That's copyright right? 8 basics that art buyers and artists should know

Art Copyright

Before we get into this though – a declaimer. I am not a copyright lawyer. I’ve been to a few courses, read some articles, done some research, and had some conversations.  While each case will be complex, the basic concepts are pretty simple. So in this is the simple version. If you are in doubt about being on one end or the other of a copyright infringement then seek advice. For further information about copyright, see the website http: www.copyright.org.nz

As with most laws in New Zealand you, or the other party, are not in breach of copyright law unless a court rules you are. You can read the act and get a pretty good idea if you will, or will not, be in breach but until the matter is bought to a court for a decision, there is no breach.  Of course it is a good idea not to get to that stage.

  1. The Basic Principle

The basic concept of copyright is that the creator (or the employer of the creator) holds the sole right to make, reproduce, or distribute the product (or anything substantially similar) they have created.  This right lasts 50 years after the death of the creator in the case of art.

Copyright is automatic. It doesn’t have to be applied for or registered or claimed (except in the USA).  The artist doesn’t have to put the little c in a circle to own the copyright. They own the copyright whether the symbol is there or not.   The Copyright Council recommend that it is used though as it is like a small sign that says “I know I have the copyright here”

For a work to be protected by copyright it must be “a product of the creator exercising independent skill and labour” (thanks NZ Copyright Council).

  1. When you buy a piece of art you don’t buy the copyright with it

Art gets a special mention in the Act but the basic premise of the creator holding the rights to copy still holds true.  Let’s say you buy a painting. You have bought the painting NOT the copyright to the painting.

You have the painting to hang wherever you like (even in public), enjoy it and even resell it. But you don’t own the right to copy it by either getting prints made of it, or painting a replica, or taking as photo of it and selling the photo.  That right continues to be owned by the artist.

There is one slightly different circumstance; if the painting was commissioned by the buyer then the buyer owns the copyright.  The artist must then get the permission of the buyer to do any reproductions OR have a prior agreement in place with the purchaser where the artist retains the copyright.

  1. The Artist can do reproductions of what you have bought

The artist can make and sell reproductions of the painting you have bought (unless it is a commissioned work as discussed above).  Or they make derivatives of the work. The copyright law doesn’t require them to tell you they are doing this. They just can because it is the right enshrined in the law for them to exercise.  Good and accepted practice might dictate that they do tell you but we are just talking copyright here.  There seem to be two schools of thought on this: The one that thinks the original is worth more if it is the only version in existence and the school of thought that holds that the more widely known the artist is then the more valuable the original piece becomes.

  1. A substantial amount has to be copied to be in breach.

There is a myth that a creator of a piece can copy another’s work if they just change 10% of it. Nope. The actual test is much fairer on the original creator than that!  A breach judgement will consider if the work has had a substantial amount copied. But it doesn’t need to be a big amount to be a substantial amount.  For example a painting may have a very recognisable character/motif as the core feature but it only occupies 15% of the canvas with the remainder being background or context.  The core character /motif would still be judged as being a substantial part of the artwork therefore can’t be copied.

  1. Some things are not protected by copyright.

Copyright does not protect titles, single words, ideas, styles or techniques -just the work itself.

  1. You can do some copying

The act does lay down some areas where it is ok to copy the work of others: To report, criticise or review it, for research and private study or education of others, and public administration purposes.

  1. Images from the internet are not exempt

You can’t download an image from the internet and reproduce it in any way unless it is for the purposes in point 6 above or if you buy a license to reproduce it. The same copyright protection applies to internet published images as any other product enjoys.

Artists will often use internet derived images to research how to represent something in a painting - that is most likely fine under the “research” banner.  Painting that exact image however may result in a breach under the substantial amount banner.

  1. Photographing art can be a breach of copyright

Photo by Andrii Nikolaienko from Pexels

In all cases you need to have got permission from the gallery but, permission or otherwise, the Act can see this in many ways. As with a lot of things – it depends...

Recall though that you have not “breached copyright” until a court has determined that you have.

If the photograph is to show people what a wonderful painting you saw at Macandmor then you are not likely to be sued for breach of copyright.

If it is to make a copy of and put it on your wall then you have breached copyright – you have prevented the artist making some money from it.  Even if you don’t sell the copies you make.

If it is to post on the internet – then technically that could be a breach as well (in that you have distributed a copy of the work) but not a breach that is likely to be objected to. The artist has a specified right to be named (or not named if they object to how their name will be used).

There you go but not the end of the story.

Simple really and mostly how a fair and reasonable person would expect.  This commentary is in my words (so as to not breach copyright) but the websites below have been helpful sources of information. There is a whole other discussion after this though about trademarks, inspiration, influence, artistic copies, fraud, and plagarisim - a lot more complex than this one!

Just a note about the images. The top one is a Banksy mural where he has used the motif of another mural artist, Jean-Michel Basquiat . Banksy famously attests that Copyright is for losers.

The rat with the Mickey Mouse ears is also a Banksy. Copyright law in the US, and therefore around the world, keeps having the period it applies extended because of Mickey Mouse. As it gets closer to the date where Disney's copyright on Mickey will end then the government is lobbied to change the law. That time is approaching again now. http://alj.orangenius.com/mickey-mouse-keeps-changing-copyright-law/

The other images are from  Burst, https://burst.shopify.com/ , and Pexels,  https://www.pexels.com/

http://www.copyright.org.nz/html/blob.php/Visual+artists+%26+copyright.May2007.pdf?attach=true&document=341&filetypecode=1&fileId=107 

 http://www.copyright.org.nz/html/blob.php/An+introduction+to+copyright+in+New+Zealand.Jan2009.pdf?attach=true&document=29&filetypecode=1&fileId=6 

 http://www.copyright.org.nz/html/blob.php/Fair+dealing.Jan2009.pdf?attach=true&document=338&filetypecode=1&fileId=104 

 https://janefriedman.com/the-fair-use-doctrine/ 

 And this might be of interest...

http://www.artpublish.com/copying-homage-plagiarism-fraud/


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