Copyrights, everything an artist needs to know

"Hopper" watercolor by Carrie Waller

Today's guest blogger Kim Minichiello is discussing copyright issues. Last week she covered trademarks and it is important to know the difference.  There is a lot of great information in this post that every artist should read about.  I've sprinkled a couple of my paintings in that I questioned about copyright issues.

Without further ado here is Kim,

When Carrie and I were conversing on Facebook about the trademark issue with the Ball Jars in her painting, she posed a question that related more to copyright than trademark, so I will be addressing it in this article.  First, let’s start with the basics.

What is a copyright?

A copyright is a form of protection to authors of “original works or authorship” including artistic, dramatic, musical, literary, architectural and certain other types of intellectual works.  Any of the above types of original works would be the “intellectual property” of the artist, author, etc.  

The work must be original and be in fixed tangible form of expression.  Among those things which are copyrightable are: pictorial, graphic and sculptural works, dramatic works, pantomime and choreographed works, motion pictures and audiovisual works, sound recordings, computer programs, and architectural works.  

Items that are generally not copyrightable include works that have not been fixed in a tangible form of expression, for example; names, short phrases and slogans, variations of typographic ornamentation, lettering, coloring, or, lists of ingredients.  Some of these, as discussed in my previous article, can be protected by trademark.

How is copyright protection obtained?

A tangible original work is copyrighted the moment it is created. In other words, it is protected the moment it is expressed in a fixed format.  The fixation doesn’t have to be directly perceptible as long as it may be communicated with the aid of a machine or device, for example music or movies.  Publication is no longer required for statutory copyright protection, however in order to enforce a copyright, the work must be registered in the U.S. Copyright Office.  What this means is, if you wanted to file a copyright infringement suit against someone who violated your copyright, you would have to have registered it with the U.S. Copyright Office.  Essentially, you are always protected, however you must register to pursue any legal course of action if your copyright was violated.

This can get quite expensive to register your work.  Here is the link that breaks down the fees for registration: http://www.copyright.gov/docs/fees.html. (Some fees are lower if you do it on line.)  However, I have heard of some artists grouping their works into collections and protecting many images for the same fee.  For example, if you had created a book in Blurb of your work you could register the book and I believe all the images in the book would be protected.  This way you are only paying one fee for several images.

Notice of Copyright, is my work still copyrighted if I don’t indicate it is with the word copyright before my name or the symbol, ©?  

Yes, there was a law passed in the United States that no longer requires you to add a copyright notice for works first published on or after March 1, 1989. Your work is still copyrighted, however, it is highly advisable to indicate a notice on your work, especially in this digital age.  Works published before March of 1989 still require a notice to be protected. 

What is a copyright notice?

A copyright notice generally consists of three elements, all of the elements must appear together:

1. The symbol, © (the letter “C” in a circle), and/or the word “Copyright,” or the   abbreviation, “Copr.” 
2. The date of first publication
3. The name of the owner of the copyright in the work. 

The year may be omitted from certain works.  I feel many artists don’t like to include the year in their notice one reason being, if you have a body of work for sale, it easily identifies which pieces are older and may not be as appealing to buyers.  Therefore, you could probably omit the year in your notice.  If you were to register the work, the year would be in the registration.

"The Night Before Christmas" watercolor by Carrie Waller

Where should I put my notice on my work?

This is personal preference.  Some put it directly as part of their signature on the front of the work.  If you don’t do this then you must put it on the reverse side for 2D work or on the bottom for 3D work.  I have also read or heard a lot of back and forth discussions on whether you should include what is called a watermark copyright notice on any images you would post on line and put on your web site, blog, Facebook, Pinterest, etc., again, this is personal preference.  Same artists feel it detracts from the work and don’t use it.  Some want it to be very obvious by placing it in the middle of the image, or across the whole image, and some use a discreet mark in a corner or bottom of the image.

Ownership of Copyright

The copyright of a work immediately becomes the property of the artist who created it.  You may allow others to use your work with your permission in writing, or through a licensing agreement, or if you choose to, you can transfer your copyright but this must be done in writing.  If you do commissions, technically this could be considered a “work for hire,” which means the person is hiring you to do the work, and it is considered the employer, not the employee who would own the copyright.   Therefore, it would be a good idea to stipulate in your written agreement that you still own the copyright to a commissioned work.   You may be okay, however, giving the copyright to the person who commissioned you to do a painting, or maybe adding an extra amount to the price of the work to cover what you feel your copyright is worth could be a solution, if the person commissioning the painting would like to own the copyright.  

It also may not be clear to collectors who purchase your work that they own the original artwork but you still own the image, and have the right to use that image if you wanted to sell prints of it or use if for licensing.  

