orangenius
Business Copyright

How does Relaxing the Cuba Trade Embargo Affect Artists?

Cuban Trade Embargo

President Obama’s December 17th announcement that the United States would begin the process of resuming relations with Cuba has left many with questions. How will it affect our individual relationships with Cuba and the Cuban people? Will general tourism be permitted? Are Americans able to open private businesses in Cuba? Are we able to engage in monetary or other economic transactions with Cuban nationals?

These questions are no less pressing for the arts community, both here and in Cuba. The trade embargo has significantly affected the Cuban art market since its inception. When President Kennedy enacted the embargo in 1961, communication between the American and Cuban art communities virtually stopped, though Cuban artists continued to work and gain prominence in Europe.

It wasn’t until 1989 that Cuban art began finding its way to the U.S. when a Federal court ruled that the Bush administration’s ban on the importation of art from Cuba violated the Trading with the Enemy Act and the First Amendment guarantee of a free flow of information. Those rulings forced the Treasury Department to allow licensed art dealers to bring Cuban art and literature into the United States, although the works had to travel through third party countries, not directly. The rulings also made art the only valuable commodity that American travelers have been able to bring home from Cuba without fear of confiscation.

To the extent that a U.S. person is permitted to bring Cuban works of art into the United States, would the same rules apply for an individual seeking to import a copyright from Cuba?

Cuba and Copyright

Consider this illustrative example. A very popular Cuban author wrote a children’s book that gained a large national following and had been frequently adapted as a play by Cuban school children. A few years ago, the author’s best friend Miguel, while living in the United States, decided to write a screenplay derived from the children’s book. Miguel began pitching his screenplay to various movie producers and agents, some of whom were interested in moving forward with the film. Since Miguel based his screenplay on his friends’ pre-existing work, it is considered a derivative work. Under copyright law, both in the U.S. and internationally, the copyright holder has the exclusive right to copy, distribute, publicly display and make derivatives of their work. Any creator from a country that is a signatory of the international treaty governing copyrights; the Berne Convention for the Protection of Literary and Artistic Works, should receive those exclusive rights. Cuban Artist

Miguel’s friend has the exclusive right, therefore, to control any derivatives of his book, namely, Miguel’s script. In order to produce the script, Miguel’s friend must grant him permission to infringe on the copyright, the terms of which are set forth in a contract (license agreement) or the copyright can be permanently transferred to Miguel. The contractual terms would allow Miguel to commercialize his version of the story, in exchange for something of value, such as royalty rights, cross-licenses or some other valuable asset.

Seems easy enough, right? They’re best friends! But remember, with an economic embargo being in place between the U.S. and Cuba, even simple transactions may be against the law.

The Cuban Trade Embargo

The trade embargo with Cuba prohibits U.S. persons from engaging in transactions with Cuban nationals. According to the Department of State, Cuban Assets Control Regulations, (CACR) are enforced by the U.S. Treasury Department and affect all U.S. citizens and permanent residents. The regulation does not limit travel of U.S. citizens to Cuba per se, but it makes it illegal for U.S. citizens to have transactions in Cuba.

So, it must be determined whether the granting of a copyright license amounts to an illegal transaction as defined by the provisions of the embargo.

A transaction is legally defined as an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences, by mutual consent. The means of formalizing that agreement is a contract.

A license agreement between Miguel and his friend would most likely be considered a transaction, as defined in the CACR as the agreement would be created to ensure that there is no copyright infringement or infringement lawsuit. And, since transactions between Cubans and U.S. nationals are prohibited, the copyright cannot be licensed, without an exception delineated in the statute, or some other favorable legal precedent. More importantly, money is not required for the transaction, just something of value must be exchanged (sometimes called consideration).

What if no money exchanged hands and Miguel is just given the copyright, at no charge? The Department of State has held that U.S. citizens may not receive goods or services for free from any Cuban national, which is designed to eliminate any attempts to circumvent the regulation based on that premise.Cuba Flag

Interestingly, however, the U.S. government did carve out several exceptions to circumvent the general prohibition on economic transactions with Cuba or its people. The ones that we would expect to see often involve freedom of speech issues, such as news services access, historical research, and travel-related transactions, under certain conditions. Along with those expected exclusions, Congress surprisingly also allows Cuban artists to sell their work in the U.S. and receive reasonable royalties.  The caveat is that only the original version, such as a book or lithograph can receive the exemption, but not derivative works.  So Miguel’s friend can receive royalties for his book sales if sold in the U.S., but he cannot receive royalties for a movie based on his book.

