Copyright Law for Artists

Copyright Issues for Artists

Disclaimer: None of the information within should be construed as binding legal advice.

One of the most difficult subjects for artists to understand is copyright law, and it's an issue that effects artists in many ways.

General Issues for Artists

First, many artists don't realize that they need permission from photographers if they use somebody else's photograph as reference for a painting. When an artist uses a photograph for reference, the painting or artwork is called a derivative work. While the artist can maintain some ownership over their own work, they first need permission from the original photographer to use the photo for reference.

There are however clauses in copyright law that allow for compilations, and uses of existing work freely if used in part, or if the original work has been so modified that it can't be recognized as a reference. There are many nuances here, and although there are legal cases that set precedence, there is no absolute ruling. Each case must be evaluated on its own merit in a civil court (copyright infringement is considered a civil issue, and is not punishable by criminal law).

Second, if you are a portrait artist, or figure artist, and you plan on selling works of art using somebody else's likeness, you will need a model release in order to sell the work, and in many cases you will need a model release in order to enter juried art shows. The reason is that the person being painted has certain rights about their own likeness, and just because a model sits for you, as a photographer or artist, does not mean that model assigned reproduction rights, or copy rights to you. That needs to be an explicit contract between the model and the artist or photographer, which includes a release form.

Third, artists often worry about the copyright of their own work, and what their rights are in regard to their work. Many questions arise from this, such as "what if somebody steals my work and uses it on their home page on the internet?", and "Can somebody take my artwork off the internet and make cards and sell them?". In fact, there are many artists who are afraid to put their art on the internet for fear that somebody will steal their work, or see it and recreate it, thereby stealing their ideas.

Unfortunately there are risks involved in promoting your work and providing even low resolution digital versions for promotion, blogs, web sites and email. Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed, which means you can't stop people from copying a style or genre. However, the alternative to taking risk is really only to keep your work in a box where nobody can see it, and your art never gets exposed to the general public. In this case, of course, your art is safe, but will never be known.

The subject of copyright is very complex, and is not only constantly changing, but it's also vague and open to interpretation.

Below you will find a list of articles and references in regard to copyright law and implementation.

What is Copyright?

Copyright (or ©) is a form of intellectual property which gives the creator of an original work exclusive rights for a certain time period in relation to that work, including its publication, distribution and adaptation; after which time the work is said to enter the public domain. Copyright applies to any expressible form of an idea or information that is substantive and discrete. Some jurisdictions also recognize "moral rights" of the creator of a work, such as the right to be credited for the work.

What is a Creative Work?

A creative work is a tangible manifestation of creative effort such as literature, music, paintings, and software. Creative works have in common a degree of arbitrariness, such that it is improbable that two people would independently create the same work.

The term is frequently used in the context of copyright law.

What is Fair use?

Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. I

Fair use deals with the concept that even though a work is copyrighted, and the artist, photographer, or writer has exclusive rights, that certain uses do not constitute copyright infringement. Some artists are under the misconception that once a work is out there in the wild, that any use requires permission.

Copyright attempts to balance the need for copyright protection with the need for the public to freely exchange knowledge for both educational, artistic and political reasons. While corporatons have been voracious regarding any use of copyrighted materials, and have overstepped their bounds and hijacked copyright law to the detriment of freedom of expression, the courts of have often eventually ruled in favor of free speech (We'll dive into this discussion in more detail later).

The trick, therefore, according to US law, is to balance Article I, Section 8 of the US constitution with First Amendment rights for freedom of speech, as well as the general welfare and interests of society as a whole.

As defined by Section 107, under Title 17 of the United States Code:

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

What is a Work of Visual Art?

Under Title 17 of the United States Code, which defines copyright law, a work of visual art is:
(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

A work of visual art does not include—
(A)
(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;
(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;
(iii) any portion or part of any item described in clause (i) or (ii);
(B) any work made for hire; or
(C) any work not subject to copyright protection under this title.

Copyright Free Resources for artists

Looking for that special something? Need a reference photo for your next drawing or painting that won't cause you copyright problems? There are plenty of resources now, and more opening up, for artists and photographers who need images.

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