Arts 101: Copyright and the Right to Copy

In our continued pursuit of answers to deceptively simple questions, I asked colleague Luke Taylor to investigate one reader’s query about copying famous works, and then selling them. Here’s what he found:

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In Jean-Pierre Jeunet’s 2001 film Amélie, the title character lives upstairs from an enigmatic neighbor known as L’Homme de Verre or “The Glass Man” due to his brittle-bone condition. The Glass Man occupies himself by painting copy after copy of Pierre-Auguste Renoir’s Luncheon of the Boating Party.

One could easily imagine the Glass Man posing a question just like the one posted to Arts 101 by reader E. Baker. Baker asks, “If I paint a picture that is a copy of a famous artist’s work, can I sell it?”

Randall A. Hillson, PhD, is a lawyer with the intellectual property firm Merchant & Gould in Minneapolis. When asked Baker’s question, Hillson replies with another: “The first question is, can you paint the picture at all?”

Hillson isn’t asking whether someone is technically capable of painting. He’s asking whether the work the artist intends to copy is protected by copyright. “If the answer to that is ‘yes,’ then presumably you don’t have permission.”

When it comes to copyrighted works, age does matter. Hillson says it’s fairly straightforward that if a painting is sufficiently old, it’s not under copyright. For example, Luncheon of the Boating Party was painted by Renoir in 1881, so the Glass Man isn’t violating copyright. If he wanted to sell his copies, he could certainly do that.

renoirpainting.jpg

Pierre-Auguste Renoir’s “Luncheon of the Boating Party”

“But if the painting was created recently, for example, within the last 30 years,” Hillson explains, “then I can say it’s almost certain the work is under copyright, in which case your copy would be a violation of copyright.”

According to the United States Copyright Office, copyright protection in works created under the current law endures for the life of the artist plus 70 years after the artist’s death (reasonable advice for artists: enjoy a healthy lifestyle). Duration may be different for works created before the present law took effect. Copyright laws in other countries help copyright protection apply across borders.

Beyond protecting original works, Hillson says that copyright law extends a creator’s protection to preventing derivative works. “A derivative work is a work that’s based on a previous work but isn’t necessarily a copy of it,” Hillson says. “An example of a derivative work is a work made by transforming a work from one medium to another.”

I didn’t have to go far to find an example of derivative-work protection. Randy Hanson of St. Paul, a longtime friend, is a visual artist who, while on a visit to Las Vegas in 2001, took a photograph of the ceiling at the Bellagio Hotel and Casino, which features a blown-glass art installation by Dale Chihuly. Hanson liked his photo so much that he put it up for sale on Zazzle.com; many customers purchased Hanson’s print over a period of several years.

In August, 2009, that changed.

“I was contacted via automated e-mail that my image had been removed due to violations of Zazzle’s terms of service,” Hanson recalls. “After further inquiry, I received a reply from Zazzle’s Content Management Team that stated, ‘We were contacted by Dale Chihuly and asked to remove products in violation of his intellectual property rights.’ Several other contributors were also asked to remove their photos of Chihuly’s artwork.”

Chihuly.jpg

Detail of Fiori di Como by Dale Chihuly,1998

Bellagio Resort, Las Vegas Nevada

www.chihuly.com

Hanson discovered that such items–including postcards, books and posters–are available from Chihuly himself through his publisher, Portland Press.

Lawyer Randall Hillson isn’t surprised by a story like this. “If a person takes a picture of a copyrighted work, they are making a copy or derivative work of it, which is something a copyright owner may have a right to stop.”

And according to Hillson, Randy Hanson’s misstep didn’t necessarily begin when he made his Chihuly photo available for sale on the Web. “I want to address the myth that it’s the activity of sale that creates the problem–it’s not. It’s the creation of the infringing work that’s the problem,” Hillson stresses. “It doesn’t necessarily matter whether a person sells it or just possesses it if it’s an unlawful work to start with.”

Hillson explains that under the current law in the United States, an artist doesn’t have to do anything other than make something to become a copyright holder. “Copyright exists when you create the work,” Hillson says. “The person who created the artistic work has a copyright, provided it’s a work that’s protectable.”

That said, U.S.-based artists can receive further protection by registering their original works with the United States Copyright Office. Information about the law and on how to register can be found on the Copyright Office’s website, copyright.gov.

And just as patent laws were established not only to document but to stimulate innovation in science and industry, “copyright laws exist for that reason as well, to stimulate artistic development,” Hillson says. “What it basically does is it says, if you create the work and it eventually has value, you’ll still be able to derive the benefit of that value even if a long time has passed.”

Even Amélie’s Glass Man could stand to benefit. “His paintings would also be subject to copyright because they must have some modicum of his own originality in them,” Hillson says. “The guy can’t be Renoir. He’s at least putting some of his own originality into the painting, and whatever that is, he should be entitled to copyright protection.”

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Thanks to Luke Taylor for his thorough and lucid report!

For a different take on copyright protection, view this State of the Arts post that features a presentation by Johanna Blakely, deputy director of the Norman Lear Center at the University of Southern California.

What do you think about copyright laws? Have you experienced either side of copyright, whether as someone protected by copyright or someone asked to respect a copyright?

What other questions do you have for Arts 101?

  • http://www.mnartists.org Susannah Schouweiler

    Love this post! So helpful, such a lucid, concise explanation of the basic parameters. Thanks, Marianne! (Reminds me of Alec Soth’s recent beef with Little Brown and Co. over re-creating one of his images for a book cover, after he’d declined to allow them to license the actual photograph for that purpose.)

  • Gary Arseneau

    July 2, 2010

    BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)

    Lewis A. Kaplan, United States District Judge.

    [1] On November 13, 1998, this Court granted defendant’s motion for summary judgment dismissing plaintiff’s copyright infringement claim on the alternative grounds that the allegedly infringed works — color transparencies of paintings which themselves are in the public domain — were not original and therefore not permissible subjects of valid copyright and, in any case, were not infringed. [n1] It applied United Kingdom law in determining whether plaintiff’s transparencies were copyrightable. [n2] The Court noted, however, that it would have reached the same result under United States law. [n3]

    1. The Bridgeman Art Library, Ltd. v. Corel Corp., 25 F. Supp. 2d 421 (S.D.N.Y. 1998).

    2. Id. at 425-26.

    3. Id. at 427 nn.41, 47.

    Gary Arseneau

    artist, creator of original lithographs & scholar

    Fernandina Beach, Florida

    SOURCE:

    http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm

  • Gerald Myking

    I have a registered copyright on a book called “The Dogooders”, not to be confused with Mona Charons extended title. My wife is an artist and struggling to make an income from her work. If it were not for copyright laws it would not take long for some big greeting card company to rob her of the chance to make an income from here own creations. There is a misunderstanding by the public. Hansen like anyone else can copy something for there own personal use. They just can’t sell it in any way other than they would any other personal property. He could put the image on his car and sell it, just don’t do it more than once. Artists I don’t think have a problem with this, I myself would feel flattered.

  • http://cincinnatiwebsiteservices.com Diane

    I did not realize that the creation of a piece of art provided instant copyright. I am like most of the general public, in that I have been led to believe that I would need a lawyer’s help to formally create copyright in order for an image or an object to be protected.