See also our page on copyright

Using printed material - contemporary ads and posters

Q. I create abstract paintings on found posters of fashion models
from prominent clothing companies. The work isn't particularily inflamitory. the models are recognizable, but the clothes generally are not. Can I display and sell these works?

A. (e) The use of a name, voice, signature, photograph, or likeness in a commercial medium shall not constitute a use for which consent is required under subdivision (a) solely because the material containing such use is commercially sponsored or contains paid advertising. Rather it shall be a question of fact whether or not the use of the person's name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required under subdivision (a).

This addresses the use of a person's likeness for paid commercial advertising purposes and says that just because the likeness is included in a paid advertising, it is necessary to look at whether "the use of the person's name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required under subdivision (a)."

This would only get you past the appropriation of likeness issue anyway, which is a tort law concern. This does not address the other issue raised in your question, which is copyright.

Two exclusive rights that vest in the owner of a copyrighted work are the right to reproduce and prepare derivative works.

This is similar to the copyright issues that come up with collages, and I would encourage you to read some of the previous postings on copyright and collage. You need to make sure you are creating a whole new work to get past the reproduction issue, and you need to ensure you are not merely recreating the copyrighted elements in a new medium (derivative work). 

Using printed material - Antique Art, Ads and Posters   top

Q. I am interested in incorporating Italian Art Deco advertisements from the 1920's & 30's into a new product. I have seen some of the images reproduced as posters and sold on poster-art web sites. How would I find out if the work is protected? If it is protected, can I use a portion of the image?

A. Copyright in the U.S. lasts for the life of the author plus 50 years for the most part and that after this time period has expired, most works fall into the public domain, which means they can be freely reproduced. Copyrights can be renewed in some instances depending on who the current copyright holder is. Even though not required for copyright protection, many artists and organization interested in asserting copyright over a work will include a reservation of rights/copyright notice on the work itself. If there is such a notice on the works in question, I would research the name of the company/individual to ensure there are no copyright concerns. Remember also that if you are only using a small portion of the previous work or are going to change it substantially, you're probably out of the potential infringement zone anyway. One of the factors courts consider in infringement cases is whether the potentially infringing work impairs the economic value or market for the first work. Will creating your own substantially different works impair the market for these 1920's art deco ads? 

Q. We design embroidery kits, some of them based upon famous paintings by artists who are long dead  (Renoir, Constable, Seurat and others).
I originally assumed that if the artists had died some considerable time ago then their works would now be in the public domain. I have since been told that it may be possible for the owner of the original to own the copyright or for a trust to have been set up which continues to hold copyright rights to this day. 

A. Speaking only to US copyright law, yes, many of the works of "old masters" are in the public domain. Currently, US copyright lasts for the life of the author plus 50 years. However, the rules prior to 1978 allowed for the renewal of copyright and so it could extend out further.
But no matter what the law appears to say on its face, there are many estates of artists that are asserting rights over works which probably should be considered in the public domain. These estates are well funded and prepared to litigate the issue in many instances. You may receive a 'cease and desist' letter or a lawsuit if you use the images. Each set of facts is different and needs to be researched a bit. See if any party is asserting any rights over the images you want to use. 

Copyright on Elements of Collage

Q. I am commisioning some collages for a client from an established collage artist. The collages are parodies of famous artworks like the Mona Lisa. The collages will look like the original works and may incorporate images of the original artwork, but with some jokey spin. The final results will be included in animations which will be publicly viewable over the web.
1. Who is responsible for clearing the copyright, the artist, the publisher (the web site/client) or the commisioner?
2. Is copyright infringed in any way?
3. If so then who should it be cleared with, the photographer of the artwork or the artist?

A. PARODY 
In addition of works of history, biography, and the like, the most fertile ground for fair use is works of satire or parody. There are several reasons why works of parody receive preferential fair use treatment. 
(a) there is no plagiarism in the sense that the user usually identifies the borrowed work and writes for an audience that is familiar with the work 
(b) The parody work is not likely to be a substitute for the original work in the marketplace. 
(c) it is unlikely that the copyright owner in the original work will license or authorize a derivative parody 
(d) the parody in order to be affective will, in many instances, have to reproduce part of the earlier work 

Conjure Up Test 
Whether a otherwise infringing work of parody constitutes fair use, in some instances, depends on how much the secondparty took from the earlier work. As a general rule, one is entitled only to take so much as to “conjure up” the original and no more.

Who Is an Infringer? 
Copyright Act §501(a) provides that anyone who violates the exclusive rights of the copyright owner as provided in §§106-120 (including §106A) is an infringer of the copyright or the right of the author as the case may be. 

Vicarious and Contributory Liability 
A well-established principle of copyright law is that a person who violates any of the exclusive rights of the copyright owner is an infringer - this includes persons who are related or vicarious infringers. In a typical case this may include the publisher, printer, and vendor.

