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 previous registration with the Library of Congress: the © is meaningless without the paperwork for art 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.
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.
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.
I would like to be notified when the book is available, but the subscribe form doesn't seem to work. It says “An invalid Interest Group was selected.” although I've tried selecting both options (make art/need art)
Try hitting the “contact” button on the website and let Lauren & Marc know you're having trouble signing up for the newsletter. Also, I'm sure that once they're ready for their Kickstarter launch, they'll make an announcement here: I'm looking forward to it!
Someone is going to have to explain this part to me a little more clearly-
“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 on commission or you can sell them to whomever puts the money in your hand. You can include those works in your portfolio, you can show them to people. 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. “
So, you can COPY stroke for stroke, and even sell this, but you can't make a REPRODUCTION? What's the difference? I'm not following here.
I believe they are talking about reproducing copies. Like printing 100 copies of your original work and selling them for profit.
Brilliantly helpful, thank you!
“So, you can COPY stroke for stroke, and even sell this, but you can't make a REPRODUCTION?”
Right. When you physically paint or draw something, even if it's a copy of someone else's work, even if it features other companies' copyrighted characters, it is a one-of-a-kind personal artistic expression and is allowed. While there are certainly ethical and moral objections to copying another artist's work and profiting from it, there is nothing inherently illegal about—it within limits. It's actually covered by the First Amendment (which might seem odd, but it's true: artistic expression is considered “speech”). As a one-of-a-kind original expression, the artist is also allowed to sell that work to another individual. Again, it's a single image going from the hands of one to the other.
Of course, if a flood of unauthorized copies begin to undermine the ability of the original artist to profit from their own work or causes confusion in the marketplace or allows fraud to be perpetuated—all of that is actionable and the courts may get involved. It rarely gets to that point.
“Reproduction,” as I've described, does NOT refer to a hand-painted one-of-a-kind copy of an artwork, but rather refers to the manufacture and distribution of mechanically made copies (whether made with a desktop printer or a professional printing press). Copyright provides remedies in the event an artist's work is made available to a mass audience without permission, but obviously copyright isn't the Thought Police and can't prevent artist's from drawing whatever they want, and that includes copying the work of others or drawing characters that are copyrighted by others. Nor is it meant to be.
Hmm it's working for us, but you can bypass and email drawnanddrafted [at] gmail [dot] com, ok? we'll get you on the list.
Great post! Guess who just got nominated to edit the Copyright section of the Make Art Work book! haha
This is where the whole China sweat shop painting thing gets sticky?
How does the whole “distribution” factor in on digital work? Like fan-art posted on deviantart or online portfolios? This is not seen as distribution?
So my question is, how do artists at conventions get away with selling prints of comic book, television, or movie characters? Basically, “fan art”. I'm just getting into the convention scene, and I've been told to create artwork and sell prints of already established characters from Marvel or DC to drive traffic to my booth and sell more. Something about that has never felt right to me. I'd feel fine doing a commission of a character, but selling prints of already established characters doesn't sit well with me. I'm sure there are “fair use” characters out there to use, but I don't think Superman or Spiderman fall under that.
Anyway, great post as always. Can't wait for the next one!
A very useful, clear and concise post! Thank you for writing this Arnie!
Yep. The problem, of course, is how to take action when such things reach an egregious point and the perpetrators are  in a foreign country and  in a foreign country which does not generally care a lot about copyrights held in other nations, particularly individual's copyrights. International corporations can litigate overseas, but artists find it incredibly daunting and horribly expensive.
[Frantically looking for an appropriate Supernatural gif to post…]
Has there been more than one newsletter sent out? I thought I'd signed up successfully, but the only thing I've ever gotten is a notice about Spectrum Fantastic Live on May 9, which seems odd… Weren't there supposed to be emails about the bootcamp one-sheets as well? If so I never got them.
It IS seen as distribution or publication and, if a copyright owner complains to the poster or web host, they can have the work removed. In worse case scenarios they can seek damages through litigation and there ARE instances in which that has occurred. But because the internet laws are still in something of a development phase, it doesn't often happen. For a company to scour the web to protect their properties would take a tremendous amount of time and energy and most don't believe it worth the expense except in the rarest of circumstances. That might change as the internet continues to evolve.
I'm not disputing your explanation of the reproduction process under copyright law, but even if it's a hand drawn/painted work, it still screams reproduction to me. I don't understand how that's different from one artist taking a part of another's work and slightly changing it for their own piece.
Despite the controversy even this would be considered legal, right?
“So my question is, how do artists at conventions get away with selling prints of comic book, television, or movie characters?”
Basically, they get away with it because they're generally flying under the corporation's radar or, if the artist has a good relationship with a company they they wish to maintain, individuals in the company will selectively turn a blind eye to the infringement. A sort of wink-wink-nudge-nudge deal that is tolerated as long as it doesn't get out of hand, but no one should count on that. I know VPs from one comics company who have tried to be good guys and have quietly suggested to artists at conventions that they take some stuff down and be more discreet; on the other side of the coin I know a well known artist for another company that had to pulp one of his convention sketchbooks because it included too much of the company's copyrighted material that he hadn't sought permission to include.
So in other words, artists who sell prints that infringe on one or another company's copyrights are rolling the dice to see if they get caught. Sometimes they shoot craps.
OK, so now you've confused me again… you said…
“Right. When you physically paint or draw something, even if it's a copy of someone else's work, even if it features other companies' copyrighted characters, it is a one-of-a-kind personal artistic expression and is allowed.”
Yet, that sounds a lot like fan art, even digitally painted fan art. And you're saying fan art ISN'T allowed, so… I'm confused again.
It’s not “fan art” anymore once you sell it. Then you are selling another artist’s and or company’s intellectual property.
When you become an artist, (even an unknown) and you catch someone selling reproductions of your artwork and/or even just copying it and CLAIMING it as their own, you will then feel the sting of THEFT.
