Legal Tips for Artists
DO NOT COPY: Copyright Law Prohibits Rendering a Close Copy of Another Artist's Works
by
Cindy Hill, for Fine Art Registry™
A reader recently enquired about the legality of being hired to render a close copy of another artist's original works. In a nutshell, closely copying another living or recently deceased artist's work for commercial purposes is illegal under U.S. (and most foreign and international) copyright law, comprising both a civil and potentially criminal violation of the copyright statute.
Copies and Derivative Works
The U.S. Copyright statute, Title 17 of the United States Code, protects original works of authorship which includes original artworks. Section 106 of the Copyright Act reserves to the author, or creator, of a work, the exclusive right to reproduce the work in copies as well as to prepare derivative works. The definition of copy in the Copyright Act includes any "material objects... from which the work can be perceived, reproduced, or other wise communicated...".17 U.S.C. Section 101.The definition of derivative work includes "a work based on one or more preexisting works." Id.
A deliberate attempt to copy another artist's work would comprise either a copy or a derivative work under the Copyright Act, probably depending on the copyist's ultimate skill in executing their efforts (if the reproduction is truly precise, then it's probably a copy, whereas if it only winds up looking like it was based on the original, then it's probably a derivative work). But regardless of how well the copyist executed their efforts, the right to either copy or produce derivative works from an original artwork belong solely and exclusively to the original creator of the artwork.
Many people are accustomed to purchasing a copy of Vogue Magazine's September issue then dashing out to the fabric store to create knock-off copies of this year's hot fashions, or to redecorating a bedroom based on a photo seen in Architectural Digest or Better Homes and Gardens. For those of us who are used to replicating home and personal fashions created by designers but out of our price range, the thought of replicating an artwork which is either beyond our budget or unavailable might sound like it makes similar sense. However, the difference lies in copyright. Although fashion and interior designers often gnash their teeth over it, copyright law does not, at least presently, protect their designs (though it can protect specific fabric imprints). Copying an original painting is not legally the same thing as sewing a flounced teal gown based on a Vivienne West design; it is more like typing the latest hot novel into your computer and selling it on line, which is to say, it's a clear copyright violation assuming that the work being copied is protected by copyright.
For artworks created after January 1, 1978, copyright protections under U.S. law last for the life of the creator plus seventy years. The length of time that copyright protections apply for works created before that date varies depending on the time of creation. (Details may be found at the Copyright Office website.) For works created in other countries, longer copyright protections may apply, and a series of international treaties on copyright mean that works produced in other countries are still usually entitled to legal copyright protection here.
If copyright has expired, then creating a close copy of an antiquated, non-copyright protected work for hire likely does not violate the copyright laws. However, an artist must exercise caution here as well, to avoid knowingly entering into fraud by producing a work which the purchaser is intending on pawning off as an original. Being sure to document your "fake" Rembrandt or medieval style Madonna such as registering it's creation on Fine Art Registry™, clearly titled as a reproduction will help clarify any future questions which may arise as to the intention of the artist and the person who contracted for the work.
If the copyright on a piece has not expired then creating a close copy without the explicit authorization of the original artist violates copyright law. And once again, for the artist's protection, get that authorization to replicate the work in writing, and register the work with FAR® clearly titled as a reproduction.
Fair Use
Not all artistic copies of another's original artwork are copyright violations. The Fair Use exception to the Copyright Act, Title 17 Section 107, states that it is not a copyright violation to reproduce a work for purposes of criticism, comment, news reporting, teaching, ... scholarship, or research. The statute says that in considering whether use of a copyrighted work is a "Fair Use" the law will consider whether the use is commercial or for non-profit educational purposes; the nature of the work being used; how much of the work is being used; and the effect of the use upon the potential market for the original work. In other words, if I type the last Harry Potter novel into my computer and post it for sale at a dollar a copy on the Internet, I've engaged in a commercial enterprise, utilized the entirety of a creative literary work, and undermined the sales volume for the expensive hardcover book – clearly not a fair use and not entitled to the protection of the copyright exception. If, however, I quote a few paragraphs of that same novel in my blog or in a book review, I've used a small portion of the work for news and commentary purposes, and am entitled to the Fair Use exception.
Art students reproduce important artworks on a routine basis as part of their learning experience. There is no better way to truly learn the techniques of a master artist than by spending long hours observing and attempting to reproduce their brushstrokes on a fresh canvas. By repeating the same hand motions made by the artist one is studying, the student begins to develop a feel for his or her rhythms and patterns, contributing to the muscle memory which will then eventually emerge as the student's own original style.
These works are generated for personal use and for educational, scholarly, and research purposes. The student-artist should still take reasonable care to ensure that the works so produced do not wind up on the market fraudulently represented as originals – indeed, the student-artist should take steps to ensure that the works do not wind up on the market at all if they are reproductions of copyrighted works, as that would transform their work into a commercial venture and the Fair Use exception would be lost.
Transformation: Inspiration, Not Replication
Courts considering whether or not an artwork constitutes a copyright infringement, or a Fair Use, or simply a separate work, are increasingly using a test of whether or not the copy involves an intermediating "transformation" of the original work. (The same test is also being applied in Celebrity Likeness cases.) In other words, is the copy really a very close replication of the original, or does it launch an independently creative work from the seeds of another's original, such that the original provided mere inspiration for the secondary work? Parodies and caricatures have frequently been upheld in court as being legitimate independent secondary works rather than direct copyright infringements, because the humorous elements injected to create the parody or caricature is itself copyrightable creative work.
Similarly, it is one thing–and quite a legal thing at that – to be hired to paint a picture, say, of flowers that match a set of living room furniture colors, or are in an Asian style, or an impressionistic landscape; it is quite another thing, and likely illegal, to carefully copy the work of another artist from a gallery catalogue or art magazine article. By all means look to the works of other artists for inspiration in choosing palette, tone, composition and proportion – but don't copy without explicit license from the artist to do so.
— Cindy Hill, for Fine Art Registry™
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April 25, 2008
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