Recently, I was working with a client who was faced with the difficult task of placing her parent into a full-time nursing home facility. She signed a lease on her parent’s behalf and signed her own name as a personal guarantor, making her responsible for the payments due on the lease should her parent be unable to cover these expenses. Now some time has passed, and the client is concerned that perhaps she should not have signed the contract.

Sometimes it is possible to void a contract after it is signed. In some circumstances, for example, a person may be able to argue that they were pressured to sign by the other party, and that such pressure amounted to duress. The elements of economic duress are: “(1) that one side involuntarily accepted the terms of another; (2) that circumstances permitted no other alternative; and (3) that said circumstances were the result of coercive acts of the opposite party.” The circumstances causing the duress must have been caused by the opposite party; the mere taking advantage of financial difficulty is not duress, unless the party taking advantage contributed to or caused that financial difficulty. In short, duress, like most other defenses to a signed contract, is difficult to prove.

It is always easier to avoid unfavorable terms in a contract by reviewing and understanding them before you sign, than it is to try to avoid the contract’s effects later. So, when handed a contract, put down your pen. Take a deep breath and take the time to read it. If you do not understand something in it, consider discussing it with your attorney. If you do not have an attorney already, feel free to contact the attorneys at Konowitz & Greenberg. We will be happy to review your contract, and to make sure that your interests are protected.

In Massachusetts, the artist is protected in her relationship with a gallery by Massachusetts General Law Ch. 104A, which creates a specific type of legal relationship, known as a “trust relationship,” between art owners and art dealers. The statute provides that an art dealer has a fiduciary duty to protect the trust assets of the art owner (i.e., their works of art and sales fees) as trust property. An art dealer cannot use or claim an art owner’s fine art as property of the gallery.  Consequently, when money from the sale of a work comes to the art dealer, the law treats the money as property of the art owner, not the art dealer. The art dealer cannot collect his percentage from the sale of the artwork until the art owner’s share has been paid.

Under Massachusetts General Law Ch. 104A, Section 2 (c), art dealers are charged with maintaining accurate records for better transparency both in day-to-day business and in the event of a bankruptcy filing. Art dealers must keep a copy of the written statement provided by the art owner upon delivery of the work. When the art work is sold, the dealer must record the date of the sale, the amount of the sale, and the name and contact information of the purchaser. In addition, if the consignor is the artist who created the work or the artist’s heirs, the dealer must provide the consignor with the name and contact information of the purchaser of the work.

The statute also provides guidelines for payment when a consigned work is sold. A gallery must pay the owner monies due from the sale of the consigned work within 90 days of receipt of payment. The failure to provide payment within 90 days subjects the gallery to an additional payment for damages (5% interest plus reasonable attorneys’ fees). If payment has not been made to the artist within 180 days, this figure increases to three times the amount owed, plus 5% interest. The art dealer is at all times responsible and liable for the loss of or damage to the work of fine art.

If you have questions about consignment agreements or concerning dealings with an art gallery, please contact Mia Rosenblatt Tinkjian.

• (A) to claim authorship of that work, and
• (B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

What this means in layman’s terms is that an artist has the right to be known as the author of a work; and that his or her name cannot be used as the author of any work he or she did not create.

(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and

In addition, an artists has the right to have his or her name removed from a work he or she created in the event that the work is distorted or otherwise changed, and the result would be harmful to the artist’s honor and reputation.

(3) subject to the limitations set forth in section 113(d), [Ed. Note: the provisions dealing with the destruction of a building etc. containing a work of visual art] shall have the right-

• (A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
• (B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

However, how does one know if his or her artwork qualifies for this protection? The statute states that it protects only works of “recognized stature.” How do you know if your work qualifies?

In a trial, this question would be determined by expert opinion. Experts in the fine arts do not judge a piece by aesthetics alone. Rather, they consider the reputation of the artist, the significance of the work in the artistic community, and its value in an art-historical context. Consideration will be given to how the art is received in the artistic community, in order to determine if it is as piece of “recognized stature.”

