Thursday, February 17, 2011

A Blueprint for Preparing a Legal Memorandum

1. Consider whether the issue is governed by federal law or state law. Next, consider whether or it is a matter more likely to be covered by statutory law or case law.

2. Draft a preliminary issue statement based on the information you have. For example, your initial issue might be written, “In California, are non-competition agreements entered into by employees valid?”

3. Develop a research plan. If the matter is likely to be covered by statutory law, review the applicable statutes and then examine the case annotations following the text of the statutes. If you are unfamiliar with the topic of law, initially consult a treatise or encyclopedia to “get your feet wet.” Prepare a list of key words or search terms to use when

examining the indexes to the statutes, encyclopedias, treatises, digests treatises and other authorities. For example, terms might include “employment,” or “employer-employee,” “non-competition,” and “competition.”

4. Conduct research, paying attention to leads to other sources, such as law reviews.

5. Shepardize the primary authorities to ensure they are still valid and to direct you to other authorities on point.

6. Brief the cases you locate

7. Organize your notes. Use these to construct a working outline

8. Begin writing. If you have difficulty getting started, begin with the section that is the easiest to write. In many instances, this will be the statement of facts. Proceed to the other sections, always checking to make sure your writing is balanced and objective. Consider using the IRAC (issue, rule, analysis, conclusion) in the discussion section to ensure you are analyzing cases rather than summarizing them.

9. Check for content. Make sure each conclusion you have drawn is supported by legal authority. Review to ensure that the cases you discuss include sufficient facts so that the reader will be able to see why those facts do or do not apply to the client’s situation.

10. Edit the memo to eliminate unnecessary material and clarify ambiguous portions. Proofread to omit spelling and typos. Do a final check for citation form.

TIPS FOR MEMO WRITING

1. Don’t use first person pronouns. Avoid statements such as “The next case I found…” or “I believe…”

2. Use complete Bluebook or appropriate citation form so that if the memo becomes the basis for a document submitted to court, you will not have to return to the law library to track down cites.

3. Some law firms maintain files or “banks” of previously prepared memos. Before beginning a new project, check the memo bank to see if a memo on your topic has been prepared previously.

4. Some attorneys prefer that all cases cited in the memo be photocopied and attached to the memo for ready reference.

5. Gather all documents and materials before you begin to write.

6. After you Shepardize, provide your supervisor with copies of cases that negatively affect any cases cited in the memo so they can be reviewed.

7. Save memos you have prepared and others you come across in your own mini-memo bank. You may be surprised how often you will need to retrieve previously prepared memos to verify certain legal issues or to use as a starting point for a new project.

To: Big Boss Attorney

From: Eager Young Paralegal

Re: Reginald Nelson

Visual Artists Rights Act

Date: February 17, 2011

_______________________________________ISSUE

Under the Visual Artists Rights Act, do destruction and removal of sculptures and destruction of posters violate a freelance artist’s rights to prevent destruction or modification of his works of visual art?

BRIEF ANSWER

Under the Visual Artists Rights Act, a freelance artist has the right to prevent destruction of his sculptures but not removal of them to another location. Moreover, an artist has no right to be compensated for destruction of posters because these are not works of “visual art” as defined by the Act.

FACTS

Our client, Reginald Nelson (“Nelson”), is a nationally known freelance artist and sculptor. Nelson works primarily with granite and bronze forms although he has also created lithographs and posters. Four years ago, Nelson signed a written contract with Stonegate Development Company (“Stonegate”) by which he agreed to create a variety of sculptures to be placed in a small park owned by Stonegate and located outside of a commercial building Stonegate was developing. Working in his studio, with a few of his long-term assistants, Nelson created six original bronze sculptures for placement in the park, all of which displayed his signature

curving motifs. The park included a variety of other elements not designed by Nelson, such as benches and picnic tables. After the sculptures were unveiled, a number of art critics and artists hailed them as having significant artistic merit. Nelson then created posters of the sculptures, which Stonegate placed in the building lobby. Stonegate fully paid for all of Nelson’s work.

Two months ago, Stonegate began to redesign its park. It plans to destroy two of the sculptures and move the remainder to another one of its parks. Stonegate also destroyed the posters in the building lobby and replaced them with those by another artist.

DISCUSSION

The Visual Artists Rights Act and Works Made for Hire

In 1990, Congress passed the Visual Artists Rights Act (“VARA” or the “Act”) to allow artists to prevent any intentional destruction, mutilation, distortion, or other modification of their works of visual arts. 17 U.S.C. sec. 106A(2006). These rights are often referred to as “moral rights” and are intended to allow artists to protect their artistic reputations, even after they have sold their works.

The Act provides three specific rights: the right of attribution, which is the author’s right to be known as the author of a work; the right of integrity, which ensures that the work not be distorted, mutilated, or misrepresented in a way that would injure the artist’s reputation; and in the case of works of visual art of “recognized stature,” the right to prevent destruction.The Act, however, is quite limited and applies only to works of visual arts such as paintings, drawings, and sculptures that exist in a single copy or in limited editions. Id. In the present case, the original sculptures are works of visual art covered by the Act. The Act, however, excludes from its protection works made for hire. Id.

