thought it didn’t work the first time I did it because it was like five seconds later. And they said we have just searched for billion, you know, say every place on the internet, it appears with the link to it and everything else. And I mean, it’s mind boggling, you know? So if you’re an artist and you’re looking for infringements, or you know, just post you know, again, you can do it in bulk. We’re getting a commercial license from tonight that many companies doing it now. They were the first ones I knew, and they do have the freedom. I think Google Goggles also does that. I think it’s if you go into a Google search, I think there’s a little thing looks like binoculars that will do a similar kind of thing as tonight. You know, but again, it’s you know, part of the technological revolution, those kinds of things. So, I mean, every week there’s something new which keeps me on my toes and busy,

Matthew Dols 1:20:02
indeed. All right. Well, thank you very much.

Joshua Kaufman 1:20:05
Oh, man, it was a pleasure. I enjoyed it. It was, Oh, it’s you know if I can talk about myself for 45 minutes and things Hey, what’s better?

Matthew Dols 1:20:12
Yeah, it’s great fun. I mean, an incredibly informative, I learned a lot from just talking with you. Well, thank you. I feel better about certain things. Okay, good. I’m

Joshua Kaufman 1:20:22
glad I made you feel better. Alright, he take care now.

Matthew Dols 1:20:29
I know every podcast asks for your help. And I’m no different. I’m going to ask for your help as well. The algorithm is based in star reviews, and comments. So if you want to be supportive of this podcast, without being a sponsor, or any sort of money kind of thing, the kind of thing you can do is take a second to a star rating, or leave a comment. It can be critical, it can be supportive, it can be anything you want. But the more comments and the more love Star likes that we receive more that we will be able to get more listeners and then of course, get better guests because we have more listeners, and it’s a trickle down effect. Just like our arts careers, one little thing can lead on to a better thing later on. So these little acts that you do will be greatly beneficial to not only the podcast, but to you. Because the better guests we get the better conversations we have, the more you will end up learning through the experiences of others. So thank you very much for your support. And I look forward to bringing you more and more information and knowledge to help you with your career.

The Wise Fool is produced by Fifty14. I am your host Matthew Dols – http://www.matthewdols.com And the audio for this episode was edited by Jakub Černý. The Wise Fool is supported in part by an EEA grant from Iceland, Liechtenstein and Norway – https://eeagrants.org in an effort to work together for a green competitive and inclusive Europe. We would also like to thank our partners Hunt Kastner – http://huntkastner.com in Prague, Czech Republic and Kunstsentrene i Norge – https://www.kunstsentrene.no in Norway. Links to EEA grants and our partner organizations are available in the show notes or on our website https://wisefoolpod.com