Copyright Infringement, Reproduction Rights
and Artists' Careers
Artists generally get upset if they find out their art has been used or reproduced without their permission. Whether the art appears in print, on TV, in video, film, on the Internet or in other artists' works of art, instances of using images of art without asking first are more prevalent than ever. While it's true that art used in unauthorized ways is usually an infringement on the artist's copyright, the question then becomes whether or not to do anything about it-- legal or otherwise-- and if so, what?
Treating every such incident as an actionable offense by going legal is not necessarily the best way to go. But many artists go right ahead anyway and attempt all kinds of actions regarding unauthorized use of their art. You can sometimes see the results of this in commercial stills or videos, for example, where art of any other kinds of identifying imagery are either blurred out or not shown at all.
Whether artists who make claims end up winning judgments isn't the point. The point is that defending against these claims takes time and money. For artists, the fallout from all this is anything but good. Those who are interested in having their work appear in any kind of media anywhere are having more difficulty than ever accomplishing this, whether they care about getting paid for it or not. Why? Because many companies are no longer willing to take any kind of risk and have simply sworn off picturing art in anything they do. So less art by fewer artists gets used. The ripple effect from all this is that the general public is exposed to less art in mainstream media and publications of any kind.
Keep in mind that many artists do receive payments or royalties for art that appears in major corporate media, but not always. Reasons for non-payment vary. Not all companies have the budgets to include art in whatever they produce, and many have barely any budgets at all. So the question any artist faced with a possible copyright infringement issue must ask is this: Are the "violators" using your art exclusively to make money for themselves or can the situation be looked at in other ways? In the above example, the art in question did not increase the show's revenues, but rather honored the artist and hopefully encouraged more people to buy art. The set designers could have just as easily hung a public domain print or a poster or even left the wall blank.
Another aspect of this issue is when the artists are asked to lend their art, but are also told there's no money in the budget to pay them. Blurring out brand names and images. Database of artists who are willing to allow their art to be used in TV, film, advertising, etc. If the production is bigger than you are, and they can do more for you than you can do for them, do whatever you can to be part of whatever they're producing. Don't look at them as moneybags. Many of them have hardly anything to doing this on a shoestring. If it's a corporation using you to brand their merchandise or attract followers that's a different story. But if someone in the production company happens to love your art, allow them to express that love freely and pay homage to you in their production. Is the art being used to make money for the production, or is it being used because set decorators really like the way it looks? They can find all kinds of art, but they chose yours.
If you ever discover your art being used in circumstances like this, instead of taking legal action, consider it an honor and a compliment, and add it to your resume. After all, how many artists can say that their art was seen on national TV by millions of people? The exposure certainly did more for her reputation than it did for either the lead actor's reputation or the show's ratings. Perhaps she should have paid them for the exposure. You could conceivably argue that, right?
At other times, taking legal action for copyright infringement is entirely justified. For example, in a recent court case, a well-known artist sued the owners of a frame shop for cutting pictures of her paintings out of magazine ads, and then framing and selling them as works of her art. She was right to sue the framers and she won. In contrast to the case involving the television show, her fame and her images were being used without her permission solely to make money for the framers; she received no benefits in any way, shape or form from these sales.
As an artist, you have to decide, on a case-by-case basis, whether or not and under what conditions to allow your art to be reproduced, and if it is reproduced or used without your permission, whether or not to take legal action. Publicity can sometimes be as good or better for your career than money even when the letter of the law is not being followed. Below are several pointers to keep in mind when deciding how far to let others go with your art.
**In general, allow your art to be reproduced as often and in as many circumstances as possible (assuming they're positive and potentially beneficial to your art career). The more people who see it, the better your chances are for getting shows, representation, making sales or getting commissions. As with any other product, the higher your name recognition, the more art you tend to sell. So rather than get all bent out of shape about it, add the accomplishment to your resume.
** The earlier you are in your career, the more inclined you should be to let other people reproduce or otherwise use your art at no charge assuming of course that they're not using it to make money for themselves and leave you out of the equation. For example, if a non-profit organization asks you to provide a cover illustration for their brochure at no charge, you should probably give permission and list it in your resume. If, however, a greeting card company wants to use your art on a line of cards, only give permission if they pay you.
** The more important the individual or organization asking to use your art, the more inclined you should be to grant them permission. Be flexible and easy to work with; you want as much high-profile exposure as possible. Don't start laying down conditions and trying to figure out how you can cash in. You're already cashing in simply by having your art accepted over that of all other artists.
** In certain cases where your art is being used for commercial purposes and you stand to receive a large amount of publicity or exposure, but are offered no money in return, consider waiving fees that you might ordinarily charge. Once again, the earlier you are in your career, the more flexible you should be on this point. For example, having your art reproduced on a full page of a magazine that charges $5,000 for a full-page ad is equivalent to being paid $5,000 for the use of your art (assuming the magazine prominently credits you for the art).
** When you're better known than the individuals or organizations that want to use your art, you should usually charge for its use. Even in cases where it's used only as illustrations and not directly to make money, your name may still be used in advertising or publicity to attract buyers and/or viewers. If, however, a non-profit organization wants to use your art, and you support their cause, you can grant them permission to use it at no charge and view doing so as making a donation.
** Don't be too quick to take legal action in instances where your art is used or reproduced without your permission. Many times, you can work out acceptable arrangements on your own with offenders. Consider not taking action when the reason for the use of your art is to draw attention to you and your accomplishments as an artist, and not to line the pockets of the parties doing the reproducing.
** Don't get a reputation for being litigious. Dealers, collectors, and other art lovers tend to avoid artists who regularly use attorneys or threaten legal action.
** Make sure you always receive proper credit for any use of your art; that's the most important part. Whenever possible, have the users provide contact information along with your name. This way, anyone interested in owning your art can easily get in touch with you.
Is a gallery offering you a show? Does someone want to rep your art? Entering into a business relationship? Signing a contract? If you answered yes to any of those questions, read Common Artist Legal Problems and How to Avoid Them
Disclaimer: Please be aware that I am not an attorney and that the contents of this article should not be construed as legal advice. If you have any questions of a legal nature, consult an attorney.
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