Copyright for Visual Artists

Your artwork has value. Know your rights.

Copyright Terminology

There is a great deal of jargon you need to understand when learning copyright. This list has been created with the needs of painters, illustrators, photographers, and visual artists in mind.

Legal
Artistic

Legal Terminology

  • Copyright
  • Copyright gives the owner legal rights such as the right to produce, exhibit, publish or reproduce (copy) a creative work. The work must exist in a tangible, material form. You cannot copyright ideas, facts or material in the public domain. The artist owns the copyright to their own work automatically as soon as it is created. Copyright includes both economic and moral dimensions.
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  • Moral Rights
  • The artist is allowed to benefit economically from their creative work but they also have moral rights, which means they can challenge any questionable use of their artwork if it damages their reputation and they are allowed to be recognized as the creator of their own work. In Canada you cannot sell your moral rights but these can be waived if you assign your copyright to someone else.
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  • Duration of copyright
  • Copyright laws confer limited rights. The duration of copyright protection is one of the limitations of copyright. In Canada, copyright generally exists for 50 years beyond the life of the creator (artist or author). In the EU and the USA the duration of copyright is 70 years beyond the life of the creator. In Canada the duration of copyright for most photographs and films is the life of the artist plus 50 years, although this can vary with different circumstances.
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  • Copyright infringement or Copyright violation
  • If copyright gives the artist certain rights to publish, perform or reproduce a work of art they create, copyright infringement occurs when someone reproduces (copies) or publishes a creative work without the permission of the artist. One important factor is that although copyright gives the artist rights, these are limited. For example, anyone is allowed to take a photograph of a copyrighted painting in a public art show and publish it to accompany an article reviewing the show. This is called "editorial use" and it is not a copyright violation. On the other hand, taking the same photo and using it to create and sell posters is "commercial use" and doing this without asking the artist is a copyright violation.
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  • Berne Convention
  • An international treaty established in 1886 to protect literary and artistic work and guarantee artists the right to be paid for their own creations. The administraton of the Berne Convention is now handled by the World Intellectual Property Organization which works within the structure of the United Nations. The WIPO has 184 member states. Since there are only 190-195 countries in the world in total (estimates vary) general copyright protection for artists is nearly universal. This does not mean that international copyright laws are identical, however. Each country enacts its own copyright laws responding to the specific culture and concerns of its people.
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  • Plagiarism
  • Plagiarism is taking the words, creative work or artistic work of another person and claiming it as your own. Plagiarism is a common problem in schools and colleges and most academic institutions have strict rules to discourage it. Although there are similarities between copyright infringement and plagiarism, they are not necessarily the same thing. A person could take a "public domain" artwork or photograph, put their name on it, and hand it to a teacher for a mark. This would be plagiarism but not copyright infringement. On the other hand, if a person downloads a full article without permission and posts it on their website while giving full credit to the author, this is not plagiarism but it is copyright infringement.
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  • Trademark
  • A graphic symbol using any combination of words and/or images to represent the commercial goods produced by a company. If you own the trademark to a certain product, you are allowed to apply and market goods wth the trademark attached. For example, it you start a company to manufacture running shoes you are not allowed to apply the NIke or Rebok logo to your products if you do not own the trademark. You must create your own unique trademark to advertise and promote your products.
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  • Patent
  • A patent is a legal document issued by a government that guarantees an inventor rights to their own invention for a limited period of time. Unlike copyright, which only applies to work fixed in tangible form, inventors can be granted patents for ideas.
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  • Intellectual Property
  • Intellectual property refers to the products of the mind and creations of the intellect. According to the World Intellectual Property Organization, there are two main categories of intellectual property: industrial property and copyright. Patents and trademarks are considered to be industrial property and literary and artistic works are protected by copyright laws. Although ideas cannot be copyrighted, the form through which the idea is expressed can be protected by copyright. For example, the idea of "a solitary winter tree in a barren landscape" cannot be copyrighted, but a painting of a solitary winter tree in a barren landscape can be protected by copyright. The ideas behind the work do not have to be original. Ten different artists can paint pictures of "a solitary winter tree in a barren landscape" and each painting, regardless of artistic value or merit, can be copyrighted as long as each is an orginal expression of the artist.
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  • Piracy