Given the strict rules and lack of exceptions that may apply to Miguel’s situation, he had little chance of receiving the copyright license the studios wanted in order to move ahead with developing his screenplay into a motion picture.

Obama’s Cuba

How would Obama’s new regulations impact the copyright transaction? Though President Obama wishes to lift the Cuban trade embargo, he will not be able to do so without approval from Congress. There are, however, several measures he can enact unilaterally in order to facilitate the process, and since January, some of those measures have been put in place.

So far, Obama’s measures are aimed at easing restrictions on travel and trade. The administration has stated that its goal is to provide “alternative sources of information and opportunities for self-employment and private property ownership for Cuban nationals” and “further enhance the free flow of information.” However, these unilateral actions taken by the President are often very narrow, evaluated only on a case-by-case basis to ensure the Executive Branch is not overstepping its authority.

The most visible measure, to this point, is the ease on travel restrictions, thereby making it much easier to travel to Cuba. Now, to visit Cuba, one only need show they fall within one of 12 approved travel categories:

  1. Family visits
  2. Official business of the U.S. government, foreign governments, and certain intergovernmental organizations
  3. Journalistic activity
  4. Professional research and professional meetings
  5. Educational activities
  6. Religious activities
  7. Public performances, clinics, workshops, athletic and other competitions, and exhibitions
  8. Support for the Cuban people
  9. Humanitarian projects
  10. Activities of private foundations or research or educational institutes
  11. Exportation, importation, or transmission of information or information materials
  12. Certain export transactions that may be considered for authorization under existing regulations and guidelines.
  13. As well, a travel license is no longer required.

Along with the travel expansion, the Obama administration has also eased restrictions on travel-related transactions, two of which specifically apply to Miguel’s situation. The first involves the export, import, or transmission of information or informational materials and the second provides permission to attend professional research, professional meetings, and educational activities in Cuba.Cuba Art

Under the new Obama regulations, it appears that Miguel can at least visit his friend to discuss the copyright license to produce his derivative work. Miguel can easily make a case to fall within several of these categories, such as the story development rallies support for the Cuban People or maybe under the transmission of information. If Miguel can claim that the copyright license could “greatly enhances the free flow of ideas between Cuba and the United States,” also, the transaction will likely be permitted. Additionally, his visit to Cuba could certainly be considered a “professional meeting,” since his objective is to enhance his career by producing a film. Finally, Miguel’s visit to Cuba to complete a copyright transaction with his father directly serves the intention of President Obama by providing an opportunity for Miguel’s friend as a Cuban national, to earn private income and become an independent citizen of Cuba.

There is one caveat; Obama’s initiatives are crafted so as to not expressly override rules within the CACR, but rather skirt them until Congress votes to lift them. One rule that may be problematic under the CACR is 31 CFR 515.512 – Provision of certain legal services authorized, which states that legal services affecting property interests, including intellectual property, are prohibited. So Miguel may be able to work out an agreement but may not be able to use a U.S. attorney to do it.

______

It’s not over yet…
Since Cuba is a member of the Berne Convention, the U.S. will need to abide by Cuba’s copyright laws, if Miguel imports the copyright. What Cuban laws would govern Miguel’s copyright? Does the Cuban government exert any ownership over the intellectual property of its citizens? What are the risks involved with importing the copyright, both for Miguel and the U.S. government?

We’ll answer those questions in Part 2 of our series.

