Answers to questions frequently asked by painters about copyright.


• What is copyright?
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Copyright gives you exclusive rights to an item, including the right to reproduce and sell it, and to make derivative works from it (eg paintings adapted from the original) as well as the right to display the copyrighted work publicly.

There is no such thing as international copyright that will protect your rights in every country. Each has their own laws and agreements with other nations regarding copyright. The two main international copyright conventions are the Berne Convention and the Universal Copyright Convention.

• How do I copyright a painting?
• Can I Copyright an Idea I've had?

As soon as you've created something in a tangible form, you have copyright on it. If it's still an idea, you can't copyright it, but as soon as you've painted it, you have copyright on it. It's the way you've executed the idea that's copyrightable, not the idea itself. You don't need to register copyright for it to exist. If you've created something for an employer or as work for hire, copyright belongs to them. (Though in the US to sue for copyright infringement, registration is necessary.)

A good way to make the ownership of copyright clear to anyone who buys a painting from you is to do what artist Karen McConnell does: " I sell most all of my original paintings with a 'Statement of Value' which includes (1) date of sale (2) price paid (3) whether it was purchased framed or unframed and (4) notice that copyright for the work remains with the artist.

• Is a copyright symbol essential?

No, though it does make it very clear for people unfamiliar with copyright law. To prevent the defense of "innocent infringement", use the copyright symbol, date of creation, your name, and if you want, the words "all rights reserved". You don't have to be registered with the US Copyright Office to use the copyright notice.

• Can I make a painting of a photograph?

The copyright in a photograph belongs to the photographer (afterall, consider the skill they've put into composing and taking it) and, unless they've expressly given permission for its use, making a painting based on it would infringe their copyright. In terms of US copyright law: "Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work."

You might argue that the photographer is unlikely ever to find out if you use it, but are you going to keep a record of such paintings to ensure you never put it on display or offer it for sale? Even if you're not going to make commercial use of a photo, you're still infringing copyright.

The solution is to take your own photos, or to use several photos for inspiration and reference for your own scene, not copy them directly.

• If I change 10 percent, isn't it a new image?

This is a myth (as is changing 20 percent or 30 percent). It's not a legal test, but as a rule of thumb consider whether, if your painting were put next to the photo, would someone say you'd based it on the photo? If so, you're risking copyright infringement.

• What about reference photos, aren't these there to be used for paintings?

Unless the photographer has expressly given permission for a photograph to be used in its entirety, reference photos are there only to provide information and inspiration and should not be copied. Such as the characteristic shape of a particular type of tree, the texture of a rock, the colours on a butterfly's wings. Artists can then use this knowledge in their own compositions

• What about photos of famous paintings?

If a painting is no longer under copyright, a colour transparency (and probably a digital scan of that transparency, though some scans have 'watermarks' which are copyrighted) is also not under copyright according to a 1998 case between the Bridgeman Art Library and Corel Corporation. (See also this Cornell summary.) It's important to check whether the original painting is out of copyright. If you paint a copy of an Old Master, it's good etiquette to write "after [artist's name]" so that the viewer knows the painter's origins.

• How do I get permission to use a photo?

You can try writing to the publisher/photographer and asking. If it's for non-commercial use, be sure to say so.

• What about collage?

Copyright laws apply to collage. The easiest way to avoid problems (though not the easiest source of material) is to use stuff that isn't copyrighted or is your own copyright (such as your own photographs).

If you still need convincing that copyright applies to collage, read this article on collage copyright myths.

• What about fair uses? Doesn't these cover artists?

Artists are not explicitly covered by fair use. In terms of sections 106 and 106A of US copyright law, "the fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching, ... scholarship, or research, is not an infringement of copyright".

None of these cover the copying of a painting to practice painting techniques or for showing your painting skill.

The factors used to determine whether "the use made of a work in any particular case is a far use" are:
(1) The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
(2) The nature of the copyrighted work;
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) The effect of the use upon the potential market for or value of the copyrighted work."

• What about paintings made from the Old Masters or How-To books?

It's a long-standing tradition to paint from the Old Masters, but you should not try to pass these off as your own paintings. Similarly, 'how-to' books are there to help you develop your own skills, not to enable you to pass off the finished picture as your own original creation (afterall, you've copied someone else's composition and techniques). Make a note on the back of these paintings to remind yourself that they were exercises.

Remember, just because a painter has been dead for many years doesn't automatically mean that their work is out of copyright; it may still be owned by a gallery or the artist's estate.

• How long does copyright last?

Because the law in the US changed, it depends on when the work was originally created. Works created after 1 January 1978 are protected for the creator's lifetime plus 70 years after death; before this is was for less than 30 years, but could be extended. (This table from the University of North Carolina sets it out very clearly.)

The US Copyright Office will, for a fee, do a search to see if something is copyrighted.

Don't make assumptions based on quick calculations from the time of someone's death; copyright may have been extended (the classic example here is the Peter Pan book).

• What is "in the public domain"?

Material on which the copyright has expired is said to be 'in the public domain'. Never assume that something is out of copyright simply because it is old; copyright may have been renewed.

According to the intellectual property lawyer Ivan Hoffman: "if a work was published on or before December 31, 1922, then it is likely to be in the public domain. But you should never rely solely on this date alone since there may be other factors to consider."

• If someone commissions me to do a painting, who does copyright belong to?

Unless you expressly sign over copyright to the person who's commissioned the painting, copyright remains yours. Owning the actual painting is not the same as owning copyright

• If I sell a painting, do I lose copyright?

Copyright in a painting remains the artist unless they sign it over to the new owner of the painting. You then relinquish the right to reproductions and, most likely, the right to make another identical or very similar painting. Buying the physical painting does not give someone copyright of the painting; you (or your agent) have to transfer copyright to the new owner in writing.

Note, however, that the purchaser may be able to defend their right to having a unique image, even if you retain the copyright. For example, if you have created 'limited edition' prints, you can never produce more than the number originally stipulated.

A good way to make the ownership of copyright clear to anyone who buys a painting from you is to do what artist Karen McConnell does: " I sell most all of my original paintings with a 'Statement of Value' which includes (1) date of sale (2) price paid (3) whether it was purchased framed or unframed and (4) notice that copyright for the work remains with the artist.

At the bottom of the form is a place for dated signatures from both the purchaser and myself. I keep a copy, they keep a copy."

• What is 'Work for Hire'?

Under US law, if you are employed by a company as an artist, copyright in your work belongs to your employer, not you, unless you have signed an agreement to the contrary. This is because you are 'working for hire'.

If you are a freelance artist, the situation is reversed. Copyright remains yours, unless the company which commissions you gets you to sign over copyright or sign a 'work for hire' agreement.

• How do I sign over copyright?

You need to sign an agreement which says you're transferring all rights in an image and that you're relinquishing all your entitlement copyrights. Either you or the person buying the painting can draw up originate the agreement.

See this Sample Copyright Assignment form.

You could also sign over only limited rights, such as a once-off reproduction or the right to a very specific use (for example on a T-shirt or card). Be very specific about the rights you are signing over and your payment. Consider whether you want to insert a clause about the rights reverting to you after a certain amount of time or if the company goes out of business.

• What if someone infringes my copyright?

Unless you're a wealthy, successful artist, it'll probably cost you more than you'd get from suing for copyright infringement. Consult a lawyer to see what your options are.