Frank Frazetta sometimes felt like he “owned” the various situations or poses of the characters he painted, like the one of a warrior holding a sword over their head. Frank, of course, was wrong, bless him. While he certainly came up with memorable and iconic scenes, no one (Frank included) can own an idea and all of these works are honest (and legal) variations and expressions. Copyright [top left & right] by the Doubleday Book Club, Michael R. Whelan; [bottom left & right] Don Maitz, Joe Jusko.

I’m always a little surprised when questions about or erroneous suppositions are made (inevitably online) regarding copyright. Sure, it is complicated and the deeper you go the more convoluted the subject can get, but the basics are, well, pretty basic and easily understood. You don’t have to be a legal scholar to get the gist.

I had mentioned something in the comments thread of one of Lauren’s bootcamp posts a little while ago and I’ll reiterate those points below, just in case they were missed, but I’m generally going to keep this simple and straight forward—and I’m only going to be talking about U.S. copyright law. There are wrinkles in other countries that are slightly different that are beyond my limited cognitive skills (which in other words means I’m not going to talk about them).

And I should make it absolutely clear that I am not a copyright lawyer. I do deal with copyright issues routinely and have a lot of experience with contracts; I’ve been involved in litigation on both sides of the table (believe me: whether you’re suing or being sued, it is no fun…for either side) and have a pretty fair understanding of how everything works, but I don’t pretend to know everything. Copyright law (like all law, really) is nuanced and fluid, open to interpretations (which is one reason why there are lawsuits) and constantly changing as new case law and precedents are set. I leave the expertise to the experts so this is just more of a working artist’s friendly conversation.

Anyway, according to the Constitution (Article 1, section 8, thank you very much), the purpose of copyright is “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The law was gradually expanded to cover all types of art, literature, music, film and other works of “authorship” with the intent of stimulating more works by allowing people to profit exclusively (for awhile) from their creations.

Copyright is not some sort of “license to publish” nor is it a requirement: it is merely a legal protection for the creator—or rights owner—of an original work when it comes to publication, reproduction, or mass distribution. Copyright is also only a protection for works in a “tangible form” (which I’ll explain in a bit) against infringement or plagiarism.

Prior to the 1976/1977 revisions to the laws (which went into effect 1/1/78) a work had to be registered with the Library of Congress Copyright Office and include a proper notice—© 1962 Joe Blow—for the copyright to be valid. No proper filing (only the creator or the actual client could file, not friends or family), no printed © notice = no copyright, no exceptions. It literally was that black and white. The duration of copyright was 28 years and had to be renewed at the end of that term (for another 28) or the work entered the Public Domain; a 1992 amendment to the laws made renewal of registered copyrights for works published between 1964 and 1978 automatic for a duration of 95 years without further action of the rights holder. The provision being, of course, that all important registration with the Library of Congress: the © is meaningless without the paperwork for work that appeared prior to 1978.

So up until the revisions, copyright for artists didn’t tend to be on people’s minds overly much. Magazine and book publishers filed for a printed work’s copyright and, though the authors’ rights were asserted separately, the publishers became the “authors of record” for the package, including the illustrations. It didn’t have to be spelled out specifically in a contract, it just…was the way it was. Often the publishers retained the original art as part of the deal; any arguments that have been made decades after the fact about the “legality” of that policy (no sales tax being paid, no contractual stipulation of ownership, yada yada yada) is, for the most part, wasted energy. There are civil statutes of limitation and this is one of those very rare occasions in which possession really is 9/10th of the law. Regardless of the whereabouts of the original, in order for the artist to secure the copyright to their published art the publisher had to file a formal reassignment of rights to the artist with the Copyright Office then the artist had to separately file their own formal registration of copyright.

It rarely happened.

That all changed with the revisions. The work became the copyrighted property of the artist (with exceptions, which I’ll mention) immediately upon its creation and they retained ownership (again, if own it they actually do) until such time that they transferred or reassigned their rights. Like the authors, the artists were only licensing their art, with limitations, to the publishers. The © even became unnecessary with the Berne Convention Implementation Act of 1988 (though failure to show it can limit remedies in the case of infringement): the current duration of copyright is the life of the creator plus 70 years.

There are six “pillars”—basic rights—protected by copyright and the owner has the exclusive right to do (or authorize others to do) the following:

• Mechanically reproduce the work in any manner by any means (including electronically).

• Prepare derivative works based upon the work.

• Distribute copies of the work to the public directly or through permission granted others via sale, rent, lease, or license.

• Publicly perform the work, in the case of literary, musical, dramatic, film and other presentations.

• Publicly display the work, in the case of literary, musical, dramatic, etc. and pictorial, graphic, or sculptural work, including individual images from films, TV, et al.

• Digital transfer of sound and/or images or the authorization for others to do so.

Basically, that’s the most important thing to take away from this post: you own the rights to everything you paint or draw. With some exceptions, of course (life is full of exceptions).

You can’t copyright an idea.

