View Full Version : My work is lawsuit-bait...
02-13-2002, 02:11 PM
As some of you know, my artwork is dangerously sharp, incorporating scalpel blades, fish hooks, hypodermic syringes, et cetera...
Even though I always sell my sculpture inside a protective display case, with a warning on the back, I am totally convinced that someday, somebody will try to slap me with a lawsuit because they / their kids / their poodle stupidly got injured / killed by my artwork.
And in case you're wondering -- yes, I've already done extensive inquiries to try and find somebody willing to sell me liability insurance. They always say "Sure, we will! We have a small business package that includes liability coverage!"... and then they find out what I'm actually doing and say "Oh uh, NO, nevermind."
I even went so far as to call some artist and art fair insurance companies out in Los Angeles and they all said no. One place did say they would perhaps insure me -- for $5,000 a year. Too bad I don't sell $5,000 of art in a year.
I called lawyers for advice and they all said to call insurance agents (who had all already said no)...
Meanwhile, I'm still selling sculpture. What else can I do? Hide it until somebody offers to insure me? I've been looking for answers for over a year.
What should I do?
-=- Jen "This feeling of doom is hurting my enjoyment of my work..." de la Cruz
02-13-2002, 03:15 PM
Very good question. One that has bothered me, too. Sell only with a disclaimer? Are disclaimers protection from lawsuits?
Too bad we live in a sue happy country. It's obvious that people can get hurt if your (or mine) pieces are used or abused in ways not intended, but many people don't believe they are responsible for their own actions (or inactions).
I've always felt that we need a change in our tort laws. Even if we win a tort case, we lose, because it can cost a fortune to fight a suit in court. In a criminal case a state must present it's case to a grand jury first. Seems reasonable to me that a tort case should also go through a similar jury to protect people from frivolous lawsuits.
This doesn't answer your question, I know, but I don't think there is an answer right now. If there is, I'd sure like to hear it.
02-13-2002, 03:28 PM
Originally posted by jackddavis
Sell only with a disclaimer? Are disclaimers protection from lawsuits?
According to the lawyers I spoke with, a disclaimer does NOT stop people from suing you. However, a disclaimer can dissuade them from bothering to file, since they would have to find a way to claim they didn't know it was dangerous.
From what I've read, liability lawsuits generally claim that there was a manufacturing defect in the item that caused the injury. However, in my case, the danger isn't a defect. It's a feature. ;) I'm not sure if that would matter though.
Anyway, I agree Jack, I am eager to hear anybody's answers/suggestions.
-=- Jen "It's not a bug, it's an undocumented feature" de la Cruz
02-13-2002, 04:28 PM
since they would have to find a way to claim they didn't know it was dangerous.
There used to be a regular feature in the Readers Digest that featured frivolous lawsuits.......A couple that stick in my mind:
Burgular attempting to break-in through a skylight fell through the skylight and sued claiming the skylight was defective because it didn't hold his weight. He won his case.
Another sued a government entity (city, county or state) in CA because he was bitten by a shark while swimming in the ocean. Claims they should have posted warning signs. He also won his case.
No one is immune from insanity. That's what's scary. And you never know how a jury will rule. :(
Big warning on your work...."Danger! Bugs can bite and may be poisonous!". :D
02-20-2002, 07:52 PM
Jen, I don't have any idea the cost involved...but have you considered having a company use your bugs within paperweights?
I can just see a clear glass paperweight with your bug suspended in the middle of it! and those paperweights are really hard to get into.
(not that I've tried!)
02-21-2002, 08:36 AM
Believe it or not, I have talked to several companies about this. It would have to be a plastic paperweight, not glass. The rates they quoted me were just insanely expensive... I was really disappointed. :(
I like the idea, too -- it's like a modern version of finding an insect fossilized in tree sap! :)
There are apparently some at-home kits ("Casting Craft" brand) that I could use to do this myself, but the chemicals are so insanely obnoxiously toxic, I'm not inclined to do so. Plus apparently it's very common to get bubbles on your imbedments.
I've also considered getting an acrylic box made to fit and putting the insect inside that with its feet glued down, then using acrylic cement to glue on the lid. So it would still be visible from all sides. Plus, then I could put a paper label in there. On the other hand the wings might scratch the inside of the box...
I ALSO considered putting them inside empty snow globes. ;)
Bleah! It's so tough to decide...