Many people don’t understand this and feel that once they own your artwork they can use it for other purposes other than it hanging on their wall and this is not the case.  For example, say someone buys a floral painting from you and they think it would be a perfect image to use on their daughter’s wedding invitations and thank you cards.  They do not have the right to do this without your permission and if they did it would be an infringement of your copyright.  However, you could work out an agreement where they could pay you a fee to use your image for that purpose.  This is essentially what licensing is all about, but that is a whole other topic!  

How long does a copyright on a work last?

For works by individual authors or artists, the term of copyright is the life of the creator, plus 50 years after his or her death.  The term for copyright for works for hire is 75 years from the first publication, or 100 years from creation whichever is longer.

So you may be wondering, if I can’t bring legal action against anyone unless I register the mark why go to all the trouble to indicate the notice on my work or register it with the U.S. Copyright office?

By putting the mark on your work you are making it clear to anyone that sees it that you are aware of, an own the copyright to your work.  If there was ever a question that some one violated your copyright, they couldn’t pose a defense of innocent infringement.  Your mark is clearly there.  It is sad but registration is not a condition of copyright protection, but it does have some benefits and one can register anytime within the life of the copyright.  The benefits are:

Establishes a public record of your copyright claim.

It is necessary for any infringement suits.

If made before or within 5 years of publication it establishes a presumption in court as to the validity of the copyright.  

If made within 3 months after publication and prior to infringement, statutory damages and attorney fees are available to the copyright owner in court actions.  Otherwise the copyright owner may try for only actual damages and profits.  

I know this article is getting long, but I feel this is an important topic and I wanted to be sure to address Carrie’s question which was, “What about if you use another person’s art as part of your composition, for example, a still life with a postcard of another artists work or a book that has illustrations incorporated into the piece.”  This question touches on the subject of fair use. Fair use is a limitation in copyright law that allows someone to use a copyrighted work for certain purposes, such as criticism or parody, comment, news reporting, teaching, scholarship and research.  There are also 4 factors considered to determine if a particular use is fair.  They are:

1. The purpose for the use, is it intended for commercial or educational purposes.
2. The nature of the copyrighted work.
3. The amount of the copyrighted work used for your purpose related to the original copyrighted work as a whole.
4. The effect of its use upon the potential market for or value of the copyrighted work.

There is a lot to think about and consider here.  The distinction between fair use and infringement is not clearly defined and is more than likely determined on a case-by-case basis.  

Carrie could use another person’s art, as part of her composition be it a post card or a book that has an illustration as part of her piece and claim fair use, but there are things to consider relating to the 4 points above.  

1. If Carrie would be creating her work to sell then yes, it would be for commercial purposes.  In the case of the book, the purpose of her using the book in her work is different than the purpose of the book itself, same with the postcard.
2. The nature of the postcard or book is important, the year it was created is a factor, is it still a viable image in the current market place and is the original copyright owner still making money from it. If so then they wouldn’t want someone else using it and making a profit from it.  Is the copyright of the image still current or has it been renewed if necessary to still be protected?  If not, then it would be safer to use it. It may even be in the public domain, better yet.
3. How much of the original postcard or book/illustration would appear in Carrie’s piece?    The less that is used in relation to the whole, then it’s a better argument for fair use.

4. For a book, the copyright would be for the book, Carrie isn’t making money off the author’s story, she is just painting a picture of the book itself.  For the postcard, she isn’t reproducing the card, and selling it as a card, she is painting a picture of the card in her painting.  Therefore, in my opinion, she wouldn’t be harming the copyright owners market.  

There really isn’t a cut and dry answer to Carrie’s question.  But, if Carrie considers the factors for fair use and does some research regarding current status of ownership of the copyright and proves “due diligence” in seeking information about the original copyright owner then she would be safer.   Or she could even ask for permission from the original owner to use these items in her work.   

A recent case involving fair use is the case between artist Shepard Fairey and The Associated Press and his use of their picture of President Obama for the HOPE poster he created.  I’m not going into the specifics in this article but if you are interested, you can research this topic on the Internet.  It is interesting!

Another thing to keep in mind is that other countries don’t have the same copyright laws that we do in the United States.  I am basing information in this article on U.S. copyright information.

In summary, copyrights protect the work of artists, authors, and designers.  Most artists do not have the resources nor would want to spend the time to register all of their work, however your work is still protected. Taking someone to court for infringement of copyright can be a very expensive endeavor and may not be within your financial means.  However, you still have protection.   If you find that someone is violating your copyright you can ask that they cease and desist using your image for their purpose and inform them that you are the copyright owner.  The bottom line is, it isn’t fair for someone other than the original author or artist to make any monetary gain or claim authorship on work that isn’t theirs.  If you would like to use the works of others in your own work, claiming fair use, either ask permission if it’s relevant, or show due diligence in searching and coming to the conclusion that it’s okay. 

I want to thank Carrie for giving me the opportunity to post these articles and I hope that I have helped clear up any questions that fellow artists may have had regarding copyrights and trademarks.  If anyone has anything to add or would like to start a discussion, feel free to contact me or make a comment on my blog or Carrie’s. Happy painting!