All original work is protected by copyright whether it is an artwork, a video, a piece of music, a dramatic work, written or broadcast on TV or radio.
Copyright is in effect from the moment the creator makes the work until 70 years after they die at which time the copyright will pass on to their estate. It is therefore illegal to use or recreate an original work without the express permission of the owner.
Public sculptures & copyright law
Public sculptures can easily be reproduced without the knowledge of the copyright holder be it in photographs or on postcards. These reproductions can then go on to be sold. A recent lawsuit looked to uncover the rights of the copyright owner in these instances.
Arturo Di Modica is the creator of the Charging Bull statue that is set in the terminus of Broadway in Bowling Green Park in New York City. It has become one of New York’s most prized features and often is used in images of the city. Di Modica owns the copyright to the piece and in September 2006 filed a law suit against Wal-Mart, North Fork Bancorp and several other companies for infringing on his copyright by using images of his work in their advertising and for producing unlicensed replicas of the statue to sell to the public. Di Modica claimed that he was losing out on significant financial income as a result of these companies using his work without permission and sought court orders banning them from using it in the future and for financial compensation.
Under US copyright law, only architectural works that are ‘ordinarily’ visible are allowed to be reproduced in a two dimensional format without the previous permission of the copyright holder. Public sculptures are protected from any type of reproduction without the permission of the copyright owner. This means that the designer of a building cannot file legal action against anyone who reproduces their work in a two dimensional form. They can however take legal action if someone attempts to recreate their work in a three dimensional form.
While the UK law mirror the US law in terms of architecture, it has a completely different set of laws for copyright concerning public sculpture. In the UK public statues can legally be reproduced in any two dimensional form including TV broadcasts without the copyright owners permission. The reproductions can also be used for commercial reasons. There are however specifications that people who wish reproduce the work must stick to. To begin with, they must give an acknowledgement to the copyright owner on their new image. They must also not make any reproductions which use the original work in a derogatory way. They can also not make any changes to the original image in any way by, for example, adding or removing parts of the image. The original copyright owner has the moral right to disallow the use of their work in reproductions if they believe that their work is being treated derogatorily.
It is illegal in the UK however, for any 3D reproductions of public statues to be made without the consent of the original copyright owner. Any 3D reproductions that are made without the consent of the copyright owner would be seen as a breach of copyright and the person making the reproductions would be liable for legal action to be taken against them. This law also means that the owners of the copyright of a public statue can sell licences to people who wish to reproduce the statue in 3D form which can form a considerable income for the copyright holder. It also means that a copyright holder can keep control of how and where their work is reproduced.
In the UK it is important that artists and commissioners are aware of the copyright laws which will affect their work once it is put in a public place. Most public statues are permanent fixtures and become important landmarks in the areas of which they are sited. Thus UK copyright law works in favour of the public as it would be impossible to govern the 2D reproduction of such works.
Derivative works & copyright
The year 2000 the Turner Prize stirred up controversy over the legal definition of originality. One of the four shortlisted artists Glenn Brown entered a piece called ‘Love of Shepherds 2000’ which looked very similar to the cover of a book which had been illustrated by Anthony Roberts, Double Star by Robert A Heinlein (1974).
The artist, Glenn Brown had trained at Goldsmiths College London and was known for using other artists’ works as a starting point for his own. The 2000 case was the second one which had been brought against him. The first case saw him being sued by the estate of Salvador Dali who believed that he had copied one of Dali’s original works without making it sufficiently his own.
Copyright law in the UK uses an originality test is to judge that a work is not significantly derived from another original work. This does not refer to the amount of the original work which is reproduced but the quality of the difference. The key examples of reproductions which are not deemed as original are photocopies or photographs of original works as the new image is simply made up of someone else’s work. When an artist uses another medium however, such as paint or sculpture to reproduce an original work, the question arises that as the artist is creating something using skill and labour, does this mean that their new work is original?
The test is carried out by someone who is not an expert in the art world like a member of the public. The two images are placed side by side, and the person needs to judge whether there is a visual connection between the pieces. If they judge that there is in fact a visual connection, the new work will fail the originality test. These means that not only will the new work not qualify for copyright protection, it will also be an infringement of the original work.
To members of the public who were not trained in the arts, Brown’s image was a clear copy of Roberts’ original work. Many art experts however disagreed and deemed that it was aesthetically original. The law however works in favour of visual originality which needs to be obvious enough that members of the public can see it as well as experts.
Artists have been using other artists work as starting points for their own for many centuries and in many cases, if put up to the originality test, many great works would be likely to fail. Andy Warhol for example, created reproductions of famous photographs of icons such as Elvis Presley and Marilyn Monroe which were visually very similar to the original works.
The artist Le Corbusier commented that ‘All artists steal; but the truly original artist repays a thousandfold’ which goes some way in describing how the art world judges originality. An artist may steal ideas but as long as what is created goes on to lead to artists being inspired by their new idea, the original theft may be forgiven. The law however sees this differently and thus rulings which are made may not always please the art world.