Remember my mention of “tangible form” above? Title 17 of the U.S. Code states that works that are not “original works of authorship fixed in any tangible medium of expression are not subject to copyright.” Copyright exists to protect the specific form in which a work appears but cannot be applied to generic concepts. So you can’t copyright an idea, a style, a technique, a fashion, a plot, a pose, a color, a procedure, or a process. You cannot copyright facts. You cannot copyright design, common useful items (lamps, pencils, televisions, etc.), typefaces (only the unique mechanical presentation and delivery of them, but not letterforms themselves), titles, or names, whether for a band or a domain (though you might be able to trademark or patent some, which is a whole ‘nother kettle of fish). And, though heirs can inherit copyright, it goes without saying that you can’t copyright things you didn’t create, didn’t arrange to purchase the copyright for work you might commission, or don’t otherwise in some way own.

You do not own the copyright for art you create as Work For Hire.

It is the standard for (but not exclusive to) advertising and the entertainment industry and that includes films, TV, comics, album cover art, and gaming; it’s something of a touchy subject. Essentially, if an employee’s job is to create art for a company (as when I was an artist for Hallmark), the company is deemed the author of the work and owns the copyright. Likewise, if a company hires freelancers to produce art under their direction and approval for a collective work (whether it’s a singular film or an ongoing series of comics or role-playing games) that they own the copyright or trademark to, the resulting art is Work For Hire and the property of the employer. The only caveat is that the freelancer has to be informed prior to accepting the work of the conditions—and by accepting the job they’re formally transferring their copyright to the employer.

Aside: Now I know some people fuss about Work For Hire and I know that there have been (and still are) lawsuits filed by the heirs of some Golden Age Comics greats seeking the return of the copyrights to characters from the current owners. As much sympathy as I have, it’s most likely not going to end well legally for the heirs (and all of the various court rulings so far have upheld the rights and ownership of the employers). The fact of the matter is, Work For Hire is seen as a return on an employer’s investment, as a protection—and reward—for a risk taken. It is an incentive to take the risk. As compensation for relinquishing copyright, Work For Hire often pays the artists well, particularly in comparison to other non-WFH jobs. Arguments over morality or unforeseen profits are really legally irrelevant. If you want to draw X-Men stories for Marvel or Magic cards for Wizards you understand from the git-go that transferring your rights to the art you create is part of the deal. Complaining after the fact about a lack of residual compensation (in the off chance something becomes successful) or loss of copyright is, frankly, pretty damn stupid. If you don’t like the conditions of Work For Hire…don’t take those types of jobs.

You can paint whatever you want.

You can draw Spider-Man or Harry Potter or Angelina Jolie or any combination of the three to your heart’s content. You can copy Hale or Donato or Romita stroke for stroke or line for line and you can do them (questionably) on commission or you can sell them on the down-low to whomever puts the money in your hand (though the morality of doing so is something else entirely). No matter how close the copy, there’s always something of the copier in the work which arguably tips over into the area of free speech and freedom of expression (even if it’s unoriginal). You can include those works in your portfolio and can show them to people, one to one (though you’ll most likely make yourself look really bad). What you can’t do is make any reproductions, either to sell or give away, of any copyrighted work, character, or celebrity (they retain the right to exploit their own marketable image) without the permission of the rightful owner. Period. Remember? Copyright is a protection of reproduction and distribution rights. Ignoring that is not only an illegal infringement that is actionable, but it actively deprives the rights holder of licensing income that is rightfully theirs and which inflicts financial damage. Hellboy creator Mike Mignola notes wryly that artists will come up to him at conventions and show him what are ostensibly infringing prints featuring his creation that they’re selling. He says that some are surprised—and others angry—when he points out that they’re making money at his expense and he’d prefer they ask and seek a license first.

And when it comes to copying another artist’s work (which is, let’s face it, pretty unethical), never ever pass it off as your own: acknowledge the source (“after Joe Blow” or something with your signature). Not doing so is, at best plagiarism (which could be actionable if the work gets reproduced or circulated) or fraud (which could land you in the hoosegow).

Public display is something of a grey area dependent on various factors (including if the works can be seen as “transformative”). Disney once cracked down on a day care center that had a mural painted on their walls featuring Mickey and company. Likewise DC objected to a gallery show that featured paintings of their characters doing all manner of non-superhero stuff. The problem, of course, was that these were businesses using copyrighted characters exploiting them for gain without permission as part of the business’ own marketing identity and, in a form, “distributing” them or otherwise making them available to the public—and, as such, was actionable.

The Rockwell Museum recently had an exhibition of Alex Ross’ comic art: all of the art displayed was originally created for the comics companies and was perfectly legal to exhibit in a public venue with the copyright owners permission (either directly or implied). If the show had consisted of Alex doing new paintings of the same copyrighted/trademarked characters without their having been done for either Marvel or DC, there may have been a problem if either company’s legal departments wanted to object.

But, again, it can be extremely murky: José Rodolfo Loaiza Ontiveros’ show, “Profanity Pop,” at the La Luz de Jesus Gallery consists entirely of paintings of Disney characters doing un-Disney-like things. Will there be a problem? I guess we’ll see. [Update: There wasn’t. The show came and went without issue.]