So, if you are an artist trying to create a reputation for yourself and protect your own rights, do your best to keep records of you exhibitions, and any reviews of your artwork. You never know when these records may be needed to protect the integrity of your work.

First, is the employee an employee-at-will or a contractual employee? While either type of employee may be constructively terminated, the standards for establishing constructive termination are very different.

An employee-at-will may be terminated for any reason, or no reason at all—directly or constructively—provided that the termination does not implicate public policy concerns. Contract employees are employees who, among other things, have a written employment contract. However, the mere fact that an employee has a written employment contract does not mean that he or she is a contract employee. The critical aspect of the relationship between employer and employee that distinguishes at-will employment from tenured employment is not the existence of a written employment contract. Instead, it is the establishment of a definite term of employment.

Under Massachusetts law, as in many other states, a contractual employee may pursue a claim for breach of contract, while at-will employees may only pursue a claim for wrongful termination. The requirements to prove wrongful termination in such a case are twofold:

• First, prove that the employer’s decision to constructively terminate his employment was motivated by bad faith, malice, or retaliation; and
• Next, show that the employee was constructively discharged because they performed an act that public policy would encourage, or refused to perform an act that public policy would condemn.

Constructive termination occurs most often with contract employees, typically employees in executive and/or managerial positions. Most cases finding that an executive has been constructively discharged involve express employment contracts and a material breach by the employer not contemplated by the agreement that is so important it makes continued performance seemingly pointless. Thus, courts have found constructive discharge if the employer effectively gave the employee’s job to someone else, transferred the employee’s responsibilities leaving him without any authority, or reassigned the employee to a nonexistent job. The case law does not prohibit justifiable reduction in rank or material change in duties. If the employee is not performing his or her duties effectively, for example, these changes may be appropriate.

The Attorney General’s Office has created a publicly accessible website, so that members of the public can confirm the identity and validity of a charitable organization before making a donation. These forms are now available to the public via the annual filing document search website, which can be accessed through the Attorney General’s website, www.charities.ago.state.ma.us.

Before you open your checkbook, verify the name, address, and telephone number of the charity, and ask them to send you a written description about the organization and how the funds will be used.
Get the full contact information for the professional fundraiser, if one is used. Find out if your donation is tax deductible, and keep receipts and canceled checks, in case you have a complaint later, and for when you file your tax returns. Never pay cash. Instead, use a check so that you can keep a record of the transaction. If you have questions or concerns, contact the Attorney General’s Office to find out if the charity is registered to operate in the Commonwealth, and whether it is in good standing.

Donating to a charity is a wonderful gift, just be sure you do so wisely.

The Visual Artists Rights Act of 1990, 17 USC section 106A, (“VARA”) is the statute that provides protection for the moral rights of an artist; it affords protection for the artist’s name and reputation. This statute states that an artist has the right to “prevent the use of his or her name as the author of any work of visual art which he or she did not create.” It also provides that an artist “shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.” Furthermore, the statute prohibits “any intentional distortion, mutilation, or other modification of that work which would be prejudicial to (the artists’) honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and…prevents any destruction of a work of recognized stature,” This statute also prohibits intentional destruction and destruction due to gross negligence of works of “recognizable stature.”

While these rights appear to be large in scope, there are some limitations. The rights are only granted for the life of the author. Also, the statute is limited by the Copyright Act, which defines a work of visual art in a limited manner. Most significantly, the concept of a “work of visual art” does not include any poster, map, globe, chart, technical drawing, diagram, model, applied art, or any work made for hire.

If you have a question or legal matter involving VARA, feel free to contact Mia Rosenblatt Tinkjian at mrt@kongreen.com.

The Scene: An office, studio or gallery where you have just been handed a contract by the gallery owner or publisher.

The Question: What do you do?

Initially, you, like many artists who have worked for years for such an opportunity, might want to shout out “Where is my pen? I am ready willing and able to sign!” However, in this instance it is best to keep those impulses under control, take the contract home, and take time to review it carefully. If you have questions or concerns about the meaning of any terms of the contract, it is a good idea to consult an attorney.