-=- Jen "Indecisive, worried, etc." de la Cruz
02-21-2002, 02:59 PM
Have you considered resins? Perhaps that is what the "Casting Craft" brand that you mention is, but I question the toxicity that you talk about. Either polyester or epoxy resins will make castings. I use epoxy resin frequently as a glue to adhere styrofoam to steel (polyester will melt styrofoam) and am not aware of any toxicity problems with normal precautions. I use a mask when sanding so as not to breath the dust and, while curing, keep the space well ventilated. Bubbles could be a problem, but not insurmountable. Polyester resin has a short working time (about 20 minutes) and epoxy has a long working time (hours).
I would guess that using epoxy resin you could work the bubbles out. Perhaps a vibrator to float the bubbles to the top?
02-21-2002, 03:56 PM
Speaking as a biologist who's taken a few too many years of organic chemistry, and as an ex-quality inspector for all sorts of fun chemicals... AND as an artist... here's my justification for NOT feeling comfortable with resins. I know that nobody was trying to force me to use them. :) I just HAVE to post a smartassed rant right now, okay? Nobody take this personally, please, I'm just venting.
Chemicals in the art world are a very sore point for me, especially after seeing all my artist friends in college do things like wash their hands with pure turpentine or acetone. Solvents and catalysts are wonderfully horrible carriers for bringing nastiness into your body. (Think about that, next time you remove your nail polish and get the polish remover on your skin, ladies.)
Here's a table of nasty chemicals many people encounter cluelessly on a daily basis: http://www.rowatworks.com/Science/Tox_Chem_Table.html
Casting Craft is a resin, in the same family as epoxy and fiberglass resins. All references I've ever seen to resin-type chemicals, including the warnings on the containers themselves, warn of high toxicity, and/or potentially acute sensitization and allergic reactions...
As I understand it, the resins themselves are not too bad, but the chemicals used for the catalysts and hardeners are really nasty. Even if you don't touch it, there's fumes (which are completely unaffected by a dust mask).
Here's a comparison of various types of resins:
I know that even the nastiest chemcials are not very toxic in small doses, and with good ventilation... but, I still feel like there's a big difference between gluing a couple of parts together, and mixing the stuff up a quart at a time! Eek!
The fiberglass type resins are the worst offenders. Mmm, peroxides and toluene! Just inject it directly into your liver. :evil: The amine-based ones are sensitizers.
Basically, if you have to mix the chemicals yourself, then that typically means they need to cause a chemical reaction on the spot, therefore they're reactive, and that's usually a Real Bad Sign. Even so-called "safety" resins are analogous to "odorless" paint thinners... sure, it doesn't smell as bad as regular turpentine, but that doesn't make it non-toxic.
I HAVE seen a few epoxies and superglues that say "non-toxic" but if you read the fine print, they really mean that the finished, cured product is non-toxic (so you can use it to glue food dishes and such).
All the crystal-clear colorless resins I've seen are of the toxic variety... most of the less toxic ones are naturally colored or opaque.
Maybe I'm overly anxious, but this is my personal concern and I'm uncomfortable with it. It's more than enough to scare me off from fooling with resin.
Women planning to have kids have to worry more about toxicity issues than men, since men create a brand new supply of sperm every couple of days wheras women must protect the one set of eggs they have.
Honestly though, I'm paranoid enough that I generally stay away from all SORTS of solvents. That's the ENTIRE reason that I never learned to paint. If I have to use spray paint, I wear gloves, hold my breath, and run away when I'm done. :D (I spray paint on my balcony.)
I don't even like the flux I have to use when blowtorching my sculptures. Sure, I don't mind getting gashed by blades while I work, but chemicals? Ewww!
But, at least I know what acids (like flux, gun bluing, etc.) and bases do, and most of the effects are limited to your skin. I just don't like chemicals that can potentially slip through your lungs or skin and into your bloodstream. My rule of thumb is to try and only use chemicals that say "Caution", not "Warning" or "Danger" on the back.
Anyway, this is getting WAY off topic from my original questions, which are still apparently unanswerable here. :(
-=- Jen "It *amazes* me that artists can buy paints containing xylene in a craft store... and that they actually do so..." de la Cruz
03-19-2002, 01:30 AM
What kind of insurance do Performing artist use if any?
The reason that I ask is because many of the performance that I have seen could be very dangerous... and I have seen some of these people turn around and sell parts of their show off to people... one that sticks out in my mind was an strange axe thing and a container that looked like it held something like oxgen in it... this person sold this straight out to some FAMILY... I was just picturing how these bratty kids were going to smack the container with that axe and blow themselves up or something...
Another place to ask about legal stuff is a state college that has a pre law and law school... they might be able to tell you what your rights are and how to protect yourself for free or at a really cheap price (most of these schools have a special set up for people that need law advice and can't afford it)...
And what if you embeded your pieces into clear soap or wax and then put it into some kind of a case... some of these soaps and waxes are so clear now that they look like glass or plastic...
