International Artist Copyright Law: Whose Rules Apply?

Copyright law is a complex and ever-evolving area, with international agreements and national laws governing the protection of creative works. While the specifics of copyright law can vary between countries, most nations are signatories to the Berne Convention, providing a framework for cross-border copyright protection. In the US, copyright protection is automatic for original works of authorship as soon as they are created and fixed in a tangible form. This means that artists have exclusive rights to reproduce, distribute, and publicly display their work, as well as create derivative works. However, it's important to note that these rights are not infinite and are subject to limitations, such as fair use, which allows limited use of copyrighted material for non-commercial and educational purposes. Understanding copyright law is crucial for artists to protect their intellectual property and ensure they can profit from their creations.

What constitutes copyright infringement?

Copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

Copyright law applies to many types of materials in business, science, education, the arts, and more. It protects original works of authorship, including original literary, dramatic, musical, or artistic works; sound recordings, films, or broadcasts; and typographical arrangements.

To secure copyright protection, the work needs to be an ""original intellectual creation" and expressed in an identifiable manner. This means that the work must be created using free and creative choices and recorded in some way, such as being put down on paper or digitally.

Copyright infringement can take various forms, including issuing copies of the work to the public, renting or lending the work, performing the work in public, communicating the work to the public, and making adaptations of the work. It's important to note that infringement can occur even if only a substantial part of the copyrighted work is copied or used without permission.

In order to bring a claim of copyright infringement to court, the plaintiff must prove that they are the rightful owner of the material and that the defendant's actions infringed upon their unique rights as the copyright holder. Additionally, the plaintiff must show that the defendant's actions exceed the standards of fair use, which allows for limited use of copyrighted material in certain circumstances such as criticism, commentary, or transformative works.

To avoid copyright infringement, it is essential to obtain permission from the copyright owner or ensure that any use of their work falls within the scope of fair use.

How do I protect my art online?

Protecting your artwork online is essential for reaching a wider audience and growing your career. Here are some ways to protect your artwork from being copied or used without your permission:

• Include a copyright notice: Add the © symbol with your name and the year next to your artwork on your website and social media profiles to assert your rights. For example, © 2023 Artist Name.
• Use watermarks: Develop a personal watermark, such as your logo or name, and include it on all your photographs. While watermarks may affect the visual quality of your work, they can deter potential infringers and help establish proof of infringement if you need to take legal action.
• Use low-resolution images: Only upload images with a resolution of 72 to 96 dots per inch (dpi). These images will load quickly and look great on screens, but they will print poorly.
• Disable right-click saving: Make it harder for people to save your images by disabling the right-click function on your website. Keep in mind that people can still use other methods, such as taking screenshots, to save your images.
• Shrink wrapping: Place a clear image or layer over your photograph to discourage infringers from downloading the actual image file.
• Tiling: Cut or slice your digital photograph into multiple pieces, upload them to your webpage, and piece them back together. This technique is time-consuming but offers an additional layer of protection.
• Use online tools: Utilize sites like Artwork Archive to securely store, organize, and display your artwork. These platforms often have features like password-protected rooms and automatic image downsizing to help protect your work.
• Take action against violations: If you discover someone using your work without permission, send them a polite email requesting them to take it down. If they don't respond, you can have a lawyer send a formal notice.
• Keep your contact information visible: Make it easy for people to contact you and ask for permission to use your work. This may help prevent unauthorized use and build relationships with potential customers.
• Register your work: While not mandatory, registering your copyright with the appropriate office in your country can provide additional legal benefits and make it easier to enforce your rights if needed.

Can I sell prints of my artwork if I've sold the original?

Copyright law can be a complex topic, and it's important to understand the basics to protect your artwork and ensure you're fairly compensated. Here's a detailed overview of the key points to consider regarding selling prints of your artwork after selling the original:

Copyright Ownership:

You, as the artist, own the copyright to your artwork unless you explicitly transfer it to another person or entity. This means that even if you sell the original piece, you retain the copyright unless you specifically sign over those rights. It's crucial to understand that when someone buys your artwork, they are purchasing the physical object and not the intellectual property rights unless explicitly agreed upon.

Automatic Copyright Protection:

In most countries, including the United States, copyright protection exists from the moment your artwork is created and fixed in a tangible form. This means that as soon as you complete a painting, sculpture, or digital artwork, it is automatically protected by copyright law without any additional registration required. However, registering your copyright with the appropriate authorities, such as the U.S. Copyright Office, can provide additional legal benefits and make it easier to enforce your rights.