Bottom line here is that if you are concerned that there may be some copyright issues, you, as the commissioning party, need to CYA. 

Permissions

Q. Do I need to obtain permission to take pictures inside a store? Not of people, but of objects?

A. From a copyright perspective the answer is that you wouldn't need permission because of potential copyright infringement. However, a store, as private property, can prevent the public from certain activities or uses and require permission for other activites. 

Q. I am selling decorative lightswitch covers with American legends, like Lucy, Dr. Martin Luther King, and others. We get the pictures from notecards that look like greeting cards. I would like to sell these on the internet. Do I need permission to sell the lightswitch covers?

A. You are seriously running a risk of a lawsuit down the line unless you seek and obtain permission to use these images. Many of these pictures are almost certainly covered by copyright and you are creating, under almost any view, a derivative work based on a copyrighted work. Don't cut corners up front. GET PERMISSION IN WRITING in the form of a license to use the images! 

Liability for copyright violation

Q. I am a member of an art association that owns and operates a gallery. Copyright infringement is taking place in the gallery -- art work copied from published materials, i.e. magazine photos, greeting cards, etc., and then offered for sale in the gallery. To what extent is the association liable in the event of a copyright infringement case? Are members liable?

A. There has to be an underlying infringement. Sometimes this analysis is complicated and just because and artist is "borrowing" from copyrighted sources does not mean automatically there is copyright infringement. See Remedies, below 

Q. We make art and apparel. Someone has blatantly copied one of our designs and is selling them on the internet. So far, he has apparently sold 30 and taken orders for at least 15 more. We have seen chat room correspondence between him and his customers, as well as the picture of "his" design he has posted there. We have plenty of proof on our side of the originality of the artwork. What is the most prudent course of action?

A. Your first course of action would be to write a letter to the alleged infringer (or better yet have an attorney write the letter) informing them of the potential infringement, your assertion of rights over the copyrighted work and a demand to cease the infringment immediately or face imminent legal action. If the other party does not respond or cease from the allegedly infringing use, you should get an attorney in your area familiar with copyright law and proceed with filing suit. This may be enough to get the alleged infringer to stop the use. 

REMEDIES for copyright violation   top

A copyright owner whose work has been infringed has two primary remedies available to him which are: 
(1) Injunctive Relief (preliminary and permanent) 
(2) Damages (actual damages including profits and statutory) 

INFRINGEMENT OF COPYRIGHT 

Who Is an Infringer? 
Copyright Act §501(a) provides that anyone who violates the exclusive rights of the copyright owner as provided in §§106-120 (including §106A) is an infringer of the copyright or the right of the author as the case may be. 

Vicarious and Contributory Liability 
A well-established principle of copyright law is that a person who violates any of the exclusive rights of the copyright owner is an infringer - this includes persons who are related or vicarious infringers. In a typical case this may include the publisher, printer, and vendor. 

DAMAGES 
Copyright Act ?504 provides that an infringer is liable either for the copyright owner’s actual damages (including profits of the infringer) or statutory damages ($500-$20k per infringement). 

If the copyright owner proves that the infringement was committed willfully, the court in its discretion increase the award of statuary damages to $100k. Conversely, where the infringer shows that he was not aware and had no reason to know that his acts constituted an infringement, the court in its discretion may reduce the award of statutory damages to not less than $200. 

Registration Prerequisite For Certain Damages 
Copyright Act §412 provides that no award of statutory damages or attorney’s fee shall be made for (1) any infringement of copyright in an unpublished work commenced before its registration and (2) any infringement commenced after first publication and before registration unless registration is made within three months after the first publication. 

Statute of Limitations 
Three years. The statute is tolled during the period when a reasonable person in the P’s shoes would not have discovered the infringement. 

Criminal Liability 
Copyright Act §506 provides that any person who infringes a copyright willfully and for the purposes of commercial advantage or private financial gain shall be punished by up to five years imprisonment. 

copyright ownership contract    top

Q. I have been contacted by a US company to develop a series of articles on Web development. They have sent me a copyright ownership contract, which asks me:
to transfer exclusively to them copyright, patent and trademark rights to the material;
to indemnify them against IP suits or claims associated with the work; to allow them to distribute, use and import the work or adaptatations of the work; I would rather license the material to them -- grant them a perpetual license to use the material, without modification, with all other rights retained by myself. I would thus retain the ability to re-license the content to others as well. 
Also, the indemnification concerns me. Is this a standard thing? Can I limit my indemnification to the fees they pay me?
Lastly, the governing law of the agreement - should it be based in my country or US?