I see it all the time on Kickstarter platform in various mediums. Like enamel pins (not just one or two, but themed sets by many pin “artists”), calendars, and I am positive, some tabletop games (which sold millions of dollars-worth of the games and never once showed any copyright or Trademark symbols within the marketing page of the crowdfunding campaign. They never credited Marvel AT ALL, and had used numerous characters).
These are the things make you go Hmmm….
You're getting caught up in the semantics of language, confusing the differences and meaning of words as they apply, in this instance, to legal use: copyright law is about mechanical reproduction and mass distribution, period.
What the artist referenced did is fraud, but the fraud is not necessarily about painting copies: the fraud was/is in selling them through deceit with false claims of credentials and provenance where he had neither. Also the wholesale plagiarism, virtually all sold with false claims of authorship, as his business model is most likely actionable both civilly and, depending on the zeal of a prosecutor. Again, it's the quantity that raises one red flag and the way he's trying to sell them that raises another. Added to that fact was that he was set up at conventions selling the stuff, a public venue, meaning distribution to the public—which, of course, means it's actionable should an artist or company choose.
But if someone had privately asked this guy to paint a copy of Bruce Timm's Joker he could do it and get paid for it. So yes, that much would be legal. But he couldn't legally display it in public, publish it, sell prints, or go around telling everyone he was an animator for Warner Bros. so the art is worth a whole bunch if he hadn't actually worked for Warner Bros. as an animator. It's sort of like all the guys who try to pick up dates in bars by claiming to be former Navy Seals when they've never been in the service: it ain't legal and if they tell the lie to the wrong person they can wind up getting in trouble.
No the whole China sweat shop thing gets sticky because China has different laws regarding copyright and does not agree to international copyright laws.
For an explanation of how some people get away with this, watch the video in this Chris Oatley post.
Hi Arnie, Thanks for this article, I have to admit I read it quickly, and will read it again shortly, and then again when I file another piece of art work soon(I hope). I just received my first official Copyright notice [I filed a piece in March]. YEAHHHHH! High Five, jumping up and down with Joy! [I'm a part time artist so a big milestone for me] I filed 3 more a week ago. [Repeat jumping for joy!]. These were eFiles at $35 a pop. Questions:
1 -Is there a difference between filing a collection of works at one time vs. filing the pieces individually?
2 -How long can you wait to file your work once it is done 9and maybe posted on Facebook or a blog]?
3 -If I move a leg or a foot on a drawing that was copyright protected [based on a critique that made sense], do I need to refile?
4 -So I created a Faerie, so does a thousand other people. When I copyright mine, my intent is to protect my design, my character of a Faerie until I decide to move on to something else or until I decide to take that design and expand upon it in a story, another drawing, etc. -Did I achieve that by copyrighting it?
5 -Trademark, The Teenage Mutant Turtles gave Eastman and Laird lots of opportunities to be independent artists because they owned the rights to their work. When does trademark come in after copyright protection?
6 -My Wife… She asked me why I was spending so much money on the three works I copyrighted, my basic answer was I wanted time to see if I could take my work and expand upon it, and in that time I wanted to protect my designs… but I see I need to be careful on my ideas… So how do you protect your work, make it public by copyrighting it, and then protect the idea… especially when I don't know when the idea could become a story that finally expresses the whole idea -image, words, print.
I'm still trying to grasp copyright and usually need to review this post and others a few times to digest it. Thank you very much for taking the time to write about copyright and answering my questions,
To address appoint you made:
• 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 on commission or you can sell them to whomever puts the money in your hand. You can include those works in your portfolio, you can show them to people. 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.
This past weekend I attended a workshop and several seminars on copyright given by a copyright lawyer. She said that original one of a kind works are not an exception. I wanted to make sure I was right about that so I emailed her.
Doing original one of a kind piece based on copyright material (Whether derivative or stroke for stroke) and selling it, is copyright infringement. (paintings of living celebrities is a different matter)
Copyright also protects not just the reproduction and distribution, but also the USE of. Making a one of a kind painting of Spiderman and selling it, is an infringement of copyright, because the owner of the copyright also controls the USE of the image, in all matters.
So, all those artists sitting in artists alley, drawing superheroes and selling them, are violating copyright. But many companies turn an blind eye to that (Hasbro tends to NOT turn a blind eye) because it's in some ways a form of fan love. And without fan love, you can't really survive.
You can file a bunch of images together as a series or collection for one fee or $55. The series doesn't have to be related images. You could file it as a collection and call it 2014 March work.
File online is MUCH faster than mailing it in. Those mailed in forms take months to get through.
You have a 3 months grace period between to file your copyright. So if you get an infringement in that three months, and file, you can still get full compensation for the infringement.
Thank you for further explanation.
Well, that's not entirely the case or else Hollywood wouldn't be distributing their films there. But it is different, particularly when it comes to redress through civil courts. Which, as I said, being in another country can be extremely difficult.
Again you're getting confused by semantics (calling something “fan art”—which is not a legal term, just not provide any protection, and which the courts do not recognize as some sort of justification): you can draw whatever you like any time you like. Personal use is allowed—just like you can record a TV show to watch whenever you like. You can give that copy to a friend if you want or, shoot, you can even sell it to them if they're dumb enough to pay you for it: what you CAN'T do is make multiple copies and go into business selling illegally recorded programs. That crosses the line: one-of-a-kind is fine, a stack gets you raided.
Look, the simple fact of the matter is that 99.99% of the time Marvel doesn't care if you draw and post your pictures of Spider-Man, whether they're original or traced. Robert Downey Jr. doesn't care if some fan paints his portrait and then sells it to some noob at a comicon. But just because they generally take a benign outlook does not mean that anyone has the legal right to infringe on their copyright or appropriate their likeness, especially for profit, and any time they choose they can use the courts to clamp down and make an example of an infringer.
