The Basics on Copyright

I will admit that I have been completely, blissfully ignorant of any legal issues, especially copyright ones concerning my own artwork, until only recently. When I contacted the Maryland Lawyers for the Arts, a non-profit and pro bono organization, I expected the lawyer to laugh in my face and tell me I was overreacting. In fact, she said that she handled similar cases all the time and would be happy to handle mine. After doing the research, I decided that I had no interest in any legal action for myself. However, I have learned a lot of surprising information and believe it’s important to share.

First of all, this issue is NOT the natural cycle of influence and ‘borrowing’ that goes on in art school and in shared artist studios. While sometimes uncomfortable, this is a normal part of artistic growth. In a class setting, I encourage my students to ‘borrow’ appealing elements from mentor artists and to try on different styles and techniques as a learning tool, but I don’t encourage them to show this work professionally.

What I am talking about is more serious, more sinister, and apparently, a not all that uncommon kind of a matter. I’ve been contacted by a surprising number of artists lately, many of whom I don’t know, wanting to share their own experiences about this with me. This has been quite educational, and one thing that has become apparent to me is that, if you are even moderately successful as a visual artist, there is a good chance that this will happen to you.

PhotobucketKoons’ Blue Puppies

PhotobucketOriginal puppy image that led to a lawsuit

I was emailed by ‘Bob,’ an artist in another city, who told me his story. He’d been working on a body of work, a series of paintings, for about six years, and had showed them only a few times. When another, better known artist who worked in a similar mode moved to town, she contacted him, based on the recommendations of others and requested to do a studio visit with him.

Bob agreed, and happily answered her many questions – about his content, process, works in progress. After the visit, he wished her well. He didn’t hear from her again for months, until he got an invite to her new show. The exhibit was at a well-respected gallery in town and he was shocked, as were his friends and colleagues, to see that the work being shown looked like it was his. The image was clearly different from her earlier work and, whether intentionally or unintentionally, she had borrowed his six years of ‘trial-and-error research’ and claimed its results.

The original artist never spoke up and, a few years later, when he saw her painting in a museum, the friend he was walking with commented that “his” new work looked good. He never spoke up, and never confronted the other artist, but I could sense the visceral nature of his wound and anger, many years later.

Another person who pulled me aside is a teaching colleague. ‘Jennifer’ told me a similar story; another, better known artist asked to visit her studio and she was flattered. The other artist had a similar vocabulary and process and they had lots to discuss. Months later, the other artist began showing works that looked like they were Jennifer’s in group shows, along with her earlier works that were obviously different. This bothered my colleague, but she said nothing.

A few months later, the artist mounted a solo show of works at a gallery in the same city and all of the works in the show were a departure from her original work – they all looked like they were done by Jennifer. She decided that a simple approach was best, so she contacted the other artist. She denied Jennifer’s accusations and said the works were hers and that she would continue to show them. After this, Jennifer had no idea what to do, so she contacted a lawyer. Her own body of work had been well documented, in shows and in press, for over ten years, as was the other artist’s. The lawyer said it was within her legal rights to issue a “cease and desist” order and they sent one to the gallery involved, which promptly took down the show. The other artist never admitted to copying my colleague’s work, but stopped making works that were so similar to hers after that.

I got a phone call from ‘Matthew’ a few weeks ago. His situation was similar. A person he’d never met had contacted him, via his photography website, and asked him numerous questions, over several weeks, about his materials and process. These questions got more and more specific, uncomfortably so, and Matthew finally stopped answering them.

Several months later, he received a post card for this artist’s new show and, you guessed it – the image wasn’t an exact copy of any one of Matthew’s pieces, but it looked exactly like his work. The artist actually sent him an invite! The gallery that represents Matthew also received a promotional pack from this ‘look alike’ artist. I guess the artist assumed that if the gallery liked Matthew’s work, they’d like his as well. Matthew was confused about how to proceed and when I told him that he had legal rights in the case, he brightened up. The emails the other artist had sent him were proof. Unfortunately, he had deleted the emails. I advised him to speak to a lawyer and I am not sure what has happened since then.

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I am not trying to scare anyone. I’m not suggesting you should stop doing studio visits! But I think this is an important subject to consider. Copyright in the visual arts is murky, compared to other fields. In journalism, a publication pays your salary and is accountable for the ethics involved. If a writer ‘borrows’ a story or another writer’s research, even if paraphrased, all the original writer has to do is make a few phone calls and the plagiarist is fired. In the visual arts, no one pays our salary, and you can’t get fired from your show, studio, or career. The individuals are responsible to themselves only. The jury of your peers is the best you can expect.

Misinformation is also rampant, regarding copyrights in the visual arts. According to Blake Gopnik in the Washington Post on January 26, “There’s no copyrighting an artistic look.” I had always assumed this to be the case as well, but this is not, actually, true. According to the Maryland Lawyers for the Arts practicum on copyright by Cynthia Blake Sanders, “Copyright protection extends to Derivative Works – A new work based on a pre-existing work.”

For a visual artist to have copyright ownership, you do not have to officially register the work for protection or pay for a license. The work itself IS the copyright. “The person who creates the work is the ‘Author’ and owner of copyright.” The author has exclusive rights to reproduce, modify, distribute, and display the work. “Works created after 1/1/78 have a copyright term of life of the author plus 70 years.” The Visual Artists Rights Act of 1990 protects an artist’s “honor and reputation,” and uses “recognized stature – the views of art experts, the art community, or society in general” to grant stature to the works.

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The one questionable variable here is proving that a derivative work is made from one original source. However, the former practices of both artists involved are the proof, so documenting works, especially over time, is of central importance. Jeff Koons has lost millions of dollars over this issue, despite his protestations of innocence and creative integrity.

I’m no lawyer and am not really interested in knowing more than this about artist copyright, but I am glad to know that there are legal rights to protect visual artists. This is a dirty secret and it’s not fun to talk about. However, I hope that this information may be helpful to others in the future.

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Author Cara Ober is Founding Editor at BmoreArt