It not only serves as a source of income but also reflects your unique vision and hard work. That’s why understanding copyright law and knowing how to protect your intellectual property is crucial.
To help artists navigate this complex topic, Artwork Archive recently hosted a webinar with M.J. Bogatin, a founding member of the San Francisco law firm Bogatin, Corman & Gold. Bo's practice includes handling large-scale public art commission contracts and visual artists' moral rights claims. He serves on the boards of several Bay Area nonprofit arts organizations and is a long-time officer of California Lawyers for the Arts. With extensive experience in arts and entertainment law, including visual, literary, performing, film, and multimedia, Bo provided valuable insights on copyright law for artists.
In this article, we'll break down some of the key takeaways and answer the most common questions asked by the audience to help you take control of protecting your art. We'll also share tips on how Artwork Archive's tools can support you through the process and preserve your artistic legacy.
DISCLAIMER : This article is for informational purposes only and does not constitute legal advice. The information provided is based on insights from a webinar with an attorney, but it should not be considered a substitute for personalized legal guidance. Copyright laws can be complex and will vary depending on your specific situation and jurisdiction. It is always recommended to consult with a qualified attorney specializing in intellectual property law for advice tailored to your individual needs and circumstances.
One of the first questions many artists have is, "When does copyright protection start?"
The answer is simple: copyright exists from the moment your work is created and fixed in a tangible form. As Bo explained, "I want all artists to realize that these rights, at least under the US law, belong to you as soon as your artwork comes into existence, whether it's a physical work or a digital one."
This means that as soon as you complete your painting, sculpture, or digital artwork, it is automatically protected by copyright law. You don't need to register your work to have a copyright, although registration provides additional benefits and is necessary for legal enforcement.
For our international audience, it's important to note that copyright laws can vary from country to country. However, most countries are part of the Berne Convention, an international agreement that provides a framework for copyright protection across borders. As Bo mentioned, "Internationally from the US perspective, the US copyright holder can seek protection of an infringement of our right in Europe or in another country under the laws of that country."
This means that if you're a US-based artist and someone infringes on your copyright in another country, you can seek legal recourse under that country's laws. It's always a good idea to familiarize yourself with the specific copyright laws in the countries where you plan to market and sell your work.
Conversely, a foreign copyright holder can pursue an infringement occurring in the US under the US Copyright statute.
One of the most fundamental concepts in copyright law is the distinction between ideas and expressions. Let’s clear up any confusion:
As Bo explained, "Copyright applies only to expressions, not to the underlying idea that you've come up with. The idea of painting the Golden Gate Bridge from underneath is not intellectual property that could be claimed by anyone."
To avoid infringing on another artist's work that you have seen, make sure your creation is not substantially similar to their expression of the same idea. Put your own spin on it!
Many artists rely on reference photos for inspiration or to improve their craft. However, it's crucial to understand the potential copyright implications of using images found online. Just because an image is publicly available does not mean it's free to use without permission.
If you want to use someone else's photograph as a reference, even if you're not directly copying it, the safest approach is to obtain permission from the copyright holder. Alternatively, you can use your own reference photos or work with images that are explicitly labeled as free for public use or known to be in the Public Domain.
As an artist, you may encounter situations where you create work for hire or participate in collective works with other artists. It's essential to understand the implications of these arrangements on your copyright ownership and rights.
When creating commissioned artworks, clarify whether the work is considered a "work for hire" under the U.S. Copyright Act. In a work for hire situation, the commissioner or employer is considered the author and copyright owner of the work, unless there's an agreement stating otherwise. To maintain control over your copyright, negotiate and enter into written contracts that clearly define your ownership rights and the terms of the commission.
Collective works can take many forms, such as art books featuring multiple artists, group exhibitions, or collaborative installations. In these situations, each contributing artist typically retains the copyright to their individual work, while the copyright in the collective work as a whole is held by the organizer or curator. However, it's crucial to have written agreements in place that outline the rights and responsibilities of all parties involved, including how the works can be used, displayed, and reproduced in the context of the collective work.
When collaborating with other artists on a project, establish clear written agreements that address copyright ownership, licensing, royalties, and attribution. These agreements help prevent misunderstandings and disputes down the line, ensuring that each artist's rights are protected and their contributions are properly recognized.
Certificates of authenticity (COAs) are documents that confirm the authenticity and ownership of an artwork. They can also be used to specify the copyright ownership of a piece, even after it has been sold. By creating and storing COAs with your artwork records, you can establish a clear chain of ownership and protect your copyright interests.
When creating a COA, include essential information such as your name, artwork details, and a clear copyright ownership statement. Sign and date each COA to ensure its credibility and legal validity.
To protect your rights, issue COAs for all your artworks and keep detailed records of ownership history. Artwork Archive allows you to easily create and store COAs for your artworks, helping you keep track of your copyright ownership and maintain detailed records of your work.
