Virtual Galleries: Pure Play or Pure Trouble?

A novel breed of art gallery has appeared upon the scene--the virtual gallery. It is an art gallery that has no terrestrial vicinity and exists only on the Internet. It generally has little or no inventory still presents an image of an established business, and it ofttimes sells art at deeply discounted prices. While a certain quantity of artists and publishers interested alone in sales may welcome these virtual galleries, greatest in quantity are not embracing these fresh outlets for their work. As a flow many artists, galleries and publishers are seeking ways to limit, if not eradicate, the virtual gallery. Publishers have the option of not selling to a virtual gallery, if they are aware of its veritable status. Is a virtual gallery legal? Is it breaking any laws or violating anyone's rights? Let's take a look

Setting Up Shop

What does it take to create a virtual gallery? individual must have a Web site, a server and a URL With those simple bodys in place, you are ready to pass into business, except you ne a fruits Or do you? Traditionally, a gallery go intos into a relationship directly with an artist or a distribution agreement with a publisher. Before it will affiliate with a gallery, a publisher repeatedly requires a gallery to fit its minimum requirements, such as a committed amount of wall space, minimum amounts of art purchases and/or sales and, at times, a co-op advertising requirement. many times the gallery staff is required to be trained in regard to the work of the artist. All of this takes time, commitment and cash Dealers and artists are assured the gallery will at hand them appropriately and, because the gallery has invested in the artist, it will make a planed effort to ensure that the program is auspicious and the artist's reputation and market is maintained.

upon the other hand, if a gallery has neither a financial nor strategic commitment to an artist, it's perspective can be actual different. This is not to say that individuals who move swiftly virtual galleries cannot represent artists in a professional, first-rate manner. They simply show a situation where some of the incentives to do in like manner are missing.

Artists and publishers frequently take a long view of an artist's career and are willing to sacrifice immediate sales in order to establish a collector base and a team of galleries with mutual interests for long-term relationships and career enhancement. For these reasons, artists and their publishers will frequently bypass the opportunity to exchange to more galleries and put in motion more product where they diocese short-term gain but long-term harm to the artist's career.

A virtual gallery that does not have a relationship with the artist or publisher and plants up its gallery without seeking permission may be violating numerous laws. Simply because single operates on the Internet does not mean that copyright and trademark laws do not apply. They apply to virtual galleries and virtual entities as they do to brick and mortar companies. All single needs to do is gaze at the case law from the early rapper sampling cases to Napster to diocese that copyright and trademark laws apply--no matter the medium.

The first pace a virtual gallery undertakes is acquiring copies of the artist's works. They can be from volumes calendars, tear sheets, catalogs, greeting cards, placards and more. These images are generally scanned and a digital file is created. If this is done without the artist's permission, it is a copyright infringement. In transferring the transcript from the PC attached to the scanner to the server which houses the site, another infringing transcript is made--a separate violation of copyright law. Virtual galleries make images available for public display, which is also the right of the copyright proprietor As such, having a work displayed upon the site without permission is a third copyright infringement.

While the nearest concept is not intuitive, the law has supported the premise that viewing an infringing image causes each individual who is viewing the infringing image to be violating the artist's copyright. through facilitating the "infringing actions" of viewers, the virtual gallery holder is what is known as a "contributory infringer" and perhaps also a "vicarious infringer".

When viewing a Web site, a temporary transcript is made in the viewer's computer and the courts have held that level though the copy is sole in RAM and may be transitory, it is enough of a transcript for copyright infringement purposes. Therefore, by means of scanning an artwork, posting it to a Web site, displaying it and allowing viewers to view the images, at least four separate copyright infringements have occurr Furthermore, a virtual gallery oftentimes incorporates text regarding the artist from volumes or the artist's promotional materials. The unauthorized reproduction of of that kind text is a fifth copyright violation.

Artists' names are repeatedly considered trademarks. Using the artist's name to solicit business without assent can also violate trademark rights. Many virtual galleries give the impression that the artist is affiliated with the gallery. Words of the like kind as "Our featured artists" or "Representing" confuse the public regarding the relationship between the artist and the gallery. This faculty of perception of affiliation provides the consumer with a faculty of perception of security when buying from a gallery. Therefore, customers many times believe that if a work is available for sale, it must be from an authorized dealer. The Lanham Act states that creating a "likelihood of confusion" as to an association, affiliation or sponsorship is a violation of federal trademark law. Therefore, by dint of listing an artist's name and creating the impression that they are affiliated with the virtual gallery is a violation of federal trademark laws.