Selling Originals and Prints:

You have the right to sell both the original artwork and reproductions, such as prints, unless you have signed a contract that states otherwise. In fact, one of the benefits of traditional art forms is the potential to "triple-dip" by selling the original, selling prints, and licensing rights to the image to a third party. However, it is considered good practice to inform the buyer of your intentions to reproduce the image, even though it is not legally required.

Contracts and Agreements:

When selling your artwork, it's important to have clear contracts or agreements in place. You can include a disclaimer or statement on your website or the artwork itself, indicating that you retain the copyright and plan to create and sell reproductions. This helps set expectations for buyers and prevents potential disputes.

International Copyright Considerations:

Copyright laws can vary from country to country, but most countries are part of the Berne Convention, which provides a framework for cross-border copyright protection. If you're selling your artwork internationally, it's crucial to familiarize yourself with the specific copyright laws in the countries where you plan to market and sell your work.

Certificates of Authenticity:

Certificates of Authenticity (COAs) are documents that confirm the authenticity and ownership of an artwork. They can also be used to specify copyright ownership, even after the artwork has been sold. Creating and storing COAs for your artworks helps establish a clear chain of ownership and protect your copyright interests.

In summary, as an artist, you have the right to sell prints of your artwork even after selling the original unless you have signed over your copyright to another party. It's important to understand the basics of copyright law, register your copyrights when possible, and have clear agreements in place to protect your intellectual property rights and ensure you can continue to benefit from your creative work.

What is the difference between parody and satire?

The difference between parody and satire is subtle but significant, especially when it comes to copyright law. Both forms employ humour, sarcasm, and exaggeration to make a point, but the target of their commentary is different.

Parody mirrors a specific original work, using elements of its style and content for comedic effect or ridicule. For example, Weird Al's songs parody original musical works, and *Pride and Prejudice and Zombies* is a parody of *Pride and Prejudice*. When creating a parody, you need to be able to point to a specific work and say, "That is what is being made fun of here." Parody requires imitation and transformation of the original work, and its purpose is to criticise or comment on that work specifically.

Satire, on the other hand, uses humour, irony, and exaggeration to make a broader comment on society or a particular issue. It does not target a specific original work, but rather seeks to expose and criticise stupidity, vices, or topical issues. For example, *A Modest Proposal* by Jonathan Swift is a satirical text that uses the absurd proposal of eating babies to comment on poverty. Satire does not seek to transform a specific original work, but rather makes a comment about society as a whole.

This distinction is important in the context of copyright law. Parody is more likely to be considered "fair use" because it directly critiques and transforms an original copyrighted work. Satire, on the other hand, does not have the same claim to "fair use" because it does not directly critique or transform a specific work. However, it is important to note that each case is different, and a parody may not always be considered fair use, especially if it borrows too much from the original work.

What is fair use?

Fair use is a legal doctrine that allows limited use of copyrighted material without the copyright owner's permission. It is a defence against a claim of copyright infringement. Fair use applies to purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. It is important to note that there are no hard-and-fast rules for determining fair use, as it is decided on a case-by-case basis. However, four critical factors must be considered when evaluating fair use:

• The purpose and character of the use: Courts examine the purpose of the party claiming fair use and are more likely to rule in favour of non-profit educational and non-commercial uses. Additionally, "transformative" uses, which add something new or change the original work's purpose or character without substituting for its use, are more likely to be considered fair.
• The nature of the copyrighted work: This factor considers the degree to which the copyrighted work is creative or imaginative. Using a highly creative work, such as a novel, movie, or song, is less likely to support fair use than using a factual or technical work. Additionally, using an unpublished work is less likely to be considered fair use.
• The amount and substantiality of the portion used: Courts evaluate both the quantity and quality of the copyrighted material used. Using a large portion of the copyrighted work makes it less likely to be considered fair use, while using a small amount may favour fair use. However, if the portion used is considered the "heart" of the work, even a small amount may weigh against a finding of fair use.
• The effect of the use on the market: This factor considers the extent to which the unlicensed use harms the existing or potential market for the copyright owner's original work. If the use negatively impacts the current market for the original work or is likely to cause substantial harm if it becomes widespread, it will weigh against fair use.

These four factors are critical in determining fair use, and while each must be considered, no single factor can determine whether the use falls within the fair use exception. The first and fourth factors are typically the most influential in fair use analysis.

Frequently asked questions