Maintaining an image is more than just marketing advice: it is a professional necessity for today’s visual artists and people dealing with pictures. And with the digital technology, a sea of images flooding the world, and the growing uncertainty about image ownership, anyone can end up in hot water.
Media publications can attest to the phenomenon. All seems fine when a subject for a news story provides a photograph given by or purchased from a photographer. While the subject thinks it is okay to use the picture for promotional purposes, he or she may not have the rights and not even know it. But as soon as the image appears, so does the photographer claiming copyright infringement and talking legal action. Although the problem is never really a problem and easily worked out, the situation is just part of the new reality of doing business in an image-saturated world.
While it is easy to think that it is a one-way street where a big company takes the work of a lone creator, it is time to think again. When street artist turned art world celebrity Shepard Fairey took a published newspaper photograph of Barack Obama and used it as the basis for his famous “Hope” poster during Obama’s 2008 election, it was Associated Press that called foul, asked the artist to pay up on the merchandising associated with “Hope,” and ended up in court (more on this later).
This rising tide of copyright litigation is something Stephen Slusher has on his mind. Slusher is the chief legal officer of the Cranbury-based Palatin Technologies and a board member of both Artworks and the City of Trenton Ethics Board (which investigates and rules on alleged violations by city employees).
While the Trenton resident does not practice copyright law in New Jersey, he pulls from his past experience as a partner in an intellectual property law firm in his native New Mexico and occasionally speaks on business issues for artists. He says his willingness to share this information was a response to his surroundings — the high volume of artists in his former New Mexico community, the serious art careers of his mother and brother-in-law, and his own interest in creating with welded metal.
At one of his recent talks for a group of artists at the Hamilton Township library and after his decidedly lawyer-like caveat — “This course and any discussions should not be construed as or replace the need for obtaining legal advice” — Slusher provided an easy-listening approach to what could be a pesky topic: copyright laws.
Following Slusher’s approach, artists need to start with the basics about what, why, and how. The “what” is the United State Constitution (Article 1, Section 8, Clause 8 to be exact) and Congress’ authority “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.”
The details are defined further in legislative codes (for those keeping score it is 17 U.S. Code 106 and 106A) and say that the owner or co-owners of a copyright has exclusive rights to presenting, selling, or lending a work realized in forms that range from art objects to literary documents to performances to digital transmissions and more. The codes also provide a list of rights designed to protect the artist’s work, name, and reputation.
Using the word “author” as a work’s creator or originator (including actual writers as well as filmmakers, sculptors, and so on), the list includes an important piece of information: copyright duration. The code says that ownership “shall endure for a term consisting of the life of the author,” or in the case of the co-ownership, the last surviving author.
Slusher elaborates in his handouts and notes that ownership for works created after January 1, 1978, continues for the life of the creator plus 70 years. “Anonymous works, works for hire, etc. have a copyright for 95 years from first publication or 120 years from creation.” He adds that an author does not need to renew a copyright and that a copyright is a form of personal property that can be bequeathed in a will or transferred to a trust. That includes the copyright of an image of a sold work (unless the artist transfers the copyright to the buyer — a practice that Slusher cautions to avoid).
All of this leads to the question: what can be copyrighted? The United States Federal Government says that copyrighted works are “original works of authorship” that are fixed in a “tangible medium of expression” — that includes traditional arts modes and emerging media (such as software). Ideas without tangible expression cannot be copyrighted, neither can titles, isolated words, or short phrases (although trademarks may be involved — more later).
While a copyright to a work of art is immediately owned by an artist upon the work’s creation, the “why” to copyright is that it gives the creator a tool to protect one’s work and livelihood. It is the federally copyrighted work that provides the clear legal framework for litigation in the United States and in nations that share copyright agreements. It also allows for “statutory damages.” Otherwise the legal waters can get murky and potentially costly for an artist attempting to sue for such damages.
The “how” part of copyrighting a work is as close as a computer and the link to the Library of Congress (the government authorized agency for handling copyrights): www.Copyright.gov/eco.
The basic E-Filing registration fees are $35 for a single work or $50 for a collection. The fee for a hard copy registration is $85. Complete processing time is up to eight months for electronic filing and 13 months for hardcopy. Other options, including expedited filing, are available at extra costs.
Slusher recommends first going to the site’s tutorial, and a quick glances finds an outline of the procedure. The site’s claim that filing is “as easy as 1-2-3” is generally accurate, and the series of prompts helps get the job done. During the process the electronic forms ask the creator to provide basic details about the work and the creator. The submission can be a published or unpublished single work or a collection. Options for submitting a work sample are basic and include word processing documents, PDFs, JPGs, Windows and Adobe media files, and so on. Payment options include credit and debit cards.
