DATELINE: 7/20/07

All that legal stuff…

Recently I’ve had some conversations and some inquiries by friends, and clients, as to the “Why and How’s” of what I’m doing, as it pertains to “ painting an illustrated history.” More specifically, why I choose the subjects I do, and what are the legalities of doing it?

Now in my own defence, over the last couple of decades, I've made about every kind of deal imagable. From hand shakes with racers, to signed contracts as thick as a phone book...I've paid royalties (for drivers signature only) do to limited editions, and spend thousands and thousands of dollars producing them...Some great racers have signed prints for me just because they were very nice people, and they really appreciated the fact that I did the painting. I seem to have run the complete gambit of the issues concerning the subject of motorsports art;so I’d like to take this opportunity to answer these questions, and since I’m not a lawyer, I’ll attempt this explanation (in my own feeble way), the best I can…

Lets get all that legal stuff out of the way first…

The question was asked; “What are the legalities involved with painting a picture of a race car? Do I need the owner’s permission or approval to do a painting and sell it?

There are two parts to this answer. The first part is, the laws currently on the books, and the second is a precedent set in England.

Part 1: The laws for a painter or graphic Artist in America are very liberal because of 1st. Amendment Rights. As an American artist, the 1st. Amendment grants me the Constitutional Right to paint anything my little heart desires! However!!! It does not grant me the right to produce and sell everything I can paint!

Earlier this year, the laws for identity theft were reinforced to include name recognition, and to protect personal identity. In other words, you can’t slap Brittany Spears name on a line of clothing and start selling it at Wallmart. The same has always applied for artists…

For artists, the law states: “People have a right to privacy, Property does not!” Again, I can paint a picture of Brittany, but I can't slap her name on and start selling prints of it that painting. But,,, if I drove by her house, and I liked the way her barn looked, I could paint, and sell prints of it. “People have to right to Privacy! Property does not.” Now, Brittany could protect the image of her barn by having it trademarked. It would cost several thousand dollars, but she could trademark the ”Image” of her barn. Then it would protected, and no one could sell an image of it without her permission…

Part2: In an attempt to not name names here…in the early nineties, a very famous Indy car team threatened a lawsuit against a motorsports artist, here in the states. The Artist was painting and producing Indy Car and Formula1 prints, and selling the “Heck” out of them. Well the Indy Car team got wind of this, and had their Attorneys send the Artist a “Cease and Desist letter, with the hint of further legal actions (did you know the word attorney means “confounder?”).

In a short time, the Artist had his “Lawyer for the Visual Arts” send a response to the Indy team. When upon receiving said “response,” the Indy Car team quickly dropped the whole matter and threatened no further legal action in the future.

Apparently, this very sort of case was taken to court in England. As the story goes: There was an Artist in the UK doing Formula1 paintings, and making a fortune selling prints. (For the sake of argument here, we’ll use Ferrari as an example.) Ferrari takes this guy to court, and sues him for painting their cars without their expressed permission.

Well the Artist gets on the stand and says something like the following: “ Some artists paint landscapes, some paint animals, some paint flowers. I happen to paint racecars! I love the way that red race car looks, and it’s not my fault the word “Ferrari” is written on the side!”

Low and behold! The Artist wins the case hands down!

Now the court did take some exception, they didn’t want the artist to take unfair advantage of the situation, so they limited his rights to how much he could sell…The court declared the Artist could sell his work in Limited-Editions only, and they set the limits at 1500 pieces…

As for names written on the side of race cars? The court said something like; “ The names were written on the side car for the purposes of advertising only. You can’t have it both ways, you can’t advertise a name, and then protest that it is seen!

Well now our Indy car team realizes their Artist in question, was only selling editions of 500 prints (that was the standard artists in America followed). They also realized, that if the case was tried in the States, with our 1st amendment and freedom of speech rights, the case could very well fall on the side of the artist. In fact, the case might even cause the amount of Limited Edition to increase to maybe 5,000.

The Indy Car team decided to drop the case it in hopes that the artist would just move on, and eventually he did.

So the short answer to that question is; No, You don’t need permission to paint and sell images in a Limited Edition of a racecar, unless, that specific car, is “Image Trade-Marked,” then you would need the owner of the trademark's approval, to use that image…

One racer I talked to recently asked, “I paid for all the original artwork for my car, doesn’t that make it car my property?” the answer is, No not exactly! That original piece of artwork is now his property, but not what’s on the car.

Even if a racer pays a designer to create the graphic artwork on a car, the racer is only buying the usage of that design. The graphic design remains the intellectual property of the designer, unless the designer signs away all rights to the design in “Writing Only.”

I hope that answers that question, or those sorts of questions? I just want to be very transparent about my intentions as an artist here…

If someone does object to having their car in my series I would gladly drop that image from this book project. Not that I have to by Law, but I just don’t want any bad vibes with anyone over this. I’m only doing this for one reason; To honor these awesome cars, and the sport of Drag Racing which I love...

.Now when it comes to which subjects I choose for this history, well that’s where it gets fun for me. This is a history dedicated to the artistic qualities of Drag Racing cars. It is my belief, that Hot Rodding and Drag Racing cars are one of the purest forms of American Pop Art. It is my sole intention to bring attention too and to honor these creative works of Art!

I choose cars that were the most artistic to me, not most famous, or the fastest, or the record setters (although some of those may be included but not for that purpose). This is not a history about the men; it’s about their machines, their (one-of-a-kind) works of art.

It’s a wonderful experience for me to be able to bring back to life some of these forgotten masterpieces. I can only hope I do them Justice…

That’s a lot of writing to answer 2 questions, sorry …..DCP