The Fine Art of Protecting Your Intellectual Property

On May 1, 2018, ArtsWestchester hosted an educational seminar on the topic of protection of artists’ ownership, intellectual property and moral rights, organized by Jana S. Farmer (Of Counsel-Wilson Elser). The event was co-sponsored by the Committee on Fine Arts and the Entertainment, Arts &Sports Law Section of the New York State Bar Association along with law firm Wilson Elser. The majority of the attendees were practicing artists, with gallerists, appraisers and other art market professionals in attendance.

A warm introduction was offered by Jessica Cioffoletti, ArtsWestchester’s Associate Director, Arts in Education. The panel presentation was opened by Nisa Ojalvo, Vice President of Legal Affairs at LVMH Moët Hennessy Louis Vuitton Inc. ,where she specializes in intellectual property and corporate transactions across LVMH’s fashion, retail, travel and P&C divisions. Nisa advises on customs and regulatory issues, as well as privacy, eCommerce, anti-counterfeiting and advertising for in-house clients that include Celine, Givenchy, Christian Dior Perfumes, Bulgari, TAG Heuer and Rimowa luggage. Nisa is a founding member of the Women in Fashion Law affinity group of the National Association of Women Lawyers, and a member of the Fashion and Industry Group of INTA. She holds a J.D. degree from GW National Law Center and a B.A. degree in East Asian Studies from Dartmouth. Prior to joining LVMH in 2001, Nisa worked in Hong Kong as a project finance associate at Millbank Tweed Hadley & McCloy and an IP attorney at JSM. She speaks Mandarin Chinese, Japanese and French.

The first presenter, discussing copyright protection as it applies to visual arts, the benefits of copyright registration and ways to protect valuable creative assets was Olivera Medenica, a partner at Dunnington Bartholow & Miller LLP and a member of their intellectual property, advertising, art & fashion law, international, and litigation & arbitration practice groups. Olivera represents the National Endowment for the Arts on intellectual property matters and is the founder of an annual Fashion Law Conference hosted by the Federal Bar Association in New York and Paris, which is featured in the Huffington Post, Forbes and Intellectual Property Watch.

Jill A. Ellman, an attorney at M. Ross & Associates LLC, built on Olivera’s presentation by introducing the topic of licensing, which is relevant to artists working on collaborations and requiring protection of their intellectual property rights. She offered compelling reasons why artists may benefit from licensing their artworks, explained the types of royalties available and what contract terms artists should look for in their licensing contracts. Jill’s areas of practice at M. Ross & Associates LLC include commercial litigation and intellectual property. She represents small business owners and corporate clients in the retail, apparel and luxury good sectors on copyright and trademark issues. Jill has been a contributing writer on various topics relating to art law and a speaker on contractual issues pertaining to artists and the law.

Jana S. Farmer, of counsel at national law firm Wilson Elser, introduced the topic of artists’ moral rights, including a right to prevent the destruction of one’s artwork, and provided an overview of the protections offered by the Visual Artists Rights Act of 1990. She offered insight into why the recent federal court decision in the 5 Pointz case was significant and what cases to follow in the future. Jana is a member of Wilson Elser’s art law team, representing art market participants in all stages of the creation, licensing, sale, lending, gifting, merchandising and display of art. She also handles complex intellectual property and commercial litigation, including copyright infringement, licensing disputes, counterfeit goods, defamation, right of publicity, breach of contract, tortious interference with contract, and deceptive business practice claims. Jana speaks and publishes articles on art law topics and provides pro bono services through Volunteer Lawyers for the Arts, which offers free and low-cost legal counseling to low-income artists in New York City.

Following the presentations, the panel took questions from the audience, elaborating on topics ranging from strategic approaches to copyright registration for multiple works to the duties of building owners with respect to the art that they permit to be incorporated in the building and possible contractual arrangements with the artists.

The panel presentation was followed by a wine and cheese reception, during which the panelists continued to answer the attendees’ questions pertaining to copyright, fair use and derivative works.

About ArtsWestchester

Founded in 1965, ArtsWestchester is New York State’s largest private not-for-profit arts council. The leading funder and advocate for the arts in Westchester and Rockland Counties, ArtsWestchester works to create an equitable, inclusive, vibrant and sustainable community in which the arts are integral to and integrated into every facet of life. Building on its 60-year legacy, ArtsWestchester advances arts and culture by providing grants, bringing artists into schools and community centers, advocating for the arts, and building audiences through diverse marketing initiatives. ArtsWestchester enriches the lives of everyone in the community and operates a multi-use gallery and home for the arts at 31 Mamaroneck Ave. in White Plains, New York.