Transcript for Episode 176 – Intellectual Property + Art Lawyer, Guna Freivalde, AMG Attorneys (Belgium)

Recorded April 23, 2021
Published May 27, 2021

Full recording here: https://wisefoolpod.com/intellectual-property-art-lawyer-guna-freivalde-amg-attorneys-belgium/

Transcribed by https://otter.ai

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

Guna Freivalde 0:14
Yes, my name is Guna. It’s actually my mother’s idea to call me girl now because she was inspired by the theory, they awesome book, Sam’s legends and everything that comes around it. So my name was quick idea. And then I made the research of my name or regions and outcomes that in Irish Guna, his address in India is actually man’s name. So it’s quite difficult to define whether I am Guna, or Guna, as Swedish would say,

Matthew Dols 0:56
it’s it’s your name, you have every right to have your own interpretation of it. Mine Mine is gift of God is what Matthew means. But that’s because my father is also a priest. So you know, kind of fits?

Guna Freivalde 1:09
Yes, definitely.

Matthew Dols 1:10
Yeah. All right. So you are an attorney in Brussels, just to be clear on where you are. And you focus primarily on arts and art and cultural related things. How did you come to the choice to you know, of all the things you could do in the law? Why did you come to arts and culture?

Guna Freivalde 1:32
Actually, as an art lawyer? Well, I’m, I usually received two kinds of reactions from people first, that’s Oh, is there such a subject as an art law, actually? And then the second is, oh, so what do you do?

Matthew Dols 1:50
Well, that’s a good start. So let’s start with actually like, who would your primary clients be in the arts? Are they artists? Are they collectors? Are they gallery owners institutions? Like who are the people that need legal services the most?

Guna Freivalde 2:04
Well, I guess in the modern world, we all needs legal services, it’s too complicated to just go through without anything like that. But starting, once again, it’s arts law is covering everything starting from the museums, to the galleries, to the artists, to the street artists. And I could I could just go on and on with the list because even the architecture is within the arts law concept. So I started as an arts lawyer, actually by an accident, because I was really into art. So I was studying history of arts, I was trying to become a painter myself. Well, unfortunately, I failed. I’m just one of one of the many. Who tried

Matthew Dols 2:55
Me too. Yeah.

Guna Freivalde 2:56
Well, then, you know, the other part of the story as well.

Matthew Dols 2:59
Yeah, you find something else that somewhat still tangential to the arts just to keep you interested.

Guna Freivalde 3:05
Exactly. Exactly. Well, the the passion for the arts, so it stayed there always. And I truly believe that we have to do what we love, love what we do. Well, it sounds cheesy. But art and law are those two things that I’m passionate about. And since there is a possibility to fuse them together and make out something interesting for everyone, and something that I can help with. Well, that was exactly what I wanted. So it includes every single topic that comes into my mind related to the art, some of them that are rather dry contract, for example, because we all need some agreements. And so those galleries to say, well, just a handshake is enough. We don’t live in the medieval times anymore, because at some points, there will be some, some arguments, some misunderstandings, some misinterpretations is on my daily basis I come around was really curious things regarding contracts, and they don’t seem that drive anymore. Because they’re misinterpretations, language problems of galleries who say I will they get in, but you will not get it back, and so on and so on.

Matthew Dols 4:25
Let’s take a step back on that then. So I’m new to Europe. I’m American, as you can tell. So in Europe, what makes a contract legally binding? Just period like very simple, very rudimentary here.

Guna Freivalde 4:41
In Europe, it’s a wide expression of legal field again, because every single country has the national legislation.

Matthew Dols 4:48
So wait, so there’s no like EU standardization on legality of stuff so it is still country by country? Yes,

Guna Freivalde 4:56
yes. Okay. Are sly We’ll say it’s, it was born in France, of course. So the basis of the arts law in Europe comes from France. But then again, it’s totally different. The Copyright Act, for example, is totally different from country to country. So we can’t really go and say, Well, you know, in Europe, we have this and the in the United States we have that is, even the UK right now is a hot topic, because where do that belong, which is the middle point of it is there’s still problem. And we still don’t know what to do with copyrights, which were registered under the EU law, and then they suddenly became the UK. So do they need to register them? When? How? So these are really, really actual topics right now? Apart from top edge, which is of course, as well, but that’s totally another subject.

Matthew Dols 5:58
Yeah, we’re not talking about the legality of COVID. That’s not my concern.

Guna Freivalde 6:03
That’s illegal.

Matthew Dols 6:04
That’s difficult to put. Let’s start from the again, foundational so because you say you’re saying contracts? Yes. Or not sort of. There’s not a consistency throughout Europe. It’s still country by country. Yes, that sucks. Okay, I was looking for something consistent. How about how about intellectual property? So by the definition, in this region, what is it? And how can you protect it?

Guna Freivalde 6:31
The first thing that comes into my mind is actually case law, which is Jeff Koons if you know it, so he became popular in our world as, as, as right now he is as popular in the French courts. Because back in 2018, the High Court of ferries ordering Jeff Koons and st Pompidou to pay Mr. Davi Davi check, the auto or off the advertisement which Koons appropriated and creating the sculpture entitled 30. Well, if I’m not mistaken, it was 135,000 euros for copyright infringement. So it does go under the intellectual property perfectly well, he was also fined exactly in the same case, 11,000 euros for reproducing the work on on its website, which is publicly available. So it falls under the scope of intellectual property protection as well. Because there is a huge difference if you just take a picture of the of the sculpture, and then you just show it to your family, or you just publish it then all over the social media pages, and then it becomes already an illegal part of that case, because if the photography is shared with your family, or in thermal website, you can do it, you can do it, you always have to be very careful if you state the the artists name on ads or not, who will reach this photography and who will be restricted to see that photography, or you publish it on your website that you don’t know what will happen afterwards, then it’s already two sides of the copyrights public and privates.

