California Lawyers for the Arts (CLA) and Arts Arbitration and Mediation Services (AAMS) are thrilled to join in the celebration of California Mediation Awareness Week, highlighting the vital role mediation plays in resolving disputes within the arts community. AAMS has been proud to serve the creative community since 1980 by offering mediation services tailored to their unique needs, as well as by providing training and educational opportunities to those who share our vision of empowering artists and arts organizations.

We extend our heartfelt gratitude to our Volunteer Mediator Panel, whose dedication and expertise are instrumental in helping artists and arts organizations find peaceful resolutions to conflict through mediation. Their commitment to serving the arts community exemplifies the spirit of collaboration and compassion that defines CLA's approach to dispute resolution.

A recent case that underscores the impact of AAMS' mediation program involved a dispute between two filmmakers over creative differences of opinion and business strategies. By facilitating the opportunity for open communication and creative problem-solving, AAMS helped the parties reach a resolution that honored their artistic contributions and preserved their longterm professional relationship.

In another case, AAMS mediated a conflict between a designer and a large fashion house over a payment dispute. Through mediation, we helped the parties renegotiate the designer's compensation terms through a confidential process, ensuring fair remuneration for the designer whilst allowing the fashion company to continue running its operations without interruption.

As part of CLA’s robust educational offerings, AAMS regularly hosts comprehensive mediation trainings for professional neutrals and community members to develop essential conflict resolution skills. In August 2023, AAMS hosted a virtual mediation training program, praised for its engaging content and interactive format. A subsequent in-person 25-Hour Basic Mediation Skills Training was hosted in early 2024 at our offices in Los Angeles. These trainings equipped participants with valuable skills and strategies to become effective mediators and community peacemakers.

As we celebrate California Mediation Awareness Week this March, CLA reaffirms our commitment to providing an outstanding mediation program that promotes harmony, creativity, and equity within the arts community. We are grateful for the support of CLA's Members and the AAMS Volunteer Mediator Panel as we continue our mission of serving creative communities across California.

By, Alexandra Bloedorn

By Alexandra Drozdova

Recently, Marvin Gaye‘s family battled it out in court with Pharrell Williams and Robin Thicke over the pop stars’ alleged infringement of Gaye’s 1977 track, “Got To Give It Up,” in their 2013 megahit, “Blurred Lines.” The family wanted a cool $25 million--a mammoth demand that would shatter the record $5.4 million payout for song plagiarism that a California court ordered Michael Bolton and Sony to pay two decades ago for infringing The Isley Brothers' "Love Is a Wonderful Thing."  The verdict was reached after eight days of trial testimony. The court ordered a remedy of nearly $7.4 million, an astonishing figure considering that the jury found that the infringement was not willful. Although this decision is being contested, it marks an important development in the ongoing debate about sampling rights and legal ownership of musical property.

Ostensibly, it would seem that copyright infringement is straightforward: either you appropriated someone else’s work and called it your own or you didn’t. In order to be found liable for infringement, two things must be proved. First, there must be direct or indirect evidence of access to the original composition. Then, if access has been established, “substantial similarity” between the original and the alleged infringing work needs to be shown. Here is where the analysis gets tricky. After all, what makes two songs substantially similar? The question becomes even more complex when, as in this case, the jury was not allowed to compare the recordings, but had to analyze the similarity of the two songs based on sheet music because, at the time when “Got to Give it Up” was created, the composer could copyright the composition but not the sound recording.

To this tune, lawyers for Thicke and Williams argued that their hit was inspired by the feel of Gaye’s music, but did not copy protectable elements of “Got to Give It Up.” 

Underlying the difficulties afflicting the legal analysis of copyright infringement within music is the nature of the art form itself. Since music is not created in a vacuum, the history of the art form reveals a spectrum--genres and styles are built upon constantly to form new ones--and it is impossible for an artist to shut out all influences when writing a new song. It is what separates the new music from the old that gives it value; yet new music must always be grounded in the familiar in order to appeal to a global audience. The connections to the past reveal a timeline of the progression of our collective musical taste throughout the years. 

Critics of the decision say that this case has blurred the line between paying homage and infringement--the line between protectable elements of a musical composition and the unprotectable musical style or groove. The concern is that this verdict will stifle artists, who will not feel as free to mine their record collections for ideas or to publicly acknowledge their influences.