Along similar lines, no artist likes to have their original art copied. It's done all the time, it's true, and yes, as a one-of-a-kind copy it's legal (as long as it isn't printed up and distributed or passed off as something it isn't to defraud someone)…but artists generally do not like it. People used to proudly show Frazetta tattoos based on his paintings and he didn't consider it a compliment. On more than one occasion when I told him he should be flattered he said to me, “Bah! These guys are nuts!” 🙂
“Doing original one of a kind piece based on copyright material (Whether derivative or stroke for stroke) and selling it, is copyright infringement. (paintings of living celebrities is a different matter).”
Wow. You got a lawyer to answer an email immediately and for free? Amazing! 🙂
From a purely technical (even philosophical), black & white interpretation of the law, that might be true, at least depending on a particular lawyer's interpretation of the law. Another lawyer might not agree with that same interpretation—which is why, as I said, there are lawsuits. From a practical application of the law…naaa. Copyright law protects “use” absolutely, but only use of the actual copyrighted item, which again falls into the category of reproduction and distribution. A one-off painted copy as a personal expression given or sold to another individual, well, most likely falls under the category of free speech. Would a court be willing to hear a case about Joe Blow selling their copy of “Death Dealer” to Jill Blow for $100? My money would be on “no.” But let me add, IMO. 🙂
This is a good piece. It is very b&w and the law is nuanced…but it's still a good piece. Thanks for the link.
1. Tim is right. You can copyright work in a batch.
2. You can file for your formal copyright at any time. The timing only becomes important if your rights are infringed, and as Tim mentions, there's a 3 month grace period once you've discovered an infringement..
3. That I don't know.
4. You cannot copyright design or ideas, only your own unique expression of them. Here's a link that explains what copyright does and does not cover:
5. Copyright expires at some point, trademarks for the most part don't. It's much more complicated than I'm prepared to discuss at this time.
6. The only way to protect your ideas is not to show them to others until you're ready to sell them, either to a publisher or film company or on your own. As I said, you can't copyright ideas, only the unique, “tangible” expression of them.
So technically, an artist in “artist alley” can sell their one-off Hellboy original copy painting but a printed copy of that painting is a “no-no”? Just as an example. So along those lines could an artist paint up a couple versions and sell those “one-off” copied originals but couldn't then photo them and create prints. The prints would then be in violation?
Next question, I've been wondering about Dave LuVisi's “Popped Culture”, (which by the way I'm totally looking forward to!) how does that work? Is it because they are changed ever so much that they fall under one of those sub-categories of ok to use, “fair use”?
This stuff is all so confusing!
You guys are actually trying to make this a lot harder than it really is, aren't you? 🙂
It is this simple: No prints may be published and sold or otherwise distributed without the permission of the copyright holder. They're not legal without permission. Period. You don't own the character of Hellboy, it does not matter if you do the greatest Hellboy painting of all time, you may not sell prints of it without Mike Mignola's permission. You may not include it in a book of your art. You may not put it on a postcard to solicit work. Yes, people do it, but that doesn't make it legal and if they get caught they have no one to blame but themselves.
No one is likely to have a cow and call John Law if you do a onesy original and sell it to someone: life's too short. However if you go into business doing multiple knock-offs and infringements, yep you'll get caught and get in trouble. And then you'll be crying.
Yes, lots of artist sit in Artist Alley doing sketch commissions of characters they don't own. 99.999% of the time companies and copyright owners ignore it. .001% of the time they make an example of someone. You don't want to be the example.
Look, here's the deal: you want to be doing your OWN original work. That is the goal of any artist. You want to be known for your own creations at the end of the day, not the guy that copies other people's stuff. And when you do YOUR original work, you want others respecting your copyright, not sitting three tables down selling knock-offs or prints of your characters for less than what you charge.
She said we could email her questions after her workshop for free. The fact she got back to me so fast is on her. But yes amazing. What's even more amazing is another copyright lawyer who is a friend messaged me after reading this and said the same thing.
The lawyer I emailed said this:
“We used to think there was a clear line between one-of-a-kind works of fine art (that were considered an exercise of first amendment free speech and thus not believed to infringe either copyright or publicity rights) and commercially reproduced images (which might infringe if they don’t qualify as fair use). But unfortunately recent court cases have blurred the distinction.”
Technically, NO, and artists can't sell his own off Hellboy original copy painting without violating copyright law.
Copyright law doesn't just protect the reproduction and distribution of copyrighted characters, but also who controls the use of the character. The owner can decide who is allowed to make derivative art on their copyright images.
Basically, they can say who can draw the characters they own.
Thank you Arnie, for this article. Recently I've been wondering about some of the issues of copyright law and this answers them.
Don't a lot off illustrators make a picture of the characters owned by the company they're applying to do work for? How does Marvel know that you can do Spiderman when you show them arachnid man?
I admire your patience Arnie. Thank you for this article and for answering so many questions.
This is an interesting topic. One question still isn´t answered from TFNN about Dan Luvisi´s “Popped Culture”, how does that fit in? I see it as satire/ caricature and that is in terms of copyright a very different beast. I have my own series about that matter with Skull:z and Idols, where I do portraits of fictional characters and celebrities as skulls. In particular my Hellboy piece was approved by Mike Mignola last year at SDCC, which makes me go ahead with it. For once it IS satire and I take Andy Warhol´s case as inspiration for this, he didn´t paint the Coca-Cola bottle or the “Campbell´s-soup” He portrayed a bottle and a can – in every court of the world this will be laid out different, but it is important what your objectives are, if you paint bottles, you can paint whatever you want, I paint skulls, there´s no copyright on skulls 😉
Tim, I would like to see the case law establishing a specific legal precedent that prevents an artist from painting or drawing whatever they want and, subsequently, selling the original to another individual. I don't know of any, though there may be more abstract or obscure cases that could allow for the interpretation quoted above. As I mentioned, displaying in a gallery—making the work a public display—can be actionable. But I agree with Harlan Ellison when he says, “I hate to be wrong, but I love it when I'm set straight.” 🙂
There is no such thing as a open and shut or slam dunk case. If there was, there wouldn't be trials. The law, including copyright law, is constantly being argued and interpreted and amended (more and more these days to the benefit of the corporations rather than the individuals); legal precedents can be overturned and new ones set. Put three lawyers in a room talking about a legal issue and you're likely to get three different opinions.
