Navigating your rights.
All artists need to know how to protect their intellectual property rights, including copyrights, rights of publicity or personality, and moral rights. In so doing, the artist benefits financially, and strengthens his or her legacy. ARS’ mission is to aid its artist members in the realization of these goals.
In comparison to other creators’ rights, visual artists in the U.S. have historically had fewer legal protections. As a result, it is at times difficult for artists to know how and where to leverage their power. Armed with an accurate, clear, and robust understanding of these rights, ARS strives to promote and protect the rights of its member artists.
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What is Copyright?
Copyright is a form of protection provided by the laws of the United States to the creators of “original works of authorship,” including literary, dramatic, musical, and artistic works. United States copyright law was last generally revised by the Copyright Act of 1976, codified in Title 17 of the United States Code. The United States Constitution explicitly grants Congress the power to create copyright law under Article 1, Section 8, Clause 8, known as the Copyright Clause.
Section 106 of the 1976 Copyright Act gives the owner of copyright the exclusive right to do and to authorize others to: reproduce the work in copies; to prepare derivative works; to distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending.
What is Copyright?
Copyright protection subsists from the time the work is created in fixed, tangible form and immediately becomes the property of the author who created the work. Only the author can rightfully claim copyright.
It follows then, that the mere ownership of a painting, photograph, or sculpture, does not give the possessor of the physical work its underlying copyright. The law holds that transfer of ownership of any material object that embodies a protected work does not of itself convey the copyright or any interest in the copyright. This remains in the possession of the creator.
Any or all of the copyright owner's exclusive rights or any subdivision of those rights may be transferred to another party, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the copyright or such owner's duly authorized agent. Such transfers are rare in the U.S. and are almost never knowingly engaged in abroad.
Ownership of an Artwork vs. Ownership of Artist Copyright
There have been two Federal Copyright Acts in the twentieth century, one enacted in 1909, the other promulgated in 1976, which went into effect on Jan. 1, 1978. In the words of the 1909 act, “The copyright is distinct from the property in the material object, and the sale or conveyance, by gift or otherwise, of the material object shall not in itself constitute a transfer of the copyright . . .” The 1976 Act reaffirmed this principle. Ownership of a physical object and ownership of the underlying copyright are thus two separate and distinct things.
Indeed, Section 202 of the 1976 Copyright Act is unequivocal on the subject:
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.
The Sonny Bono Copyright Extension Act: The Sonny Bono Copyright Extension Act of October 27, 1998, extended the term of copyrights from the theretofore life plus 50 years, to life plus 70 years.
Lifespan of Copyrights: Thus, the term of copyright protection is the lifetime of the artist plus 70 years postmortem. In the case of a joint work prepared by two or more artists, the term lasts for 70 years after the last surviving artist's death.
Public Domain: A work that is no longer copyright protected is considered to be “in the public domain.” It should be noted, however, that some photographs of works of art in the public domain may themselves be copyrighted and may well require a license for publication.
By a fortunate quirk of the U.S. Copyright law, there is a provision in it which extends the copyright term and its protections beyond the life plus 70 years post-mortem rule. The provision stipulates that if a work was first published in the U.S. between the years 1925 and 1978, its term of protection is 95 years from the date of such first U.S. publication. (Publication in Europe or elsewhere before 1925 does not invalidate this statute, which applies if the work was not published in the U.S. prior to 1925, nor after 1978.) Many artists’ works were not published in the U.S before 1925, and were first published here in the time span of ’25 to ’78. As an example, a work by an artist who died in 1960 would normally have a term that would expire 70 years after his/her death, in this case in 2030. However if its first publication in the US occurred, let us say, in 1970, its copyright term would not expire until 95 years after such first US publication, namely not until 2065, a good thirty-five years beyond the life plus 70 term.
The Right of Publicity or Personality
A little known right, The Right of Publicity or The Right of Personality, focuses on the use of another’s name, voice, signature, photograph or likeness and applies wherever one of these is used. In California, the right is coterminous with the term of current copyright protection. Because of its celebrity culture, California has clearly taken the lead in applying the Rights of Publicity, and a number of the other states have evolved similar rights.