On the flip side: The music industry already has a system in place which allows artists to negotiate for the use of copyrighted material. Musicians, especially in hip-hop, regularly license samples of others' songs.  Disputes over similar compositions are often settled by deals to share songwriting credits and royalties. “Like most artists, [Thicke and Williams] could have licensed and secured the song for appropriate usage,” the Gaye family has said, “This did not happen. We would have welcomed a conversation with them before the release of their work. This also did not happen.” 

At a hearing on May 1, attorneys for Thicke and Williams requested a new trial because of errors in jury instructions, improper testimony from a musicologist and insufficient evidence to support a finding that "Blurred Lines" is substantially similar to "Got to Give It Up." At the same time, the Gayes have moved to hold the record companies accountable for contributory infringement and vicarious liability, to stop the continued distribution of "Blurred Lines" and to impound works that contain the song. Alternatively, they want Williams and Thicke to hand over 50 percent of all future songwriter and publishing revenues generated by the song. Judge Kronstadt will consider these motions at an oral hearing scheduled for June 29. 

Whether or not they support the outcome of the Gayes’ case against Thicke and Williams, composers must remain aware of the risks of consciously or subconsciously appropriating material from their musical influences. The chances of facing litigation only increase with the growth of an artist’s star power.

Alexandra Drozdova is a UCLA law fellow at California Lawyers for the Arts.  

In Austin last week at South by Southwest, an overwhelming concern during the four day music conclave was: Will musicians be able to pay the rent in the digital age? Now that the gilded era of record company contracts is winding down and physical albums and CDs are losing market share, how are artists going to make a living from downloading and streaming services?

More than once, it was pointed out that the music industry is starting to mirror the income disparities that are plaguing our entire society. It is estimated that fewer than 20% of working musicians earn more than 80% of the income. 

Speakers during the SXSW music conference poured out advice: Continue to do live performances. Engage your fans through social media. ("It's incredibly stressful," commented one rising star.) if you can, get hooked up with a brand, and if you're born with the right parents or lucky enough to get a generous patron, let them subsidize you.

The digital age has upset old paradigms in many sectors. On a panel titled "The Celebrity Economy in Music,"  Nobel Laureate Paul Krugman said that his employer is also trying to figure it out. "The New York Times," he observed, 'has become a platform for luxury goods wrapped up in a little bit of news."

Some other gems:

Peter Koppes, long-time guitarist for the Australian rock band, the Church, thanked an unnamed benefactor from Austin who had given the band over $1 million over the past 20 years so that they could keep producing albums and performing.   

Prior to a concert, Raquel Sofia posts photos of herself in different outfits, asking her fans which dress she should wear on stage.  

During a panel on Copyrights in the Digital Era, Jacqueline Charlesworth, General Counsel of the US Copyright Office, talked about the challenge of "tagging" music electronically so that copyright owners can find out who is using their work. She lamented that the Copyright Office itself, which is still dealing with paper forms in some areas, needs a better IT structure. Government, she said, may be able to help by providing incentives for data standardization. Her recent report on music licensing was frequently cited during the conference.

Jacqueline mentioned that the Copyright Office has long favored requiring "terrestrial radio" to pay royalties to rights holders, an exemption that has been in place since the '70s. The lack of reciprocity in the US also prevents radio royalties from being paid internationally.  (Visual artists similarly miss out on resale royalties when their works are resold abroad, because there is no federal legislation in the US. Only California provides resale royalties for visual artists--a law that is being tested now in the federal courts.)  

Erik Metzger, a board member of both California Lawyers for the Arts and Texas Accountants and Lawyers for the Arts, facilitated two panels for musicians and filmmakers describing pro bono legal services provided by CLA, TALA and Volunteer Lawyers for the Arts, based in New York. As the conference days wound down, Erik, VLA Executive Director Katie Wagner and I cooled down at receptions put on by TESLAW, the Entertainment and Sports Law Section of the Texas State Bar, the Copyright Alliance and Lommen Abdo, a law firm based in Minnesota that played a prominent role in the continuing legal education track.

Of course, with an estimated 2,000 bands competing for attention at showcases and venues all over town, there were also plenty of opportunities to find personal inspiration in the music.  

Graham Reynolds, who has made his mark composing and music in multiple genres for different audiences, surprised me with an old Duke Ellington hit, Caravan, that he played at the Elephant Room. Imagine that Duke Ellington, a cousin on my maternal grandmother's side, is still resounding after all these years! Graham's sassy, pulsing rendition of Ellington's 1937 hit symbolized my entire South By experience.

