Visual Artists and Copyright Rights

by Meredith Jack November 27, 2012

What & when are your copyright rights?

Keep your hands off my image!

The other Saturday I wrote a small musing on the art business practices; half the comments in the first two days were on copyright protection rather than gallery representation or sales to consumers. I had thought that this subject would be somewhat passé by now; the Copyright Protection Act was passed in 1975 and took effect on January 1, 1976. Jeez! Where have you been for the last 38 years? So, I put on my wrist brace and here’s the skinny in a short form (there are books, articles, and the Library of Congress website.)

It’s a good news/bad news situation. The bad news is that there is NO “poor man’s” copyright, as such. The good news is that as soon as you have put your idea in “tangible form” you, the artist, have a de facto copyright, with certain exceptions. The old notion of putting an image in an envelope and mailing it to yourself does establish a certain date of production, but it does not give you any other protection.

You do have to establish your intent to have copyright protection by signing, dating, and affixing the copyright notice in one of the several forms: C in a circle, Copyr., or Copyright all rights reserved. IT DOES NOT HAVE TO BE ON THE FRONT OF THE IMAGE; it must be where “it can be reasonably found”. There are some international differences depending on the country of production or infringement, but they’re fairly minor.

Insert “LOVE”

So, now you have a copyright, what good does it do you? First off, does your work lend itself to popular appeal? One of the largest copyright problems of the 20th century was Robert Indiana’s LOVE painting ( a pre-1976 work, “published” without the copyright notice required at the time) that has been used for everything from napkins to public sculptures without Indiana getting a penny. If your image has that type of appeal you probably should file the copyright with the Library of Congress Copyright Office; it’s a simple form and costs about $10. That’s because your copyright cannot be enforced (sue for infringement) until you have registered it; meaning when I print up the calendar with your image, you can’t sue me without registration. And paradoxically, I have a copyright on the calendar and if I registered it, you’ve got a real expensive fight on your hands. And if you haven’t registered the copyright before I infringe it, your damages are substantially reduced. If I infringe after you have registered, you have me by the short hairs.

Insert “Christina’s World”

However, copyright does NOT now pass through upon the sale of the object. You retain the copyright unless you relinquish it IN WRITING! Be careful with the sales agreement you sign; it can even be in small print on a sales receipt. This was a major change in the 1976 Act; Wyeth’s most reproduced image “Christina’s World” was purchased by the Museum of Modern Art under the old standards, and they, not he, own the copyright (and have sold the bejeesus out of it)…

One of the  exceptions I mentioned is that if the piece was done as “a work for hire” the copyright belongs to the person hiring you unless you have contractual agreement to the contrary. Many of you who do freelance graphic design are screwed unless you make certain in the contract that you retain copyrights. Works done “on commission” potentially have the same problem unless you have contractual agreement to the contrary. Nobody in the art world wants to deal with contracts, they’re too complicated, you need a lawyer, they’re too expensive, etc.

Cool !!! keep thinking like that, I’m going into the calendar business.

And I have intentionally skipped over one aspect of copyright that has a good sized constituency: digital art (especially on the web). That is covered by the “Sonny Bono Act of 1999?”. I’m not a “digiteraty” and I’m not up to speed on that aspect; you’ll have to research that yourself.

You have a multitude of resources out there, one of the best books (that’s still in print, I think) is the Legal Guide for Visual Artists (5th ED.), by Tad Crawford (ISB 978-1-58115-74-0) {You owe me Tad! He was scheduled to give a workshop in Houston back in the 1980’s, but was ill and never made it.}

If you really have an immediate problem you could dial 713-526-4876 and talk to one of the people at Texas Accountants and Lawyers for the Arts (TALA). They’ve helped me in the past, they can help you too. Their help is on a sliding scale from free to less than corporate rates, depending on your financial situation.

Actually, I’m in an ambiguous situation when I write and post this; while I ‘m not writing these things for the money, I have hellacious taxes due after the first of the year, and if I do get paid, perhaps I’m writing “for hire”.

As Dickens said in 1859, “It was the best of times, it was the worst of times.”

Let’s be careful out there.




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Cindy November 28, 2012 - 16:14

Thanks for your helpful article. Sometimes I wonder if artists can even afford to go after someone stealing their work….sad, this economy. Do they think we are made of gold? We aren’t all in MOMA you know..

Nick Dubrule December 3, 2012 - 12:35

Thanks for the article. Always important to remind ourselves about this stuff. I thought the issue with Indiana’s LOVE is that it was created pre-1976 but not registered through the copyright office. If it had been created after that date wouldn’t it be protected under International Copyright Law whether or not registration had been filed? I thought it was the lack of precedent cases in the courts where judgments had been made upholding the law that created the gray area where registration was still necessary. I’ve no idea whether those precedents have now been created but you’d think or hope so…

Meredith Jack December 12, 2012 - 10:00

Indiana’s LOVE was indeed done and exhibited (“published”) before the 1976 law, and at the same time did not have the copyright notice affixed (I’m not sure if it was even signed). Registration is no longer needed to HAVE a copyright, but it is necessary before you can SUE for infringement. Further, if it has not been registered BEFORE infringement the level of reimbursement for damages is reduced.


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