Sunday, September 7, 2014

Art Collector Tip #3 - All About Copyright

On occasion I've discussed copyrights with several of my collectors and with some of the students in my watercolor workshops.  Both collectors and artists will benefit by a basic understanding of how copyright law applies to works of art.

Disclaimer:  The explanations that follow are not advisory.  They represent my best understanding of copyrights, but if you need reliably accurate information, please consult a copyright lawyer.

This discussion is based on U.S. copyright laws.  Many other countries have copyright laws that are similar, but there are some differences.  There is no way to obtain a "worldwide" copyright, although many countries have reciprocal agreements to protect each other's copyrights.

What is a copyright for a painting?  It is a form of protection provided by U.S. law that gives the copyright holder the exclusive right to display, reproduce, and derive other works from the copyrighted image.

How can one tell if a painting is copyrighted?  That's easy... every painting recently created in the U.S. is automatically protected by copyright, regardless of whether the copyright symbol © is displayed on it.  This copyright lasts for 70 years after the death of the artist.  (The rules are slightly different for paintings created before 1963.)

The artist owns the copyright unless the work was created while he/she was an employee; in that case the employer owns the copyright.  For commissioned works, the artist owns the copyright, since he/she is not considered to be employed by the person commissioning the work.

Under copyright law it is illegal to make copies of a painting created by someone else - even if you have purchased the actual painting.  If you want to make copies - for example, of a portrait to give to other family members - you should either have the artist make the copies for you, or have the artist transfer the copyright to you (in writing), either of which will probably require an additional fee.

Similarly, artists should not copy the works of other artists, or of photographers, without permission.  If you do this for your own private learning, it's fine.  But if you do it to exhibit or sell, you are running afoul of the copyright laws.

What can happen if I infringe on someone else's copyright?  It depends.  In the worst case, the copyright owner can sue.  If the copyright has not been registered with the U.S. Copyright Office, the copyright holder can sue for up to the value of the infringer's profits, but cannot recover any costs of the suit or associated legal fees.  So for an unregistered painting, there is no financial risk to you unless you have profited from your infringement.  Most artists who produce work of moderate financial value do not register their artwork.  However, if the work has been registered before the infringements occur, the financial penalties can be severe - $150,000 per infringement plus legal costs.

Thus for most "personal" copyright situations, the issue is really an ethical one.  We should not infringe on someone else's copyright because it is illegal and unkind to the creator.  Artists should create their work from their own references or from references of others from whom they have obtained permission.  Collectors should not make copies of artwork, even if they own the physical piece, unless the artist has transferred the copyright to them in writing.  Let the artist who created the work profit appropriately from his/her creation.

I hope you found this brief discussion of copyright interesting and useful.  There are many good resources on the web that can provide this sort of information in more depth.  Here I shall repeat my Disclaimer:  The explanations above are not advisory.  They represent my best understanding of copyrights, but if you need reliably accurate information, please consult a copyright lawyer.

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