  • Piracy is a popular term most often used to refer to copyright infringement of movies and music. When copyright protected movies and songs are placed on the internet by people who do not have the right to do so and people download them, both the people who placed the songs on the web without permission and the people who download them without paying are guilty of copyright infringement, which is illegal in most countries. One consequence of piracy is that the musicians and artists whose work is being copied without permission are denied the immediate financial profits from their own work.
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  • Bootleg
  • The term bootleg orignally referred to liquor produced and sold illegally. To this day many towns still have a bootlegger, someone who is know to sell liquor without a license when legal drinking establishments and liquor stores are closed. In terms of copyright infringement, bootleg most often means copies of musical recordings produced and sold without the permission of the artist or rights holder.
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  • Attribution
  • Giving credit to the copyright owner when their work is used.
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  • Citation
  • Used mainly for written works, a citation is a formal listing of the author and publication details of the source used. Most academic institutions have strict guidlines around what citation styles students should use to list their sources.
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  • Quotation
  • Limited use of attributed quotations is one of the permitted uses of copyright materials. If you write a book review which is distributed publicly in a newspaper or on a website for example, you are permitted to use short quotes from the book in your discussion, as long as you give proper credit to the author. When using a quotation, enclose the author's words in quote marks, and add the name and source of the work.
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  • Common knowledge
  • Common knowledge is information that is widely and freely available, and therefore does not need to be cited when you use it. You cannot copyright common knowledge or facts. If I state: "Canada is a large country located in the northern hemisphere" I do not need to cite this, as it is common knowledge to all who live here.
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  • Public domain
  • The public domain consists of artwork, writing, novels, images and other creative work that is free to use without askng permission because the copyright protection on the work has expired. Work enters the public domain when the owner's copyright ends. In Canada,artwork is considered to be in the "public domain" 50 years after the death of the artist. If you take work from the public domain and add to it creatively, you are only allowed to copyright that part of the work that you added. You are not allowed to re-copyright a work that has already entered the public domain.
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  • Fair dealing, Fair use, Free use
  • Most countries include provisions in their copyright laws to allow extremely limited use of copyrighted materials without permission from the artist or author. The Berne Convention suggests that copyrighted materials can be used freely, in a reasonably limited manner for quoting (with proper attribution), for teaching purposes and for news reporting. Free use laws vary from country to country, in Canada they are called "fair dealing" and in the United Sates "fair use". Fair dealing and fair use " allows use of works without the authorization of the rights owner, taking into account factors such as the nature and purpose of the use, including whether it is for commercial purposes, the nature of the work used, the amount of work used in relation to the work as a whole; and the likely effect of the use on the potential commercial value of the work"1
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  • License
  • A copyright owner may allow use of their work in return for compensation agreed upon by the artist and the client. I was contacted recently by the writer of an academic blog who saw one of my images on a poster and really liked it. She asked if she could use the image on her blog and we had a phone conversation and agreed upon a price. This was the invoice/license agreement I sent: "Invoice:$(amount) The buyer has permission to use the image freely and without restriction on the --- blog. I would also appreciate an acknowledgement of my name and website link as we discussed over the phone."
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  • Censorship
  • Witholding what are considered to be objectional materials from public consumption. Governments, military organizations, religious groups, and corporations sometimes engage in censorship. A recent censorship case was discussed widely in the media when it was revealed in 2008 that the US Republican Vice Presidential candidate Sarah Palin had attempted to censor books she disagreed with when she served as mayor of a small town in Alaska. This caused concern among many voters.
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  • Cryptomnesia
  • Cryptomnesia is unconscious plagiarism. There is an interesting story about high school student Kaavya Viswanathan who received a half million dollar publishing contract for a novel. When the book was published readers complained that large sections of the novel had been copied nearly verbatim from other authors. The writer later admitted that she was an ardent fan of the authors she had copied and her plagiarism had been unintended and unconsious due to her photographic memory.
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  • Work for Hire
  • Sometimes an artist and a client (anyone who wants artwork, for any reason) enter into a formal agreement whereby all work and rights to work completed for that client will be assigned to the client. This is work for hire. I once did a series of illustrations for a software developer who wanted the images for an interactive game. I signed an agreement releasing all my rights to the illustrations I produced in return for a small weekly salary. I did all the work at home, in my own studio. I was not an employee of the software developer, and I was free to work on other projects at the same time. This ia an example of work for hire.
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    Artistic Terminology

