ARE YOU A PIRATE?
By Kim Kerr
There have been a lot of discussions of late regarding the rights and responsibilities of artists and the people who buy our artwork. So it is timely we cover copyright laws as explained in ‘Code of Practice for Artists and Dealers in Aotearoa/New Zealand’ published by the Artists Alliance, a now defunct non-profit organisation that was based in Ponsonby in Auckland, New Zealand.[1] Artists Alliance provided information, resources, career advice, networks, and advocacy for the visual artists of Aotearoa/New Zealand. Artists Alliance was also part of WeCreate[2] (the copyright coalition of New Zealand[3]).
From the beginning artists have copied one another. Apprentices were encouraged to copy a master’s works to learn about composition, technique and use of colour. Unfortunately, today many students are encouraged to find a picture they like from books, magazines, newspapers, calendars or the internet, change the colours or not, and turn it into a painting. Some even copy another artist’s entire painting. I always encourage my students to draw or paint from life, take their own photographs or ask the photographer.
Most are pleased someone else finds their work inspirational and will give permission for its use. If you have copied another’s work then I suggest you note on the back the artist and title so your heirs don’t think they have stumbled across a possible masterpiece. The difference lies in copying to learn and copying to sell. This problem of using reference material belonging to others is not just in NZ but world-wide, and we can do our best to stop it by education.
WHAT IS COPYRIGHT?
Copyright is part of the law of intellectual property. It arises when the creator (the artist) creates an original work. It does not mean the work is completely novel or new, but must not itself be copied. If a large part of another’s work is included in the creation, that part is not protected by copyright. It is automatic under the Copyright Act 1994 – there are no formal registration requirements.
I HAVE SOLD A PIECE OF ART. CAN I STILL HAVE CARDS OR GICLEE PRINTS MADE FROM THE PAINTING AND SELL THEM?
Yes, the artist is the first owner of the copyright and they are fully in their rights to allow someone else to reproduce the image -(e.g. on posters, T-shirts, cards, prints etc.) without consulting the owner of the original work. It is important to note, however, that the owner of the original work is not entitled to have copies made. It is possible for the artist to sell the original work to one person and the copyright to another.
ARE THERE ANY EXCEPTIONS?
If the work was created by an employee, it’s owned by the employer unless contracts say otherwise. If an artist has been commissioned and there is an agreement to pay for the work, then copyright is owned by the person who commissioned the work, again unless a contract says otherwise.
HOW LONG DOES COPYRIGHT LAST?
Copyright on an artwork is for the lifetime of the artist plus fifty years following their death. Not the owner of that artwork. The rational comes from the Berne Convention, 1886, when it was decided the artist and two generations of descendants should benefit from the copyright. In recent years many countries, including USA and members of the European Union, have increased the period to seventy years. After the copyright term has expired, the work falls into the public domain.
WHAT IF I FOUND ANOTHER ARTIST MAKING IDENTICAL WORK TO ME, CAN I DO ANYTHING?
Obviously it is easier and cheaper to have a conversation and get the work withdrawn. Remember copyright cuts both ways. If you are using/copying works still covered by copyright without authority then you may face legal sanctions. If the issue can not be resolved then you will
have to go to court. There are three points to consider :
1. Is the work objectively similar to the other work?
2. Is there a casual connection, i.e. is one work derived from the other?
3. Has a substantial part of the other work been taken? There is no percentage measure e.g. it’s not ok to take just 5%.
IT SEEMS A LOT OF PEOPLE PAINT THE SAME SUBJECTS THESE DAYS – WHO HAS COPYRIGHT?
Copyright protects what the work looks like but not the creative ideas behind the work. There are some artists whose distinctive work is easily recognised, Bill Hammond’s birds, Stanley Palmer’s landscapes or Nicky Forman’s landscapes. It might be their use of colour, brushstrokes, the way they compose the work or their ‘shorthand‘ for drawing a subject. It is alright to look at how they put their work together but, better if you do it your way.
CAN A GALLERY REPRODUCE MY WORK?
When a gallery reproduces an image or part of an image, to be used on websites, brochures and magazines to promote the work or an exhibition, it should be covered in a written agreement between the artist and the gallery.
If you wish to know about contracts with dealers/galleries, artist’s obligations, exhibitions, artwork sales and management or funding, you need to check out this handy guide book: Code of Practice for Artists and Dealers in Aotearoa/New Zealand, which should be available at book stores.