A work made for hire is one that is presumed to be authored by an employer because it was created by an employee on company time or authored by a party specially commissioned to create the work when the parties have agreed in writing that the commissioning party will own the copyright and the work falls into one of nine statutorily enumerated categories. 17 U.S.C. sec. 101 (2006).

In the present case, Nelson was a freelance artist and not Stonegate’s employee. If Nelson were an employee, Stonegate would be the presumptive owner of all rights in the works. Nelson was an independent contractor who was specially engaged by Stonegate to create the works in question. Although some cases have examined whether

freelancers are, in fact, employees rather than independent contractors, the Supreme Court has held that the term “employee” for purposes of determining authorship of works made for hire should be interpreted according to general common law agency principles. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 740 (1989). The Court identified certain factors that characterize an employer-employee relationship: control by the employer over the work, control by the employer over the employee, and the status of the employer. Id. At 738-39.

If the employer has a voice in how the work is done, has the work done at the employer’s location, and provides equipment and tools to the person to create the work, such tends to show an employer-employee relationship. Similarly, if the employer controls the worker’s schedule in creating the work, has the right to have the worker perform other assignments, and has the right to hire the worker’s assistants, such shows an employer-employee relationship. Finally, if the employer is in business to produce such works, provides the worker with benefits similar to those received by other workers, and withholds taxes from the worker’s compensation, such is supportive of an employer-employee relationship. Id.

These factors are not exhaustive, but all or most of these factors characterize a regular, salaried employment relationship. In the present case, Nelson created the work at his studio using his own tools and equipment and using his own long-term assistants. Moreover, Stonegate is in the real estate development business, not the art business, and Nelson was not a regular salaried employee of Stonegate. Accordingly, Nelson should be held to be an independent contractor and thus entitled to moral rights under the Act.

A work not prepared by an employee but rather one prepared by an independent contractor can be deemed a work made for hire and thus owned by the commissioning party (in this case, Stonegate) if the parties agree in writing that it is to be a work made for hire and it is specially commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas. 17 U.S.C. secl 101. Both statutory conditions (the specially ordered work must fall into one of the nine enumerated categories and the parties must agree in writing that it is a work made for hire) must exist.

of the nine specially enumerated categories of work, and thus the works are not ones made for hire. Therefore, Nelson has retained any moral rights in the woonerks because they were not “made for hire.”

Destruction of Sculptures

The Act allows an author of a work of visual art to prevent any destruction of a work of “recognized stature.” 17 U.S.C. sec. 106A(3)(B). Thus, determining that the sculptures are of

“recognized stature” is not defined in the Act, and thus, its interpretation has been left to the courts. In Carter v. Helmsley-Spear Inc., 861 F. Supp. 303, 325 (S.D.N.Y. 1994), aff’d in part, rev’d in part, vacated in part, 71 F.3d 77 (2d Cir. 1995), the court formulated the following test: A work of visual art has “stature” if it is meritorious and is recognized by art experts, other members of the artistic community, or by some cross-section of society. In the present case, because of the critical acclaim afforded the works by art critics and others, the sculptures are likely to be found to be of “recognized stature” such that Nelson can prevent their destruction.

Removal of SculpturesIn Phillips v. Pembroke Real Estate, Inc., 288 F. Supp. 2d 89, 99-100 (D. Mass. 2003), aff’d on certification, No. SJC- 09181 (Mass. Dec.21, 2004), Phillips, the creator of 27 sculptures placed in a park, argued that his work was so site-specific that moving it to another location would be an intentional destruction or modification under VARA. He contended that taking his sculptures to another park would be like painting over the background landscape in the Mona Lisa. The court, however, agreed with the defendant’s assertion that moving sculptures to another location was permissible, just as a museum curator could move the Mona Lisa from one wall in the Louvre to another.

The Act permits the modification of a work of visual art that is the result of conservation or of the public presentation and placement of a work, and specifically states that such is not a destruction. 17 U.S.C. sec. 106A(c)(2). This “public presentation” exception would permit Stonegate to move Nelson’s sculptures from one location to another. As one court noted, the focus of VARA “is not… to preserve a work of visual art where it is, but rather to preserve the work as it is.” Bd. Of Managers of Soho Int’l Arts Condo. V. City of New York, No. 01-CIV-1226 DAB, 2003 WL 2140333, at *10 (S.D.N.Y. June 17, 2003). Accordingly, Nelson has no right to control the placement of the sculptures. Stonegate is not

Obligated to display the works in the park and may remove them to another location because VARA provides no protection for a change in placement or presentation.

Destruction of Posters

The U.S. Copyright Act specifically provides that a work of “visual art” does not include “any poster.” 17 U.S.C. sec. 101. Thus, Stonegate’s destruction of the posters in the building lobby was permissible because posters are not works of “visual art” and accordingly are not protected under the Act.

Conclusion

Under VARA, Nelson can prevent the planned destruction of the sculptures he created for Stonegate but cannot prevent their removal to another park. Moreover, because posters are not works of “visual art” covered by VARA, Nelson cannot prevent their destruction.

Deborah E. Bouchoux, Concise Guide to Legal Research and Writing (2011)