Copyright Issues for the Artist, Donna Aldridge PSA, MAPS Pres./Ed. with John Mutrux of Mutrux & Assoc., Professional Photographer ASMP
Reprinted with permission from “Mid America Pastel Society Newsletter”, September 2000, Volume 3 Issue 9
Photographer John Mutrux and Artist Joseph Tomelleri have both become experts on issues of copyright law over the years. Why present a program on this subject? One reason--we need to understand the law and how to protect our work--with a better sense its full value. Another--a major pastel show, we've been given to understand, had to remove one of the award-winning pieces when it was recognized as having been taken from a magazine picture. The prize was rescinded. While copying a Master's painting in a museum as an exercise in technique has been a hallmark of a classical technical education, the difference between such educational copying and copyright infringement rests on intent and the clear understanding and acknowledgement of who actually created the work. Today, infringing someone else's work is not only a bad idea, for some it can even lead to financial ruin.
Concept, the idea for a painting, and Composition, the way it is constructed, lighted, etc., is at the heart of any painting. How the pigment is applied is the personal "handwriting" of the artist. But first comes what landscape you arrive at, or pieces you assemble for a still life and how you arrange them--or your model, the size/proportion of your paper/canvas and where you crop your view of the subject, whether you move in closely or observe from a distance--those are all integral creative considerations of an artist in beginning to put together a work of art. And it's also an adventure, yes, often a challenging one, but for a fine arts artist, it's also the point of inspiration. The Concept and Composition need to originate from our own inner creative resource--as well as does the way we apply our pigment.
Although an idea cannot be copyrighted, the moment an idea is fixed in physical form, as in a painting or a photograph, that visual work and the rights therein, are protected under the copyright law. Even though each artist's style of painting and rendering is unique, if an artist copies, even subconsciously, and his work bears a "substantial similarity" to another work, it may be judged in court to be an infringement. The only safeguard here is to know what the law says and to be aware of how we use the inspiration that we all derive from other artists' work.
As artists, the copyright law works for us all the time, whether or not we're aware of it. Although, the saying, "When it's created, it's copyrighted," is literally true, if we don't actively understand the law and its requirements, we may not be able to derive the maximum benefit (punitive damages) when an infringement of our work occurs. And, unfortunately, when the infringement occurs, it may be too late to take the necessary steps, principally, registration of your copyright.
Another, little understood fact about copyright is that the law separates "intellectual property," the rights in the work, from "physical property," the work, itself. As artists, we all too often blithely sell a painting without a thought as to the possibly-more-valuable property, the reproduction rights in the work. And just because we've sold the painting, until we assign our rights to another person, in writing, we still own all the rights in the work, which in some cases may be worth many thousands of dollars through print sales or the infinite variety of ways that visual art can be used.
John Mutrux includes very well-written image licenses in his contracts when he negotiates use of his photographs. He says, somewhat tongue-in-cheek, that "good licenses only keep the honest people honest." Some artists, such as Joe Tomelleri, have discovered their copyrighted artwork unlawfully reproduced on shirts, bed sheets, mugs, etc., and have found it necessary to go to court to stop the illegal use of the artwork and to gain compensation. The fact that the law allows punitive damages of up to $150,000, per infringement, plus actual damages and court costs, makes vigorous defense of one's copyrights very worthwhile.
We know of an incident where a woman was commissioned by an acquaintance to create a painting of the latter's church to be used as a gift. The church authorities were so delighted with it that they decided to produce note cards, little pictures and other items featuring the painting and use them to sell as a 'nicety' for members and, in the process, raise funds for the church. While it made for some discomfort, the artist did go to the church and inform them that she still retained the copyright--which had never occurred to them. They were able to negotiate and the artist was rightly paid a respectable fee for the use of her work. For others, an attorney may be the only solution. Although a case like this is referred to as an "innocent infringement," such use, undiscovered, deprives the artist of some (or most!) of the value of her work.
Taking it as a compliment that someone wants to use your work when they 'kidnap it' is not being very complimentary to yourself! If you are making a charitable donation by giving the copyright away, with or without the painting, that is fine! It is simply important to know it is your choice!
We need to be clear when we sell a work of art that we still own the reproduction rights unless we negotiate to license the image for specific uses. Photographers like to say, "Any picture that's worth being printed is worth being paid for, every time. The price may be negotiable, but the principle isn't." Complete understanding of your rights under the copyright law is the only way to maximize the benefits that you derive from your work as an artist.