It is fundamental contract law that some basic information needs to be spelled out in any valid contract, including the parties, the subject matter, consideration, and mutual assent. But what does that mean? Most simply it means that there must be an agreement between the parties and that something of value be given in exchange for the goods. Often times artists forget that the contract is an offer, and that the offer does not require immediate acceptance. Typically, there can be some room for negotiation. Don’t sign the first deal you are offered, unless you are certain it is the best deal you will get, and certainly not without carefully reviewing and understanding the terms of the contract.

If you would like to discuss these issues, please feel free to contact Mia Rosenblatt Tinkjian, mrt@kongreen.com. Mia received her MFA from the School of the Museum of Fine Arts, Boston, and her law degree from Boston College Law School. She recently participated in Miller Street Open Studios in Somerville and in a group show at The Little Gallery Under the Stairs in Lynn.

Copyright law protects authors by prohibiting the verbatim copying of their work. It also protects authors from infringement by distribution, display, public performance, derivative works and similar unauthorized use of the work. However, the law recognizes that there is a delicate balance between the rights of the author of the original work and the rights of others to use portions of the work to create new content. The doctrine of Fair Use permits the use of portions of original work, provided the new creation transforms, comments on, critiques, parodies or is a satire of the original. The challenge of the doctrine lies in drawing the line between prohibited derivative work and acceptable transformative work. That is, how much transformation or commentary is enough to be deemed “Fair Use?”

As a rule, this determination is made by judges on a case-by-case basis. If you intend to post a video or film that has clips from copyrighted works, and particularly if you intend to market your own work for profit, it is important to make sure that you understand and adhere to the best practices of Fair Use.

Massachusetts General Laws Chapter 191, § 8, provides that a Will may be revoked in three ways: (1) by a new document executed in the manner required for a Will; (2) by a change of circumstance giving rise to a revocation implied by law; or (3) by “burning, tearing, canceling, or obliterating it with the intention of revoking it, by the testator himself or by a person in his presence and by his direction.”

Specific legal requirements also govern the modification of a Will. Changes to a Will—words, figures and provisions that are added after the Will was originally signed, or provisions that are crossed through or blotted out—are not automatically given effect. Instead, the validity of the changes must be determined by a judge; a process that may prove both time-consuming and costly.

Initially, a court must determine whether the changes to the Will were actually made by the deceased, and their intent at the time the marks were made. For example, a question may arise as to whether the deceased intended to revoke the Will in its entirety or only in part. Likewise a court may question whether marks and writings on the document were intended to modify the Will or merely indicating changes to be made in a contemplated but never completed new Will. Alternatively, the marks might be construed as clarifying, but not altering, a provision made ambiguous by changes elsewhere in the Will. Where the circumstances under which changes were made are unknown, anyone seeking to enforce the changes must prove not only that the deceased was of sound mind at the time the markings were made, but also that the markings reflect their intent to change the Will.

It is advisable to review your Will every couple of years, or any time there is a change in circumstance in your life, such as marriage, the birth of a child or grandchild, or the purchase of new property. If you feel that changes need to be made, consult an attorney, so that your wishes are properly and effectively reflected in the document. Please feel free to contact me if you have questions about drafting or modifying a Will.

Massachusetts law provides that “it is an unfair or deceptive act or practice for a mortgage broker or lender to conceal or fail to disclose to a borrower any fact relating to the loan transaction, disclosure of which may have influenced the borrower not to enter into the transaction with the broker or lender.” In addition, any affirmative false or misleading representation or statement of fact concerning the loan may violate the law. These regulations have the teeth of the Massachusetts Consumer Protection Laws behind them, and damages may include attorney’s fees and treble damages.

While no hard and fast rule exists, in deciding cases courts typically consider the parties’ circumstances and distinguish statements of concrete fact from more general statements. For example, the courts may consider the borrower’s education and level of sophistication with business matters. Decisions also recognize that statements of expectation, such as “we’ll work with you,” do not support an action for common law fraud or a claim for a violation of the consumer protection statutes.

If you are concerned about the validity of a statement made to you by your mortgage broker, always ask for it in writing and read all the paperwork before you sign. If you do not understand any of the documents you are asked to sign, always seek legal advice prior to signing.