  • Copy
  • Artists have the right to copy, print, or reproduce any image to which they own the copyright. The technology allowing artists to create and copy work has changed considerably over the centuries. Prior to 1839 the only reliable image copying technology available was printmaking which utilized wooden or metal plates, ink and presses. After 1839 photography was used to make cheap copies of artwork which were sold widely, contributing to the popularity and spread of cultural images. in 1994 Mosaic released the first web browser (Mosaic 2.0) capable of displaying images. From 1994 onward, as improving technology enabled ever larger and better quality images to be transmitted on web pages, and as artists began using digital tools to create artwork, it has become difficult to say with certainty what is a copy.
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  • Original
  • For the purposes of the Canadian Copyright Act, an original work is the unique product of an artistic or intellectual process. According to the Canadian Supreme Court, "in order to be original, a work must have originated from the author, not be copied, and must be the product of the exercise of skill and judgment that is more than trivial." 1
    For purposes of copyright, other countries define originality in different ways: "Copyright laws generally protect "original" artistic works. The test for originality varies between states. In droit-d'auteur (continental) countries, a work needs to bear the stamp of the author's personality and be the author's own intellectual creation. In the UK, it is sufficient that the work is not a slavish copy of another work and that some, albeit limited, independent skill and effort went into its creation. In US law, the work must possess some minimal degree of creativity."; 2
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  • Authentic
  • The word authentic refers to genuine, true and sincere qualities, as opposed to fake, dishonest, misleading or exaggerated.

    Traditional authentication methods are used in museums and art galleries to confirm that an artist did in fact create a certain painting, drawing or sculpture. With the spread of high resolution digital images on the web, however, it has become difficult though not impossible to establish whether or not a piece of art is authentic.

    One day a graphic designer from Toronto was showing me her portfolio and I got a strong sense that most of what I was looking at was not genuine or authentic. I have seen enough portfolios over the years to know when I am looking at something fake. If I had to describe the portfolio in one word, it would be "slick". There were a wide range of different styles and formats, all of which were very well done using digital tools but utterly generic and lacking concept, meaning, depth and substance. I pointed to some extreme close up photographs and I said: "These look very familiar, I think I saw these images on a wallpaper download site the other day". The designer quickly explained that she had posted her high resolution photographs on the web a few months previously and they had been stolen and placed on different download sites. My gut feeling and her bogus explanation convinced me that most of the work in the portfolio was probably plagiarized, although I had no way to prove it.
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  • Commission
  • A commission is a business agreement between an artist and a client whereby the artist creates a piece of artwork to specifications supplied by the client. The copyright for commission work usually rests with the client.
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  • Forgery
  • We most often hear the term forgery in relation to forgers who create counterfeit money and criminals who forge signatures on cheques. I encountered a forger when I moved about an hours drive away to take a new job. In the confusion of moving I neglected to inform the government to send my small monthly cheques to my new address, figuring that whoever moved into my apartment would kindly forward the government envelopes for me. After all, I had always done this for other people whose mail ended up in my mailbox. Whoever found my cheques promptly opened them and signed my name (misspelled!) with unusually bad penmanship, which qualifies as a forgery I suppose. It took months to get my cheques sorted out and my money returned.

