A Brief Introduction
Copyright can be a confusing or even annoying subject for some artists but it is important. Now that we have access to so much information on the web and digital information and images are common, we need to understand that even if the law in some cases seems to be lagging behind technology, it doesn’t mean that the intent of copyright is not to be understood and adhered to. In this editorial, I want to address a few issues with copyright and clear up a couple of definitions. I will also provide contact information if readers want more details.
Before You Start Painting
Before you start painting you usually look for some inspiration. Many of us these days look to the web and start browsing images under a certain topic, such as “wild seascapes”, “sunsets” or “floral arrangements” etc. This can be good for starting the creative process working, seeing what others have done in photography or as paintings can prompt your own ideas. You may see something and think, oh I like that but I think it would look in another colour, or with different plants for our country.
This isn’t a bad place to start, but it can not be where you stop and take an image and use it. Being on the web does not mean that the images are there for the taking. Many if not most images are automatically covered by copyright and the intellectual property of the creator, even if they do not have a copyright symbol or notation on them. Copyright is an automatic right of creators of written and artistic work.
So if you see an image you want to use, you MUST get in touch with the owner of the copyright (which may not be the person who published it by the way) and get their permission to use it.
The best way to avoid copyright issues for reference material, is to go out and get it yourself. Since many smart phones have very good cameras in them today, it is easier than ever to take your own reference material. These means more work for you, but it guarantees that the work your produce is 100% yours and avoids the possibility of a very costly court case that could cost you over $65,000 per offence.
If you are creating work to sell, this is very important. Most people will “forgive” use of their images if you are using it ONLY for education and development of your skills. This is why photocopying in schools of books can be done, it is for education only. As soon as sales come into the picture, you are making money off someone else’s ideas, time, costs to produce and work.
You may now be thinking that it is OK to use a photo for example, if you make changes to it. Well there are traps in that as well. Copyright used to say that you only had to change about 11% of a work to prevent breeching copyright of an image. That is not the case now. There now needs to be significant changes to an image to prevent copyright infringement. This is decided by the owner of the copyright material, so they decide if it is significant or not. You may think, oh I have changed at least half of the original image, that must be significant, the owner of the image may disagree and have the law behind him.
Recording Your Processes
Now that you have seen the importance of sourcing your own reference material, or painting plein air to keep your work entirely your own creation, you should think about recording the process. There are a couple of good reasons for doing this.
First is educational for yourself. Recording how you build up your artworks gives you an idea of steps in the creative process and you may be able to go back over these and develop new and better ways of doing what you are doing. You may see where a painting went off track, so that you avoid doing that on your next work, or work out how to fix the one your are on.
Secondly is proof that the work is entirely your own creation. If someone was to come along and think they can accuse you of stealing their intellectual property, you can easily prove that it isn’t the case. Some people may see a successful artist as a good way to get quick money by false accusations, so you need to cover yourself for unseen contingencies.
Storage of Records and Images
A couple of ways to record your process are to have an image library. I have an iPhoto library with a “Processes” folder to put pics of artworks in as I work on them. Another set of folders holds reference photos under different categories such as seascapes, landscapes, wildlife, still life etc. If the library gets too big, which it will soon for me, I will get a backup hard drive as a storage device for photos and progress shots. These are getting cheaper all the time, so a large portable drive shouldn’t set you back too much.
I have a filing cabinet to keep hard copies of works as well, which has sales records in the file for each artwork, as well as the accounts computer which keeps records of clients and sales. These are all backed up regularly.
A more traditional way of working is having visual diaries. I have these as well. In your diary you record your creative process with sketches and notes. These are also proof of intellectual ownership of your work. You can also use these to look back at your progress as you develop your style and ability.
Exhibiting Your Work
Now that you have created your painting (for example), you may decide to start exhibiting. You like what you have done, so it is time to start putting it out for others to see.
If you start entering group shows such as Rotary art shows, or those put on by art groups or galleries you will encounter the entry forms. Read these carefully, as they will most likely have a section on allowing reproduction of your work for advertising purposes. If you allow this make sure that it is only for the time of the event or your artwork may be used over and over for years, for the benefit of that group without anything in it for you. They may not even mention your name whilst using your image.
It isn’t a bad idea to also check to see if the organisers try to prevent photography during the exhibition. I have seen many people taking photos of artworks at shows with their phones so that can either print the photo out later, or use the image for their own paintings.
Another issue is publishing on social media sites. Some sites think that they have the right to use your images once published in your pages on their site. Check the fine print, as this has become an issue recently. You do not automatically sign away copyright by publishing on a web site. Just to be sure it wouldn’t hurt to put text on your pages notifying people that all images are subject to copyright and any reproduction must be done with your permission only if you are worried about misuse.
For your own solo exhibitions, make sure that the venue protects your copyright if you can’t be there all the time. Check any agreements or contracts to make sure that you are protecting your intellectual property from use outside of the time of the event.
Selling Your Work
When it comes time to sell your work keep a few things in mind. One is the provenance. Provenance is basically the place of origin or earliest known history of something or put another way, a record of ownership of a work of art or an antique, used as a guide to authenticity or quality.
My works now have Certificates of Authenticity on the back. They come with another certificate which I sign. If the holder of an artwork has these and proof of sale whether it be directly from me or a resale from a client of mine, they should have my original work. The paintings are also signed to back this up. All work is accompanied by statements and/or invoices generated by our accounts software.
I have sales records, digital and hard copy records of paintings I sell. So I know what is out there which is my work. As annoying as paperwork is, keeping a record of your artworks, clients and sales is very important.
Keep in mind that when you sell an artwork you have not automatically given or sold the copyright to the buyer. You still own it. Unless you have it in the sales contract that you are assigning copyright to the buyer, they do not have permission to reproduce or publish it without your permission. You may need to make that clear when you sell, or the buyer may think that they have bought the copyright with the artwork.
Assigning Versus Licensing – What’s the Difference?
Earlier I mentioned signing contracts for exhibitions for example, to allow reproduction of your work for an event. I want to now talk about the difference between assigning copyright and licensing copyright.
I will put this in the easiest way to remember, which is what I use. One is like selling something so you don’t own it any more, the other is like leasing or renting something, which you still own and will get back.
Assigning copyright is like selling it off. Once you assign copyright of your image you have given away your rights to it. Whomever you have assigned it to now holds the copyright and you will need to get permission from them to use the image you created.
Licensing copyright is for a given time or event. You may license it for an exhibition for advertising purposes, but once that show is over your copyright reverts to you and the event organisers can not use it again without your permission.
When you read contracts for events, exhibitions etc, do so carefully to make sure that the wording covers you getting back your copyright for your artworks and prevents further use without your permission, or worse, cuts you off from using your original work for your own business.
Conclusion and Suggested Contacts and Reading
Copyright has more to it that what I have gone over here. If you want a more thorough understanding there are books and websites that can help. For your own protection, if you intend on being a professional artist running a business, you need to know your legal obligations and rights.
Nobody has the right legally or otherwise to profit from your hard work without permission and you should also think of other people’s rights to their intellectual property when looking at images in books or on the web. I hope this article has given some insight into the subject of copyright and will prompt further investigation so that you enjoy the rewards of your labour and not someone else.
Provides a yearly subscription for artists and with that you have access to solicitors who handle copyright issues who can give you advice.
Provides professional indemnity insurance as part of the professional membership. It is the best price I could find for professional insurance. they also have advice areas and publish regularly to artists so that they can keep up to date with how to run their practice better. They provided me with the contact details for ArtsLaw.
Raw Law produced by Arts Access Victoria
An easy guide to your rights including an easy to read description of copyright for artists.