But, I hope you find an answer to your problem... but it would really help is stupid people didnt do stupid things... then you wouldnt have this problem to worry about...
03-19-2002, 06:23 AM
I'm with you Pixelscapes. The folks who may think you are paranoid don't read labels. All life has risks but with a bit of knowleged we can mitigate some of them. It's one thing to do something you know might cause you adverse consequences but decide the trade off is worth it. Quite another to put yourself in harm's way without being aware of it.
03-20-2002, 02:36 AM
If you sell it, you are liable for any fools who hurts themselves because of it. It doesn't matter if you put a disclaimer out. Ya gotta make it idiot proof!
03-20-2002, 11:58 PM
How can that be entirely true though? People can sell sharp scissors and razor blades and get away with it. Why not art made from razor blades?
There must be SOME way.
03-21-2002, 11:54 PM
How can that be entirely true though? People can sell sharp scissors and razor blades and get away with it. Why not art made from razor blades?
I agree with you... there has to be away...
03-24-2002, 11:08 AM
What about something more than a disclaimer? What about a document, similar to a certificate of authenticity stating the copyright of the author, which states that the artist is not liable for any injury or damage incurred to the buyer or 3rd party as a result of the work being used or displayed incorrectly (incorrectly also meaning displayed in a way/place where it is unstable and could fall or get in the reach of children). On purchase the item becomes the personal property (copyright excluded somehow?) of the customer and they are responsible for their own 3rd party liability insurance for damage/injury from the object.
That's about as legalese as I get. :D I cut myself with my lino tools all the time. Never thought of suing the tool company. Usually I'm just so embarrassed I've done it all I sneak out the room and put pressure on the gash with a towel in a way that no one else realises my idiocy. (this happens once a month, at least) Gotta ring up one of the no-win no-fee places NOW! I wonder if the history of scars can serve as evidence?
It's a shame you have to worry about this. I think your work is wonderful and would love to buy it for friends except that a. I can't afford it! and b. they have a soon-to-be-toddler baby rugrat thing and I dont know where they'd be able to display it out of reach.
04-16-2002, 04:59 PM
Isn't there something called a contractor's hold safe that could serve as a guide for solving this? It seems to me that you need a signed document from your client or customer acknowledging the dangers inherent in your work and, by buying it, accept responsibility for any future damage. I've been thinking about this for some time and must be missing something. If you are walking through a museum and one of those giant Monet's falls off the wall and breaks your foot would you sue Monet (even if he were still alive)? I don't think so. The museum - yes.
04-16-2002, 07:56 PM
Yeah, I've considered that option. It might be the only way...
For those of you who haven't heard of this before:
"A hold harmless is an agreement between two parties stating that one party will assume the risk of legal liability
associated with an event for the other party. It is a risk transfer mechanism. Usually a landlord will include hold
harmless language in a lease to protect him or her from being sued as a result of the event occurring on his or her
Here's an example, which is specific to an exhibition:
I keep investigating and investigating, but, I guess this is all I can do. I don't like it because it means I need to get individual collectors to sign it, I might need to get it notarized, etc... but... oh well. Time to talk to my lawyers...
-=- Jen "Hold THIS!" de la Cruz
04-17-2002, 09:19 AM
Maybe you should ask yourself this question - How many times have you heard of an artist being sued for creating art? If it happened very often, it would be difficult to imagine a more effective form of censorship. Even though America has more lawyers than all the other countries of the world combined they haven't fouled up art yet.
04-17-2002, 10:32 AM
Pix - My education and experience is similar to yours chemistry, engineering, technical writing and quality assurance. I am not trying to be a smarta** here, but if you have ever worn cosmetics you have probably experienced a toxicity level similar to the tox level in art materials.
04-17-2002, 10:37 AM
I'm not expecting to be sued for CREATING art. This isn't about toxicity, although I was ranting about that earlier. :D
I /actually/ expect to be sued when someone gets their hands on one of my sculptures and cuts themselves, either accidentally or in some kind of suicide attempt. My sculpture incorporates razor-sharp blades, fishhooks, hypodermic needles, etc.
It wouldn't be hard for the legal system to declare these manufacturing defects, and totally ream me under product liability law... which is much more strict and vicious than for ordinary personal injury claims. Presumably you can now see why I'm worried. :evil:
-=- Jen "Psycho art! Qu est'ce que cest?" de la Cruz
04-17-2002, 11:16 AM
Pix- I think, legally there is difference between manufacturing a product and creating art. If handgun manufacturing companies cannot be sued I don't think you need worry.