Let me emphasize something I said earlier, though; I'm talking about practical applications of the law as it stands, practical being the key word. If all the laws on the books were strictly black-and-white-no-arguing-cross-the-t's-and-dot-the-i's-applied-universally…we'd all be in jail. 🙂
Everyone should keep in mind that these are ALL layman's opinions and should be couched and considered as such. I am not a lawyer nor is Tim. Remember what I said at the end of my post: if you have legal questions, consult an intellectual properties attorney and pay for an hour of their time. Don't just use the internet as your resource, even if it's a lawyer giving you free advice.
Remember, too, that lawyers are not infallible; not everyone knows everything and not every attorney wins their cases.
As for Dave's “Popped Culture,” it's strictly a guess, but it would seem to fall under the Fair Use Doctrine that often (but not always) protects parody. Possibly the art could be seen as “transformativeness,” which takes a copyrighted work and makes them transcend the basic works on which they're based—which again relies on a Fair Use determination. There is a lot of precedent protecting parody and satire in this country, but, like everything we've been talking about, it's open to interpretation and if Sesame Street wants to object to the depiction of Bert & Ernie, there's nothing to stop them—and there's no telling what the results might be.
Satire/Parody are protected forms of free speech under law. HOWEVER, Satire and Parody must talk about the subject, genre or author of the material you are using.
Here is an example: The estate of Dr Suess vs Penguin Books. Penguin books put out The Cat NOT in the Hat, a story about the OJ Simpsons trial in the form of Dr. Suess', the Cat in the Hat. The courts ruled it was not parody, because it didn't speak about the nature of The Cat in the Hat, children literature or Dr. Suess. It was just using that to make fun of an unrelated subject.
Mel Brooks movies are good examples of Parody. He's often making fun of the genre in his movies. Like Spaceballs. He also get permission.
It's hard to say what your work falls under.
There's no copyright on skulls correct. But there is a copyright on each person's expression of a skull every time they draw a skull. That said, if you draw a skull that is clearly meant to be Hellboy, that's called derivative. It's not a copy of any actual work, but work based on copyrighted work. And under copyright law, derivative work is a copyright infringement, because you are trading off the popularity of the work you based your image on.
When Andy Warhol did his work, it was transformative. He was speaking about how design and beauty can be found in every day objects. Also, how the laws were viewed back then was different. Laws change and our understanding of them change. He was also an established fine artists at the time. And fine art was viewed (and is still today) differently than commercial art.
There's something you have to remember about copyright law. If you violate copyright law, the state will not bring charges against you on their own. Unlike if you commit a murder or rob a store. The state can bring charges against you in the name of the people.
If you violate copyright law, the owner of the copyright has to decide to bring charges up against you. They may decide not to. They may have liked what you did, and if it's popular, let it slide, because it's free advertising for them. If it's negative and hurtful to their brand, they will probably shut you down.
As for going after artists in artist alley. At a convention for Transformers, organized by Hasbro, the company told artists in artists alley they can't do drawings of Transformers and other characters for money. Doing so would get them removed from the convention with no refund.
Marvel and DC take a much more relaxed approach and allow it because they realize it's part of the culture.
Here are some Copyright cases.
Lisa Congdon found out that the company Cody Foster, who makes ornaments and trinkets had copied her work from Spirit Animals for the Chronicle Books company. She took to her blog and asked people to rally behind her against Cody Foster, and they did and it spread across the internet.
Stores that were carrying Cody Foster merchandise dropped them as a distributor, even though Cody Foster issued an apology and removed the items themselves. It effected their bottom line.
However, it turns out that Lisa may have copied her images by tracing from photos. At this time, I can't find anything about how it all ended. Most likely it was settled out of court (85% of cases are, which means they agreements reached are not part of public record and both sides agree not to say anything). However some suspect that Cody Foster was preparing to sue Lisa for hurting their business. Sound weird, but when your work is an infringement of copyright, you can't claim your rights have been infringed, because you don't actually own the copyright.
Since Lisa asked people to take up arms, and it hurt their business, they have a case against her. Chances are, they settled out of court.
Modern Dog Studio v Disney. MDS put out a book with end papers called Dogs we Know and Dogs we don't know. Later D-signed, the line of Disney clothing came out with a tie in product for Sharpay’s Fabulous Adventure, a t-shirt featuring all kinds of dogs. 27 dogs, 26 of which were taken from MDS end papers of the book. Traced and flipped. (Flipping does not make it transformative).
Disney tried as best as they could to drag it out, so MDS would run out of money. But in the end, they settled when it was clear they were going to loose. Saddly it wasn't Disney that actually copied the art, but the company Disney hired to develop the D-signed line of clothing.
Also, it wasn't just Disney that got sued, but everyone in the chain. So Disney, Target, and the company Disney hired all got sued. How they divide up whatever compensation they agreed on is up to those three.
Because MDS registered their work, they were able to win back attorney fees. (which she said were close to $100,000 and required her selling the house they had their studio in, a house she had planned to retire in).
You might have heard of Shepard Fairey, he created the Obama Hope poster. Turns out he copied his Obama from an AP photo by Mannie Garcia. He went to trial, and lost. One of the factors that was against him, he destroyed evidence, emails and communications. Destroying evidence show willingness, meaning he actively knew he was violating copyright, even though under oath, he said he didn't know. So after that trial, he got sued by the state for perjury. Fun.
