Copyright Law
After 20+ years in the business, I feel like I’ve seen it all and not always in a good way. Here’s the summation of it :
You own the copyright to your work unless you specifically sell the copyright which requires a pretty detailed contract. Even if you sell the original, you own the copyright. Even if you license your work, you OWN THE COPYRIGHT to that image still. Your licensing contract should spell out the number of reproductions, what kind, where they will be sold or placed, and on and on and on, and if it is any contract worth signing, it will state the obvious —which is that the copyright remains with the artist. More on licensing to come!
Here I am doing what I do an awful lot of the time: reading and amending contracts for artists. Very glamorous, right? But really important.
This is when I even break out the glasses for maximum intensity when reviewing contracts.
In over 20 years in art consulting and interior design, I’ve only been depositioned twice to testify about copyright infringement. And honestly, I was happy to do it. It makes me insane when people knowingly violate an artist’s intellectual property rights. And as much as I love the internet for art sourcing and design ideas, I do have very mixed feelings on the way it makes it very easy to duplicate other’s work or pass it off as your own.
There is a common fallacy that if a person changes 30% of a work that it won’t violate copyright law as the new piece would then be substantially different. That is incorrect. The true judicial test is subjective and is called the Common Man test: would the common man (Joe or Jill Public - I always think of my parents right here) assume this was the same work of art or by the same artist upon seeing it? If so, it has violated copyright law. Subjective, yes. But that’s because it is impossible to break art down into quadrants or sections and dissect what make it what it is as a whole.
Rarely do people follow up with legal action due to copyright infringement because like all legal action, it is a huge pain and incredibly expensive. But it does occur, and when it does, it is VERY expensive for the party that violated copyright. Every single copy is considered a separate infraction. I have seen a huge firm make a presumably honest mistake in paperwork or oversight and have to settle for over a million dollars with the artist due to an unlicensed limited run reproduction. I’ve sat through days of depositions on behalf on an artist who was upset his work had been altered without his knowledge by a big manufacturer, and he won that case easily even as the David to their Goliath. I just sent a letter this week for a client regarding a “knock off” image which very clearly would not pass the Common Man test in order to have it removed and/or for her to be compensated for it. It’s no joke, and besides: let’s just try to be good humans. It really shouldn’t be that hard.
Here are some tips:
You don’t have to register your work anywhere or put the little copyright symbol on it to own the copyright. The fact that you made it and can prove it means you own the copyright to that image.
It is your choice how you want that image to shared if at all - as prints, for merchandising, with signature, etc - you still are calling the shots.
If someone asks you to do a commission based on a visual they provide (another artist’s work), make sure you make it very clear from the beginning of the conversation that you will be reinterpreting the concept visual in your own style. You can take the color palette, or the feeling of movement for example, and translate that into your own work. What you should not do is just rearrange someone else’s work and claim it as an original piece of your own.
If you have any questions or have a situation where you are unsure how to proceed, let’s talk and we will sort it out!