A test filing of a novella was completed in approximately 30 minutes, and both online prompt responses and E-mails to a personal E-mail account provided feedback, including an acknowledgement that the work had been filed. An official document of copyright ownership will arrive by mail.
While the law and process seem clear for filing a single work, the creative process is not, and the Fairey case provides the opportunity to explore the legalities involving the creative modification of a preexisting and copyrighted work. In the case, Fairey took an Associate Press (AP) photograph of Barack Obama, modified it with American flag-like tones, and called it a new work.
AP officials noticed that revenues at three companies Fairey controlled doubled from roughly $3 million in 2007 to $6 million in 2009, contacted Fairey about copyright infringement, and requested compensation. Fairey in turn obtained the head of the Fair Use Project — founded in 2006 as a part of Stanford University Law School to provide legal support to enhance creative freedom and protect public rights — to represent him, filed a lawsuit against AP, and claimed Fair Use.
Fair use is a federally accepted practice that allows a copyrighted work to be used without infringement for a variety of purposes, including news reporting, teaching, research, and artworks where the original has been modified in a manner that does not attempt to represent, replace, or compete with the original work. Newspaper images found in a collage would be fair use. Works with expired copyrights become part of the public domain and are also fair game. That includes works published in the United States before 1923 (works published afterwards are protected 95 years from the date of publication, and works created, but not published, before 1978, have a copyright of the life of the author plus 70 years).
In Fairey’s case his lawyer focused on the artist’s “stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message” from the original photo.
AP lawyers saw it differently and noted that they were “disappointed by the surprise filing by Shepard Fairey and his company and by Mr. Fairey’s failure to recognize the rights of photographers in their works.”
The case got murkier when Fairey first argued that “Hope” was based on a different photo than the one AP cited and that he cropped — or cut out other portions of the original work — to create “Hope.” However, he later confessed that he knew AP was correct and had attempted to destroy supporting evidence.
After the civil law suit was settled and the Manhattan U.S. court instructed Fairey to pay AP $1.6 million, AP noted “the reason it matters which photo Fairey used is because the fair-use copyright laws would allow an artist to use a news photo so long as the image was substantially changed. Cropping a photo would be a more significant change than taking a photo and painting it red, white and blue.” Because he attempted to conceal, destroy, and fabricate evidence, Fairey ended up admitting to criminal contempt and was sentenced to two years probation and ordered to pay a $25,000 fine.
But what about Warhol’s Campbell Soup paintings? Isn’t that a copyright infringement? That’s something that Slusher says comes up frequently and was brought up at the recent session.
The original soup can design was work created for a trademark or specific brand, which the United States Patent and Trademark Office says is “a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.”
Warhol’s soup cans are obvious paintings and a visual commentary on an existing — and banal — American product, not an attempt to replace or compete with a can of soup.
Campbell Soup Company’s reaction is best expressed in a 1964 letter from the production manager in the company’s Camden headquarters: “I have followed your career for some time. Your work has evoked a great deal of interest here at Campbell Soup Company for obvious reasons. At one time I had hoped to be able to acquire one of your Campbell Soup label paintings — but I’m afraid you have gotten much too expensive for me. I did want to tell you, however, that we admired your work and I have since learned that you like tomato soup. I am taking the liberty of having a couple of cases of our tomato soup delivered to you at this address. We wish you continued success and good fortune.”
The lesson about copyrighting and using images: it’s best to think ahead, do the research, and get the soup rather than be in it.
For further information go to www.copyright.gov.
New Jersey Volunteer Lawyers for the Arts is presenting a free workshop on copyright law on Tuesday, April 28, at 7 p.m. at the George Street Playhouse in New Brunswick.
The workshop will provide an overview of basic copyright protection, infringement, and “fair use” allow you to use the copyrighted works of others in your own creations.
Panelists include Gary Laurie, past chair of the entertainment art and sports law section of the New Jersey State Bar Association; Peter L. Skolnik, chair of the Lowenstein Sandler’s Media and Entertainment Practice; and David Gold, an associate in the intellectual property and litigation departments of Cole Schotz.
For more information or to register, go to new-jersey-volunteer-lawyers-for-the-arts.ticketleap.com/do-you-own-a-copyright-if-youre-an-artist-you-certainly-do.