    Forgery happens in the art world when art is created in the style of a famous artist whose work commands high prices. Art forgers create an original piece of art with the intention to deceive the public and appropriate the style and identity of the artist for financial gain. Picasso, an unusually prolific artist with a recognizable style who lived well into his 80's, was a favorite target of art forgers. Art forgery is fraud, not copyright infringement.
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  • Satire
  • Satire is social or political criticism delivered with humour, parody, sarcasm, irony or exaggeration. In 2008 Tina Fey dressed like Sarah Palin on Saturday Night Live and parodied Vice Presidential candidate relentlessly, presenting a brilliant political satire of the ill fated politician.

    Editorial cartoonists often use satire and parody in their work. In 2005 Danish cartoonists created an international crisis when their cartoons depicting Mohammed were published. Although the Danish cartoonists were strongly condemned because their work was offensive to a religious group, the cartoons did not infringe any copyrights.
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  • Homage
  • Homage is an appreciative show of respect. When creative people create an homage to an artist they admire, it could include some copying of that artist's style or subject matter.
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  • Formulaic
  • Unoriginal and confoming to common prearranged patterns, formulas or tendendies.
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  • Derivative work
  • As found in US copyright law, a derivative work is an artwork that incorporates some aspects of a copyrighted work.

    The term "derivative" is also used to describe artwork that lacks originality, freshness and conforms to the style and manner of another artist.
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  • Fan art
  • Fan art is artwork whose subject matter is the characters and situations from pop culture games, comics, books and movies. Often created by young people, some fan art is very high quality, but the artists are unable to benefit financially because the subject matter of most fan art is copyrighted by large entertainment companies. For example, if you create stunningly beautiful images of Spiderman that many people want to buy, you would very likely not be permitted to market your images publicly because the trademark for Spiderman is owned by Marvel Comics.
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  • Clichéd
  • A cliché is a tired, over-used phrase that does not convey ideas with any freshness or originality. For example: "What goes around comes around." While literary clichés are common, visual artists are also responsible for using clichés. How many times do you see a photo of two males in business suits shaking hands? We have all seen that image because it is a common visual cliché found on many business websites. An image might be clichéd and lack freshness but as long as it is the original creation of the artist, it is not an example of copyright infringement.
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  • Hackneyed
  • Hackneyed art is boring, safe, unoriginal and uninteresting.
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  • Parody
  • parody is imitation with an intention to mock or make fun of. It is most often seen in the performing arts. This may be accompanied by sarcasm (harsh or bitterly critical comments) or irony (statements which are cleverly intended to to deliver a message at odds to the literal meaning of the words.
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  • Pastiche
  • Any artwork created by copying the style of another.
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  • Collage
  • A collage is an artwork created by bringing together a variety of cut out images, textures and possibly objects in a fresh and unexpected way to create an image that is more than the sum of it's parts.
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  • Montage
  • Although the term montage originated in the film industry to indicate a series of images flashed on screen, a common technique for creating painterly images on the computer today is photomontage. Also known as photoshopping or digital imaging, the artist uses a variety of source photographs and blends them together using a software program like Photoshop to create new and interesting images.
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  • Appropriation
  • Appropriation is the act of claiming something as your own in order to make an artistic statement.
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  • Provenance
  • Provenance is documentation that accompanies an artwork with identifying information including name of the artist, date and place it was created, the owners of the piece throughout the years and how much they paid for it. If a totally unknown artwork by a famous artist is auctioned, an unimpeachable provenance helps potential buyers trust that the piece is not a forgery.
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References

1. Supreme Court of Canada, http://scc.lexum.umontreal.ca/en/2004/2004scc13/2004scc13.html

1. "Understanding Copyright and Related Rights" booklet, http://www.wipo.int/about-ip/en/

2. "The Art Newspaper: article by Simon Stokes", http://www.theartnewspaper.com/article.asp?id=17203


Disclaimer
These pages are for educational purposes only. This site offers a combination of fact, anecdotal information and editorial opinion of the writer, none of which should be construed as legal advice. If you require legal assistance on any aspect of copyright law, please contact a lawyer.