When kickstarter launched Andy Baio, friends of the people behind Kickstarter launched a campaign to make an album called Kind of Bloop. he was a fan of jazz, Miles Davis in particular, and 8-bit music. So he raised enough money to make the CD. You are probably thinking he got sued for the music he used. Nope. With music, all you have to do is pay the fee for it. Which he did.
What he got sued for was the cover of the album. Since he was doing an 8-bit version of the album, he thought it would be great to recreate the cover in an 8-bit style (meaning it is derivative). The cover art copyright was owned by the photographer, who saw it, and sued Andy. The artists was seeking $85,000 in damages and legal fees.
Andy settled out of court for $30,000, because it wasn't clear if he would win. So the court never wen to trial, though there were several people who felt this case was winnable for Andy. He just had to do a risk assessment and take the lowest cost.
These are all fine examples of why copyright infringement is a no-no. They're also all fine examples of what I've been patiently saying all along: one of the primary tenets of copyright is the right to distribute copies of the work to the public directly or through permission granted others via sale, rent, lease, or license. All of these instances are violations of same. Just as there are cases on the flip side of the coin (the Gone With the Wind parody) in which the defendants won their case, just as there are jurisdictions that have passed anti-SLAPP (strategic lawsuit against public participation) legislation which raises the plaintiffs' burden of proof and subsequent risk, it all adds up to mean—again—when you have questions, seek the advice of a qualified attorney.
Also, I think it goes without saying that if Shepard Farley had just done his “Hope” poster as a ones and sold it to one person, and not spread it far and wide, he would have never been sued and never had to pay the piper. 🙂
And, again, I must caution that there is not an absolute definition of what exactly is transformative and what is not. It is determined, literally, case by case. Which is why so much of this can be confusing and why lawyers are paid what they're paid.
But…there are no black helicopters and special ops teams ready to assault anyone's studio if they're sitting at the drawing board happily drawing Wolverine. Just be mindful of what you do and what you do with the results. Sort of like drinking responsibly. 🙂
Agreed. I honestly don't think many companies are going to go after fan artists to hard. But I know two artists personally, that received C&D letters because they were dealing in prints of registered copyrighted characters. (Actual celebrities are a different story, won't go into that).
But one of those two artists did some Star Wars fan art that Lucasfilms liked and paid him to use it on t-shirts. That's a rare case.
See, no one can say, do this and you are going to get in trouble, because it all comes down to what the companies decide to do. Hasbro tends to not like fan art. And guess what, they actually have a copyright on Bronies, and have put out Bronie merchandise. And they tend to come down on people selling Bronie merchandise.
I think many up and coming artist see it as a fast track to getting more work. There's enough examples to encourage this belief.
If you want a case of where someone made original one of the kind art that violated copyright, and the artist lost, Rogers v Koons. Koons the artists lost.
Oh, I think we agree, Tim. It's as I've said: unauthorized prints can get you in trouble. With Rogers Vs Koons it was, again, for a publicly displayed (i.e. distributed) work and clearly fell under the copyright protections. On the other hand Koons WON in a similar suit, Andrea Blanch Vs Jeff Koons, so…we never know until the gavel bangs. As I said, Fair Use and First Amendment rights are constantly being tested and reinterpreted. A corporation will almost always insist they have rights whether they actually do or not and usually have the coffers and will to assert them, win, lose, or settle. It'd be nice if everything was clearly spelled out: unfortunately there's a lot of murky areas.
Yeah, I had the same issue when I tried to sign up for the newsletter.
Tim Paul is right; a hand made copy is a copy and/or a derivative work, and people can get sued for selling them. If you make it for yourself there is conflicting info on whether it's illegal but it's highly unlikely to be found out or acted upon by the copyright owner. Once you post it online, show it, sell it, and start taking orders for custom knockoffs, your risk factor for being sued goes way up.
One of the factors considered in cases is the effect on the market of the original owner. Selling knockoffs could certainly be seen as damaging to the owner's own ability to sell.
What the Chinese sweatshops are doing is illegal under many other countries' laws. You can, theoretically, get imported knockoffs of your work seized at the entry port by US Customs, but you must have registered w/the Copyright Office AND Customs, and Customs is quite expensive so I doubt many do it. Also seems iffy that that particular shipment would be caught.
People keep saying 'It's different for Celebrity images, we wont go into that', but I would love it if someone WOULD PLEASE go into the laws regarding that. Does the copyright of the image/photo belong to the photographer or the celebrity or neither? I enjoy painting celebrities as zombies, both digitally and traditionally – what are the laws, as an artist, for me then to make and distribute original art and prints of celebrity zombies, where my art is initially based on a specific photo as reference? Is it different again if I didn't want to do a zombified character and simply copied the photo as as-is? Thanks in advance to anyone with any advice on this.
I've patiently replied to this subject multiple times already–and please see the attendum to this particular aspect of the post–so I'm getting to the point of saying, “Case Law and precedent, please..”
This is what the lawyer who is answering my questions on copyright says about doing celebrity images:
For images of celebrities, it’s more complicated. First, rights of publicity – which govern commercial use of celebrity likenesses — are created under state laws, so each state has its own jurisprudence. The most famous landmark case was in California: Comedy III vs. Saderup. In that case, the California supreme court held that reproductions of Saderup’s realistic image of the three stooges on prints and shirts were “merchandise,” and thus violated the three stooges’ rights of publicity. Implicitly, Saderup’s original one-of-a-kind drawing was not a product and thus was not a violation. http://usatoday30.usatoday.com/news/washington/jan02/2001-01-07-threestooges.htm
Please note, drawing a celebrity as the character they played, is often considered drawing the CHARACTER and not the celebrity. So be careful when treading there.