Painting Mickey and Donald on your kid’s or neighbor’s bedroom wall, however, is perfectly okay. It is personal use. Or, if not “perfectly okay,” tolerated. No one from Disney will knock on your door and try to make you paint over it—and no court would support their attempt to make you if they did.

—————

[Addendum]

Obviously, this was one of the hot button issues of what I had intended to be a fairly common sense view of what is ostensibly a complicated subject. Besides some of the comments below, I heard from several lawyers who insisted that copyrighted works can’t be used or copied (much less sold), not no way, not no how. And as I generally agree in one of my answers, yes, from a purely hypothetical, no room for debate, everything written is the literal word of God-who-will-smite-you-dead-if-you-cross-Him purview you may never ever use the copyrighted work of another, be they person or corporation (which is the same thing now, right?), without their consent. To do so is infringement and can possibly come with consequences. And while many believe that’s that, open and shut…there’s nothing in the way of case law or legal precedent that clearly establishes that an artist can’t draw Batman for himself, then at some point sell that original to another individual. Any lawyer (or Internet Barrister) who claims otherwise… I challenge them to prove it. Laws have to be spelled out, they have to be available for study and review; they literally have to “be on the books,” Show everyone the statute. Whip out that dusty law tome and cite not only the formal statute, either state or Federal, but the case law that establishes a legal precedent.

I won’t hold my breath.

Law, including copyright law, consists of specifics: unsubstantiated opinions about what you can or can’t do legally are just that—unsubstantiated opinions, regardless of whether they’re made by real or pretend experts. In a court of law there have to be clearly defined statutes and precedents—and even then the laws on the books can be challenged, argued, reviewed, upheld or changed. Maybe there will be an example made at some point, maybe that will establish the precedent, but I’ve never been able to find any evidence of that having happened yet (and believe me, I’ve looked). If—and I say if—that time comes, I suspect that it will come down to a First Amendment issue and rulings made accordingly. If. Stranger things have happened.

But let’s not play b&w-perfect-world philosophy games and be honest. Artist’s have always, will always, draw and paint whatever they want: it is naive for anyone, layman or lawyer, to believe otherwise. To try to prevent it by wagging a finger and reciting “no, no, no”…well, good luck with that. There is no Copyright Cop standing over their shoulder, snatching the pencil out of their hand the minute they draw Vampirella or copy a Kirby drawing. There’s no way to legislate against an artist’s freedom of expression (though dictators and fascists routinely try), even if those expressions ultimately turn out to be some form of an infringement. In other words, there really is not an absolute answer. At least not one that people still won’t argue about.

You should file for copyright.

To reiterate what I said in Lauren’s post, if a copyright is infringed (and the usage does not fall under the Fair Use doctrine or aren’t examples of Copyright Misuse—yep, there is such a thing—or provable instances of Laches i.e. “sleeping on one’s rights”) the artist is limited to suing for “compensatory (actual) damages”—i.e. roughly the amount they would normally charge to create the piece if the infringer had hired them. The artist can try to seek additional money for possible lost secondary licensing revenues (the burden of proof is on them that they have a licensing program in place) as well as non-economic damages such as pain and suffering and emotional distress as part of their compensatory damages, but they’re rarely if ever awarded in copyright cases. That’s the limit they can attempt to recover unless the artist has filed for formal copyright (as I mentioned above).With that formal paperwork in their pocket the artist is able to seek compensatory and punitive damages. Punitive damage amounts awarded may vary between state and Federal statutes and there are no “official” caps, but in copyright cases it’s usually 4 x compensatory damages. On top of that, the artist can be awarded attorney fees as well, a big deal since litigators can ouch you for $250+ an hour and the hours add up fast. HarperCollins recently won an infringement case and are seeking $1.1 million in damages and attorney fees. Will they get it? Hard to say but the paperwork is allowing them to seek it. Regardless, much like paying for an insurance policy you probably won’t ever need (except maybe just that once!), filing for formal copyright of your art is worth it, for your peace of mind if nothing else.

Disney was not amused by Dan O’Neill & Co.’s infamous underground parody of Mickey Mouse. They sued the artists, won after nearly a decade of litigation, and were awarded $190,000 in damages and $2 million in legal fees. Since it was a batch of impoverished artists that lost, Disney was never able to collect much of the judgement and finally reached an agreement with O’Neill: if he left their stuff alone, they’d leave his bank account alone. That was in 1971-1980. It’s a different world now and you’d better bet that if the same thing happened today somebody would be working at Disneyland wearing a Goofy costume to pay off the judgement. For 200 years.

That’s the bare bones basics; there are more aspects to copyright for artists that I might talk about in the future—Fair Use (when copyrighted work can be used by others without permission, within limits and as long as the copyright is credited); transformative works (which allows one artist to take the copyrighted work of another and “transform” it into something new); how you can lose your copyright; when parody is and isn’t protected; when copyright status trumps trademarks, etc.

I know much more will be addressed in Lauren’s and Marc’s workshops. But let me close with the most common sense advice I can give: keep records of everything you do, respect the copyrights of others (whether an individual or a company) the same way you want others to respect yours, and when you’re in doubt or have legal questions, consult a copyright/intellectual properties lawyer. It’s worth the money.