Copyright laws are designed to protect the original works of artists and to exclude unauthorized use by anyone who seeks to use, distribute, profit from or sell that work. Copyright protection can extend to foreign borders and can help an artist control the integrity of his or her creations; however, things happen and rights get infringed. Understanding what constitutes copyright protection and what constitutes infringement are keys in artists protecting themselves and their artwork.
What is Copyright Protection?
Under United States Copyright law, and the copyright laws of many other countries, a copyright generally gives the creator of an original work of art the rights to sell, produce and distribute their work. Copyright protection extends to artists, musicians, composers, sculptors and photographers and allows them to prevent others from using their creations in the absence of contract, license, agreement or permission.
Copyrights are separate and distinct from moral rights to art work and many countries recognize moral rights, including the United States under the Visual Artists’ Act of 1990. Moral rights are clearly distinguishable from copyrights, and do not afford the same level of control over a work of art. Moral rights, in effect, create “respect” protection. These rights shield the original work and the artists’ name from the holder’s potential mutilation, distortion or false attribution. Basically, the work remains untainted and the artist receives create for creating the work, but the artist has virtually surrendered any other control. These rights are typically invoked where there may be work for hire or employment related artistic creations.
Copyright protection also offers remedies for artists and artisans in the event of infringement. Damages, injunctions, fees and criminal prosecution are some of the options.
What is Artistic Infringement?
Webster’s definitions aside. Artistic infringement results when a person, who is not the copyright holder, uses the art work of another. This unauthorized use can include, but is not limited to, sell, distribution, manipulation, marketing, or producing. Additionally, this form of permissionless use can involve the whole or part of a copyright protected work.
The news is filled with instances of artistic infringement. There are claims regarding novels converted to movies. There are suits filed regarding music and lyrics altered. There are even suits for the use of logos and phrases.
The Causes of Confusion- Works for Hire, Deriative Works and Fair Use
Consider that you are asked to create a specific work for a private client, company or corporation. Under United States Copyright Law, you are not the holder of that specific copyright. The person who hired or paid you for the work is the true holder. The resulting work is considered a “work for hire.” While you may not hold copyright, you do have residual moral rights. .
Sometimes what may be inspiration constitutes imitation and could lead to infringement. Artists can be inspired to create work based on another copyrighted work. If this is the case, the resulting new work, under copyright law, is considered a derivative work. If the work was created without the permission of the copyright holder of the inspiring work, the artist of the resulting work has not copyright protection. Actually, the holder of the inspiring works’ copyright has superior rights. Artists need to research copyright holders if they want to create their own works from photographs, paintings, or even architectural designs. The Copyright Office can perform searches on those registered items. However, for those unregistered items, artists should beware. If you don’t know the source of the work, some additional sleuthing may be necessary.
While copyrights protect your works from unauthorized use, there is some unauthorized use that is acceptable under the law. For an artist, understanding the distinction between infringement and fair use is important as well. The principle of fair use has basically evolved from various court decisions and now is a lasting legal tenet. Fair use, as per Section 107 of the United States Code, of a copyrighted work occurs when the work is used for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. There are specific guidelines on how to analyze if specific use crosses the line into infringement. Typically, people who seek to use copyrighted material need to seek permission. In the case of fair use, they do not.
Generally, infringement occurs when another person produces, profits, performs, copies, derives another work from, or even displays your work without prior permission. As a copyright holder, you can enjoin or stop the use and can in some cases seek damages. Infringement is real and a major problem for those wanting to maintain the integrity of their creations. Understanding infringement is the first step in understanding what needs to be accomplished to protect your artistic works.
For more resources on artist rights and copyright law, you can check your local library or bookstore. Online sites such as Amazon offer books such as Lerner and Besler’s All About Rights for Visual Artists. In addition, check out the following links:
