I write this post to hopefully help other illustrators and artists protect their rights and avoid an excruciating, exhausting, stressful, and expensive divorce experience. I also hope to educate and enlighten illustrators and artists of all walks of life: sculptors, photographers, poets, wood workers, novelists, and jewelers alike. If it came out of your mind, and onto a canvas, a piece of paper, or a lump of clay, you are an artist, and you have rights. And your soon-to-be ex-spouse has rights, too, and which he or she might flex, unless you are protected.
Here therefore is a cold and harsh legal reality:
>>ARTWORK CREATED BEFORE MARRIAGE IS SEPARATE PROPERTY. Artwork created before marriage is Separate and belongs to artist alone, and it's value and royalties are not subject to division in a divorce.
>>ARTWORK CREATED DURING MARRIAGE IS JOINT PROPERTY. Artwork created during marriage is considered Joint Property, and it's value and royalties are considered as assets owned by both parties and are subject to division by both the artist AND the artist's spouse in a divorce. Royalties may be subject to division, even going forward, in perpetuity. (Suck!)
You may think or you may have thought that everything you created is yours alone during your marriage. Nope. You may own the copyright (if you haven't sold it or bequeathed it), but the physical or intangible piece of art created during marriage is jointly owned under the law (depending on your state). This may not make sense, and it may not seem fair, but unfortunately, this is the truth.
To re-iterate and expand on this: You may have created the paintings. They all may have come out of your mind, hands, eyes, and your body. You may have pushed the paint, alone. You may have done the research, alone. You may have done the marketing, alone. You may have wrote and/or illustrated your books....alone! You may have taken a blank canvas or piece of paper and created a piece of art each day...on...your...own. But, should you face divorce, you may find yourself asking your attorney: "How in the world can they claim half of the worth of my work if I was the only one to pick up a paint brush? I did all the work. I pushed the paint. I invested my time and energy. How is this possible?"
You may have devoted 30+ years to your career. You may have created hundreds, or thousands, of pieces of art. You may love your job and find it beyond fulfilling and rewarding....it might be very important to you.
None of that will matter. You will likely be told, "the law is not emotional, the law is the law." The law does not distinguish between a painting or an afghan. In the face of the law, any work of art created during a marriage is considered joint property and the opposing could demand half of the art's worth and half of any royalties. Period. (To prevent this scenario, please see Part 2). Praying this won't happen doesn't prevent it from happening. Divorce has a way of bringing out the pitbull in certain people: they just get mean and nasty, and they will not care about your feelings or your future. So, brace yourself for the worst.
Your worst nightmare might come true.... the opposing party and their lawyer might do exactly that: go after what you thought was yours alone. Why? Your art has value. Adding value to your assets could whittle down any settlement by using the value of your art against you.
This reality might gut you. But, you will likely be told to comply to all requests by the opposing, otherwise a judge (if it comes to that) might see you as "un-cooperative" and that would not bode well.
This said, here now are warnings to every artist and illustrator out there. Please read carefully. This list might scare you into taking preventative measures, and therefore save you a lot of money, heartache, and pain.
IF YOU DO NOT HAVE AN AGREEMENT IN PLACE TO PROTECT YOUR ART, ITS VALUE, AND ANY ROYALTIES YOU GENERATE FROM LICENSING, YOU MIGHT HAVE TO ENDURE THE FOLLOWING:
1. You might have to make all of your joint artwork available for appraisal.
2. You might have to endure an appraisal by an unqualified AOA appraiser.
3. You might have to hand over copies of your contracts––even if they are out-of-date and protected by confidentiality clauses––which, if they don't have confidentiality clauses, will have to be protected by the court.
4. You might have to provide any and all correspondences, emails, and invoices.
5. Your spouse might lift information and/or copies of your stock list, and/or your for sale list, from your website to use as a spring board of valuation of your work.
6. The unqualified appraiser might use a blog (a BLOG) as basis of valuation of your prints made from your art, even if the blog art looks nothing like yours.
7. The appraiser might also used other illustrators who's work is not in any way similar to your work to valuate your work, without even talking to the other illustrators.
8. You might have to endure a financial evaluation (which you will have to pay for).
9. You might have to hire your separate appraiser, or a qualified AAA, ASA, ISA appraiser to disqualify the unqualified appraisal (which you will have to pay for).
10. You might have to give up half of the value of your artwork, and half of any royalties you earn from that artwork.
Sound like fun? NOT!
That said, you will survive the divorce experience. You will get on the other side of divorce, re-create your life, pick up where you left off, and create new art!! That will be YOURS!
Coming soon in Part 2 of this post: How to Protect Yourself, and your Art.
Peace! - Val