Reprography is a form of reproduction, i.e. duplication of a work through copies, both physical and digital. Reprographic rights are secondary rights that are managed collectively by ARS sister societies abroad. These rights are licensed through a collective administration.
Moral Rights Under VARA
A Federal Moral Rights Act called the Visual Artists Rights Act, or more colloquially VARA, was signed into law by the first President Bush in 1990 and went into effect on June 1, 1991. It grants artists two distinct rights not previously provided by U.S. federal law, but which were available in certain states such as California, New York and Massachusetts. These are the rights of attribution and the rights of artistic integrity.
Although the passage of VARA was a step in the right direction, it fell far short of norms obtained in most European states. There are two glaring failures of the law. First, the rights VARA confers only endure during the life of the artist and expire upon his or her death. This means that they may only be claimed by the author during his or her lifetime and are not descendible. Additionally, another grave drawback is that under Section 603.D the rights conferred apply only to works of visual art created on or after June 1, 1991. They therefore do not apply to works made before that date, unless the artist retained title to the work, and had not previously conveyed it to another party by gift, or sale. This leaves the vast body of works made before June 1, 1991 unprotected. The shockingly explicit words of the act are that it “shall not apply to any destruction, distortion, mutilation, or other modification of any work which was made before such effective date” [June 1, 1991] (Sec. 610 (2)).
Copyright Restoration of Foreign Works
On December 8, 1994, the President of the United States signed into law the Uruguay Round Agreements Act ("URAA"). The Act contains specific provisions which require the U.S. to restore full recognition to all foreign works which fell into the public domain in the U.S. due to non-compliance with formalities imposed by United States Copyright law. The bill to restore copyrights brought the United States at long last into virtual compliance with Article XVIII s.1 of The Berne Convention (see ‘Berne Convention’), which obliged newly adhering states to honor the copyrights of existing member nations.
As a result, all foreign works which had been exploited in the U.S. without authorization in the past, because of failure to comply with U.S. formalities of copyright registration and notice are restored to full copyright protection, effective January 1, 1996.
The Berne Convention for the Protection of Literary and Artistic Works
The most significant international copyright instrument is the The Berne Convention for the Protection of Literary and Artistic Works. The Berne Convention has approximately 170 members, including the United States which joined in 1989. The Berne Convention is based on national treatment, meaning that a Berne member country must extend the same treatment to the works of nationals of other Berne member countries as are enjoyed by its own nationals. Furthermore, the Convention obligates member countries to adopt minimum standards for copyright protection.
The World Intellectual Property Organization Copyright Treaty
The World Intellectual Property Organization Copyright Treaty of December 23, 1996 ("WIPO Copyright Treaty") supplements the provisions of the Berne Convention to provide stronger international protection for copyrighted material in the digital age.
Brammer v. Violent Hues Prods., LLC, 922 F.3d 255 (4th Cir. 2019)
Russell Brammer, a commercial photographer, sued Violent Hues Productions, LLC., a film production company, for posting his photograph on its website in order to promote The Northern Virginia International Film and Music Festival and other tourism attractions. In overturning the District Court’s prior decision, The Court of Appeals weighed the Fair Use factors and found in favor of Brammer. The court stated that, “What Violent Hues did was publish a tourism guide for a commercial event and included the Photo to make the end product more visually interesting. Such a use would not constitute Fair Use when done in print, and it does not constitute Fair Use on the Internet.”
Four Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 139 S. CT. 881 (2019)
A news organization, Fourth Estate, sues another publisher, The Wall Street Journal, for failing to remove articles from its website upon cancelation of a license agreement. Fourth Estate had filed applications for registration with the Copyright Office but they had not been acted upon before the case was filed. This case resolved the split between circuits on whether the registration requirements under Section 411 of the Copyright Act is satisfied by the “Application Approach” or the “Certificate of Legislation Approach.” The Supreme Court rejected the Application Approach and held that copyright must be registered by the Copyright Office and not merely applied for.
