|Copyright Law and the American Artist|
|by Stephan Hoffpauir|
|A copyright is in simplest terms the legal right to reproduce a particular piece of artwork. In the United States an artist automatically owns the copyright to any artwork he or she produces from the moment it is created. The artist retains that right unless it is explicitly transferred to another party. An artist may sell an original painting or drawing to a client, but unless the artist explicitly transfers it, the copyright is retained by the artist. The painting's owner may not make reproductions of it without the artist's permission.|
When giving permission for their work to be reproduced, artists usually sell what are known as nonexclusive rights. A transfer of these rights allows the buyer to reproduce the artwork for specific purposes for a specified period of time. The artist is free to sell these rights to more than one party. Such a transfer is sometimes called a nonexclusive license.
If an artist sells exclusive rights, he or she is may not transfer those rights to someone else. A transfer of all rights is by its nature exclusive. If an artist were to transfer all rights, he or she would no longer be the copyright holder. Such a transfer would not usually be in the best interest of the artist unless the buyer is willing to pay substantially more for such a transfer. By law a transfer of exclusive rights must be in writing to be considered valid.
An artist may sell original artwork along with a nonexclusive or limited right to reproduce it. Or a limited right to reproduce the artwork might be sold without selling the physical artwork itself. Both scenarios are common in the field of architectural illustration. Generally, buying both the original artwork and a limited right to reproduce it will cost a client more than buying reproduction rights alone. Giving a client limited reproduction rights does not entitle that client to pass on those rights to a third party. (Buyers of architectural illustrations are often surprised by this.) For example, an artist may give a client permission to use a drawing as part of that client's own promotional campaign, but the client may not then allow that drawing to be used in a window manufacturer's magazine ad without the artist's permission.
A copyright is valid for the lifetime of the artist plus 70 years after the artist's death. Upon expiration of the copyright, the work passes into the public domain and may then be reproduced by anyone without having to seek permission.
There are instances when an artist may not be the copyright holder of his or her own work. Generally, an artist producing artwork as a full-time employee does not own the copyright to the artwork produced as a result of that employment. In such cases the employer retains the copyright.
Similarly, freelance artists doing what is known as "work for hire" do not own the copyright to work they produce. Copyright law requires that certain conditions be met before an assignment can be considered work for hire. The work must be commissioned, and both artist and client must sign a written contract specifying that the assignment is being done as work for hire. The work must also fall into one of nine specified categories. Critics of work for hire such as the Graphic Artists Guild point out that the practice does away the benefits of being a freelance artist (such as copyright ownership of one's work) without adding the benefits of fulltime employment (such as a steady paycheck and health insurance). Architectural illustrators are not commonly asked to do work for hire, but may face the issue if they do work in other illustration fields.
|To help protect a copyright, an artist should affix a copyright notice to his or her artwork. The copyright notice consists of the copyright symbol, a name by which the artist is known and, if applicable, the date of first publication. Examples would be: © Jane Doe 2005 or © Jane Doe. On an original drawing the notice may be placed within the image, along a border or on the back of the artwork. In printed material it is common to place the notice in very small type adjoining the image. The appearance of a copyright notice tells the public that a work is protected by copyright and identifies the copyright holder. |
|Artists have the option of registering their work with the United States Copyright Office. Artists should register the work in timely manner — a span defined as anytime from completion to three months after first publication. Until fairly recently if a work was published without a copyright notice and the work was not registered with the Copyright Office, the artist lost the copyright and the work passed into the public domain. While this is no longer the case, registering a copyright provides protection to the copyright holder would not otherwise have. |
Should a copyright infringement case go to court, the copyright registration will serve as prima facie evidence (provided it is a timely registration), meaning it will be up to the defendant rather than the plaintiff to prove that the artist is not the rightful copyright. Without timely registration the burden of proof will be on the plaintiff. Timely registration also allows a plaintiff to recover attorney's fees and statutory damages.
Registering a copyright is actually quite easy and can usually be done with a single form — Form VA for visual artists. PDF versions of the form can be downloaded from the Copyright Office website (lcweb.loc.gov/copyright/). Applicants must submit the form, a copy of the work (transparencies, photocopies and photographs are acceptable), and $30 payable to "Register of Copyrights." Applicants should not send original artwork.
