Copyright Infringement, Reproduction Rights, and Artist Careers
All artists are concerned when they find out that their art has been reproduced or shown without their permission. Whether the art appears in print, on television, in film, or on the internet, issues of copyright infringement are more prevalent than ever. Artists who realize that their art is being used without their permission almost always assume that their artistic copyright has been violated and that they must take corrective action, legal or otherwise.
Treating every such incident as infringement and legally actionable, however, is not necessarily a good idea. Several years ago, for example, an artist saw one of her paintings hanging on the set of a television show. She filed suit against the show's producers based on the fact that she had not given them permission to use her art. She won the suit, but in doing so, an argument can be made that she made life more difficult rather than easier for her fellow artists.
One of the television show's actors happened to be an art collector. One way that he expressed his support for the arts and for the artists in his collection was to hang their art on the sets of his shows. He did not show their art to make money or to save the costs of having to use prop-art instead. He showed it to honor the artists, pay them tribute, and encourage people to buy art; he did not show it for personal gain.
True, he neglected to ask permission to show the art, and he should have, but imagine how complicated constructing a Hollywood set would be if the producers had to ask every single company or individual whose products or creations appeared on-screen for permission. In any event, the judgement in this lawsuit caused the actor as well as other collectors in similar situations to pull back from showing their art in public. Now, less art by fewer artists is seen in high-profile circumstances due to fears that the artists may take legal action. The detrimental ripple effect for artists here is that when people don't get exposed to original art, they're less inclined to buy it.
Keep in mind here that artists often receive payments for art that appears on TV or in films and that set designers and production companies do have avenues for obtaining art, but sometimes for whatever reason, no payments are made. So the question that any artist faced with a possible copyright infringement issue must ask is this: Are the "violators" using your art exclusively to make money for themselves or can the situation be looked at in other ways? In the above example, the art in question did not increase the show's revenues, but rather honored the artist and hopefully encouraged more people to buy art. The set designers could have just as easily hung a public domain print or a poster or even left the wall blank.
Instead of taking legal action, the artist might have accepted this showing of her art as an honor and a compliment, and proudly added that fact to her resume. After all, how many artists can say that their art was seen on national TV by millions of people? The exposure certainly did more for her reputation than it did for either the lead actor's reputation or the show's ratings. Perhaps she should have paid them for the exposure. You could conceivably argue that, right?
At other times, taking legal action for copyright infringement is entirely justified. For example, in a recent court case, a well-known artist sued the owners of a frame shop for cutting pictures of her paintings out of magazine ads, and then framing and selling them as works of her art. She was right to sue the framers and she won. In contrast to the case involving the television show, her fame and her images were being used without her permission solely to make money for the framers; she received no benefits in any way, shape or form from these sales.
As an artist, you have to decide, on a case-by-case basis, whether or not and under what conditions to allow your art to be reproduced, and, if it is reproduced or used without your permission, whether or not to take legal action. Publicity can sometimes be as good or better for your career than money even when the letter of the law is not being followed. Below are several pointers to keep in mind when deciding how far to let others go with your art.
**In general, allow your art to be reproduced as often and in as many circumstances as possible (assuming they're positive and potentially beneficial to your art career). The more people who see it, the better your chances are for making sales. As with any other product, the higher your name recognition, the more art you tend to sell.
** The earlier you are in your career, the more inclined you should be to let other people reproduce your art at no charge assuming, of course, that they're not using it to make money. For example, if a non-profit organization asks you to provide, at no charge, a cover illustration for their brochure, you should probably give permission, and note it in your resume. If, however, a greeting card company wants to use your art on a line of cards, only give permission if they pay you.
** The more important the individual or organization asking to use your art, the more inclined you should be to grant them permission. Be flexible and easy to work with; you want as much high-profile exposure as possible.
** In certain cases where your art is being used for commercial purposes and you stand to receive a large amount of publicity or exposure, but are offered no money in return, consider waiving fees that you might ordinarily charge. Once again, the earlier you are in your career, the more flexible you should be on this point. For example, having your art reproduced on a full page of a magazine that charges $5,000 for a full-page ad is equivalent to being paid $5,000 for the use of your art (assuming the magazine prominently credits you for the art).
** When you're better known than the individuals or organizations that want to use your art, you should usually charge for its use. Even in cases where it's used only as illustrations and not directly to make money, your name may still be used in advertising or publicity to attract buyers and/or viewers. If, however, a non-profit organization wants to use your art, and you support their cause, you can grant them permission to use it at no charge and view doing so as making a donation.
** Don't be too quick to take legal action in instances where your art is used or reproduced without your permission. Many times, you can work out acceptable arrangements on your own with offenders. Consider not taking action when the reason for the use of your art is to draw attention to you and your accomplishments as an artist, and not to line the pockets of the parties doing the reproducing.
** Don't get a reputation for being litigious. Dealers, collectors, and other art lovers tend to avoid artists who regularly use attorneys or threaten legal action.
** Make sure you always receive proper credit for any use of your art; that's the most important part. Whenever possible, have the users provide contact information along with your name. This way, anyone interested in owning your art can easily get in touch with you.
Is a gallery offering you a show? Does someone want to rep your art? Entering into a business relationship? Signing a contract? If you answered yes to any of those questions, read Common Artist Legal Problems and How to Avoid Them
Disclaimer: Please be aware that I am not an attorney and that the contents of this article should not be construed as legal advice. If you have any questions of a legal nature, consult an attorney.
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