04-17-2002, 12:01 PM
Perhaps the best insurance is just that......insurance. Maybe a good umbrella policy along with a disclaimer...I would certainly apply warnings for the buyer to keep it out of the reach of small children. .....then rest easy so as not to get ulcers.
I personally don't like insurance. You spend big bucks for protection against things that never seem to happen. The wife and I spend over 10,200 a year just for basic insurance policies (over 7000 of that is for catastrophic health ins). But get caught without it.................!!!!!!!!!!
Who says you can't sue gun manufacturers? They're being sued all the time. It's just that judges, in their wisdom, are saying that the gun manufacturers are not negligent or responsible for the misdeeds of others. But if someone is injured by a gun that fired due to a defect in manufacture..........Another matter entirely.
As I understand tort law......to succeed you must prove negligence. Is producing art with sharp edges and points negligent? I try not to have sharp edges or points on my art, but???? If someone uses it to commit suicide are you negligent? If a poker is used to commit murder is the poker manufacturer negligent? If a swimmer is bitten by a shark is the State negligent for not posting signs warning of sharks?
04-17-2002, 12:07 PM
And this is why I'm giving up and hiring a lawyer. :)
We'll see what he or she has to say about this. My hunting for insurance has been completely unsuccessful so far though... Everybody says NO when they hear what they'd actually be insuring.
04-17-2002, 12:28 PM
I understand your dilemma. I, too, have wondered about liability involving my art work. I just finished a fish in fronds made with steel and someone commented that they could just see themselves falling on the fronds. Pierced as with a sword. It's hard to be creative while worrying about legal stuff. I do have an umbrella policy and if I understand it correctly, it will cover anything that isn't covered by another policy. It isn't just for artwork, but homeowners, automobile, business, etc. Anywhere liability is concerned. Kind of a catch-all policy. As the term "umbrella" implies, it covers all.
04-17-2002, 12:42 PM
I can't offer any guidance on this Pixelscapes.
Depression sign of the times.
Interesting thought, though, what happens to a watercolour artist who frames their pictures with a glass frontage. The buyer then hangs it on wall, it falls down, glass breaks and someone cuts their hand.
Who is to blame, the artist for choosing pastel as a medium for a picture, that needs a glass frame to help protect it, the framer for not using bulletproof glass, the manufacturor of the frame hook etc etc etc.
Surely the analogy is the same ??
The buyer has to be aware of the dangers, and in so purchasing same implies acceptance. ( too simple ??? ).
BTW love your work on your web-site. Impressive.
04-19-2002, 12:51 AM
Jen, after looking at your work, my suggestion would be that you take a sharpening stone and dull the edges and tips. No one would know that they weren't quite as lethal; you wouldn't see any difference.
The idea is to keep someone from inadvertantly slicing and dicing their hand as they casually pick up and handle or examine your art work. The important point (no pun intended) is that, for example, a razor blade sold and used as a razor blade isn't a problem for the manufacturer because it isn't something that someone would mistake for how it is used. But curious critter art work invites handling in the same way as any brooch might be handled..with the UNEXPECTED sharpness being a basis for a law suit. I also am concerned about the issue of their attractiveness to children...
But aside from all this legal mumbo jumbo, I really really really like your work! Bugs and bristly critters make one think of stingers and sharp claws and such, and your use of 'sharps' fits right in with the less-than-fully-conscious schemas associated with such critters...way cool:D
04-19-2002, 03:50 PM
Thank you Andy! And yeah, exactly... the real problem is that people don't instantly recognize it's a dangerous object. I'm not selling Ginsu knives, here. I've already seen far too many people nearly hurt themselves.
I have seriously considered desharpening them. If I can avoid desharpening, I'd like to. There are a few reasons.
A) As an artist, I like them being sharp. Desharpening them would be like... castration. But if I HAVE to, I will.
B) If I desharpen them, and somebody manages to poke/cut themselves anyway, then I'm probably MORE liable because I gave them a false sense of security. That would be a "product defect" for sure. I don't want to sell them as if they're safe; they're not.
C) A lot of the blade shapes I use are nearly impossible to desharpen effectively. Besides, even if the blades aren't sharp enough to cut, they're definitely sharp enough to poke -- not only is there the wire factor, but I also use needles and fishhooks. There's just no way to make those safe.
Ah well. I guess I want to have razorblades in my cake, and eat it too. :D :D :D :D :D
Anyway... thanks so much for the compliments! I appreciate it. You're absolutely right about how this ties in to how people instinctively react to creepy crawly critters. :evil: It's that combination between fascinating beauty, and perceived danger (a perception that's often blown way out of proportion, but is still programmed into our mindset).
-=- Jen "Kills bugs dead!" de la Cruz
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