Copyright, A Quick Introduction

I originally posted this on my blog, "Confessions of a Postmodern Pre-Raphaelite", a couple of years ago, but it's still pertinent.


Recently I ran across two artists' anecdotes of their art imagery being taken without permission. I don't know if it's coincidence, or if lots of artists have similar troubles and I just happened to run into two of them.

Emila Yusof , based in Malaysia, draws charming illustrations of children and sensitive watercolors, and Von Glitschka is an Oregon-based designer of graphic, clean-edged illustration and tattoo designs.

Ms. Yusof in her blog ("Without permission") describes a local business which copied an image she had recently drawn for Malaysian Independence Day. The business was using it as a greeting card and public decoration.

Mr. Glitschka had one of his designs, a tribal mask, directly copied and offered for sale (in separate incidents) by Shutterstock Images and by Diamante Transfer. Details can be found on his weblog at "Graphic Heists". He also had one of his illustrations, a "Keyboard Character" named Pet Monster, pastiched by Ricoh for their digital color printers advertisements ("Ricoh Copies?") . (This last could be argued, since the ads are not direct copies of his work. However, the relationship seems pretty blatant, particularly since the ad agency in question specifically requested copies of his art before producing the ad campaign.)

While copyright is an often misunderstood part of art law, it is at heart very simple:

The artist is the only one with the right to copy or sell images of his or her own work.

Period. Full stop. Note that you don't have to "register" to get copyright. You don't have to put the little copyright sign of a C in a circle anywhere on the work. Copyright is automatic as soon as you make your artwork (or writing or music or video or photo). It's yours, and no one has the right to take it from you. The only way to give any of it up is to actively opt out, for which there are careful legal procedures.

(There are a few complications. You can, for a fee, officially register your copyright with the US government. This gives you extra legal protections in the event that someone violates your copyright and you have to take them to court. There is also a doctrine called "fair use" which allows limited use of copyrighted materials for nonprofit educational purposes, or for satire.)

An image made by an artist is the property of the artist, and no one may copy it except for clearly defined private personal use. Even if, as in the case of fine art, the artist sells the original artwork, the artist retains copyright. If you buy a painting, you don't get to copy it and sell prints, although the artist may. This holds true for designers and graphic artists as well. Work they have made for their own use is theirs. It's a violation of the law to take and use or sell it as the companies mentioned above did, instead of honestly contacting the artists, contracting with them and paying them fairly.

There's an excellent overview of what is and isn't fair use as decided by court cases at "Summaries of Fair Use Cases" at the Stanford University Libraries:
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html

Note in the list of artwork cases that small thumbnails are judged as fair use, but deliberate copying of an artwork in a different medium (as with the two artists above) is not.

Other helpful sites are:

• Art law and copyright faqs at http://www.photolaw.net/faq.html
• http://www.artlaws.com/
• http://www.law.harvard.edu/faculty/martin/art_law/image_rights.htm
• A copy of the Digital Millennium Copyright Act of 1998 at http://www.copyright.gov/legislation/dmca.pdf

Medievalist said:

Note that derivative works are also covered by copyright.

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Ah, yes, an important point. You can't make a new artwork incorporating someone else's copyrighted artwork without permission.

A painting based on someone else's copyrighted photograph is a violation of copyright.

In a famous case, Jeff Koons, whose kitschy large-scale sculptures are celebrated in the art world, was successfully sued by Art Rogers for copying his photograph of a couple holding an entire litter of puppies as a large-scale sculpture and selling several versions for hundreds of thousands of dollars each.

Koons tried the defense that his sculpture was parody, since the puppies were painted blue and given big noses and the people were somewhat distorted with flowers stuck in their hair.

(Parody, by the way, is a nuanced area of copyright law. If people are interested I can dig up more information about how it works.)

At any rate, the judge did not accept Koons' defense, saying "In short, it is not really the parody flag that Koons attempts to set sail under, but rather the flag of piracy." (ouch!)

The two images can be seen at http://www.law.harvard.edu/faculty/martin/art_law/image_rights.htm

There is an excellent, detailed discussion of the case by Mary Ann Fergus, a lawyer who specializes in art law here.

Medievalist said:

Parody is decided in court; it's expensive. It's not a defense, it's a potential safe harbor that is determined by a judge or a judge and jury.

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Agreed.

Interestingly enough, it's thanks to MAD Magazine that parody as fair use even exists. The magazine published a compilation of song parodies in 1961 and was sued by a consortium of songwriters led by Irving Berlin and including Cole Porter and Richard Rodgers. The magazine won modestly in the District Court, then completely in the Circuit Court in 1964, and then the Supreme Court declined to hear the case, leaving Americans free to parody popular songs at will, thus leading directly to the career of Weird Al Yankovich.

Judge Charles Metzner's opinion on the case can be read here, and for legal writing it's a knee-slapper.

But don't rely on claims of parody to protect against lawsuits. Note that it did not work for Jeff Koons.