And then there was the cerebral Peter Koppes from the Church and his family, who sat with me during lunch just prior to his band's interview with David Fricke of Rolling Stone.  Peter, who has taught classes about the music business, explained that six -- not two -- emotions can be found in minor chords. He was very familiar with our sister organization, the Arts Law Centre of Australia.

Later that evening, I was curious enough to see the Church perform at Buffalo Billiards.  As promised in their interview, they amped up their music with plenty of reverb.  Now approaching their 60's, these rockers continue to drive the beast.

Life is short, but art is long.

Alma Robinson, Executive Director
California Lawyers for the Arts    

In the fall of 2013, two African-American high school students in CLA's Spotlight on the Arts internship program were subjected to harassment by San Francisco police. The video that tells their story, What If This happened to You? is particularly timely in the light of current discussions about police/community relations and racial profiling. 

Jameisha, an intern in a photography program, was stopped by the police and questioned about the 35 mm camera she was wearing around her neck. She was walking to a Spotlight workshop for students in our year-round program. 

Omari, a graphic arts intern, was on his way home from school when he was removed from a bus and handcuffed for a fare violation. Would the police intervention have been different if Omari was white? Typically MUNI officers issue citations for such violations.  

In a recent article in the New York Times, Ian Ayres, a law professor at Yale, describes a study about "discretionary accommodations" that showed statistically meaningful differences in the treatment of white and black bus riders:  "Bus drivers were twice as willing to let white testers ride free as black testers (72 percent versus 36 percent of the time).” 

When two out of seven teens in our program experienced racial profiling within a week, it got the attention of our staff, Senior Program Manager Jill Roisen and Shana Lancaster, then Program Director. Of the 30 participants in the summer program, we annually extend invitations to up to 10 students to continue their internships during the school year.  The students who are invited back are selected because of their good attitudes and work habits.  They often continue to work for the same employers, expanding their skills and deepening their relationships with their supervisors and with our program staff, who hold monthly workshops with them.

Jameisha was continuing her internship at Intersection for the Arts with a photography program, First Exposures, which had exhibited her photos. Omari was working at the Mission Cultural Center of Latino Arts. When they described their interactions with the police at a Spotlight workshop, the group decided to focus on advocacy and asked to speak with a civil rights attorney.  

They also decided to make a video to document their experiences, learning interviewing techniques and production skills as part of the process.  The video includes recommendations provided by Chris Bridges, a Racial Justice Project Fellow at the ACLU, about how anyone should respond if stopped and questioned by the police.

What If This Happened to You? was shown to a group of youth and police at a forum presented by the Bernal Heights Neighborhood Association. Craig D. Wilson, an African-American police officer, said he was shocked that "this is still happening in San Francisco today." He described a similar incident that happened to him when he was a teenager, and recommended that the video be shown during the police department's training academy.   

Jennifer Eberhardt, a Stanford Professor of Psychology and recent recipient of a MacArthur Foundation "Genius Award," has worked with several police departments, presenting studies that "show what implicit bias is, and how it’s different from old-fashioned racism." Her empirical research about racial perceptions and biases was described in a recent interview in the New York Times: "I don’t think this alone can change behavior,” she said. “But it can help people become aware of the unconscious ways race operates. If you combine that with other things, there is hope."  

Izza, one of our student producers, echoed this optimism when she described the purpose of the video: "We also hope that this film can start conversations at the higher level of the SFPD so they can improve the way they treat young people. We are concerned about the lack of respect as well as the violence that has occurred to us and around us, especially when it comes to young people of color.”

And in any event, they have documented their concerns through a tangible means of expression -- that can be its own reward.

Alma Robinson, Executive Director 
California Lawyers for the Arts 

The California Resale Royalty Act (CRRA), which is under attack in the federal courts, has received strong support from Attorney General Kamala Harris. California’s AG filed an amicus brief in November, urging the US Court of Appeal to reverse a District Court ruling that found Civil Code 986 unconstitutional on a dormant commerce clause theory.

The CRRA was introduced by former State Sen. Alan Sieroty, who was honored for his advocacy on behalf of artists at our 2013 Artistic License Awards in Santa Monica. The statute, which CLA helped to draft, was passed by the state legislature and signed by Governor Edmund Brown in 1976. If a work of art is resold for at least $1,000, and for more than the seller paid for it, the seller is required to pay the artist a 5% resale royalty. California is the only state in the United States that has enacted such a royalty for visual artists.