Matthew Dols 8:32
Okay, you brought up appropriation, I’m fascinated with appropriation. I have done it in my own career with my own artwork. And so I’m wondering what what are the are there sort of some standardized sort of terms that sort of define what is an appropriate version, a quantity of appropriation versus not because like the, from my memory, which is very old now. I mean, this is back in the 2000s. In the United States. They use the courts used a term that said something like a significant artistic difference from the original would allow for appropriation as long as there’s a significant artistic difference. Is it something like that, because they I remember that I seem to remember, they also said like, no more than like 15% of the original could be included in the new artwork, or else it would be stealing, theft or whatever. So they are they’re sort of guidelines for appropriation in this region,

Guna Freivalde 9:33
to say so it’s 15% is more or less, but it’s not in numbers. It’s always the artwork. The the stealing of an idea counts, the stealing of the heart of the artwork gowns, so it can be if we speak about Harry Potter, you can write so a book about wizards and you can you can come you can have similar story, but there cannot be mentioned any of those words like Harry Potter, Hogwarts or similars, because that is the heart of that creation. Therefore we can, we can always say that the our small corner of an of a drawing can be taken away and used in my art work. But that corner cannot include ever, the idea, the heart of that drawing. So, if I draw a man itself, I can take away his shoes image, I cannot take the whole body and just color it and then say, Well, that was my idea, because it’s not my idea. It’s someone else’s work taken by me.

Matthew Dols 10:49
But you’re using the words idea. So like, I want to differentiate, because when I say the words, idea, I’m thinking, so let’s say I’m at a pub, and I’m talking with a friend, and I pitch out like, hey, I want to do this, this painting that looks like this. And I describe it in great detail. And then that person goes and paints it first, did they steal my idea? So that’s what I’m asking is it is intellectual property about the concepts or the, the explanation of something or the sort of the tangible result of something.

Guna Freivalde 11:26
It protects the idea, but the idea has to be recorded somehow. Because if you go to the pub, and you say, your friends, I will make golden shoes in this way with this weight and this size. He will go home, he will make them and you will have no proof that that wasn’t his idea.

Matthew Dols 11:49
Legally, how can I prove it?

Guna Freivalde 11:52
If you have any records you have done even if you have written it down on a paper, you legally you have that proof that that was your idea. That to say so it’s difficult, it’s always difficult.

Matthew Dols 12:07
That’s exactly what I was thinking. I’m like, Okay, well, that might be great. But like, okay, so like, let’s say I did, I wrote in my journal, my idea. A week later, I told my friend in the pub, and a week later, they produce the thing. And I have proof that I wrote it a week ahead of time, but it’s in my journal. So like, there’s no I could have written that five years later and just said, Oh, no, I wrote it back in whatever year, I think like, how do you prove that your even your written documentation came? First?

Guna Freivalde 12:39
It depends totally on your lawyer.

Matthew Dols 12:43
How shady they are

Guna Freivalde 12:44
exactly.

Matthew Dols 12:46
Okay, fair enough. So, so ideas themselves can be, for lack of better, worse or like, become intellectual property. Yes, but they have to be like, there’s an old wives tale in the United States that like if you write an idea down and put it in the mail and mail it to yourself, that somehow that’s some sort of proof, even though I doubt that highly.

Guna Freivalde 13:14
Now that serves as a proof, everything that is written or taken a photography off, or anything that is visible, serves always as a proof.

Matthew Dols 13:26
So you talked about social media and websites. So you’re meant you said Jeff Koons, and you talked about his being sued for producing a piece of art as one thing, but then separately being sued for putting an image on his website. How concerned should artists be about like, people taking their images and using them on other people’s websites?

Guna Freivalde 13:48
That is the copyright that you have to always state who’s the offshore? Where did you see it. And if you’re really, really concerned about the legal side of your picture, or your, any of the images, you always have to reach out the author and ask them. And this is where the art and the log can be seen together. Because if we speak about street art, for example, street artists, they they they make a huge difference, face to the city and especially right now with the cover times because it has become really popular all over the world to express their feelings while they can’t go anywhere together and celebrate the life. So depending on the country, again, street art is protected by copyright law again, and so an artists don’t even need to put any copyright symbol on them. Because mostly this this means two sorts of legal protection, their legal rights and more moral rights like and as an outcome. Also, and the word can cannot be used in a derogatory way, which could harm their reputation, political beliefs, and so on, on, so on, and so on. So, these legal rights describe the exclusive right to make a copy to communicate or adapt the artwork, which is not allowed under copyrights. So to take a picture and share online, this original street art legally, you would need to get the permission of the copyright owner also credit the artists, as I previously says, I know that’s many times impossible, because we don’t know who is that street artist who painted it. So then you will have to do every single possible way to at least state where did you take that picture? Because most probably, that will not include any legal crimes or nothing that those people did. They don’t make any money out of their artwork. And if you take a picture, you are what we are not speaking about Banksy that will come after?

Matthew Dols 16:15
Well, no, I know, I know street artists that are they maybe they don’t make any money from the completion but they get paid to do yes, the street art. Yeah. So they tend to earn incomes from it.

Guna Freivalde 16:27
Definitely. Many times, even though the owners of that blocks or that house they either they pay for the street artists or the payments. So the commissioned work, as we call it, it’s actually can be very confusing to the street artists as well, because even if the owner pays the street artist, a meal and a beer, it’s a commissioned work, because he has been paid for. And many times he is not even aware of that fact that now I have been paid in some way for my art. So now, do they know that by accepting these, this beer or these meals, they are as well hanging over the copyrights to the organizer or to the owner? there we’re losing all the rights all for their their work?

Matthew Dols 17:26
I would assume most of them are unaware of that.

Guna Freivalde 17:28
Yes, definitely. Definitely. So now back to Banksy. When we speak about him, his most famous most probably statement of copyright is for losers. Then again, we have our case with him with his famous flower bouquets thrower. As his most probably most famous art work for him at that moment, it was it was very special for him. Artists usually if they work at that level, they wanted to have protection while they protect their works by copyrights. Banksy chose to lose the cases because he prioritized his anonymity, which is very difficult issue because then you of course, you will be losing especially the next step he took over by opening a barber shop, offering his murals, which were only available online so that doesn’t comply with any of these rules for the copyright protection, neither trademark registration clauses and stating that I’m not going to do anything but to follow exactly the steps the legal steps I need to make for this trademark was a huge mistake as well because of course the the European Union Intellectual Property Office they they cancelled this trademark and and they replied that this plan was only Banks’s intention to circumnavigate the law. And it’s totally inconsistent with honest practices.

