Illustration and the Law

On April 26 the New York State Supreme Court, New York County, dismissed all claims in a million dollar lawsuit brought by the Graphic Artists Guild (GAG) against the Illustrators’ Partnership of America (IPA) for statements and actions alleged to be defamatory regarding the collection of “orphaned fees.” Here is a statement from the IPA:

In the lawsuit, GAG asserted claims for defamation and interference with contractual relations, alleging that IPA had interfered with a “business relationship” GAG had entered into that enabled GAG to collect orphaned reprographic royalties derived from the licensing of illustrators’ work. GAG alleged that efforts by IPA to create a collecting society to return lost royalties to artists “interfered” with GAG’s “business” of appropriating these orphaned fees.

In her decision, Judge Debra James ruled that statements made by the Illustrators’ Partnership and the other defendants were true; that true statements cannot be defamatory; that illustrators have a “common interest” in orphaned income; and that a “common-interest privilege” may arise from both a right and a duty to convey relevant information, however contentious, to others who share that interest or duty.

Regarding a key statement at issue in the lawsuit: that GAG had taken over one and a half million dollars of illustrators’ royalties “surreptitiously,” the judge wrote:

“Inasmuch as the statement [by IPA] was true, [GAG]‘s claim cannot rest on allegations of a reckless disregard of whether it was false or not. Truthful and accurate statements do not give rise to defamation liability concerns.”

GAG wrote on their website:

On April 26, the Guild filed a notice of appeal in the dismissal of the defamation lawsuit filed in the Fall of 2008. The Guild strongly disagrees with the judge’s ruling in this case. For clarification purposes, the lawsuit is a defamation lawsuit regarding statements made by the defendants named in the lawsuit. It has no connection to the Orphan Works bill of 2008, or the Google class action lawsuit. Our statement on the notice of appeal can be downloaded here. An informational article on reprographic royalties can be read in our archived news.

I asked Brad Holland, one of the IPA defendants in the case, to discuss the outcome:

GAG made bold accusations. Where do they stand now? Nowhere. The judge threw them all out.

Has GAG responded to the ruling yet? We’ve heard they plan to appeal.

Does that surprise you? No, we assumed they would. And I’m sorry to see that they’re still making the same allegations in public that the judge dismissed.

What does an appeal mean for you and the other defendants? We can’t let ourselves get bogged down by it. The judge’s ruling was pretty sweeping. She accepted all GAG’s motions and allegations and emphasized that she gave them “every possible favorable inference.” That means they can’t say they didn’t get a fair hearing. I’m sure they’ll find some excuse to appeal; but if they do, I’ll see it as a measure of how desperate they are to keep taking artists’ royalties.

Having won the case, has the stress subsided? What I hope subsides is the cold chill that’s hung over our industry since this manufactured controversy began. Artists have a right to know where these royalties are coming from and what’s happening to the money. For GAG to tell us it’s “nobody else’s business” ought to be a big red flag.

So what was the emotional cost of the lawsuit?
It was an enormous waste of time and money and an emotional and physical drain. But in my opinion, the greater cost is what’s been borne by all those artists who weren’t sued, but who learned that they could be if they ever spoke out or asked questions themselves. I hope the judge’s decision will start to dispel that climate of fear.

What has this case taught you about law and litigation that you did not know before and will never forget?
The principle at stake here is greater than the lawsuit. Reprographic royalties represent an ongoing stream of income. The stream is growing larger by the year. It comes from the work of individual artists but it’s collected under blanket licenses. That means it’s like jukebox money; you need a specific business model to distribute it fairly. That’s not impossible; other countries do it and we’ve got 12 organizations working together to try doing it here. We’ve got the approval of the IRS. We’ve repeatedly invited GAG to work with us. I think it’s unfortunate that they decided to sue us instead.

You are a self-made illustrator, and now a self-made lawyer? No, I’ve been practicing art without a license for 40 years; I don’t think I’ll push my luck by practicing law without one.

(Legal documents below courtesy Brad Holland – click on image to enlarge. Illustration by Brad Holland)

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14 COMMENTS

  1. Well done brad and everyone at the ipa. Thanks too to mr. Heller for covering the story too. Let us illustrators know if there’s anything we can do to help the ipa.

  2. Every Illustrator/Artist owes their livelihood and ongoing career to the brave and principled people who were named in this draining lawsuit. I am personally indebted to Brad Holland, Cynthia Turner and Ken Dubrowski of IPA, as well as attorney Bruce Lehman, former Commissioner of the US Patent Office and Terry Brown, Director Emeritus of the Society of Illustrators who spent their precious time and resources to defend our right(s). THANK YOU ALL from the bottom of my heart and I’m honored to be part of the IPA and all that it stands for. A special thanks to you Brad for being such an eloquent spokesperson for our industry. I appreciate all you have done for us over the years.

  3. Does this mean I can go back being an illustrator? I have been so disenchanted by who we sell our services and share our creativity to. To the person who asked who is Brad Holland? Shame on you! If you are an illustrator you should know who the pioneers of the industry are.

  4. To Brad Holland and the IPA team, who took risks, sustained damages, and sacrificed a great deal to prevent a malignant shutdown of free expression throught our industry, I am deeply grateful. I hope all working illustrators take note.

  5. A hardy thank you goes out to Brad and the other IPA officers who only spoke the truth and had their personal and professional lives disrupted by the petty actions of the small minds running the Graphic Artists Guild. Perhaps the GAG is fearful of losing authority in representing graphic artists’ best interests. the IPA seems far better suited to tend to the needs of graphic professionals. GAG, the sun is setting, time to walk on off.

  6. All illustrators owe a great deal of gratitute to Brad and the rest of the IPA directors. We thank you for your sacrifice and time and money spent. We do hope this unfortunate period is behind us. What to do now? What is the best way to proceed in implementing the initial plan of distributing global royalties to US illustrators?

  7. Pingback: Daily Heller: Illustrations and New York State Supreme Court Law — Imprint-The Online Community for Graphic Designers | sally minker design | news

  8. Thank you for posting this. I have been following and sharing this for years. Those in the IPA who worked on this should get medals. I still haven’t washed my hand from the time I met and shook Brad Holland’s hand. A true genius and pioneer in the illustration world. You’re not so bad yourself.