Copyright Ethics & LawsSources include:
- Harvard Law: www.law.harvard.edu /faculty/martin/art_law/image_rights.htm;
- Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971) published by Cornell University Law School: www.law.cornell.edu/treaties/berne/overview.html;
- Huffington Post: www.huffingtonpost.com/karen-atkinson/ethics-for-artists_b_826053.html;
- World Intellectual Property Organization: www.wipo.int/portal/en/index.html
Copyright in A Global Information Economy explores the full range of copyright law and its relationship to technological innovations and globalization. This casebook elucidates the fundamental disputes of copyright law with balanced perspective. The book features comprehensive coverage of domestic and international copyright law, a balanced treatment of controversial issues, as well as a wide selection of concisely edited cases, engaging and practical examples and discussions, and photographs that facilitate and stimulate discussion of cases.
ETHICS, LAWS, COMMONSENSE:
Avoid copyright issues by taking your own photos or making your own sketches of your subjects.
There is a distinct difference between having your art and style influenced by another’s work and downright copying another’s work and selling it, without permission.
WHEN IT’S NOT OKAY TO KNOCK OFF SOMEONE’S WORKSerious problems with copying work, without permission, and passing it off as your own include:
- Confusion: The public will see your art and confuse it with another person’s work. This does not help either one of you.
- Diminishes Your Respect As An Artist: People may claim that you are unable to create on your own, that you have to steal from someone else, which will not add to your success.
- Stunts Your Artistic Growth: You will never grow as an artist if you outright reproduce someone’s art and style. To grow, you must challenge yourself and cultivate your own look.
- Illegal: If you are knocking off another’s work for financial gain, you are violating copyright laws. You could be sued and/or get very bad publicity from it.
- You’ll Get Shut Down: When you have accounts on Esty.com, Zazzle.com or similar sites, you’ll have your account shut down if they get complaints about you selling copied images.
Copyright protection exists from the moment a work is created in a fixed, tangible form of expression. The copyright immediately becomes the property of the author who created the work. Only the author, or those deriving their rights through the author, can rightfully claim copyright. In the case of works made for hire, the employer—not the writer—is considered the author.
USING OTHER PEOPLE’S IMAGES: An ongoing problem, which has increased dramatically because of the Internet, is that artists use other people's images without giving the artist any credit, or not changing the image enough to make it distinct from the original. Copyright infringement is quite serious. Also, while not illegal, making work that looks like someone else's is unethical. Sometimes this happens unknowingly. But, if you saw a great image in Artforum, and then remade it as your own, you are charging into unethical territory.
ONLINE POSTING: Artists that display their work online or allow their art to be published often include a copyright symbol (along with their name and the year the artwork was created) next to the reproduced image. This practice isn’t actually necessary—you still own the copyright, even without using the symbol—but at least this will remind people not to copy your work. If you find out that someone HAS “infringed” on your copyright, and you can prove that the copyright symbol was next to the image of your artwork that they copied, you’ll have a very strong case against them if the issue ever goes to court—which is exactly why so many artists choose to put up that copyright notice. Even after selling an original work of art to a collector, you still hold the copyright. The buyer cannot make prints or sell copies unless you’ve given them express permission in writing.
PINTEREST has a growing group of artists and professional photographers in an uproar due to possible copyright infringement issues. Before you pin, re-blog, or otherwise use material that is not yours, make sure you understand what you’re getting into and when in doubt, seek the advice of a competent copyright attorney. Initially, make sure you have the right to pin someone’s work. Ruth Carter, attorney at Carter Law Firm, PLLC cautions against using Pinterest recklessly, saying “Assume you are committing copyright infringement until proven otherwise. Giving an attribution or a link back to the original source may not save you; be prepared to spend over $150,000 in damages every time you don’t verify that you have permission to use an image.”
COMMON COPYRIGHT MYTHS/FACTS Don't rely on urban folk tales. Common issues that can get you into trouble:
- All materials created since 1989, except those created by the U.S. federal government, are presumptively protected by copyright.
- 'Fair Use' is one of the most misunderstood concepts in copyright law, probably because of the reference to reproducing a 'small portion' - often quoted as 'ten percent'. However that small portion referred to is for review, criticism, illustration of a lesson, or quotation in a scholarly or technical work.
- The US copyright office mentions parody, which some artworks are, but this is a specific instance - and you might have to prove it in court. If you copy part of an artwork for the purpose of a learning, that's one thing, but as soon as you exhibit that work, its function has changed - exhibition is regarded as advertising - and you are now in breach of copyright.
I changed it ten percent. Does that make it okay? No. That's another myth that originated from the 'fair use' guidelines, but as already established, most drawing does not come under 'fair use', and copying, even if you change it, breaches copyright.
Paintings Made from Photographs: A painting made from a photograph is known as a derivative work, but that doesn't mean you can simply make a painting from any photo you find -- you need to check the copyright of the photo. The creator of the photograph, i.e. the photographer, usually holds the copyright to the photo and, unless they've expressly given permission for its use, making a painting based on a photo would infringe the photographer's copyright. As for the argument that it's fine to make a painting from a photo provided it doesn't say "do not duplicate" or because 10 different artists would produce 10 different paintings from the same photo, that’s a misconception that photos aren’t subject to the same stringent copyright rules as paintings. All too often artists, who would scream if someone copied their paintings, do not hesitate to make a painting of someone else’s photo, with no thought to creator’s rights.
- The First Sale Doctrine: The physical ownership of an item such as a book, painting, manuscript or CD is not the same as owning the copyright to the work embodied in that item. However, it does not permit reproducing the material, publicly displaying or performing it, or engaging in any of the acts reserved for the copyright holder.
- Duration of Copyright: The term of copyright protection depends upon the date of creation. A work created on or after January 1, 1978, is ordinarily protected by copyright from the moment of its creation until 70 years after the author's death.
- For works made for hire, anonymous works and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the duration of copyright is 95 years from publication or 120 years from creation, whichever is shorter.
- Public Domain: The public domain comprises all works that are either no longer protected by copyright or never were. It should not be confused with the mere fact that a work is publicly available (such as information in books or periodicals, or content on the Internet).
- Essentially, all works first published in the United States before 1923 are considered to be in the public domain in the United States. The public domain also extends to works published between 1923 and 1963 on which copyright registrations were not renewed.
- Penalties of Copyright Infringement: By reproducing, republishing or redistributing the work of a copyright holder without permission, you may be violating or infringing on his or her rights under the Copyright Act.
IF YOU ARE ASKED BY A CLIENT TO COPY SOMEONE’S WORK:
It is an insult to say to an artist “Hey, I like your work, but will you copy this other guy’s art for me?” It can also be illegal. But some people aren’t aware of the ethics. As an artist, it’s up to you to educate your clients. When someone asks you to copy another’s artwork by handing you another’s artwork, tell them no and then give a suggestion as to what you will paint instead, in your own style and of your own design. Let them know that you don’t want to break any copyright laws.
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D. A. Levy, founder of The Maritime Heritage Project, was invited to join the San Francisco Branch of The Naval Order of the United States, (NOUS), which has a history dating from 1890. Membership in NOUS includes a wide range of individuals, many with highly distinguished career paths associated with various military branches.
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