The California law, Civil Code Section 986, applies to original drawings, paintings, sculptures, and works of art in glass if the work is sold in California or the seller is a resident of California. In addition, the artist must be a California resident or a US citizen. Although the royalty can be assigned to a third party in writing, it cannot be waived by the artist except for a larger percentage. The royalty applies for 20 years after the artist’s death, providing a legacy for heirs and estates.

Los Angeles attorney Eric George sued Sotheby’s, Christie’s and E-Bay in 2011, claiming unpaid royalties on behalf of Chuck Close, Laddie John Dill, the Sam Francis Foundation and the estate of Robert Graham. The defendants claimed the law was an unconstitutional burden on interstate commerce. US District Court Judge Jacqueline Nguyen agreed, and dismissed the complaint on dormant commerce clause grounds.

CLA’s amicus brief, which was prepared by attorneys Steven Hirsch and Katherine Lovett of the San Francisco law firm of Keker & Van Nest, and CLA Board Member Jack Davis, argued that such a significant constitutional issue should not be decided on a motion to dismiss. The defendants, we stated, needed to provide evidence of the administrative burden they claimed and show how it interferes with interstate commerce rather than relying on hypothetical arguments.

The issue is now before the 9^th Circuit Court of Appeal, which first heard oral arguments in April. Recently, the court announced that it would rehear the issues en banc on December 16 in order to consider two cases concerning the dormant commerce clause that were decided after Judge Nguyen’s dismissal of the CCRA case.

The Attorney General’s brief argues that the CRRA does not prescribe the terms or conditions of any sale, but merely imposes financial obligations on California residents once a sale takes place. Furthermore, the brief states, “No facts have been developed that would show that any transactions at issue in the plaintiffs’ complaints do not take place at least partly in California.”

A proposal for federal legislation, the American Royalties Too Act, was introduced earlier this year and is pending in Congress. The US Copyright Office, which opposed the resale royalty in its 1992 report on resale royalties, has since updated its research. In a second report issued in 2013, the Copyright Office reversed its previous position and now recommends the enactment of a federal resale royalty for visual artists. Because of a reciprocity requirement in the 1948 revision of the Berne Convention, American artists and their estates cannot obtain royalties from resales in foreign markets until we have a federal law, hence the name of the current proposal in Congress: “American Royalties Too.”

The California law was modeled on the European droit de suite, which originated in 1920 in France, and is now in effect in more than 70 countries around the world as well as the Commonwealth of Puerto Rico. The law gives visual artists a future income stream similar to the royalties that artists working in other disciplines, such as music and literature, enjoy when their work is reproduced. 

The en banc Court of Appeal may rule outright that the CRRA does not violate the U.S. Constitution.  Another possible outcome of the current California litigation is that the appellate court will remand the case to the District Court for evidentiary findings. In light of their compliance with similar laws in most major art markets around the world, the auction houses would have a hard time proving that their administrative duties under CCRA present an unconstitutional burden.

Alma Robinson, Executive Director                                                                  

California Lawyers for the Arts  

Recently, we celebrated the premiere of She Sings to the Stars at the American Indian Film Festival in San Francisco with a reception for the film's writer/director, Jennifer Corcoran, producer Jonathan Corcoran, and two of the three actors, Fannie Loretto and Jesus Mayorga.

CLA provided attorneys who advised the producer about how to structure the limited liability corporation, as well as production contracts, releases, music licensing agreements, chain of title issues, and a private placement memorandum for investors. CLA's panel attorneys, Lindsay Spiller and Richard Lee, were acknowledged in the film's credits.

The premiere provided a homecoming of sorts for the star of the film, Fannie Loretto, who had relocated with her family from a reservation in New Mexico to San Francisco in the 1950s under the US government's forced relocation and termination policy. She was just five years old when her family moved to San Francisco from Jemez Pueblo, New Mexico. They lived in a housing project near the present site of Candlestick Park in San Francisco's Hunters' Point neighborhood. After five years of experiencing the trauma of displacement, her mother found a way for the family to move back to their pueblo.

Returning to San Francisco for the first time after 50 years, Fannie was nominated for a best actress award for her role as Mabel at the American Indian Film Festival, now in its 39th year.

In the feature-length film, Mabel, a Native American grandmother, lives alone in the desert and inhabits a timeless world that her half-Hispanic grandson and an aging white magician discover as they reconnect after a disturbing encounter.

Jennifer Corcoran, who wrote, directed and edited the film, described her creative process: “I first met Mabel, the grandmother character in the film, in a dream,” she recalled. “Mabel said, ‘It's time to sing the song. Listen. It will take you four years.’ I followed the clues, constructed three life-size, newspaper-stuffed dressed figures of the characters and listened to them whisper the bones of the story.”

