The Layered Look: Copyrights and Visual Arts

People are generally aware that a painting, photograph, sculpture or other works of art are subject to copyright protection but many are less aware that copyright has many layers of possible protection which can present legal traps for the unwary.

An original work of art which may be a painting, photograph or sculpture, is subject to copyright from the time of creation of the work.  The copyright is owned by the artist or creator unless the work was produced as a work for hire where the creator is an employee acting within the scope of his or her employment duties, or by written agreement between the creator and a party who commissioned or ordered the work.

The exclusive rights of copyright for a visual work include:

• The right to make copies;
• The right to make derivatives;
• The right to distribute copies;
• The right to publicly display the work; and
• The right to reproduce the work on any article or item.

Here are a few examples to ponder in relation to these rights.

A photograph may itself be a separately copyrightable work apart from an original work being photographed.  For example, an old master painting may not itself be the subject of a copyright by reason of its age but a photograph of that master painting can be a copyrightable work of the photographer, or other owner if a work for hire.  The copyright owner of the photograph is entitled to control its copying and public display.

What if you wish to photograph a painting that is copyrighted?  Without permission of the copyright holder such a photograph will be a violation of copyright.

The risks of infringing a copyrighted work are heightened by today's ease of electronic transmission by use of the Internet, social media, cell phones, etc. What if you photograph a copyrighted painting or sculpture and post it on your Facebook page?  That posting can be considered copying and also considered a public display, both of which are violations of the owner's copyright, if done without permission.

Another right of copyright is the right to publicly display a copyrighted work or copies of that work.  Say you purchased an Ansel Adams photograph of a Yosemite landscape, you may display that photograph for your own enjoyment or within you usual social circle but you have no right to publicly display that photograph unless you were granted that right of public display by the copyright owner.

What if you take a copyrighted photograph and Photoshop it into an altered image?  As one of the rights of copyright is to make derivative works, your Photoshopped image would be a non-authorized derivative and also an unauthorized copy of the original work.

Can you put a commercial photo of your favorite band on a tee shirt?  You cannot (absent permission) since the copyright owner has the right to reproduce the photo on any item.

Liability for copyright infringement can be significant.  An owner of a registered copyright can claim damages based on actual provable economic loss or more often statutory damages which can be in the range of $750.00 to $30,000 for each infringement, as a Court may determine.  In cases of willful infringement, a Court can award costs and attorney's fees.  A court may also issue an injunction against ongoing infringement.

In a case of willful infringement under certain circumstances generally relating to commercial piracy of copyrighted works, there can be criminal liability for copyright infringement with penalties including fines and/or imprisonment.  
A defense to an assertion of copyright infringement is the right of fair use of the copyrighted work, which generally allows non-commercial use or copying for purposes of criticism, comment, news, teaching, scholarship and the like.

It would be safe to assume that copyright attaches to most paintings, photographs, sculptures and other visual arts and you should seek permission for any intended commercial activity. Permission may be sought directly from the copyright owner or most conveniently from various licensing organizations which exist for the purpose of providing such permissions.  Usually the permission is for a fee in an amount which depends upon the extent of intended use of the work. Well known licensing organizations for the visual arts include Corbis, Getty Images, Artists Rights Society (ARS), and stock photo companies, among others.

What do you mean I can't display the picture I bought? Photographs and Copyrights

So you have a photograph which you purchased some years ago of a beautiful early morning harbor view.  This photo would be perfect as a wall display in your commercial real estate office on the waterfront.  You have an enlargement made of the photograph and hang it in your office for all to see.

Not long after the picture is put on display, you receive an email from an attorney representing the photographer who asserts that you have no right to publicly display the photograph or to make an enlarged version of it, and asks that you immediately take down the photograph and destroy it. 

Is such a demand legitimate?    Yes it is.              

The photograph you purchased is subject to copyright protection which has a variety of associated rights.   Your purchase of the photograph provides ownership of the physical copy but not the associated copyright.  The purchase of the photograph does not give you any rights of copyright unless specifically conveyed in a written agreement between you and the copyright owner, in this case the photographer. 

As the owner of the photograph, you may display the photograph for your own pleasure, such as display in your home or private office.  But public display of the photograph is a right of copyright reserved to the copyright owner unless separately contracted for.

What to do now?  Work out a settlement with the photographer which may entail paying some amount for the right to commercially display the photograph.  Or comply with the demand to take down the photograph and destroy the copy.

Photographs, works of art and other copyrightable works are protected by copyright from the moment they are created.  The photographer has the exclusive right to reproduce his or her photograph and to control use of the photograph.  Without permission from the photographer (or other copyright owner), you cannot copy (in hard copy or electronic form), sell, distribute, publicly display or create derivative works of the photograph.

If you are contracting with a photographer to create photos for you, you should be mindful of the rights of copyright you wish to acquire in addition to a physical copy of the photograph.  You may wish to acquire all rights of copyright or just some.  It is often easier to negotiate a transfer of copyright interest at the time of engaging the photographer when he or she is more likely to be eager for the business, rather than later when circumstances may make the transfer of copyright less appealing.

The situation is similar for other works of art.  Laws in other countries are generally similar but of course individual country laws must be reviewed in specific situations.

If you acquire a photograph from a stock photo organization, the rights for use of that photograph are usually specified in the terms of sale or license.

There can be many nuances to transactions involving photographs and other artistic or visual works, and therefore prior consultation with an experienced IP attorney would be prudent.