A. "to transfer exclusively to them copyright, patent and trademark rights to the material;"
By default this is an exclusive, perpetual, worldwide all-media rights grant. A large grant of rights, in short.
"to indemnify them against IP suits or claims associated with the work;"
I am strongly opposed to indemnification provisions of this sort and always recommend negotating them down or out. Here, you would pay attorneys' fees and costs associated with defending any claim, no matter how frivolous, based on the work. Potentially very expensive. Yes, these provisions are frequently seen in contracts . If you can't get this provision out all together, negotiate the provision until it provides that you will indemnify and hold the client harmless from all MONEY JUDGMENTS relating to infringment. This is just a restatement of your liabilities already probably, since it is likely there is also a warranty provision in the contract that says you warrant that none of the submitted material violates any law or copyright of another.
"to allow them to distribute, use and import the work or adaptatations of the work;"
As you probably recognize, this provision allows the client to alter the work with impunity and potentially to create derivative works without compensation to you.
"I would personally like to . . . grant them a perpetual license to use the material, without modification, with all other rights retained by myself."
That would certainly be a contract that is more friendly to you and less one-sided in favor of the client. It doesn't hurt to ask for it and try to negotiate the provisions you want. Many of the better clients are willing to negotiate the provisions of their contracts.

Lastly, the governing law of the agreement -  US is probably most appropriate since the laws here are fairly friendly toward artists. On the other hand if you would have to fly to the US to be a witness or defendant should there be litigation you might want jurisdiction in your country. But if the client is a US company, I can't imagine they would consent to jurisdicition in your country , so the point may be moot. 

Joint Copyright    top

Q. I hired an artist to illustrate my book, and the illustrations will also appear in movies, on calendars and other articles. I gave her the idea for each illustration as well as photos to paint from. I have paid her for the work.
Is there a shared copyright for the case where you give an artist the whole idea? 

A. In the US, if a work is created and specifically designated as "work for hire" or is created while an artist is employed by a client (working as an employee), the copyright is owned by the organization and the artist has no rights in the work. The organization is considered the "author" for copyright purposes.
Also, where there is joint authorship, there is joint copyright.
I'm not sure that just passing someone an idea would gain the idea originator any copyright in the final work. Copyright law always protects EXPRESSION of ideas and not ideas themselves. If you wanted to clear the matter up for sure, why not offer the artist a small payment and buy out all the rights in the work?

Royalty   top

Q. I am starting to do illustration again. I have no formal license, but I've attracted a client who is interested in my work. He says he needs the art for his game/book that he is publishing himself and that there will be no need to negotiate royalties as he is only "small-time". He does however, insist that he purchase all rights to the art and wants the originals. We agreed to a small sum for the art (initially I thought I would retain rights and get 2.5% royalty)
Red flags went up when he insisted on the rights and mentioned a contract that he would like me to sign. I haven't seen it yet. Am I bound by a verbal contract even though I've signed nothing? And can you suggest a standard contract that I would be able to use?

A.  You are correct to be concerned about "red flags" just like those you mentioned.  If the client is "small time" then, he or she shouldn't be worried about signing over royalties either! If you email me directly I'll send you a "standard" contract that I suggest artists use.

Community Property and Art Work

Q. I was a full-time housewife and mother of two. My ex-husband is demanding halfof all my artwork created during our marriage. I produced a volume of work, of which I have sold some. How do I keep all my art?

A. The basic rule in California is that absent an agreement altering the parties' rights, all property acquired during marriage by the labor of either spouse is community property. There are exemptions, and experienced legal counsel might help you find them. Ask Calfornia Lawyers for the Arts for a referral. 

If you live in another state, you really need to have the specific facts of your case analyzed under community property law in your state. 

Non-Profits  top 

International Sales

Q. I've been invited to show my work in another country. I reside in the United States. Do I need export documents? What if the works sell? If they don't sell will I be paying duty or taxes or whatever both ways? Does the value of the works affect the necessary paperwork? 

A. The foreign gallery should be familiar with the regulations that govern export of work to that country, if they regularly exhibit and sell work by US artists. I would contac tthe gallery and ask about it. Unless this is a really great opportunity for you and you're willing to pay the tab for the costs, you should try to negotiate that the gallery pick up at least half, if not all, of the costs. 

Selling Online / Online Galleries    top

Q. I am interested in exhibiting in on-line galleries to garner greater exposure, but I am not sure what to look for in a contract. My existing contract with a local gallery is clear cut and I know where the physical location is and who the players are. But I have just received a contract from a new online gallery. They are based in California, as am I, but the contract refers to the e-commerce business as "a Delaware Corporation." This sounds scary. Does this mean the California 5% re-sale law is not in effect? How about the collection and reporting of taxes? The contract is also vague about shipping. 

A. Anybody can start an "e-gallery" with a tiny bit of start-up money. It doesn't mean they know anything about art, e-commerce, law, or gallery-owning. Do your homework and search for an organization that has its act together from the start. 