Matthew Dols 19:18
Well, but his fundamental thing is that sort of anti establishment stuff, so like, kind of makes sense. I go with it.

Guna Freivalde 19:27
Okay, that’s, that’s good. That’s good.

Matthew Dols 19:30
I look forward to someday knowing who he is. Or she, my sensei didn’t know to be gendered.

Guna Freivalde 19:35
Exactly.

Matthew Dols 19:37
Okay, but wait, but so back to the website stuff because, okay, I’m a photographer, or traditionally a photographer, but I’m always like, people steal images all the time. Like, even on this podcast. Like we have a website. We use images with permission from the guests on the load, like social media and things like this. What’s the difference of like, you using it for permission using it on social media versus like using it on a website where commercial money is made? Like, what are the sort of subtle differences between all those specifically in illegal format?

Guna Freivalde 20:14
photography is another question already. Because here, it also depends on the permission first, the permission of the person who’s in the picture. After the photographer, it’s, if it is a landscape, and there is no person in it, then of course he can, he’s always protected because any creative idea is protected by copyright by its nature. So wherever the photographer publishes his pictures, his work, there is always an obligation to reach out and say, Hi, I would like to use your pictures for this or for that. So it will be perfectly well seen by the by the photographer, or he will say, No, thank you, I’m not interested or you will have to pay me. So legally, there are so many versions that you can use your creative work, and at the same time, if you copyright your work, it’s it’s not even necessary, as I said, to put that copyright symbol on. And because it’s already there, anything that goes there, it’s always protected, but you need them to register with a trademark, which is where money concerns come in. Because registering for trademark is expensive, time consuming. And many times if you don’t really feel you will need it to protect your incomes or your economic interests.

Matthew Dols 21:47
All right, help me out, again, new to Europe. So copyright, you’re saying is inherently installed. But how long does that last?

Guna Freivalde 21:59
copyright lasts forever. While you’re alive, the copyright lasts forever,

Matthew Dols 22:04
right? Well, because like I spoke to the guy in the United States, he said, like lifetime plus 70 years, but then after that 70 years, what you have to file for is you have to keep it like so like theoretically, you know, me and my ego. So my estate, my children will have to then 70 years after I pass will need to then file for copyright in order to retain it. Or else it goes into public domain.

Guna Freivalde 22:30
It goes into public domain offer author that of course, if it is it’s your statement photography, it’s your statement picture, you can always apply for protection. And you can stay that in your as your artistic heritage.

Matthew Dols 22:49
Now the difference of trademarks, he brought it up What does it mean? I’m so I’m, I’m such an idiot when it comes to this kind of stuff. Let’s keep it focused on the arts. So let’s say I’m an artist, what would I trademark my name?

Guna Freivalde 23:06
Yes, you can trademark your name. Like I recently had a case with a fashion law where someone reached me out and said, I want to protect my design. The nice said, well, design is pretty wide concept because I’m very sure there is already an existing design very similar to yours. So maybe what you want to protect is your your name, your level, it has to be something different. So what I suggested them, instead of protecting one particular design, they protect their name, they trademark their name, and then use something distinctive in each of their designs they they produce. It’s when we speak about admin bags, it’s very obvious that they are protected not because of the design of the bag, they are protected, they does have a special piece in that bag. And this is what you need to think about though, think about one particular design that you just had an idea about it. Think about your label, think about something distinctive that will protect your designs, and we’ll make it those profitable and secure.

Matthew Dols 24:33
I understand that from a fashion label standpoint. So like so let’s say I’m a painter. Could it be that I use a very particular wood to build my framing structures or a very particular fabric would like as my canvas we’re like, would that be enough to be that or it doesn’t have what what could we do? Let’s say let’s take it from like fashion and art into like fine arts. So like what What a sculptor do or a printmaker do, or painter do to become a have a trademark of some sort.

Guna Freivalde 25:07
It can be distinctive techniques that you use for painting, it can be a special pattern that you use in your paintings. It has to be something this distinctive, always in that artwork that you produce. It can be a red dot that you always add to your painting on the other side as well.

Matthew Dols 25:29
That’s a nice idea. I like that. Because I have this painting that I had a friend of mine I went to school with. And on the back of his painting, he wrote this ridiculously long list of like things all over, it’s literally just looks like a list of things. He signed every single piece that he owned with his list, a similar list, but the list changed for every painting that he signed, because it was like the name of it was like, brand of car, the girl he was dating at the time, the street he was living on lately. It was like a code that he created on the back of his thing. And so like that became a sort of thing that he did for every piece of art. It’s it’s super long, but and he and I asked why he did it. And he said he just wanted to screw with future art historians.

Guna Freivalde 26:14
Yes, exactly.

Matthew Dols 26:17
Speaking of that, so you had seen on your website says you have a specialty in authentication issues.

Guna Freivalde 26:25
Yes.

Matthew Dols 26:26
How are you doing that? I’m utterly fascinated. Like, I love all those like TV shows like, what is it like you? Faker, Faker, fat fact? Or what’s the British one? There’s so many really great, like, sort of like going through art history and trying to figure out what the, you know, X ray is and like, all these kinds of things like so like, what are the authentication issues that come up like, for, for specifically, I’m probably saving more for contemporary work than historical work.

Guna Freivalde 26:57
It’s, of course, I’m no expert myself, we work with the with a team of experts and authentication. But basically, it means when someone wants to buy artwork from, for example, Jeff calls the same. And he’s not really sure whether that is an authentic work of Jeff Koons or not. So then we asked our experts when we make expertize, which many times is, you can just look at that. And you can say yes, that’s definitely the one because I recognize it by this pattern, or this distinctive mark. In paintings, you can make our color expertize to see whether it really fits into the error, or we’re here when it was produced them. And now, then you always can use special laboratory experiments that define whether it’s authentic or not. So it’s always of course, there is a chance that there will be a possibility to make an error. And say, yes, that’s the artist. And finally, turns out that it was not like in the famous famous Nadler gallery in New York, which was, I believe it was one of the most famous cases.

Matthew Dols 28:22
I just watched that documentary on Netflix.

