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The Monarch of the Glen, 1851, Sir Edwin Landseer, has been used for everything from
the Hartford Insurance Company’s stag logo to biscuit tins and butter
wrappers. You can read its history here.
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“A previous customer wants to use the painting they
purchased as part of an advertising image. Anyone with experience in this?” an
artist asked on Facebook. It’s a confusing subject.
The fact that her client approached her first indicates he knows that royalties are due. The artist needs to research royalties in her discipline before she can negotiate. I don’t envy her; it’s a difficult thing to pin down.
Copyright law in the United States is different than in
other countries. We have some treaty protection for our work, but nothing really
protects artists from international freebooters. What I’m about to say is applicable
only here. And of course I'm not a lawyer, so my advice is worth exactly what you're paying for it.
You don’t need to register your copyright with the government
for it to be protected. Copyright exists naturally once the work of art comes into existence. For something to be copyrighted,
however, you actually have to make it in a tangible form. “I had that idea
first!” is not a valid copyright argument, unless you can demonstrate that you
actually acted on the idea.
Copyright gives you, the artist, the sole right to
reproduce, create derivative works from, make prints from, and display the work
publicly. It doesn’t matter if you sell the physical painting or sculpture; the
rights to its image remain with you.
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The Associated Press
sued artist Shepard Fairey for copyright infringement for his Obama poster. The
parties settled out of court in 2011, with details remaining confidential.
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‘Work for hire’ is an exception to the general copyright
rule. It happens when an employee creates art as part of his job or is specifically
commissioned as part of a collaborative work. Advertising art done by either a
salaried artist or a contracting artist is an example of the former. An example
of the latter might be the artists who draw the illustrations in a medical
dictionary for a commercial publisher.
An agreement that the work is for hire isn’t sufficient; the
project must meet the courts’ narrow definition. Whether
or not the artist is attributed makes absolutely no difference to its legal
status.
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String of Puppies,
1988. Jeff Koons.
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Another exception is the fair-use exemption. This permits
limited use of copyrighted material without the copyright holder’s permission.
Fair use exemptions include research, scholarship, commentary, criticism, news
reporting, parody, and search engines. Without it, artistic commentary (including
mine) would grind to a halt.
The fair use exemption doesn’t allow unlimited copying of
artwork by other artists, even for self-styled ‘appropriation artists’ like Jeff
Koons.
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Puppies, 1985, Art
Rogers. Rogers successfully sued Jeff Koons for copyright infringement, one of
several times the artist has been sued.
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Copyright currently lasts through the life of the author
plus 70 years. If the work was produced under corporate authorship it
may last 120 years after creation or 95 years after publication, whichever
comes first.
What should you do if you find your painting gracing a wine label
or a set of plastic dishes—or worse, badly reproduced? Consult a lawyer
specializing in intellectual property. That’s theft.
Of course, anyone involved in an intellectual exchange should have a lawyer. The law is extremely complex, and expert advice is worth every penny you pay for it.
Of course, anyone involved in an intellectual exchange should have a lawyer. The law is extremely complex, and expert advice is worth every penny you pay for it.