There are three main concepts to understand according to previous discussions I’ve had with attorneys about art law. First, there is a need to understand what copyright infringement is. Second, there is a need to understand what a derivative work is by law. Third, there is a need to understand what appropriate art is within the context of law. All three of these concepts deserve to be explored further so that artists will be aware of their rights. Artists should not violate the rights of other artists-- at heart it is an issue of respecting the creative community. I’m not a lawyer, but I will try to discuss each concept briefly.
Copyright infringement can be a huge problem for artists and it can be trough to prove that your work has been infringed if you do not keep good documentation of your art. Under current law the work of an artist is copyrighted from the moment the process is started. For example, the work is protected by copyright law the moment he or she makes a mark upon the canvas. However, that does not mean that an infringer will not try to question the creation of the work in order to claim that the ownership of the original work can be debated. Thus, it is important to photograph your art, publish your art, and to keep online and offline journals about your art so that you have something to use in your defense if ever someone infringes upon your art.
There are misconceptions about copyright infringement. For example, many people believe that a new original work is created if a certain percentage of an original work is changed, altered, or manipulated. This is simply not the case. The work is technically “new”, but that does not mean that it is an original work by law if it can be proven that the work exploited the copyright of the work it was possible based off of. In other words, there is no set percentage of change, alteration, or manipulation to go by-- infringement is infringement. The infringement does not have to be word-for-word copying in order to be considered unjust.
In court the judge and jury will examine if the infringing artist had access to the original work-- was it widely published or published online, if he or she copied from it-- does the look or feel of the work share similarities, and determine if the copying was substantial. It can be hard to define what ‘substantial’ is in this scenario. Thus, it is up to the judge and jury to determine what is substantial and if infringement occurred. Again, this is why it important to keep documentation of your art practice.
When considering this the jury would most likely examine the work of both artists in order to make a determination. They would observe the art in order to make a decision on if they are substantially similar. Remember that ‘substantial’ can mean few or many similarities in this scenario. Again, this often leaves artists at the mercy of the jury so it important to document your work so that if you are placed in a situation like this you will be prepared and have proof of the origins of your work. If a fellow artist fails to respect your rights you must respect yourself enough to be prepared.
Derivative works are another beast with myths that need to be tamed. A simple description of a derivative work is a work of art that is derived from another. So, for example, a film is derived from a novel. This is a term that is thrown around often on online art forums in order to defend obvious theft. Again, there are many misconceptions about what a derivative work is based on law. What people need to remember is that the copyright owner, the person who painted the image, drew the image, or sculpted the piece, has the exclusive right to prepare derivative works and to authorize other to do so.
For example, a series of paintings by a painter are technically derivative works based on the first painting of his or her series. Each painting is protected by copyright. Thus, the artist is protected by law so that others can’t make derivative works based off the series of paintings unless he or she authorizes the person to do so. In other words, if you own the copyright of a painting you have the right to prevent others from creating works that are derived from that painting without your consent. Thus, if someone uses your painting or an image of your painting in order to create a similar painting or other work of art-- or merchandise for that matter-- derived from your protected work the person would be considered a copyright infringer and you would be able to take legal action. This is assuming you still own the copyright for the painting.
If you no longer own the copyright of an image you are at the mercy of anyone who desires to create derivative works based off of it. In other words, if an artist creates a derivative work based off of an image that you have sold the rights to you would not be able to take legal action against the artist for his or her derivate work based off of your image. For example, there is nothing you can legally do if another artist creates a derivative work based off of an image that you have sold to a corporation which they in turn used within the context of an ad. In that scenario you no longer own the copyright-- the corporation does. However, in that scenario the corporation could take action against the infringer if desired. Keep in mind that very few corporations will bother going to court over issues like that because the infringer would most likely use ‘parody’ or ‘social commentary’ as a defense.
Appropriation art is the next beast on my chopping block. Again, there are many misconceptions about what is legal and illegal considering the appropriation of images. When an artist appropriates an image he or she is claiming that image for his or her own so that it can be used within the context of a work of art. In most cases appropriation-- such as using sections of movie posters, corporate ads, newspaper articles, or other forms of media and found objects-- is within the scope of law as a form of ’parody’ or ’social commentary’ since the images involved can be considered iconic. As mentioned earlier, very few corporations will bother pursuing a case over the issue due to that reason. However, problems occur when an artist appropriates images from the artwork of other artists in order to utilize them as his or her own work.
An individual artist is more apt to utilize legal rights based on copyright ownership when he or she discovers that someone has appropriated his or her protected work. In that case the appropriation would be considered copyright infringement and the artist who appropriated the image would be considered a copyright infringer. Thus, people need to remember that while it is acceptable to appropriate images in some scenarios it is NOT acceptable to appropriate an image if the rights to the image are legally owned by another artist. In other words, it might be acceptable to appropriate a Marlboro ad, but it is not acceptable to appropriate an image by an artist from Cuba assuming that it is legal to do so.
In closing, all artists who are currently living-- under current international copyright laws-- have exclusive rights to their work and how it can be used by others as long as they have retained ownership of said works. Currently all art is protected for several decades after an artist has died. An artist from a country that acknowledges international copyright laws must adhere to those laws within the context of his or her practice-- it is law. In other words, it is up to every artist to make sure that the rights of all artists are upheld. It is very important to have knowledge about our rights-- especially with the Orphan Works bill and other bills lurking in the background that have the potential of changing current copyright law if passed. Art law can be complicated. However, when it comes down to the line it is really an issue of respecting others in the creative community.
An example of copyright infringement and disrespect:
Untitled, Silk-screen poster, Rene Mederos, Cuba, 1972. This untitled piece by Rene Mederos depicts the revolutionaries Che Guevara and Camilo Cienfuegos. The artist had owned the copyright to the piece which was passed down to his estate at the time of his death in 1996.
Screenshot taken from the "Bombing Science" website on 7/18/2007. An image by Shepard Fairey titled 'Cuban Rider' was being sold as a T-shirt. Author Lincoln Cushing recognized the image from his book Revolución: Cuban Poster Art, as well as David Kunzle’s book, Che Guevara: Icon, Myth and Message. Cushing informed the family of Rene Mederos and discovered that the estate had not given Shepard Fairey permission to use the image or print the graphic.
Shepard Fairey acknowledged the copyright infringement involved with the 'Cuban Rider' shirt and had it pulled from the clothing line. The Mederos estate was compensated for an unknown amount-- though some sources claim the family was only paid $1,000. Up until that point Shepard Fairey had not mentioned the Mederos piece he had “referenced”-- he had claimed it as his own.
Shepard Fairey opened up about the Rene Mederos controversy during a 2008 interview with Mother Jones. He said, “There's a piece by [Cuban artist] René Mederos that I used, thinking, "Well, how would I ever pay this guy anyway because he's in Cuba?" All I really changed about that graphic was I put flowers into the gun and put a peace logo in it. With Castro and Che on horses I was definitely manipulating the original intention, but at the same time, it was a really beautifully done poster and tweaking it for my anti-war agenda was a way to pass that graphic along. So when [Mederos' estate] contacted me, I immediately paid him the exact same royalty rate that any artist would be paid." Again, acknowledging copyright law is an issue of respect-- respect for yourself and respect for the creative community as a whole.
Link of Interest:
Obey Plagiarist Shepard Fairey: A critique by artist Mark Vallen
Take care, Stay true,