Guna Freivalde 28:25
Okay. Okay.

Matthew Dols 28:27
Yeah, I know, I know what you’re talking about. But they I mean, that’s the thing is like there, there are millions of fakes and forgeries, and everything out there, and many of them are attributed to the artist but incorrectly. So like, how can you remedy that?

Guna Freivalde 28:47
I wish there will be a solution for for forgeries I really wish so. But I think it’s impossible right now, because there will be always perfect, perfect forgeries that you will be unable to see an art market most probably, in this sense legally is the most fragile one because there is always a possibility to make a perfect copy with a copy. I speak about if we speak about the contemporary art that’s a copy made by someone else, absolutely not relevant to the artists that we speak about. Leonardo da Vinci creations, it’s also a copy. If one of his students has done some painting under his supervision, it’s still a copy. So it will be very, very difficult for the experts to say whether that was Leonardo da Vinci himself, or one of his students?

Matthew Dols 29:50
Yeah, I mean, I’ve been hearing a lot recently about the issue of like, attributed to or from the studio of kind of things. It you know, They seem to be finding additional words that sort of, it’s still it’s still Leonardo was involved in it, but it might not have been done by his hand kind of thing. So,

Guna Freivalde 30:11
exactly. And all the art experts they used to say, I believe it might be, or they just say nothing in regards with the authenticity, because it’s many times it’s very difficult because their own words can be turned against them.

Matthew Dols 30:30
Yeah, they it’ll hurt their reputation if they say for certain something, and it turns out, it’s wrong. Exactly. The arts world is all about reputation. But that’s a whole different issue. So okay, what about because you’re in Europe, I’m interested a little bit about like reparations, because I would imagine a lot of those kinds of cases come around, but specifically world war two kind of stuff and things like this, possibly even Africa, for all I know, you know, sort of like, country wanting things back and things like this, is this something that is, let’s say, quote unquote, like common?

Guna Freivalde 31:05
No, this is not common. There are many, many cases where artworks have been taken away, and nobody knows exactly where they are, and where to go to find them. So there is always that’s the difficult part of the Nazi looted things that you never see them again, or, most probably the most famous cases will stuff Clement woman and goals, that was one of such cases that you’ve only get them once in a lifetime. And you actually make it happen. But here in Europe, it’s it’s not very common. And all those cases usually are treated outside the courts, and very strict privacy. Because it’s also not only about the reputation, it’s it’s quite sensible subject, which, which should be treated as such. And as I always say that in the art world, courts should be avoidance, we have arbitration, which is really, really good for these cases. I think that not going to the court many, many times is a better option.

Matthew Dols 32:19
Just for clarification, define arbitration.

Guna Freivalde 32:22
Arbitration is when there, there is a background of many experts who decide where the truth hides, because many times when we go to the courts, we have a we have a judge. And the judge reads the statement about claims works. he happens to be interested in, in the industry and a run litigation, so he is not really used to what exactly it is about. So many times it’s underestimated, it’s time consuming. And when we speak about art arbitration, it’s experts sitting in front of each other and speaking about the possibilities, where this artwork comes from, who has been the owner, with all the list of provenance where the artwork has been all this time, and the person who wants to get it back is not exposed, obviously. So it really makes a huge difference for all of them.

Matthew Dols 33:28
When it comes to a case like that, who like, How do I explain this, okay, in the United States, it’s, it’s the prosecutors job to prove guilt. So the innocence is, is assumed. And it’s they have to prove the guilt. So the, I forget what the terminology is for that. So when it comes to something like an art looted thing, or something that has been procured, and it’s not by the owner kind of thing, whose obligation is it to prove ownership? Is it the person who currently owns it or the person who wants it back?

Guna Freivalde 34:08
It’s about good face purchase when we speak about that, because you have to prove that you didn’t know that that artwork was actually stolen, bluebirds or has a shady provenance because it’s the importance of both parties to the purchaser comes to me and says I bought it because I didn’t know it was stolen. I bought it from the from the art dealer whose gallery is now closed, so I can’t ask anything to prove that. That was really there. The art gallery owner told me that it’s really well conserved artwork that was not exposed to any museums and that’s a special piece. And then Tom’s the the the true owner and says now well, because that was stolen. From me years ago, and then it disappeared, the US cases are, the way it is protected, or it is defended in the US is not quite the same in Europe, is in Europe, it’s all before the court, we prepare documents, we prepare our arguments, and then in the court, we only have to follow the lines. So it changes the level of it. And many times it’s even before the court that we prepare all all the documents and all the prominence proves. And we just go and say, Yes, actually, that was stolen, because here we are missing this part.

Matthew Dols 35:41
Well, you talked about provenance. I love that word. It’s a beautiful word. But provenance, like I understand like, as it as a piece of art gets sold on and on and on. Like, there’s bill of sales, there’s lots of different ways you’ll canceled checks, all kinds of different ways to be able to sort of track that kind of stuff. What I’m interested in is like, what can contemporary artists do now to create a sort of confidence in a buyer or, or a collector about the provenance or, you know, basically, the authenticity? Really, as I’m sort of getting to like certificates of authenticity? Should we be doing them? Are they even legally binding? Do they matter? What’s your input on that?

Guna Freivalde 36:25
The start was always always write down where the artwork goes, every show, every place you visit with this artwork is a prominence in the future. So you will be able to track down where your artwork has been in any particular moments.

Matthew Dols 36:46
Okay, wait, I want to be clear on that digitally, like, should I do an Excel spreadsheet? Or should I hand write this like on a piece of paper,

Guna Freivalde 36:55
those columns,

Matthew Dols 36:57
okay, but the certificates of authenticity, I’m a bit obsessed with them. And I probably go way too far, I have this beautiful thing that I print out on nice paper, archival paper. And I fill in all these little details of it from the inks to the papers to the printers to all the difference. And then I do a hologram sticker with a number with matching numbers that I put on the back of the artwork. And then I put the matching hologram sort of like tamper proof sticker on the certificate to create a sort of theoretical perfect bond between these two. So you know, this image goes to this certificate, no others. Am I being too obsessive?

Guna Freivalde 37:37
Honestly, yes.