Well…it's extremely complicated. Which is why, understandably, people don't want to talk about it very much, me included. 🙂
The long and the short of it is that the nature of celebrity (being an actor, musician, or otherwise well-known public figure) grants a certain amount of latitude to others to use their image. For news or commentary or parody, that sort of thing. Like most aspects of copyright it falls under the Fair Use Doctrine and, like most aspects of copyright law, there are arguments and litigation of what constitutes Fair Use and what doesn't. Even more latitude is granted in the use of images of elected officials.
When it comes to using images of celebrities there are, of course, limits. The courts routinely recognize what's known as the Right of Publicity (also known as Personality Rights), which applies to everyone, not just actors. Basically, it allows an individual to control the commercial use of their name and likeness. It's something like a personal trademark which also protects the Right to Privacy (the right to be left alone and not have one's personality represented publicly without permission, which is why you see people's faces blurred out on TV, at least if they're not on the news and in handcuffs).
Adding to the complication is depiction of actors in character from various films: they have “licensed” their image to production company who in turn use them to market/profit from the movie. So there are two rights holders to consider when you want to do your painting of Scarlett Johansson as a Zombie Black Widow. Three when you consider the film is most like a license itself from another copyright owner (like Marvel for THE AVENGERS, say). Four if you're using a copyrighted photo of Scarlett as your reference: remember that the photographer has their copyright, too. Which Shepard Fairey ran afoul of as mentioned above (a rather ignoble turn after having such cultural impact).
What does that mean when it comes to your celebrity zombie paintings? Is it Fair Use? Would it be considered Parody or Social Commentary? Heck if I know. But I'd suggest talking to an intellectual properties attorney.
Interesting side note, Scarlett Johansson has publicly said she likes all the fan art of her as Black Widow and has no problems with people doing art based on that, which legally counts as permission to draw her like that.
Except, of course, that while Scarlett Johansson owns Scarlett Johansson's Right of Publicity and can grant permission, she doesn't own “Black Widow” or the film representation of same or the photos taken of her in character. So, see? Complicated. 🙂
Excellent post and thank you for the info (and subsequent discussions in the comments)… Different than the Artist Alley illustrators at a Con; one thing that has always irked me were all of these people–often on some sort of art or social-media site like Tumblr or DA–selling prints of copyrighted characters, as if putting the Disney Princesses in different modern or period style clothes really makes them “original work”. Reading this post has helped me realize that my unease with this practice was not without merit.
Also, I have found issue with photographers who will claim that a models pose is “theirs” and using their photo for reference is tantamount to copyright infringement… Since you cite that, by law, ideas like poses cannot be copyrighted; what is your feeling on the ethicacy of using others photos for reference in illustrative works? Mind you, I am referring to picking and choosing elements rather than reproducing a photographers entire image.
Well people can say anything, But trying to claim copyright on a “pose” (rather than on the unique photograph of the person taking that pose) is as futile as trying to claim copyright on clouds. Which doesn't mean that people won't try: remember that Amazon was awarded a patent (widely considered unenforceable) for shooting photos with a white back ground:
But, of course, using copyrighted photos for reference or using the likeness of actors without permission is infringement, though common. Shoot, if you go back and look at the comic stories of Frazetta and Williamson you'll recognize everyone from Buster Crabbe to Tony Curtis to Stewart Granger. Picking and choosing elements from various pictures to make something unique is generally seen as transformative and generally allowed. Naturally, there are exceptions because we are a litigious society. The more changes there are and the less obvious the resource, the less likely there will be concerns or potential objections. But if someone takes Richard Avedon's photo of Natasha Kinski with the boa and only makes the snake into, say, a dragon…they'll most probably get a letter.
Along the lines of what we've been chatting about:
God knows if Hitler were alive he'd probably try suing everyone, too. The Russians probably first. 🙂
What about works of art based on purely literary work, like the many depictions of Tolkien's characters in the portfolios of our favorite artists? Do they fall into this gray area, or are they clearly legal? I've avoided doing portfolio work based on my favorite modern fiction to stay clear of copyright issues, but I'd love to find out I'm safe.
We talked about using photos for reference in the workshop. If you don't trace, and just use for a reference, it's not infringement. And she suggested for celebrities, don't use one photo as a reference, but several (again, not tracing the image).
Also, here's is about Amazon's white background patent:
Amazon does not have a patent to shoot on a background; rather, the patent is for the particular set up in their studio that involves certain types of lenses, cameras and lighting,
Amazon can’t patent shooting on a white background because it didn't invent that technique,” he said. “The patent is for a specific way to shoot, and that is why the photo community is both amused and confused by this: it’s just not enforceable.
As I've mentioned elsewhere, we are a litigious society and what might not seem like infringement to one could be construed as such by another—which is why when using copyrighted photos for reference an artist should “transform” the reference into something unique. If you can look at an artwork and pin-point the reference…you didn't go far enough. And if the photographer sees it, objects, and has a crackerjack lawyer, well…
The “white background” is an aspect of Amazon's patent and was mentioned as the most obvious silly part of it, but as with ALL patents there are specific details regarding studio set-up, lights, camera distance, etc. WITH a white bkgd that allowed for the patent to be granted. And, as I also mentioned above, the patent is widely seen as unenforceable. True or not? The courts might decide one day. Why Amazon filed for the patent in the first place is a mystery, though some have suggested that it falls into the realm of “patent trolling.” I don't know if that's fair, but it is unusual.
Art in a portfolio should not be a problem. Illustration based on literary works is generally seen as “transformative”: the artist is making a tangible interpretation of something that is unseen or otherwise left to the imagination of the reader. But, as with all things, there are limits, and it is easy to inadvertently run afoul of trademarks, copyrights, and licensing programs: what you can do in a book (because it's construed as “educational” or “informative”) might not be permitted with a calendar (because it is considered “decorative”). In other words, it can be complicated and as I've been saying, consult an attorney if you have questions.