Forms should be sent to:
Library of Congress
101 Independence Avenue, S.E.
Washington, D.C. 20559-6000
Registration becomes effective on the day that the Copyright Office receives the application, payment, and copies in acceptable form. A registrant will receive a certificate of registration in 4 to 5 months.
|Many illustrators believe that, because artwork is protected by copyright, any party wishing to reproduce a specific image must ask the copyright holder’s permission. This is, however, not always the case. Newspapers and periodicals often invoke the doctrine of fair use as a defense when using copyrighted works without permission.|
“Not every use of copyrighted art will be an infringement,” write Tad Crawford and Arie Kopleman in their book “Selling Your Graphic Design and Illustration Services.” “Fair use allows someone to use your copyrighted works in a way that is noncompetitive with the uses that would normally be paid for. A fair use is not an infringement.”
The doctrine is codified in Section 107 of the U.S. Copyright Act of 1976. The law attempts to balance the interests of copyright holders, information users such as authors and journalists, and the public. The doctrine holds that an author is allowed to use copyrighted material in order to report on newsworthy events.
In determining whether a particular use is a fair use, the law stipulates four factors to be considered:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
|The law stipulates that a use for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research does not constitute an infringement. Crawford and Kopleman give an example: a critic writing an article about your career as an artist can use samples of your work to illustrate that article without asking your permission.|
An example of a use that was not considered to be fair was a 1992 case involving the artist Jay Koons who used a copyrighted photograph without permission as the basis for an edition of three sculptures, essentially replicating the photograph. Since the sculptures were sold for over $100,000 each, the court found the use to be commercial. The sculptures were found not to be parodies of the original work — a key test of fair use — so the court rejected Koons’ argument that the use constituted an example of criticism or comment. The sculptures, the court determined, were simply copies of the original work done for commercial purposes.
In 2003 ASAI member Michael Reardon suffered what might be considered an infringement of his copyright: "I had been hired by an architect to do an illustration showing the proposed renovation of a well-known San Francisco landmark. My agreement with the client stipulated that the drawing was to be used by them for promotional purposes. I later discovered that the illustration had been printed onto T-shirts and were being sold in the building’s gift shop."
In this case if the building owners had simply handed out free T-shirts at the groundbreaking (the original reason for printing the shirts), there would not have been any copyright infringement since the illustrations were commissioned for such a use. But when the owners decided to sell them in the gift shop — a use for which they were not licensed — they were required by law to compensate the artist. After contacting the owner’s representative, who agreed that this constituted a commercial use of his image which he had not licensed, Reardon was able to negotiate a satisfactory royalty payment as compensation.
|The fair use doctrine benefits periodicals as well as artists. A periodical is able to use copyrighted images to illustrate newsworthy events without having to track down and pay each copyright holder for each image. The artist who happens to be the copyright holder gets the benefit of public exposure, but only if the work is properly attributed. Unfortunately, the fair use doctrine does not require a newspaper or periodical to place a credit line or copyright notification next to an image it publishes. In other countries the obligation to credit the artist for work that is published is defined by what are known as moral rights. |
For an American artist, however, probably the most effective way to assure that a credit line appears next to the published image is to contractually require it. ASAI's model contract has provisions for this. Unfortunately, it is all too common for the person providing an artist's image to a newspaper or magazine — usually a firm's marketing or public relations person — to be unaware of this contractual obligation. ASAI recommends that a client be made aware in writing that the artist is the copyright holder of all drawings he or she produces and that it is incumbent upon the client to insure that a credit line identifying the artist as the author of the work accompany the published image. Through the efforts of several ASAI members newspapers such as the New York Times and the San Francisco Chronicle have instituted policies requiring architectural illustrations to be properly credited. Unfortunately, this practice is currently far from widespread.
|Disclaimer: The above article should under no circumstances be construed as legal advice. For answers to specific questions regarding copyright law, ASAI encourages you to consult a knowledgeable attorney.|
|References and further reading:|
|"Selling Your Graphic Design and Illustration; the Complete Marketing, Business and Legal Guide," by Tad Crawford and Arie Kopelman, St. Martin's Press.|
|"Graphic Artists Guild Handbook: Pricing and Ethical Guidelines," 10th edition, Graphic Artists Guild, Inc., distributed by North Light Books.|
|United States Copyright Office, 101 Independence Avenue S.E., Washington, DC 20559-6000. lcweb.loc.gov/copyright/|