The Brown case was settled out of court with an agreement that Brown would add ‘After Anthony Roberts’ to the title and copyright of his piece.
Fair use & breach of copyright
Music or video excerpts
It is commonly believed that it is legal to use very short excerpts of music without the need for copyright permission. This however is a misconception, as under any circumstances, only the copyright owner is legally authorised to copy or reproduce their work. If this is done by anyone else, without the permission of the copyright owner, they will be in breach of copyright law which may lead to court proceedings regardless of how small the excerpt you use is.
Usually, only a small amount of individuals who sample, appropriate or infringe an original sound or film recording are taken to court by the copyright owners. In the cases where this does happen, it is usually because the piece that has infringed the copyright has gained a large amount of financial success and the owner of the original copyright seeks a cut.
It is always advisable to seek permission from the owner of the copyright of the piece you wish to use.
Copyright lasts for the lifetime of the creator and 70 years after their death at which point it is passed on to their estate. Therefore it is likely that most material is covered by copyright and using it without the owner’s permission is against the law.
The only things that have a major exemption are publicly sighted buildings and outdoor sculptures. It is legal to reproduce these two dimensionally, in film or on TV, whether in a non-profit or commercial way, without consent from the owner of the copyright.
Art, copyright & data protection
Images of celebrities
It's often said that life imitates art. However, it's very rarely stated that when art imitates life, it can lead to innumerable legal issues, probably because it wouldn't make a very good saying.
Either way, when working on a piece which incorporates the image of a celebrity or even that of an ordinary person, it's important to keep in mind the implications it may have under law, especially if you are planning on selling or licensing the resultant creation.
In the UK, celebrities have no specific protection laws; however, it is illegal to use the image of any living person for derogatory or commercial reasons. By using someone’s image for commercial reasons without their permission, you risk being sued for defamation and for ‘passing off’. ‘Passing off’ is where your work infers that you have a link to the person involved when in fact you don’t.
You also need to be careful if you are using the photograph of a celebrity for any reason as you stand to infringe on the copyright of the photographer or publisher of the original image.
If you wish to exhibit your work of a celebrity in the USA you should be cautious as personality and celebrity rights are protected by federal law. In California a celebrity’s likeness, signature or voice is protected in the same way as a copyright on a piece of art, for the duration of their life and 70 years after they die. There is only one exemption to this which allows for a celebrity’s likeness to be used in a work of art as long as it is a one off piece.
Data protection issues
Another thing you may be wondering about is whether it is possible to include information about other, real people in a work of art or other creation.
There are two things that you need to consider when using information about other people in your work. Firstly that your work complies with the UK’s confidentiality laws and secondly that it complies with the Data Protection Act 1998. Both of these statues state that you must get the permission of the person who’s information you wish to use before you publish your work. This should normally be done in writing and signed by the individual involved.
The Data Protection Act states that if you are storing personal data for commercial reasons you will need to register with the Information Commissioner and outline the way in which you are planning on using the information and how you plan to store it.
If you have a mailing list, then those on it should be able to correct or remove their information at any time. You should include an address in any correspondence that you send to members of your mailing list and details of how they can amend or remove themselves from the mailing list.
Depicting money in art
There are very strict rules surrounding the misuse of legal tender, otherwise known as "money". You should check the Royal Mint’s website for guidelines. Failing to adhere to these guidelines can lead to criminal charges being bought against you.
Intellectual property law online
Copyright on the internet has seen a great deal of challenges, but, while enforcement has proven to be difficult, the same rules still apply. Illegal file sharing has seen a great deal of attention online, but no matter what the situation, the creator of a work still has the same rights online as they are observed to have in any other situation. Essentially, their permission needs to be given if you wish to reproduce or republish the work anywhere, and it is this aspect of copyright law that many fall foul of on the internet.
The copyright of a website is looked upon as being a combination of different, more traditional varieties of copyright. For example, the content of a website, in additional to the HTML which creates it and any programming that may be involved behind the scenes, is considered to be protected by literary copyright. Likewise, images or photographs come under artistic copyright and music is shielded by music and sound recording copyright laws. While this can make the copyright of any website extremely confusing and convoluted, it is at least reassuring to know that there is a defence if someone opts to steal content which you have placed online.
Of course, the culture of the internet factors in, and many do not consider copyright as “important” online as it is elsewhere. However, while enforcing it often proves to be difficult, online copyright is the same as copyright anywhere else according to UK law, meaning that infringement is still frowned upon under the Copyright, Designs and Patents Act 1988.
An interesting approach which is taken by many creators online is to give limited permissions for use of their copyrighted material rather than attempt to take a draconian approach to infringement. By permitting usage of their content in specific situations, they are still able to enforce their intellectual property rights if needed, but grant permission for use which they do not see as harmful. This is often done with the use of Creative Commons licences.
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