Matthew Dols 37:39
Okay. Okay. So what’s the minimum that that an artist should do just to create a legal confidence that that this piece of art was indeed made by that artist,

Guna Freivalde 37:53
saying you can, you can opt either for being obsessed with the certificates of authenticity, or you can just write down everything you have. Because every time you go to the gallery, you have a contracts that you sign for showing your artwork,

Matthew Dols 38:09
theoretically,

Guna Freivalde 38:10
theoretically, highly encouraged to do so because that’s a part of the provenance. And you also have the additional annex, which states all your artworks that have been shown in this gallery. So I highly encourage always everyone to write down on a computer, take a picture on the phone, whatever it takes to make it clearly visible. For the records.

Matthew Dols 38:39
Yeah, cuz I’m thinking back to my career, like I could tell you I was in an exhibition in 1998 in a particular gallery, but I could not tell you what work that was anymore. Like I have no, I had no recollection of exactly what piece was there. So you’re saying that we should keep better records basically, of like, exactly what piece is exhibited? Where and when, as just to create, like, sort of almost like a paper trail of the existence of that piece?

Guna Freivalde 39:12
Yes, definitely. Logically, that will make a huge difference in the future when someone will come over and say, that doesn’t look like Matthews work. And the other will say yes, now that’s definitely his work. And then another will come over and say, I can’t be certain

Matthew Dols 39:31
because they don’t want to stake their reputation on it. Yeah. Okay, but what about estate planning? Like this is something that’s concerning me a lot, you know, lots of death and dying going on in the world. And I get concerned of course, my parents are getting older I’m getting older. What should an artist be doing while they’re alive to prepare for their sort of futuristic because I know there are tax issues for their for their children and things like So like, what should be done ahead of time?

Guna Freivalde 40:03
That’s a good question. You have to make sure that your interests are protected. Definitely, you have to make a list of what you wants to protect, there are tax issues. But then we again, we separate them if your children will want to show your works in the museum.

Matthew Dols 40:22
Hold on a second, go back, you said my interest should be protected. First of all, what is my interest? Second of all, what’s the definition of protected?

Guna Freivalde 40:33
Of course, protected is the meaning that your children should always take care of what they do with your artworks, one of the stapes pieces, so if they sell them, they should always be aware that they sell only the artwork, not the copyright of it, which is one of the parts I always say as well that the gallery has one type of agreement with the artists, the artists have another agreement to sign with the gallery because the interests are not the same in both on both sides. That is also about the states, when you plan ahead, so what you want to leave inheritance for your children, you have to make sure that they will be aware of how to handle it, it’s not only about the taxes, because it depends whether you give them your collection of highly priced artworks, or you’re just giving them the contemporary artworks you have created that might be very, very valuable within 15 years. It’s only one part of the iceberg. While the other part is always the rights that you are giving them the rights they have to be aware of when they sign any contracts, when they give it to them Museum, or they sell it to the private collection or where exactly. So it’s a really wide subject to speak on.

Matthew Dols 42:08
Well, but uh, how how do you do these protections? Like, I mean, is it just a appropriate language in a will? Or is there some other way to do that? Like, what what, you know what? So I’m sitting here, okay, here, I’m an artist. I don’t have any kids at the moment. But do they theoretically, I could die at any times, like knock on wood. But you know, what can I do just sort of inherently even if I don’t have children like me, because I might pass it on to my wife or another family member, whatever. But like, what should I do to protect my legacy? Now,

Guna Freivalde 42:44
your will has to be well written with all the clauses inside of it. That’s why there must be a lawyer who knows exactly about what he is speaking about. Because the copyright, you can give it away without knowing it. And the lawyer who makes it will not be aware, what is he writing down exactly in your will? Is he giving the rights to sell your artwork? Or is he giving the rights to sell your artworks together with your copyrights?

Matthew Dols 43:14
When I think about it, like I’ve always said, If you buy a piece of art that does not give the new owner any of the rights, they just bought this the thing, but they have no rights to it. Is that true? Because I could be totally wrong.

Guna Freivalde 43:32
When you sell your artwork, you sell just the creation, you don’t sell your rights. But you have to spend a special attention where it speaks about copyrights. Because in every contract about artwork, there is a special clause that describes the exact meaning of a copyright in this particular sale. Because if you sell your artwork or you, you write it in the world that you will be giving it to your wife or your family members. You give them the responsibility to manage your artworks. The copyright is still back with you. And then they

Matthew Dols 44:13
so I love how you said you just say like with every contract, I have sold far more artwork in my lifetime with no contract, no receipts, no no documentation whatsoever than I have by selling works with contracts. And even though just contracts that I did have a very questionable at best. So like this idea that you think that all artwork has a contract when it’s sold is I think it’s a bit optimistic on your side.

Guna Freivalde 44:49
I know I know. I’m finding out that always. And that should change actually because right now it’s even more difficult with digital sales when we never know where to go. Because it’s not only about the forgery, because someone has to, to be really interested in copying someone’s work. Because there is, of course, there is a money back there. But even so if you suddenly see one of your artworks that you sold without the contract, published in a book about, I don’t know, communism, and you are strongly against it. So what will you do then? Because how will you go and say, Well, I sold you this artwork, and I have my own source moral rights when I again, protest against this publication, and this book, but you need to have that proof that you have sold this artwork to him that you have given this piece of your art to him, or her or her. Yes,

Matthew Dols 45:56
yes. Not all people that use images illegally, or men are. Okay, but but also, how does that that issue come up, like crossing borders? So like, let’s take a random one. I’m an American. So I’m going to do like this bad thing. But I’m gonna say like, so let’s say there’s a book published in Russia. But you are a practicing artist in France? Do you have any rights to like, do anything like so let’s say the book is published in Russia, and only available in Russia? But and you’re in France? Can you do anything about that?

Guna Freivalde 46:32
Yes. Yes, there are international agreements that you can base your arguments, protests or demands on? So of course, it’s protected worldwide.

Matthew Dols 46:44
Is it though? Really?

Guna Freivalde 46:45
Yes.

Matthew Dols 46:46
I mean, but only when these countries that have these agreements. So like, okay, here, I’ll give you a better example, just to release like not lock it down. North Korea. So a book of mine that has my art in it is in North Korea, North Korea has no agreements with anybody. Okay. So what can I do to stop that book,

Guna Freivalde 47:06
that particular place nothing.