I wouldn't worry about Delaware being the place of incorporation. Many of our favorite corporate giants are incorporated in Delaware because it has some of the most favorable tax laws for corporations in the county.
This group should have an authorization to do business in California on file with the secretary of state for California. If you write to them, they'll tell you for a small fee, which is probably worthwhile. Before you get involved with an organization like this, you should research it. And if they're incorporated, they should be able to send you some corporate literature.

I would be very concerned about them being "vague about shipping." LOOK OUT. Don't sign a contract that doesn't spell out the rights and liabilities of the parties specifically with respect to shipping, costs, payment, etc.

Q. We want to start selling art on line. We will invite artists to showcase their work on our site on a consignment basis. This online gallery would take 20%. The local artists will get a larger market and a better price. But we fear that the artists will form a relationship with the buyers if we allow the artist to send his works to the buyer after the art work is paid for. 

We are only concerned with the specific artwork shown on our site. The artist would have to sign a contract that gave the site exclusive rights to sell that specific artwork and limited prints. For example, the artist might have a particular painting named "Blue" on our site. Now we would want exclusive rights to sell this art and agree on a number of prints. In other words the only way the artist can sell prints of "Blue" is through us or out of his studio. But we don't want the artist to tell potential customers to "go check out this web site and anything you see on the site I will sell to you personally". We want the artist to say, "go check out this web site and any art of mine that you like can be bought from that site." How can we achieve this type of structure in a contract between the artist and the online business? 

A. An "exclusive" means exclusive, and even the artist can't sell the work that is the subject of the exclusive. Basically you'll either relicense the work back to the artist for sales out of his/her shop or create an exception to the exclusive. Basic contract stuff, any attorney with some familiarity with copyright in your country will be able to assist. 

Real Estate   top 

Q. Should my group of purchasers become a corporation to protect us from liability? Do we have to be a non-profit corporation? What are the benefits of not for profit vs. the benefits of for profit?

A. If your goal is to creat a business-type environment and pool resources and avoid personal liability, then corporate status might be for you. However, there are many drawbacks to corporate status: recordkeeping, administrative requirements, tax implications that may not make it such a good idea.

You don't have to be a non-profit. One main benefit of NP status is that you don't pay corporate taxes (for the most part). However, your activities are significantly limited as a NPC, as opposed to a for-profit corporation.

You should look into the NOLO Press book on becoming a non-profit, or contact California Lawyers for the Arts about the benefits of the different types of status you are considering.

Depending on what you wanted to do in the space, there may be zoning laws that apply. Zoning laws are very specific to each county and municipality. You should get in touch with a property lawyer in your area.

Q. What can we do to protect us from the landlord selling the warehouse after we put alot of money and hard work into building it all.?

A. This is extremely difficult unless you have an ownership interest in the building. The law generally disfavors "restraints on alienation" (keeping people from selling property that they own).

Q. Can a large group buy a warehouse ,and how would it be split fairly if someone decides to sell and leave?

A. That should all be addressed in your organizational agreements, subleases, etc. It is a good that you are thinking about this issue so it can be addressed.

Q. How would we go about trying to get a grant or a loan for our project?

A. There are literally hundreds of publications that list grants, etc. The Small Business Administration and other organizations on a local level might be willing to assist. If you were organized as non-profit, you could apply to foundations and individual benefactor types for grants. I would suggest contacting NOLO press about finding a bool on this subject.

Q. What kind of insurance do we need for this space?

A. Depends how you are organized and what activities you want to engage in, and what risks you want to protect against.

For joint ownership of a property, look into 'Tenants in Common.' There are a few books about it (try Stacey's on Market) and it has become more common in SF in recent years. Some friends did that and are pretty happy. 'Tenants in Common' refers to joint ownership by unrelated parties. Each party can sell their interest later on, with the approval of the group. (That is one of many things that must be specified in the contract between the members of the group.) 
[editor]

Live/Work Spaces and Zoning 

To find a Live/Work space and more information about the Live/Work zoning laws, please contact ArtHouse. That is their specific area of interest. They are part of California Lawyers for the Arts, at Fort Mason. They've published a book on the subject. "Live/Work' refers to the (supposedly exclusive) right of artists to live in a building that is zoned as 'Commercial' rather than 'Residential.' Of course, we all know now that the developers supported it so they could build fancy condos in Commercial neighborhoods South of Market. But the Live/Work zoning still exists. ArtHouse has all the info. 415.885.1194 [editor] 

Funding and Grants  top 

A. There are literally hundreds of publications that list grants, etc. The Small Business Administration and other organizations on a local level might be willing to assist. If you were organized as non-profit, you could apply to foundations and individual benefactor types for grants. I would suggest contacting NOLO press about finding a bool on this subject. 

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