I'm a little late on this one but this post by Katherine Tyrrell on her “Making a Mark” blog goes into this subject. Especially see her post linked to in the first paragraph “Copyright for Artists- Congdon vs Cody Foster”. What a fine mess.
I will just add this goes to what you, Arnie, were saying somewhere up in here in the post or comments about being original as an artist. Then at least you won't have to worry about being the infringer.
Thanks for the link, David. And, yes, the whole Congdon vs Cody Foster mess is a lesson everyone should pay attention to.
To one degree or another almost ALL civil law, including copyright law, is complicated, convoluted, contradictory, and confusing. As I've mentioned throughout my answers to various questions and assertions, if we lived in a black & white world with no room for interpretation or independent thought, there wouldn't be litigation & trials, just convictions. Obviously, that's not the way things work.
Artists truly do have a great deal of latitude when it comes to creating their art; we're human and part of being human is the need to communicate, to express, to create. No one, not any government, not any corporation, can control or suppress that basic need. Sometimes there are repercussions—which is why I always advise artists to use common sense and not “poke the bear” (whomever “the bear” might be). Being stupid often comes with a price. But to anyone—lawyer or layman or corporate CEO—who smugly insists copyright law says I can't draw or paint or sculpt whatever I choose to draw or paint or sculpt whenever I want to, I say, “Get real.”
You are right. The law can't stop someone from drawing/painting/sculpting whatever they want. The law doesn't say anything like that.
Copyright law does two things: The first it determines who owns the property, what they can do with the property, and how long they own the property.
The second is what counts as infringement (which comes down to a judge/juries opinion), and what action/compensation you can seek if your property is infringed.
No matter what kind of artist you are, that's what your considerations should be based on, when making choices about what you create. Relying on reasons like:
Everyone does it
I'm expressing myself/Free speech
I made changes
or anything else, doesn't hold up in court as a defense.
A couple times you asked for Case Law and Precedent for companies yanking the pencil out of artists hands. The fact is, there isn't any, because, they can't stop you, they can only respond after their property has been infringed.
The lawyer who's work shop I attended (specifically for illustrators) is the copyright lawyer for Hello Kitty (one the most infringed on properties). They go after all kinds of artists from painters and performers. Sometimes the person has a one time, unique original derivative piece of art, sometimes they are selling prints and sometimes, it's just because a performance artist is holding a Hello Kitty Doll during her performance.
Hello Kitty doesn't sue that many people, because a Cease and Desist letter does the trick. My friend who is also a copyright lawyer says the same thing. They shut down about 90% of infringement cases with a C&D letter. And you can also include a monetary amount owed in their letter. It doesn't have to be just a warning.
And of that 10% the letter doesn't shut down, only 85% of those reach a jury decision. Somewhere along the way, the parties reach a decision to avoid a court ruling. They do so because then they can have the records sealed, and both sides can't talk about what they agreed.
It's best to approach trying to understand copyright law not as a way to hold you down or prevent you from expressing yourself, but as a way to protect yourself.
One thing both lawyers pointed out is that many companies have become more vigilant on infringement because the internet and the digital world we live in. It's a lot easier for them to police their property, and if they don't like something posted, it's much easier to get it taken down, they don't have to deal with the artist, they can just tell the hosting website to take it down.
The only good advice you should take from anyone about copyright is this:
“PAY a copyright lawyer to answer your questions”.
I wanted to clear up something I said:
I'm expressing myself/Free speech
I made changes
or anything else, doesn't hold up in court as a defense.
You can totally use those two as a defense. It's up to the courts to decide if it's fair use/free speech, or if your work is derivative or transformative.
Tim, you've worried this topic like a dog worries a bone. 🙂
“A couple times you asked for Case Law and Precedent for companies yanking the pencil out of artists hands. The fact is, there isn't any, because, they can't stop you, they can only respond after their property has been infringed.”
Well, if you'll go back you'll see that that's not exactly what I said: I said it doesn't happen. What I asked for was case law or precedent in which an artist was sued for copyright infringement for creating a one-of-a-kind artwork then selling it to another individual. That's much more specific (and specifics are what the law consists of) and entirely different than the way you mischaracterized it. But to address your point, the ONLY way that an infringement could be identified and subsequently dealt with is through the violation of the copyright tenets covering distribution and/or display. So, we've covered all of that pretty clearly. Repeatedly. None of that changes the simple truth of anything that I've said: artists will draw what they want regardless. You and others said in earlier posts that the copyright laws say they can't and I've merely said all along that no, it doesn't. “The law can't stop someone from drawing/painting/sculpting whatever they want. The law doesn't say anything like that.” means we are in agreement, right? What an artist does with their art after they've created it, well, that can get complicated, messy, frustrating, and expensive. There is always the possibility of repercussions, particularly if an artist's actions (infringement) are blatant and they behave with impunity: life has a way of teaching us about the consequences of our actions, both good and bad. So let's close this topic with what I've said (again, repeatedly) with your final sentence: “Pay a copyright lawyer to answer your questions.”
Thanks for your feedback. Having a forum like this for these questions is immensely helpful.
Enjoyed this article very much Arnie. I appreciate all the time you take to write these. Just saw *this* short little article that relates: http://www.lostateminor.com/2014/08/07/famous-monkey-selfie-time-now-subject-legal-battle-wikipedia/
Thanks, Tara. I had seen the “monkey selfie” article and it gave me a chuckle. Perhaps the monkey's name is Caesar and this is his first step toward domination. 🙂
The internet was all a-buzz this past week about comics artist Randall Queen trying to suppress criticism of his art by claiming copyright infringement (it wasn't): it did not go well for him.
