protect your art: copyrights/trademarks for artists
DESCRIPTION
Protecting your rights as an artist is very important. Learn more with this session.TRANSCRIPT
PROTECT YOUR ART!
Deborah Gonzalez, Esq.Binders Art School/The Black Book Conversations
DISCLAIMER
This presentation is for educational purposes only and does not constitute legal advice. It is
recommended that you seek legal counsel for specific matters.
All copyrights and trademarks of images belong to their respective IP owners and are used under
Fair Use for educational purposes.
Introduction
• Who am I?• Who is in the room?• Why is law important
for artists?
Who are you as an artist?
• What is art? Who defines art? – The law is not an art critic!
• Why do you produce art?– To express yourself…– To send a message…– To document history…– Other…
How can you protect it?
• The Law– But you need to think of it ahead of time – This is a tool in your art box.– You need to learn or have the resources accessible
to you. (The Artist Legal Team)
Copyrights
What is copyright?
Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.
US Copyright Office: Circular 44 Cartoons and Comic Strips http://www.copyright.gov/circs/circ44.pdf
Copyrights
Bundle of Rights
Right to Reproduce the Work: the right to copy, imitate, reproduce, duplicate or transcribe the work in fixed form.
Right to Derivative Works: the right to modify the work to create a new work. A new work that is based upon an existing work is a "derivative work".
Right to Distribution: the right to distribute the work to the public by sale, rental, lease or lending.
Copyrights
Derivative Example: Jeff Koons
Copyrights
Bundle of Rights (cont).
Public Display Right: the right to show a copy of the work directly to the public (e.g., hanging up a copy of a painting in a public place) or by means of a website, film, slide, or television image at a public place or to transmit it to the public.
Public Performance Right: This is the right to recite, play, dance, act or show the work at a public place or to transmit it to the public.
Copyrights
What does copyright protect?
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.
Copyrights
When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
Do I have to register with to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.
Copyrights
What happens if someone infringes me?
• Document the incident – research for all the facts and data
• Make sure your copyright is registered• Consult an attorney• Send a Cease and Desist Letter• If the item is online send a DMCA Take Down Notice• Weigh the pros and cons of pursuing
litigation/arbitration
Copyrights
Protection in Other Countries?• International Treaties and Agreements– WIPO – World Intellectual Property Organization
• Copyright Offices in Other Countries• EU Commission– http://ec.europa.eu/internal_market/copyright/in
dex_en.htm• Madrid Protocol• United Nations Educational, Scientific &
Cultural Organization (UNESCO)
Copyrights
• Portfolio Drawings vs Selling
• Public Domain/Fair Use
• Appropriation/First Sale Doctrine
• First Amendment/Censorship
• Work Made for Hire/Contracts/Licensing
Other Legal Issues?• Standards of Obscenity and Censorship– Not all countries have First Amendment Rights as
in US.– Not all state agencies have the same appreciation
for certain kinds of art.– Decency and Respect – what do they mean in the
country/culture you are considering?– Some countries culturally stricter than others– Do your research so as not to offend and to get
good reviews and sales
Copyrights
From Shakespeare to Shakesgnome
Copyrights
http://www.monalisamania.com/artmain.htm
Visual Artists Rights Act• The Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A,
is a United States law protecting artist rights.
• VARA was the first federal copyright legislation to grant protection to moral rights. Under VARA, works of art that meet certain requirements afford their authors additional rights in the works, regardless of any subsequent physical ownership of the work itself, or regardless of who holds the copyright to the work. For instance, a painter may insist on proper attribution of his painting and in some instances may sue the owner of the physical painting for destroying the painting even if the owner of the painting lawfully owned it.
Visual Artists Rights Act• Right to claim authorship
• Right to prevent the use of one's name on any work the author did not create
• Right to prevent use of one's name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author's honor or reputation
Visual Artists Rights Act
• Right to prevent distortion, mutilation, or modification that would prejudice the author's honor or reputation
• Additionally, authors of works of "recognized stature" may prohibit intentional or grossly negligent destruction of a work.
Visual Artists Rights Act
http://www.marshallastor.com/2008/04/30/kent-twtichell-settles-for-11-million-over-destruction-of-ed-ruscha-monument/
Trademarks
• Words or symbols used to identify a source in commerce.
• In today’s world related to branding.
• Infringement occurs if and when customers are confused between the two marks because they are too similar.
Trademarks
• Difference between ™ and ®
• Dilution or diminution of value of trademark • Facebook vs. Lamebook (settled/disclaimer)
• Trademarks help in Social Media – for domain names, social media accounts, etc.
• XXX. Domain – Cybersquatting• Twitter account policy – Twitter now owns Tweet® • SEO – Keyword Ads
Trademarks
Trademarks
Publicity Rights
Other Legal Issues?
• Exhibit Concerns– Transportation– Insurance– Catalogue (Photos of Art Work)– Online Availability of Images– Contract
Other Legal Issues?
• Sale Concerns– Who represents you?– Silent Auctions/Tax Incentives– Paying Tax on Income for Sales– Documentation• Bill of Sale• Authenticity Letter
Online & Beyond
• Marketing• Exposure/Awareness/Advocacy• Crowdsourcing• Venue– Contracts– Social Media Platform Terms of Use• Cartoon Network #3 – THEY OWN YOUR CONTENT!!!!
– Rules/Etiquette• Liabilities– Defamation
Online & Beyond
• Licensing• Merchandising• Festivals• Direct Sales
International
• Different Countries/Different Laws – Country Embassies/General Consuls/Cultural Attaches– UK: http://www.own-it.org/
• Always put a copyright/trademark notice on anything you post
• Put language that you own your rights and will enforce them
• Digital Signatures for Intl Contracts• E-transactions (currency exchange)• Jurisdiction when an infringement occurs• Language
Resources• US Copyright Office– http://www.copyright.gov/
• Copyright Registration for Works of Visual Art– http://www.copyright.gov/circs/circ40.pdf
• Artist Rights Society– http://www.arsny.com/
• Harvard Art/Image Rights– http://www.law.harvard.edu/faculty/martin/art_law/
image_rights.htm
