Guide Through the Legal Jungle

Visual Artwork in Film and Television

On the Art Licensing Blog, artist Paul Brent tells the story of how his artwork made an appearance on this week’s episode of Hawaii Five-O.

In his interview with Tara Reed, Paul wonders whether video production companies must ask artists permission for the use of their artwork. The answer is yes! The Copyright Act protects visual artwork just as it protects songs, films, books, and other creative materials.

Production companies that use artwork in a production without the artist’s permission can certainly be sued for copyright infringement (if the use does not qualify as a fair use). One of the best known cases is contemporary artist Faith Ringgold who sued after a poster of her Church Picnic Story Quilt appeared as part of the set decoration in an episode of the sitcom Roc. Even though the poster appeared for a total of less than thirty seconds, the court said it wasn’t a fair use. The parties ultimately settled without a trial.

Graffiti As Protectable Art

I recently addressed the question of whether graffiti is protected by copyright. The question revolved around one’s right to incorporate someone else’s graffiti into another visual artwork.

Here’s my opinion on the matter:

Copyright protection is available for “any original work of authorship that is fixed in any tangible medium of expression”. That language comes directly from the Copyright Act and means that creative works – like books, films, art, etc. – are protected by copyright as soon as they are written down, typed into a computer, recorded on film, drawn on a napkin - or even a wall, etc.

Graffiti has special features:

Often, the venues on which the graffiti artists draw do not belong to them. The artists do not have permission from the property owners and, in fact, their “creative work” may be viewed as vandalism. Finally, graffiti is often promptly removed. Nevertheless, I am not aware of any legal cases or other authority suggesting that copyright is unavailable or diminished for any of these reasons.

However, I’ve never researched this specific issue and there may be a relevant case out there. In any case, I would start with the theory that the graffiti is subject to copyright protection – until I found specific legal support to indicate otherwise.

Is the Graffiti Original?

One concern I would address before re-using any graffiti on another work is whether the graffiti is actually the original work of the graffiti artist. If the graffiti artist copied the design from a magazine, postcard, etc., the original creator of the design might be someone who will challenge its use on your work. I would also look at whether the graffiti includes any images of recognizable people or products – which could trigger privacy, publicity, or trademark issues.

When Have You Published Your Artwork?

For a recent law firm project, I helped a client determine whether a particular piece of artwork was in the public domain.

As I explained in a one-minute how-to interview, there are a few ways in which a copyrighted work can end up in the public domain. The most common way is for the copyright to expire. In the United States, copyright has expired for all works published prior to 1923. This particular artwork was not that old so the 1923 rule was not relevant. The artwork was a pre-1978 creation so it did not fall under the current Copyright Act which provides for a copyright term equal to “the life of the author plus 70 years”

Instead, to determine public domain status, I had to determine whether the copyright owner had complied with all the formalities that used to be (but no longer) are required for maintaining one’s copyright. For that determination, I still needed the date on which the artwork had actually been published. You might consider that to be an easy question to answer but that’s not always the case.

In order for your copyrighted work to be considered published, the copyright owner must authorize the publication and multiple copies of the work must be available to the public. Putting your artwork on public display in a museum does not by itself qualify as publication because that is only one copy available for the public to view. Similarly, distributing copies of the artwork to a few close friends probably would not qualify as a publication. However, selling print reproductions of the artwork in the museum gift shop would likely qualify as a publication.

Visual artists are not alone in their confusion about publication dates. In another posting on publication dates, I discussed whether the correct publication date of a book would be the date books are printed, the date the books arrive at the warehouse, the date copies go to distributors, or the date on which the first copy is sold.

Fairey and the Associated Press and the Obama Poster

Visual artist, Shepard Fairey, created several posters to support the candidacy of President Barack Obama.  One of Fairey’s posters now hangs in the Smithsonian Institution’s National Portrait Gallery in Washington, DC.

 

Fairey admits that he used a photograph taken by Mannie Garcia as a visual point of reference to create his posters.  The Garcia photograph, taken by Garcia while on assignment to the Associated Press, depicts then Senator Obama at an April 2006 panel discussion at the National Press Club.  