Similarly io9 recently had a solid post—with contributions by a law professor—about the legality of fan art/fan fiction and the grey areas of copyright: it pretty much mirrors everything I said in this post, but does elaborate on the Fair Use doctrine. Check it out:
I was searching for answers to my question and came across this article, but it did not answer it. The question is:
I am commisioned to do some art for a book. I have a drawing in which a little boy dresses as batman and says “When I grow up I want to be Batman”. When I include this drawing, and the book is printed does it infringe copyright?
Thanks for the useful Article, Enjoyed it really.
I have a question though, I recently designed a Poster for a Literature Festival with the subject: Life based on water.
for the Water part I created some wavy shapes based on what I liked in another poster. the shapes are somehow different the Idea differs entirely and it satisfies the design brief quiet neatly. I wonder if I have crossed any lines because viewers feel the resemblance and My poster makes them recall the previous one.
this is My poster:
and this is the one I affraid I might misused:
Did I do anything unethical here?
I had this idea of purchasing a vintage turntable, painting some iconic album artwork on it, and then (try to) sell it, not as mass distribution, but each individual turntable I work on. Could this potentially be a problem? By the way, I'm based in Taiwan, so I guess there'd be international law issues…
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I had a question, I'm reading through this because I recently started picking up contract work.
1) I have someone I am doing a comic/graphic novel for. He is paying me for the pages (pencil and ink), which is what we agreed on; but he still hasn't sent me a script and instead hes asking me to design the character(s). Should I be getting paid for that as well?
If it's more work for you, you should be getting paid. Simple as that.
What about gifted art? For example, I own a character named Neko. My ex drew me various gifts of my character, but now after we've broken up, continues to have my submissions removed for copyright and I want to know if I can dispute them? I know the legal definition of a “gift” is the voluntary transfer of property from one person to another, but does DIGITAL art count as property? Who owns the rights to the art?
Unless they signed a transfer of rights over to you, they own the copyrights to their image. Legally, the art is not yours to do as you please, even if there was a verbal promise. However, since you own the character, they can't do anything with those rights anyways.
Love the article… I have another scenario for you.
What if as Art Director for a company “Collaborative Agreement” deal, my own likeness was used for a prominent character within the comic book title. My “associate” and I parted ways, do they still own the right to use my likeness if I don't want them to? How can I keep them from doing so? Also, how can they NOT allow me to use said imagery for my own purposes?
Thank you, Arnie, for a very comprehensive writeup. I hope you can comment about ancient cave art:
If a photographer snaps a photo of a cave painting, he obviously holds the copyright to the photo – i.e. that very image cannot be reproduced without his permission.
But considering he was Not the author of the *painting itself, and had merely reproduced it 'slavishly', can I legally make my own painting using his image as reference? If I can, do you feel that is immoral in any way? Also, Is the original image that he snapped in the 'public domain'?
Thanks very much.
My guess is that it probably wouldn't be an issue unless there was some unusually unique aspect to the photo—a stylistic contribution by the photographer—that somehow made it unique and identifiable. Otherwise, it would seem to be so generic as to be in the Public Domain. But, again, that's just a hypothetical opinion and little else.
Wow, that's a tough one. It would probably require some sort of formal revocation of the rights assigned—on what grounds I don't know—and would probably take a lawyer's involvement to secure and enforce. I'd advise talking to an attorney.
It should be made absolutely clear to readers, however, that a Cease & Desist Letter is not a ruling or judgement; while on the one hand it's an assertion of (alleged) rights, on the other it's little more than an attempt to intimidate and seek compliance without having to prove anything to a judge and jury. There have been numerous instances in recent years of meritless attempts to squeeze money out of people via C&D letters; phishing gambles that the recipient will be frightened into paying rather than get sued. Be careful and, when in doubt, talk to a lawyer.
This was a good article. I had an artist pull a fast one on us trying to make claims to our work. I was look you were a work for hire. I had to do the work with you for hours. I had to let you go for not signing the on going contract… who the heck signs off the originals and says later oh well I own the newer stuff… No.. we have a company and team here… you were the third artist in and you had agreed several times in conversation stating a language barrier. We had started with a third party agreement of once purchased we own it. I don't hold grudges so I said look you can get back to work. I have no issue getting you out there just don't tell me what my work and what my writers built with me going to exactly going to look like. People get so greedy and it's a two way street, talent in drawing is great and being an artist myself I learned you don't get shady and try to work over the people who have your best interest. This article was very well put. There was a lot to this and we have it situated.
Hi! I would like to ask id it's okay to paint Captain Jack Sparrow for an audition?
In seeing this “blast from the past” reposted today, it struck me that, even though the subject is mentioned in one of my comments above, there should be a post about artists calling something “fan art” as a justification for painting Iron Man or Jon Snow and offering them at conventions. It’s a subject that comes up virtually every convention season. Of course, once something is displayed, distributed, printed, or offered for sale, it’s no longer “fan art” but a commercial property—an infringement—that can leave the artist open to legal action. Hmm. I guess that sums it up WITHOUT having to make a lengthy post. 🙂
Hello Arnie! Thank you for sharing your expertise!
It has been a while since I’ve filed copyrights on my work. I’m setting out to do it again but it looks to me as though now they are limiting the group submission to 10 works. Are you aware of this change? If I have 100s of works to submit, I wonder if I can just submit them as photographs (the limit there is 750 photos). Otherwise I am afraid this change may make it too expensive and too cumbersome for me to continue filing for copyright. Here is the text I ran into:
“Important note: Beginning March 15th, you will no longer be able to register multiple unpublished works with the Standard application. Starting on March 15th, you may register up to 10 unpublished works using the new application for a “Group of Unpublished Works.” To learn more about the requirements for this option, go to https://www.copyright.gov/rulemaking/group-unpublished/.”
Hopefully I’m just confused and it is still possible to submit 100s of works in a single pdf.