Matthew Dols 47:08
But most civilized countries, let’s say, have some form of an international agreement that basically like no matter where you live, if somebody else publishes or uses your imagery for commercial purposes, you can at least put an injunction on them or something like this, to least Stop it, if not have it destroyed or whatever.

Guna Freivalde 47:29
Yes, exactly. Because your moral rights as an artist do not recognize the borders, they are always there.

Matthew Dols 47:37
I love this term, you’re using moral rights. Please tell me a definition for moral rights.

Guna Freivalde 47:46
moral rights, it’s, it’s about the way you see the world, your ethical,

Matthew Dols 47:53
but everybody’s morals are slightly different. So like, how do you legally define moral rights?

Guna Freivalde 47:59
When a client comes over to me and says, I need to protect my moral rights? Because I’ve seen my work hanging on on the public bathroom in the station.

Matthew Dols 48:13
I love these examples we’re coming up with.

Guna Freivalde 48:18
So that the thing is that you have to find that argument and say, Yes, you’re right, because it shouldn’t be in the bathroom on the station. And then some artist comes around and says, Well, my moral rights are injured, because I just saw my drawing, published in a book for children, I don’t want it to be there. And then I have to appeal to his, to his moral itself and say her or her. Once again, I’m not all artists are men.

Matthew Dols 48:52
And not all people who do illegal things, or men either.

Guna Freivalde 48:56
In this case, we’re speaking about the morality of the of the rights. And supposedly she comes over and she says, I don’t want to see my drawing in that book. And then I have to sit down and speak slowly to really understand where is the problem why that drawing shouldn’t be there. Because this is not about moral rights. This is about something that she or he cannot agree with. But we cannot really mix it all together, because it’s not the same. Don’t get me wrong.

Matthew Dols 49:27
I’m all for this idea of moral rights. I’ve never heard this this terminology before. But the idea that you’re telling me sounds magical. But how do you prove moral right? Partly but also, like, I’m just trying to think like, there are certain countries where morals are more flexible, let’s say than others. And so like, how do you there’s no standard moral rights. It’s a community standard of moral rights kind of things. But then Wouldn’t be on that like, Okay, so let’s say, let’s say somebody took my photograph and they put it in a urinal at a pub illegally without my permission. And I say, oh, that, you know, that breaks my moral rights. What can I get from that? Like so basically all I can do is just tell them to take it down, but like, can you actually sue them? Or like is there money that’s involved in that

Guna Freivalde 50:26
example you just gave was more about the copyright infringement. So

Matthew Dols 50:30
I’ll give you a different example that so i book is published about I’ll use yours a book is published about communism, I’m against communism, and so I don’t so they broke my moral rights. So

Guna Freivalde 50:43
you can always demand the the box to be taken away from publishing or from selling. You can demand any financial compensation for the damages caused to you as an artist, your reputation, because you can be assigned the beliefs, political beliefs, or moral or religious beliefs that you don’t really agree with. So there is always this possibility and more overrides are actually one of the defense that you can use as well because I don’t recall right now the name of the artist, unfortunately, but embarrass there was in our shopping mall, his sculptures GIS, during the Christmas time, the GIS were wrapped with Christmas scarves and everything. So what did this artists do? It was him. He appealed to the moral rights, because he said that my days are not something that you could play with. It’s an artwork. My moral rights are right now injured, because I don’t see these geese with this Christmas scarf on them. So he went to the court, the court give the reason and the scarfs are taken down.

Matthew Dols 52:10
I’m yeah, that’s, that’s an interesting issue. I’m not. I wonder if I agree with that or not? I’d have to put more thought into that. That seems a bit extreme.

Guna Freivalde 52:22
Yes, that’s an extreme example.

Matthew Dols 52:24
Okay. Good. Okay, guys, because a place like that. That’s a bit much. I mean, that’s a bit arrogant, almost on the side of the artists to be like, my art is perfect the way it is. Don’t change it in any way. Like, come on. Somebody paid for it. It’s been bought. It’s not yours anymore. Fuck off. Exactly. live there. But Alright. Okay, you brought up digital works. I’m interested legally. Okay, I have a sort of a two part question on this. So the two biggest questions basically are basically NF T’s, and money laundering. But in the arts as a whole, I have this personal feeling. And I might be a bit of a conspiracy theorist on this. So like, this may just totally be me. I have no proof of this. I want to make sure nobody’s gonna sue me over this. I feel like the whole NFT thing is a bit of a money laundering scam. What’s your opinion on NF T’s? A but then also, is there a lot of money laundering issues going on in the art world?

Guna Freivalde 53:28
Yes. Answering to your second part of the question. There is a lot of money laundering going around there has always been. And it’s, it’s really an issue that we should be working on. Because there right now is no solution found to that. So it’s something that we can’t read right now, at this moment, we can protect the art world, especially right now with the digital sales, no possibility for that.

Matthew Dols 54:03
Which is why I think the NFT thing is a bit of a money laundering thing. But that’s my conspiracy, not stuff. So let’s go on to the money laundering. Okay, I’ve heard for decades like oh, there’s money laundering in the arts, money laundering. Give me an example. Maybe not from your own career, but just sort of a theoretical example. Like what how does the arts like how is money laundering done through the arts? So is it like a, some, I’m gonna use Russia again, I’m an American. So some Russian person buys a piece of art that art then goes somewhere else and then is basically treated for a nucular whatever, or some, some, some drugs, let’s say or something like that, like, Is that what it is like? how lazy it hear the phrase money laundering, but I sort of want a tangible explanation of like, what are some examples of how money laundering occurs through the artworld

Guna Freivalde 55:00
the examples you gave, they are very good. They’re very extreme. So that’s the, the upper points of it.

Matthew Dols 55:09
Oh, what’s the benefit of doing that? So they, okay, I’ve heard a story that somebody in some foreign country, I don’t remember what it was bought a piece of art. And then they turned around and basically gave that piece of art to somebody in trade for property. is the idea of the money laundering thing at basically a tax evasion thing. Is that what they’re trying to do?