 

After this revelation, the Associated Press contacted Fairey to demand a license fee for the use of the Garcia photograph.  The AP said it would contribute any proceeds to a charitable fund that supports AP journalists around the world who suffer personal loss from natural disasters and conflicts. In a preemptive strike, Fairey filed his own lawsuit asking a New York federal court for a declaratory ruling that his posters do not infringe any copyrights held by the Associated Press. 

The case raises some interesting issues.

 

 

Finding a Spot on Paintings and Sculptures for Copyright Notice

I recently spoke about copyright law with members of the Washington Sculptors Group.  Pondering copyright law as it applies to visual artists made me think that a review of how to place copyright notice on fine art might be useful.

Here’s an example of a proper copyright notice:

Copyright 2008 by Joy R. Butler

Master of Ceremonies

A Guide Through the Legal Jungle Trivia Question

Which famous professional athlete sued unsuccessfully for the reproduction of his/her image in a collage featuring past winners of a prestigious sporting event?

1. Michael Jordan
2. Barry Bonds
3. Tiger Woods
4. Mary Lou Retton
5. Joe Montana

Imitating the Work of Admired Visual Artists – Flattery or Copyright Infringement?

According to the adage, imitation is the sincerest form of flattery. However, to what extent can one visual artist imitate the work of another visual artist? This topic came up recently on the Digital Painting Forum.   

Anyone may duplicate the ideas or concepts reflected in your artwork.  For example, if you paint a horse, copyright law does not prevent anyone else from painting a horse  – even if it is the exact same horse. What another may not do is duplicate the expressive elements used by you in your artwork. Expressive elements in visual artwork include the selection of lighting, shading, camera angle (for photographs), background and perspective.

Copyright law also often allows you to use a copyrighted work if you transform the work in some manner. Your use of a copyrighted work is transformative if your use is creatively different from the way in which the copyright owner used it. As a general rule, the transformed work can not serve as a substitute for the original work.   Transformation is a key element in determining whether or not a particular use of a copyrighted work qualifies as a fair use.

Learning from the Experiences of Jeffrey Koons

Visual artist Jeffrey Koons seems to be a lightening rod for copyright infringement lawsuits. Looking at two of his experiences might help illustrate how to draw the line between copyright infringement  and transformative use.

Duplicating and Selling Celebrity Images

A Guide Through the Legal Jungle Trivia Question

Leslie is an amazing sketch artist and avid Tom Cruise fan. She specializes in charcoal drawings, and recently drew an impressively realistic image of Tom Cruise’s face. The sketch is so precise that some even mistook it for a black and white photograph! To show what a fan she is, she copied the image of Tom Cruise onto a t-shirt for herself. She got many compliments on her t-shirt—so many that she decided to make t-shirts in bulk with the sketch printed on it. She sold over 1,000 t-shirts! Does Tom Cruise have a claim against Leslie?

1. No, Leslie is an artist and has a right to profit from her art.


2. No, Tom Cruise is a celebrity, and people have a First Amendment right to comment on celebrities through art and profit from their labor.


3. Yes, Leslie used Tom Cruise’s likeness for her personal profit without his permission.

Tattoos as Protectable Art

Barney Davey, an art marketing author, speaker, consultant, and blogger, wrote and published a very favorable review of my book, The Permission Seeker’s Guide Through the Legal Jungle, on his Art Print Issues blog. Thanks Barney!

Barney’s discussion of my book yielded a question from Richard Harrison (www.salestipsforartists.com) regarding the rights of tattoo artists in their original designs.

Here’s Richard’s question and my response:

Protecting Fonts

A client wanted to use a distinctive font for a company logo and asked whether the font was copyrightable and whether use of the font in the company logo was permissible. It sounds like a simple question but it quickly got complicated.

While fonts themselves are not copyrightable, the software that generates fonts and typefaces can be copyrightable. This is the rule of law for the United States only.  Fonts may be copyrightable under the laws of other countries.

I quickly concluded that the relevant question for my client was one of “licensing.