Goldman v. Breitbart News Network, LLC, 302 F. Supp 3d 585 (S.D.N.Y., 2018)
Plaintiff Justin Goldman took a photograph of Tom Brady and others. He uploaded the photograph to his Snapchat Story. The Photo went viral on social media platforms. Defendants were online news outlets and blogs that published articles featuring the Photo. The Photo wasn’t stored on the Defendant’s servers but rather shown in the articles through embedding. Defendants argued that the “Server Test” should apply to shield them from liability because the Photo was not hosted on their servers. The Court disagreed and held in favor of the Plaintiff, citing American Broadcasting Cos., Inc. v. Aero, Inc. for the proposition that “liability should not hinge on invisible, technical processes imperceptible to the viewer.”
H&M Hennes & Mauritz L.P. v Jaso Williams a/k/a/ Revok 1:18-cv-01490 (EDNY, March 2018)
In 2018, apparel giant H&M launched a campaign for its ‘New Routine’ sportswear line; the photographs and accompanying marketing video are set against a Brooklyn backdrop, with a wall sprayed by graffiti artist Jason ‘Revok’ Williams. Revok was never asked for permission and his lawyer sent the retailer a cease-and-desist letter. H&M retaliates by filing a lawsuit against Revok, claiming that a product of an ‘illegal act,’ ie. graffiti, could not be protected by copyright. Furthermore, H&M asked the court to rule that any and all unsanctioned or illegal artwork, such as street art and graffiti, should not be eligible for copyright protection. Members and supporters of the street-art community urged their social media to boycott H&M, citing an assault on artists rights. In a response to the backlash, the retailer withdrew the suit and issued a formal apology.
Golan v. Holder (Cir. Ct of Appeals Colorado, June 2010. Supreme court grants Cert. – February 2011)
Golan is a music conductor. He and his fellow plaintiffs used excerpts from foreign musical compositions, which they contend were in the public domain.The District Court held otherwise, affirming S.514 of the US Copyright Act which restored copyright recognition to foreign works, saying that Congress was within its authority in enacting S.514. Golan could have become a reliance party if he had sought and obtained the permission of the copyright holders to employ the works.
Shepard Fairey v. Associated Press No. 09-1123(S.D.N.Y. 2010)
Artist Shepard Fairey sues the Associated Press for accusing him of copyright infringement after Fairey used an AP photograph of President Barack Obama as the basis for his poster. Fairey maintained that he did not appropriate any copyrightable material and that the use of the photograph constituted Fair Use under law. The case was settled after Fairey admitted that he had used the AP photo in its entirety, that he removed the copyright management information, that he failed to cite its source or credit, and finally, that he employed it for clear commercial purposes, thus violating several provisions of Fair Use.
Massachusetts Museum of Contemporary Art Foundation v. Buchel, No 08-21-99 (1st Cir. Jan 27, 2010)
MASS MoCA sues Swiss artist Christoph Buchel for the right to show his unfinished work to the public. Buchel’s counterclaim is based on grounds of the Visual Artists Rights Act (VARA), which grants protection to moral rights. Among other things, Buchel charges that the work was shown to the public without his consent. Although the District Court ruled that MASS MoCA could show the unfinished instillation to the public, the First Circuit held that in addition to a valid VARA claim, MASS MoCA violated Buchel’s exclusive right to display his work publicly, reasoning that because VARA is applied with equal force to incomplete artists works, it could not accept the district court’s reliance on the unfinished state of the project to minimize the rights of its creator.
Muench Photography v. Houghton Mifflin Harcourt (May 4, 2010) S.D.N.Y.