“The 21st Century finds us parched and hurried," she continued. "Mabel is not in a hurry; as a grandmother she is a container, the keeper of timelessness reflected by an expansive desert, an endless night sky. She holds the nurtured seeds for us to take forward, reminding us that we belong to something greater than our limited ideas of ourselves. Little seems to happen in her world, yet in this container of timelessness - now, and only now - anything is possible.”

With Jennifer, a resident of Ballydehob ("the ford at the mouth of two rivers"), Ireland, and her brother Jonathan, who lives in Monkton, Vermont, anything, indeed, is possible…

And as we like to say at CLA as we start our 40th year of legal services, educational programs and advocacy for the creative sector, "Your success is our success." Congratulations!

Alma Robinson, Executive Director
California Lawyers for the Arts

Before diving deeper into our challenges for the new year, we need to pay tribute to two generous souls, recently departed, who were significant in the development of California Lawyers for the Arts:

Jerry Carlin, our founding president, who left a career managing legal services for poor people at the San Francisco Neighborhood Legal Assistance Foundation to become a professional artist, paused to create Bay Area Lawyers for the Arts with Hamish Sandison in 1974. Through BALA, Jerry created an organization that brilliantly married his passions of law and the arts. Sandison wrote that "Jerry did as much as anyone to ensure that artists and arts organizations in the Bay Area today are able to obtain...legal advice to support them in their careers--regardless of their ability to pay. In addition, he campaigned successfully through BALA for state legislation to protect artists in their dealings with galleries and to secure them a return on the resale of their works of art--then and now the first and only resale royalties legislation in the United States."

In 1981, Jerry offered me the job of executive director of BALA. I had been hired the previous year to design and implement our national model program providing alternative dispute resolution services for the arts. Jerry continued to work with me in my new role and was hands on when we needed him. I recall one afternoon when we worked together on a grant proposal for the San Francisco Foundation. With sharpened pencils and clean erasers, he added up numbers for the budget while I worked on the narrative. By his example, he also encouraged me to value the relationships with BALA's initial funders, including the Gerbode Foundation and the California Arts Council as well as the San Francisco Foundation, beyond the transactional aspects of grant applications and reports. More recently, he and his wife, the noted actress and director Joy Carlin, arranged for us to meet with state Sen. Loni Hancock of Berkeley to discuss funding for the arts. Jerry passed on January 7, 2014. Until the end, he continued to be a champion for arts and justice, and was one of our most loyal donors. In our last conversation, Jerry was urging CLA to provide more estate planning services for artists in the twilight of their careers.

Helen Major, who was an artist and development professional, helped craft our strategy to expand BALA from a regional organization serving the San Francisco Bay Area, to a statewide arts service organization. When we reached out to Volunteer Lawyers for the Arts-LA with our plan, I followed much of Helen's recipe. Starting with "Relax with Tax," we started offering workshops in Los Angeles in collaboration with VLA-LA. We then surveyed artists, which documented the need for our services and laid the foundation for philanthropic support. Meanwhile, the members of the VLA-LA board were being primed with conversations led by our common board member, Amy Neiman, an LA attorney who had been a law student intern at BALA. Finally, the board members of VLA-LA were invited to join the BALA board, led at that time by Stephen Camber, which had already agreed to change the name of the organization to California Lawyers for the Arts. As a result, we inherited several prominent board members, including California State Senator Diane Watson, who subsequently became a member of Congress; Richard Koshalek, then the director of the Museum of Contemporary Art in Los Angeles; and Daniel Grover, a business affairs executive at Creative Artists Agency who had previously been a member of the staff of BALA.

With our expanded board, we were in a position to obtain grants to deliver services to artists in the Los Angeles area. Early support for capacity building and programs from the California Community Foundation, the LA Cultural Affairs Department, the LA County Dispute Resolution Program and the James Irvine Foundation provided credibility as well as financial resources. We were on the way. Following Helen's common sense approach, we had avoided the complications and liabilities of a formal corporate merger. In my last visit with her just days before her death in October, she asked me how the organization was doing. She was particularly excited when I told her about our work with women in the San Francisco jail as part of our arts-in-corrections demonstration project. She immediately encouraged me to approach women's foundations in order to continue this project. Helen was the mother of San Francisco's third Poet Laureate, devorah major, who is also a CLA mediator, facilitator and consultant on program planning and evaluation.