Museum’s Lawyers Discuss Intersection of Art and Law

by Jess Brovsky-Eaker
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Many lawyers work in transactional law. But while many work with documents for businesses, the lawyers at the Denver Museum of Nature & Science say their typical day can include anything from the typical tedious contract drafting to obtaining specialized insurance for a dinosaur. Contrasting a day working both for and with dinosaurs, Creative Law Network’s Dave Ratner said he’s had more than one legal consultation on a moving tour bus and regularly works with musicians and artists.

Museums rarely employ in-house attorneys and usually rely instead upon a network of museum attorneys when they require legal assistance, according to Lynda Knowles, an attorney for DMNS. Situations where a nonprofit educational organization would need a lawyer can include temporary exhibit contracting, insurance disputes or securities or provenance disputes.

A typical legal need for DMNS is that of contracting and insurance acquisition.

Knowles described the contracting process as both unique and complex. “Before we get down to negotiating the agreement, there’s going to be an awful lot of work that’s done up front regarding the fit of the exhibition with the museum — with our content, with our demographics, with our science — to make sure that everything fits together well,” Knowles said. “And then we usually get down to negotiating a contract after [that].”

Knowles said, “a lot of times, the financial aspects have been essentially ironed out ahead of time,” referring to the museum’s process of exhibit selection, which is typically handled by Jodi Schoemer, DMNS co-director in the experiences and partnerships division. Schoemer described the process for temporary exhibition contracting and selection as one with two primary categories: other nonprofit museums or for-profit organizations dealing in scientific artifacts or antiquities.

Schoemer said the process to secure agreements in both instances usually involves paying licensing or other acquisitions fees. “I would say far above 90% of the objects we show are borrowed from other natural history or science museums. We have a handful of examples, but very few that come from individuals or private lender organizations,” she said, “and that’s partially because the natural history field — that’s where you find those types of objects. It’s very different if we were doing history or if we were doing art where more collections are held privately.”

“What’s unique about [temporary exhibits] is their complexity,” said Knowles, “and also how much they vary from one exhibition to the next because depending on the content and on the objects, you can have a whole lot of parties represented.” She said international exhibits required many additional legal considerations like import/export, immunity from seizure and various other transit issues that may impact the timelines stipulated in loan contracts.

“We’ll always want to make sure that whatever it is we’re getting, that we’re getting in a way that we are entitled to have it, we’re entitled to display it and it will come to us safe and sound and leave us safe and sound,” said Knowles.

Knowles explained unique aspects of contracting for temporary exhibits often include procuring specialized insurance to ensure artifacts are covered in transit as well as when they’re on display. Working directly with other organizations and individuals in a loan or contractual capacity also requires an additional insurance layer covering media/brand protection or intellectual property.

“It’s sort of interesting to have a field that crosses everything from the entertainment sector… to the physical objects, to the science, to installation challenges with things that are heavy, delicate, valuable or fragile,” said Schoemer. “All sorts of different ways that different things need different types of protections and trying to figure out who’s responsible for those protections and then in the larger contract world, what processes we put in place to minimize any risk. In a way, it’s fun that our exhibitions tend to work across so many different sectors.”

Knowles often laments the need to write almost every contract from scratch because each agreement tends to be too unique to adequately deploy the use of templates. She said her favorite thing about her job is that “it’s a very creative field with very creative people constantly coming up with new things.”

From dinosaurs to drummers, the clientele for some lawyers can be more interesting than “boring lawyer” jokes may lead everyone to believe. In perhaps one of the most unusual cases to cross an attorney’s desk in recent years, a New York lawyer in 2012 famously stepped in on a complicated legal issue involving false provenance for a dinosaur skeleton that was in the process of being fraudulently sold to a buyer in the U.S. from its native country, Mongolia. United States v. One Tyrannosaurus Bataar Skeleton led to a dramatic attempt to halt an auction, in which the sketchily obtained dinosaur was purchased for more than $1 million.

Other complex legal issues have emerged in the last several decades on the issue of provenance and repatriation of artifacts to their native land has become a hot button topic for many cultural conservation advocates. Museums are almost always on guard against such cases and the extra layers of insurance help to mitigate a myriad of other issues as well, according to Knowles.

For Dave Ratner, his practice is largely focused on artists, musicians and other creative-minded individuals and organizations. While Ratner is less focused on obtaining unique insurance for most of his clients, he said he almost always needs to be vigilant in other areas to protect his clients from contract management issues.

“I think one of the things that is unfortunately common in working in creative industries is that our society does not compensate creatives as well as they often deserve to be,” said Ratner. He said his work is often for those who cannot afford to pay him in the most traditional way. “How do you adapt to that and what’s the way to make that work? And so, I certainly have stories of clients wanting to pay me in more creative ways.”

Ratner’s aim to help creative clients has turned into the foundation of a network of attorneys across Colorado. Colorado Attorneys for the Arts is a pro bono referral service that connects artistic clients in need of legal services with a lawyer who can provide them with what they need pro bono.

“A starving artist will call or an artist in need will call CAFTA and say hey, I’ve got this legal issue. I need a lawyer,” said Ratner, “And if they financially qualify, then we will connect them with an attorney who will provide pro bono legal services.

“There’s a lot of disadvantaged communities in our society and that’s why we have volunteer lawyers,” said Ratner.

Ratner went on to explain that lawyers with a background in the creative arts tend to be more familiar with industry standards and are often able to communicate with creative clients what the proper terms, percentages and deals should be in those types of contracts.

Previously working as a band manager, Ratner transferred some of those industry skills to build out his practice with Creative Law Network. Of the career pivot Ratner said, “I mean, yes, it is not the normal pattern. Most lawyers do not have that background.” He said many lawyers find the work more engaging or successful for their clients when they are able to have some kind of background in the area they’re assisting with.

DMNS’ Knowles said providing such niche services, for her, involves thinking on behalf of some unusual stakeholders like dinosaur skeletons and artifacts. Covering all the bases for contract partners and the tangentially involved client encompasses the more unique aspects of a typical day.

“Unlike a lot of art exhibitions, with natural history, it seems it’s a lot more interactive and some exhibitions can be far more hands on and involve more physical activity. And that always adds a layer of complexity too.”

This article appeared in the Oct. 12 issue of Law Week Colorado. To read other articles from that issue, order a copy online. Subscribers can request a digital PDF of the issue.