If you're a prolific artist with a large body of work, registering each piece individually can be a daunting and expensive task. Here's some good news:
"It's often possible to register a bunch of yet to be published works together for a higher fee, but you might be able to do a whole year, or at least a whole season's worth of images at a time for the single fee," Bo noted.
While registration is not required for copyright protection, it is necessary if you ever need to enforce your rights legally. Plus, it provides additional benefits, like the ability to claim statutory damages of up to $150,000 instead of the infringer’s profits (if any) as well as recover your attorney's fees as the prevailing party. So, registration is worth the effort!
For collage artists and those inspired by others' work, the concept of fair use is particularly important. Fair use allows for limited use of copyrighted material without permission in certain circumstances, such as criticism, commentary, or transformative works. But how do you know if your use is fair? Courts consider four factors:
A famous example of fair use in music is the case of 2 Live Crew's song "Pretty Woman." The rap group used elements of Roy Orbison's original song, but the Supreme Court ruled that their use was considered fair because it was a parody that transformed the original work.
However, as Bo cautioned, "Fair use is only a defense to an infringement claim, not a bar. Whether your use of other artists' copyrighted works in your collages will be deemed transformative, will be up to a jury. You will have to spend tens of thousands defending the claim."
The safest bet is always to seek permission and licensing from the copyright holder. Better safe than sorry!
When it comes to fair use, it's important to understand the distinction between parody and satire.
As Bo explained, "Parody refers specifically to the original work and makes fun of it, using only so much of it as is necessary to make the point. It's not satire, which is using the copyrighted work to make some comment about society as a whole rather than the artwork itself."
This distinction is crucial because courts will only consider parody as potential fair use as a kind of critical comment on the original artwork. Satire does not seek to transform the original work on that way. When creating works that rely on copyrighted material, it's essential to understand these nuances and consult with an intellectual property attorney to help navigate potential legal issues.
In the context of visual art, the concept of transformative fair use has been the subject of several notable court cases. One prominent example is the case of photographer Art Rogers suing artist Jeff Koons for creating a sculpture based on Rogers' photograph without permission.
The court ruled in favor of Rogers, determining that Koons' use of the image was not a parody and did not transform the original photograph in a way that could be considered fair use. This case highlights the importance of understanding the boundaries of fair use and the potential risks of using copyrighted material without permission, even in the creation of new work.
For artists who wish to allow others to use their work more freely, Creative Commons licenses provide an alternative to traditional copyright. By applying a Creative Commons license to your work, you can specify which rights you reserve and which you waive, making it easier for others to share, use, and build upon your creations.
As Bo explained, "A popular alternative to conventional copyright is the Creative Commons licensing management, which flips the traditional copyright notion of exclusive use by the owner. Instead, by using one of the CC notices, the copyright holder is telling the world they have permission to use that image as long as they give name credit to the original copyright holder and allow their own derivative works to be used or copied and altered by others."
It's important to note that while Creative Commons licenses can be a useful tool for promoting the spread and use of your work, they may not be appropriate for all situations. If you want to maintain strict control over your copyrights or plan to license your work commercially, traditional copyright protection will be a better choice.
Linda van Huffelen and assistant after making an inflatable. Photo © Wim van HuffelenIn today's digital world, sharing your artwork online is essential for reaching a wider audience and growing your career. But how can you protect your work from unauthorized use? Here are some tips:
As Bo mentioned, "Most online infringements can be stopped with a takedown letter to the platform that's publishing the infringing work. Social media platforms are protected by the safe harbor provision of the Digital Millennial Copyright Act (DMCA), but must remove infringing artwork to have DMCA protection." Having your copyrights registered before the infringement occurred will give you even more legal options.
As intellectual property, copyrights can be sold or licensed during your lifetime and afterward. Here's what you need to know:
Bo advised, "If you are going to sell the copyright, it should be much more expensive than if you're just licensing rights."
If you're considering transferring or licensing your copyrights, work with an attorney specializing in intellectual property to ensure everything is properly documented and legally enforceable.
It's not just important to think about protecting your copyrights during your lifetime; you should also consider what happens to your intellectual property after you're gone. Copyrights can be a valuable part of your artistic legacy and estate.
Copyrights can be transferred to heirs or beneficiaries through wills, trusts, or other estate planning tools. If you want to ensure that your creative legacy is protected and continues to generate income for your loved ones, it's essential to work with an attorney who specializes in both intellectual property and estate planning.
By taking proactive steps to organize and protect your copyrights, you can provide peace of mind for yourself and your family, knowing that your artistic legacy will live on.
Navigating copyright law as a visual artist can seem overwhelming, but it's essential for protecting your hard work and ensuring that you're fairly compensated. As Bo summarized, "It's intellectual property that underlies all visual arts rights matters."
By understanding the basics of copyright law, such as when protection begins, the difference between ideas and expressions, and international considerations, and by taking proactive steps to register your copyrights, use written agreements, and plan for the future of your artist estate, you can effectively protect your work. This knowledge and these actions will allow you to focus on what you do best—creating art!
Sign up for a free trial today and see how we can help you streamline your art business and give you peace of mind. You've got this!