Guna Freivalde 55:31
Yes, yes. In general, it is. So it’s what they that money laundering in art world is buying artwork for your illegal money that you have earned. God knows which way and then you will become an owner of illegal objects, which offer that you can sell and get back your legal money. So usually, they buy the art pieces to later sell them again.

Matthew Dols 56:01
Okay, so I get it. So basically, like so let’s say a drug dealer, goes and buys a legitimate thing, a piece of art, and then turns around and sells that piece of art, even at a loss. But then that money is now legal money instead of illegally gained money through drug dealing.

Guna Freivalde 56:19
Exactly.

Matthew Dols 56:20
Exactly. Fascinating. Okay, that makes so much more sense. Now. Back to NF T’s, what do you think of them? But let’s not even take it’s not even just NF T’s because like, I’m, I love the idea of NF T’s. But yeah, the research I’ve done is not encouraged me to participate, let’s say, but it’s not even just NF T’s. It’s digital art in general, because like I’m a photographer, I grew up doing analog, you know, stuff in the darker wet darkroom, I like ice up. And of course, now I do digital. So I’ve got basically I’ve got digital files, so like, theoretically, let’s say somebody were to hack my computer, and they were to get my original files, they could go off and print entire editions of my works. Like that whole issue of like digital art in general seems like a bit of a potential issue.

Guna Freivalde 57:13
And if these, well, I’m against it. I’m against it. Because it’s I think it’s a there’s a catch. And that’s because it seems easy. Artists are thrilled to that new opportunity. And at the same time, yes, yes. It’s, it’s understood as computer files. So combined with proof of ownership and authenticity, like deeds.

Matthew Dols 57:46
Yes. That’s how I understand it.

Guna Freivalde 57:48
Yes, exactly. But at the same time, it’s very little protected. So whatever happens, you’re exposed to that there is no option to protect it.

Matthew Dols 57:59
Well, I mean, is there copyright inherently into that still? So like, our Wait, okay, so if I’m an artist, and I make an NF T, have I sold my copyright to that work?

Guna Freivalde 58:11
legally? No. Okay. But you never know where it will ends, and how.

Matthew Dols 58:18
And workers like me, I saw recently, somebody like made an NF T of like the first tweet, and they sold that like, so like, that’s insane how people basically can sell a social media post as a thing.

Guna Freivalde 58:34
Right, though, we see art, in many ways, in many ways, there is very difficult to actually invent something new in the arts, because there has to be something very, very unique. selling something like you say, I don’t see this as an artistic expression. Because then again, we get back to the copyright, how can I protect it? Because there’s nothing original, nothing authentic of it?

Matthew Dols 59:06
Well, there’s the digital file. But it’s a digital file, and I can literally can just hit copy paste Now there are two of them.

Guna Freivalde 59:14
Exactly. Exactly. So that’s a huge, huge question open to many discussions, and I speak with many lawyers, and they all have a different argument on that. So we still speak about it as how to protect it, how to understand it and how to see it and where to start. Was that subject?

Matthew Dols 59:43
It’s tough.

Guna Freivalde 59:45
Yes.

Matthew Dols 59:46
Basically, I looked into NF T’s and I’ve thought about producing some because I have 1000s of digital files that I’ve made over the years that I’m like, oh, it’d be really great to make them in NF T’s make a little money off of them, you know, that kind of stuff. But like the system is very interesting because I to produce an NF T, I have to pay a fee. Yes. And there’s no guarantee that I get that fee and returned to me and like unless somebody buys them, so like, I can make 100 of these things. But if only like five of them sell, I actually lost a bunch of money simply through the the act of making the NF T’s. Its I, at this moment, I’m not a fan of it, but I hope that it would get better. Speaking of that, so like, I currently basically say that I think that systems broken. The art world is a general hole, I protect the position that is somewhat broken, as well, between forgeries, money laundering, all the, you know, Authenticity, all these kinds of different issues. Legally, from your perspective, what could be done to sort of help to make it better? to actually

Guna Freivalde 1:00:52
start reading laws, consult with specialists? lawyers? Definitely, it’s one of the things that, as I always say, that the artist is, is the risk taker, and the lawyer is strongly against any risk. So maybe if we find that the common language and the artist says, Oh, I want that, that computer file, I want that NFT because I just want to try it out. And the lawyer will say, Okay, let’s sit down and let’s start discussing what is your benefit and and what is your possible lost in it? The forgeries, while there is this weak system that protects low arts, but nobody follows it, there will be always forgeries, there will be always copyright infringement, there will be always many, many kinds of discussions, arguments, and fights over it. It has been so it will be so. So what we have to change a little bit in the mentality of the artists and galleries is to start following certain things that every single business do. Artists selling your artwork, I strongly admire artists, because selling an artwork is like selling a child. It’s something you you have created. It’s something you really like, how can you put the price on it? But once you have put the fragile net, it becomes a business. So as a business, it should be protected legally, as every business does.

Matthew Dols 1:02:31
Yeah, but I know lots of businesses that never talked to lawyers. I mean, because Don’t get me wrong. I love the idea of having legal protection for all of my artistic stuff. I’m all for it. My problem with it is I can’t afford it. So they that’s a bit of a barrier to this. abilities. Like we want to be protected. I’ve never met a single artists that goes No, No, I’m fine with not being protected with any copyrights. Okay, just take it all, like, of course, they want to be protected. But it’s really expensive, and time consuming and emotional to like, have to sue somebody or anything like that. But not even the like the suing part. But the idea of just being being smart, you know, so like creating a good contract, that takes money, you know, going to like Legal Zoom and stuff is not going to get you a great contract. But like having a specialist in the arts, being able to draw a contract that is smart. I agree with it. However, I can’t afford it,

Guna Freivalde 1:03:35
then what you have to do is sit down, start reading all the documents and everything you can find about your subjects and dedicate the time because we all know when when I say that when I have a headache, I’m not going to go to the doctor who treats feet, I will go to the doctor who knows about the head as well as an artist. Of course, I don’t say that for every single artwork, you have to hire a lawyer and say I want to protect that. So I will pay you whatever it takes. No, but just to have a chat with the lawyer who will point out the weak sides of your business of your of the way how you sell your artwork can be a good start.