Photographers Marc and David Muench transfer the copyright of a collection of unpublished photos to their agent, Corbis, for registration purposes. Corbis registers the photographs in their own name, but promises to reassign in writing to the photographers their title and interest in the works. Corbis licenses 180 of the works to Houghton Mifflin, a textbook publisher. Muench argues that Houghton engaged in unauthorized and impermissible use of the works. The court issues a summary judgement for Houghton, ruling that a registration of a collective work does not cover the individual one’s within it. Similar findings were presented in cases Bean v. Houghton Mifflin (Aug 9, 2010, Arizona) and Alaska Stock v. Houghton Mifflin (Sept 21, 2010, Alaska).
Martin v. Walt Disney et. al. (June 30 2010) Southern district of California
Upon discovering an unauthorized use of her photograph on numerous websites, including that of The Walt Disney Company, professional freelance photographer Sherry Martin registers her copyright and sues Disney for copyright infringement, violation of VARA, unjust enrichment, and violation of the Lanham Act. The question arose: can an artist sue for statutory damages if the work was not registered before infringement took place? The court ruled no and Martin’s claims were dismissed.
Rogers v. Koons, 960 F .2d 301 (2d Cir. 1992)
Art Rogers sues Jeff Koons on the grounds of copyright infringement. Rogers, a professional photographer, took a photo of a man and a woman with their arms full of puppies. Koons, an internationally known artist, found the picture on a postcard and after removing the copyright label from the postcard, gave it to his assistants with instructions on how to model sculptures based on the photograph, requesting that as much detail be copied as possible. The court found “substantial similarity” between Rogers’ photograph and Koons’ sculpture, citing that the average person would recognize the copying. On the issue of Fair Use, the court rejected Koons’ parody argument, as Koons was not commenting on Roger’s work specifically, thus his copying of that work does not fall under the Fair Use exemptions.
Have you ever wondered what your rights are as an artist? There’s no clear-cut textbook to consult—but we’re here to help. Katarina Feder, a vice president at Artists Rights Society, is answering questions of all sorts about what kind of control artists have—and don’t have—over their work. Check out her monthly Op-Ed advice column on Artnet.com.
I’m making t-shirts to raise funds for COVID-19 relief, and I’d like to use an image from a painting I created and subsequently sold. Do I have to consult the person who now owns the painting before I do that?
Reader, you are wholeheartedly encouraged to make that t-shirt, and you do not need permission from the person who owns the work. Once a work of art is sold, the physical object no longer belongs to you, but the underlying copyright still does, and always will.
Copyright is a form of protection provided by law to the creators of “original works of authorship,” which of course includes your creation. Copyright protection exists as soon as the work is created in fixed, tangible form. Word to the wise and even the not-so-wise: should you ever be asked by an entity to sign over your copyright (which you technically can do), just say no.
Of course, the letter of the law is different from questions of etiquette, and the person who purchased your painting may be a little surprised to see someone wearing the t-shirt in Bushwick. It wouldn’t hurt to drop them an email about your plan. If they’re a fan of your work, they’ll most likely be supportive, even flattered. And, heck, they just might buy a t-shirt.
Read the full article at Artnet.com
My ex is an artist and he is trying to sell a painting that we made together. Can he do that?
It depends on the circumstances under which you parted. If the painting is at his place and he technically owns it, then he may in fact sell it. Sorry, heartbreak, but that whole thing about possession being nine-tenths of the law turns out to be true.
Still, there’s a bright side: an author has clear, definitive copyright protection over their work as soon as it is created. And when it comes to works with two authors, the law is clear.
The Second Circuit ruled in the 1998 case of Lynn Thomson v. Jonathan Larson that “each joint author has the right to use or to license the work as he or she wishes”—as long as any profits are shared equally between the co-authors. (That case involved the true author of the play Rent; Thomson blew the case after she was unable to recall some of “her” lyrics on the stand.)
Since you and your ex created the piece together, the underlying copyright belongs to each of you—and you both have the right to reproduce the work, produce derivative versions, sell copies, or otherwise exploit it. Whether or not the physical work is sold, you can get the painting on skateboards and t-shirts (as long as you split the money with him). Adapt it into a screenplay and get a Netflix deal! Spite can be a powerful motivator. Good luck.
Read the full article at Artnet.com.