About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at [email protected]

2 Comments

Click here to post a comment

Your email address will not be published. Required fields are marked *

The Latest From Artrepreneur

  • Art Walks Put California on Parade

    For most Californians, walking yields to driving as the main mode of transportation. Driving is such a driving force for the state’s residents that “Saturday Night Live” created a recurring sketch about soap opera characters […]

  • The Future is Bright, Say Art Entrepreneurs

    According to a new report by the Strategic National Arts Alumni Project (SNAAP) the old adage of the struggling artist may officially be a myth. SNAAP’s special report, “Career Skills and Entrepreneurship Training for […]

  • Artist Profile: Natalia Nakazawa — Art, Work, and Life

    Natalia Nakazawa is a visual artist who works in mixed media to create paintings, tapestries, and collages. Her latest installation was displayed in a window of the iconic art deco Clocktower Building in Brooklyn’s DUMBO neighborhood. The […]

  • Art Business Conferences for the Art Entrepreneur

    Are you on your way to becoming a thriving art entrepreneur? Check out these upcoming art business conferences to increase your chances for success! The post Art Business Conferences for the Art Entrepreneur appeared first on Artrepreneur. […]

  • Eight Artist in Residence Programs to Launch Your Career

    We’ve previously reviewed how important it is to craft a bio and resume that details your art career, and today we’ll discuss one essential element that’s sure to make your career stand out: the Artist in Residence. Artist in […]

  • Write an Artist Bio to Get Noticed

    Most artists are used to expressing themselves in creative ways, but fewer understand the importance of expressing who they are in words. In this article, we'll review the creating an artist bio while offering some useful tips on its content. The […]

  • Balancing a Full-Time Job with Fulfilling Creativity

    Need more time in your day to work on creative endeavors? Here are few ideas that may help. The post Balancing a Full-Time Job with Fulfilling Creativity appeared first on Artrepreneur. […]

  • Launching an Art Startup? These Online Resources Can Help.

    Launching your own art startup can be scary. Here are a few tips and online resources that may help. The post Launching an Art Startup? These Online Resources Can Help. appeared first on Artrepreneur. […]

  • Expanding Your Art Business Beyond You [Part 2]

    Are you ready to expand your art business? Here's what you need to know about hiring and terminating employees, employee retirement plans and vacation and sick leave. The post Expanding Your Art Business Beyond You [Part 2] appeared first on […]

  • You Don’t Have to be an Artist to Work with Art

    Just because you don’t possess any artistic abilities – or just because you haven’t made it as an artist yet – doesn’t mean you can’t have a creative, art-filled career. There are plenty of “art […]

  • Expanding Your Art Business Beyond You

    Artists successfully running their own art business may be ready to hire an employee. We've covered everything you need to know, from tax requirements to insurance obligations. The post Expanding Your Art Business Beyond You appeared first on […]

  • What Photographers Need to Know About Shooting People [with Cameras]

    In this article, we'll review a key example of publicity and privacy issues, and what you need to know to keep your photography in the clear. The post What Photographers Need to Know About Shooting People [with Cameras] appeared first on […]

  • Getting What You Want: Basic Negotiation Tips For Creatives

    Selling and negotiating can be very intimidating. Fear not! Here are some common sense tips to negotiation that can help you get what you want. The post Getting What You Want: Basic Negotiation Tips For Creatives appeared first on Artrepreneur. […]

  • How to Sell Art [Without Being Annoying]

    Most artists will tell you that the hardest part of their job is trying to sell their artwork to the masses. Sure, they love the creativity and the freedom being an artist provides, but how can they make a living unless they sell their work? While […]

  • Museums Deck the Halls with Holiday Cheer for All

    Check out seasonal exhibits from some of the country’s top art museums. The post Museums Deck the Halls with Holiday Cheer for All appeared first on Artrepreneur. […]

  • Why Galleries Should Get Down with Art Fairs [A Useful Guide]

    As we're winding down from celebrating Art Basel Miami Beach, we're thinking about all the different ways galleries and artists can benefit from participating in these international art fairs. The post Why Galleries Should Get Down with Art Fairs [A […]

  • Your All Access Pass to Art Basel

    Dying to tackle Art Basel Miami Beach, but not sure where to start? You won't want to miss these stunning displays of the best of contemporary art. The post Your All Access Pass to Art Basel appeared first on Artrepreneur. […]

  • Get Your Networking on at Miami Art Week

    Miami Art Week is the perfect time for artists to network and gather contacts to keep building an art business. Check out five events primed to bring new opportunities. The post Get Your Networking on at Miami Art Week appeared first on Artrepreneur. […]

  • The Garment District: From Buttons and Bows to a Home for Art

    The Garment District Alliance has worked hard to evolve the area from a faded industrial center to a revitalized business district committed to bringing art to the streets. The post The Garment District: From Buttons and Bows to a Home for Art […]

  • United States of the Art: Six Destinations for the Great American Road Trip

    A cross-country road trip provides plenty of opportunities to create art. The post United States of the Art: Six Destinations for the Great American Road Trip appeared first on Artrepreneur. […]

  • How Does a Photography Business Make Money?