Matthew Dols 1:04:23
Is it legitimate? So like okay, I’m saying I’m sitting here saying I don’t have money for it, but I’m sure I could find money to do it if it’s important to me as we all can because you know we prioritize, prioritize where we spend money, but it would it be fine like so let’s say okay, I’m, I’m still new to Europe. So now that I’m in Europe, I need to get a legitimate sort of contract for sale of my artwork. Could I create like a template or maybe like three templates like one for individual collectors to buy one for a gallery to be representing slash exist? bidding. And then I don’t know, any institutional sort of one. So they have three sort of templates. And so theoretically, I could hire an attorney one time, create these templates, I could probably use those for a good five years or so let’s say, and then maybe update them or then maybe there’ll be like little nuance things that will come up in the future that I then need to go back and contact them again. But it’s like, it’s not that I need to have you on retainer, like cut because the bay, but I could theoretically come to an arts lawyer and get like, a sort of a one time template to get started within maybe, you know, amendments or updates over the course of my career. Yeah,

Guna Freivalde 1:05:42
yes, that will be the perfect case, because we all can do it for free on Google. But as non lawyers, it will be possible because that will not fit to the place where you are. So it’s really, really a good idea to have just a small example of any contract that you might want to sign at some moments with the gallery with the buyer with anyone who wants to collaborate with you. So it does one contract can set for four years.

Matthew Dols 1:06:15
Okay, but within that, because we’re in the European Union here, there are many different languages. So if I had a templated version, let’s say done in English, because I speak English, and then I go to have an exhibition in France, would it be legally binding in English?

Guna Freivalde 1:06:32
Yes, definitely.

Matthew Dols 1:06:34
Okay, that’s good to know. Because I’ve lived in I lived in the United Arab Emirates. And the only documents that were legally binding, there had to be written in Arabic.

Guna Freivalde 1:06:43
Yes, but still, you’re American. The important thing is that you understand what you’re giving to someone in France, in Italy, in Spain, to sign because you will be the one who will have problems after that. And then if the gallery or or the buyer says, I don’t understand this contract, I don’t speak any English. Either. You can use Google Translate and make it all happening in French or in Spanish, or you can always hand it over to a translator and say, any that then in French, it doesn’t cost you much.

Matthew Dols 1:07:18
Now software’s free, but okay, but back to one of my original questions that I didn’t get an answer to. What is it that makes a contract legally binding? The reason why I asked this is, like, I was when I was a young art school student, we used to do things where like, you sign something, and the other person signs it and then like a witness signs it and then you have like addresses or phone numbers on there of the people that have filled this thing out. Like like so how, what, what’s the bare minimum to make something legally binding? Well, like a notary, do we need a notary? Do we need an app? What is APA style? Apa still,

Guna Freivalde 1:07:58
I haven’t pronounced still. That’s still

Matthew Dols 1:08:00
okay. Nobody’s ever told me how that’s pronounced.

Guna Freivalde 1:08:04
That’s not used anymore in Europe. So there is no problem with that.

Matthew Dols 1:08:09
I disagree. When I moved here to the Czech Republic, I had to have my marriage certificate to my wife APA still.

Guna Freivalde 1:08:16
Yes, because you are American. The documents outside the European Union still have to be with this Avista but not listen.

Matthew Dols 1:08:24
Nobody in America we don’t have APA style APA style at all. We have no Republic’s and they’re basically the same, right? Yes, yes,

Guna Freivalde 1:08:32
exactly. Okay, anyway,

Matthew Dols 1:08:34
bare minimum to make your contract legal

Guna Freivalde 1:08:36
Exactly. To be legally valid, the contracts must contain two elements, both parties or all parties must agree about an offer made by one party it has to be accepted by the other fully understood in both languages or three languages. something of value has to be exchanged for something else of value. That is it. And then you of course, you have to write down your names you have to write down your passport or identity card numbers. So you we know that you are exactly the person that you say you are and it has to be signed. That makes in general, valid contracts.

Matthew Dols 1:09:26
But just by the two parties, no need for witnesses, no nothing else.

Guna Freivalde 1:09:31
Okay, just two parties, the one who’s selling or offering and the one who’s buying or taking it over.

Matthew Dols 1:09:38
Alright, great. last little thing would be Do you have any advice for contemporary artists that you have not covered yet? That that basically I’m looking for like the stupid thing that we don’t even know what to ask that you’re like, Whoa, of course, you should do this thing that we don’t even know to watch Under about,

Guna Freivalde 1:10:01
I think we have covered already, most of it. Of course, there are always some decals that just fly out somewhere. But you have to be careful with the whole process and take it seriously. You have to record a race, single exhibition every single step you make with your artwork. And you always have to create. That’s all you have to do.

Matthew Dols 1:10:30
Yeah, that’s all just be an artist and be a full time business for your art.

Guna Freivalde 1:10:36
Yes, something that sounds totally incompatible. But yes, that’s that’s basically what you have to do. And as an artist, you have to create them, take risks, and be there in the world that the world sees your works. But as a businessman, or a woman, you always have to take it from the business side.

Matthew Dols 1:11:00
Here. See, the reason I got into the arts is because I didn’t want to be a business or do business. I enjoyed being a creative person. But now sadly, I’ve learned after 25 years in the arts, that being an artist is a business also.

Guna Freivalde 1:11:16
Exactly, exactly. And as such, it should be treated because you can be an artist and then you will be free as a bird in the sky to create and don’t worry about any legal binding documents or Apple stills or certificates. But then again, if you want to be an artist who sells your your works, you have to protect your interest and you have to protect your your creations.

Matthew Dols 1:11:41
Lovely. All right, more work for me to do. Thanks.

Guna Freivalde 1:11:46
You’re welcome.

Matthew Dols 1:11:48
All right, well, thank you very much.

Guna Freivalde 1:11:50
Thank you Masha.

Matthew Dols 1:11:55
I hope you’re enjoying and learning as much from these conversations as I am. If you like the podcast, we would appreciate a five star rating and a nice comment would be greatly appreciated as well. Also, please tell your friends to listen and subscribe to you can subscribe on Apple podcast, Spotify, or wherever you get your podcasts.

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