Articles

Art and Craft Festival Copyright Issues

May 2010
An overview on copyright issues for artists

Art by Petr Kratochvil from publicdomainpictures.netArt by Petr Kratochvil from publicdomainpictures.net

What does artistic copyright really mean for the artist?

Under United States Copyright law, and the copyright laws of many other countries,  a copyright  generally gives the creator of an original work of art the rights to sell, produce and distribute their work.  There is the added protection that is also excludes others from using your work without permission.  Copyright protection extends to artists, sculptors and photographers.  The protection can extend beyond the Borders of the United States and to those countries that recognize the Berne Convention for the Protection of Literary and Artist Works (Paris) agreements and treaties.

Ownership Has Its Privileges- Works for Hire Confusion

Consider that you are asked to paint a specific work.  Under United States Copyright Law, you are not the holder of the paintings copyright.  The person who commissioned the work is.  This situation is called “work for hire.” And, this extends to works that are commission or created through employment with a company or corporation.  However, if you were inspired and created an original work of art and then sold the piece, the copyright does not rest with the buyer, but with you.

Moral Rights v. Copyright Confusion

Many countries recognize moral rights, including the United States under the Visual Artists’ Act of 1990.  Moral rights are clearly distinguishable from copyrights, and do not afford the same level of control over a work of art.  In many cases, the copyright holder is the same as the creator of the work.  Thus no issue of the separation of the rights occurs.  However, in those cases where the original art work is a commissioned work or work for hire or has been assigned to another person, the original creator or artist may still hold moral rights.

Under a copyright, the copyright holder can sell, distribute and exclude the use of an original work of art.  Moral rights, in effect, create “respect” protection.  These rights shield the original work and the artists’ name from the holder’s potential mutilation, distortion or false attribution.  Basically, the work remains untainted and the artist receives create for creating the work.

Inspiration or Imitation

A rose, a rainfall and a photograph may all be inspirations for an artist. But, some inspirations are more problematic than others.  A photograph is protected under copyright law on the moment that it becomes “fixed” in form.  As such, an artist seeking to paint or reproduce a photograph into a painting must seek permission.  In essence, any work that originates from the photo may not be considered original, but a “derivative work.” The same holds true to paintings of classical paintings, architectural masterpieces and even movie characters/carciatures.  The inspiration is born of a potentially copyrighted work.

Artists need to research copyright holders if they want to create their own works from photographs, paintings, or even architectural designs.  The Copyright Office can perform searches on those registered items. However, for those unregistered items, artists should beware. If you don’t know the source of the work, some additional sleuthing may be necessary.  But, before throwing caution to the wind remember that an original copyright holder or claimant rights extend to derivative works, which your new work would include.

Infringement v. Fair Use

While copyrights protect your works from unauthorized use, there is some unauthorized use that is acceptable under the law.  For an artist, understanding the distinction between infringement and fair use is important.  The principle of fair use has basically evolved from various court decisions and now is a lasting legal tenet.

Generally, infringement occurs when another person produces, profits, performs, copies, derives another work from, or even displays your work without prior permission.  As a copyright holder, you can enjoin or stop the use and can in some cases seek damages.

Fair use, as per Section 107 of the United States Code, of a copyrighted work occurs when the work is used for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.  There are specific guidelines on how to analyze if specific use crosses the line into infringement.  Typically, people who seek to use copyrighted material need to seek permission. In the case of fair use, they do not.

For more resources on artist rights and copyright law, you can check your local library or bookstore.  Online sites such as Amazon offer books such as Lerner and Besler’s All About Rights for Visual Artists.  In addition, check out the following links:

http://www.copyright.gov/reports/exsum.html
http://www.copyright.gov/title17/92chap1.html

Comments

i make Hello Kitty buttons with cute photo-shopped variations,(French hello Kitty, Sad Hello Kitty) and the copyright issue has been raised.  Does anyone know for sure? 

karaholton

By karakevyn on July 24, 2010

That would be a violation of copyright.  It is a derivative work without permission and you are benifiting off of Hello Kitty’s style, popularity, and marketing even though you put your own spin on it.  Now a permited use would be if you were making an art piece that said something specific about Hello Kitty or the company that owns it, then you can use a their style, emblems and even Hello Kitty herself to makr your point, but it can be tough if the statement is not obvious.  It would then fall under artistic use.  Personally I think the law is stupid because there is no such thing as a pure non derived or uninfluenced art piece, craft, pattern, song, etc, etc, etc.  And I think it is an extremely long time for copyright to exist preventing remixing, rehashing, and making better all the art and entertainment I enjoy from fresh new perspectives.  The only ones that benifit from the length are the companies that fear investing in new people and would rather fight over who owns Winnie the Pooh for another 50 years.

By LeAnn on November 28, 2013

I have a collection of greeting cards from the 1900-1920s. I would like to use the images on these cards to make my own cards to sell. None of the cards has a manufacturer or maker on them. How do I go about finding whether these images are usable?
Thank you.

By Sheryl Lamoureux on October 30, 2014

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