    Photographers are uniquely positioned within the art world to earn money through various revenue streams. Here's how you find work. The post How Does a Photography Business Make Money? appeared first on Artrepreneur. […]

  • The Basics of Insurance Part II: Health Insurance for Artists

    In this article, we’ll a type of insurance that you’ll want to think about as you build your art business – health insurance for artists. The post The Basics of Insurance Part II: Health Insurance for Artists appeared first on […]

  • The Emergence of the Creative Entrepreneur

    The term “starving artist” has long been part of our lexicon, signifying the significant struggle artists face bringing their creative work to market. For the lucky few that survive until they have paid their dues, the career can be […]

  • Seth Godin and Marketing for the Art World

    A good marketing strategy can help grow a business if done well. Let Seth Godin show you how to be a modern marketer in his skillshare video series. The post Seth Godin and Marketing for the Art World appeared first on Artrepreneur. […]

  • These Five Companies Put the Art in Startup

    Technology and art are intersecting in more ways than ever, and today’s art startups are revolutionizing the way art is consumed and collected. Entrepreneurs have been intersecting art and technology since the start of the .com boom. Portfolio […]

  • The Art Museum In The Digital Age

    I talked with Steve Konick, Director of Public Relations and Marketing for the Currier Museum of Art, in Manchester, New Hampshire, to understand why art museums are still relevant The post The Art Museum In The Digital Age appeared first on […]

  • Should I Open a Corporation for My Art Business?

    About 375,000 visual artists claim to be self-employed yet many don't realize that their personal assets can be at risk. Find out how opening a corporation can help protect you. The post Should I Open a Corporation for My Art Business? appeared […]

  • Model Citizens and Protected Images: Work-for-Hire and Right of Publicity

    Last week, we discussed model releases, and an example concerning a model whose image was being used by a company in a more liberal manner than what had originally been agreed upon by the model and the company. You may recall that in this instance, […]

  • Does Copyright and Trademark Law Protect 3D Printing?

    3D printing is a relatively new art form is sweeping the internet and worrying designers and Hollywood executives alike. Along with the advent of 3D printing, a steady stream of piracy and copyright infringement cases have been reported by industry […]

  • Consider this tip before signing an International Art Contract

    Most art galleries participate in art fairs throughout the year. Many of those fairs are international, such as Art Basel Switzerland or the Hong International Art Fair. International art fairs are an excellent way to position your gallery in […]

  • Six Steps to Safer Image Sharing

    Despite the unfortunate reality that image sharing on the Internet can lead to misappropriation of your work, there are some steps that can minimize the risks. The post Six Steps to Safer Image Sharing appeared first on Artrepreneur. […]

  • Does Freedom of Speech Protect Taking Photos of People Through Windows?

    Fine art Photographer Arne Svenson spent a year secretly taking photos of the Fosters, a family living across the street from his home. Does the Foster's Right to Privacy outweigh Svenson's Freedom of Expression? The post Does Freedom of Speech […]

  • Four Reasons Artists Should Hire Lawyers

    Think artists can't afford to hire lawyers? Actually, artists can't afford to not have one by their side. Here's four reasons why. The post Four Reasons Artists Should Hire Lawyers appeared first on Artrepreneur. […]

  • Death and Taxes: Save Millions Through Careful Estate Planning

    Artists and collectors can minimize estate taxes on artworks by employing a planning strategy and understanding the complexities involved with assessing the work's fair market value. The post Death and Taxes: Save Millions Through Careful Estate […]

  • Can You Spot a Fake? The Trouble with Authenticating Art

    What are the challenges for collectors in authenticating artworks? What are the legal remedies when a purchased artwork is discovered to be a forgery? The post Can You Spot a Fake? The Trouble with Authenticating Art appeared first on Artrepreneur. […]