Sunday, October 11, 2009

Going Pro: Let's Discuss Copyright

Welcome to Going Pro at Art Evolved. Today, we begin to dip our toes into the copyright ocean.

First of all, I am not a lawyer. I do not belong to copyright advocacy groups. I may be wrong about some things I say. I would appreciate any corrections to be backed up with facts and linked references.

I am paying some attention to the issues though, and I thought this would be a useful place to share my knowledge while many of us enter into the dizzying realm of professional illustration together. So whether you are member of Art Evolved who knows the secret handshake, a regular contributor, or an appreciative lurker, this series is for you. (If you’d like to read this series of posts, click on the copyright label below and you‘ll find them all as they are posted.) And this is meant to be an overview, and introduction and most of all to get your mind considering some possible issues about copyright after you have created your art.

Copyright is the boogeyman of art, the dark spectre that looms and tells us to hide our art away. “Your art online could be stolen! You could be being ripped off and you’d never know!“, our adoring public warns. But we brave, foolhardy paleo-artists buck trends anyway. Let’s discuss copyright. There is a lot of ground to cover.

Copyright definitions - what’re we talking about?

Copyright: Authorship of a creative work that provides the exclusive legal right to reproduce, publish and sell that work. Any artist creating artwork automatically owns the copyright to that work unless provisions have been made prior to the start of the project to transfer authorship to the buyer (see work-for-hire).
Source: Graphic Artists Guild Handbook: Pricing & Ethical Guidelines, 12th Edition, p319.

To keep things simple, let’s start with this one definition.

In both my day job and online freelance work, one of the many misconceptions I encounter with copyright is that it needs to be registered to be there. It doesn’t. As the American Graphic Artists Guild definition points out, copyright is automatically deferred to the creator when the work is created.

Think about that. You own those puppies. You are a creator who can reproduce, publish and sell them. Doing all three of those activities leads to a tangle of issues to decide on and grapple with, but being a copyright owner doesn’t. You made it, it’s yours.

The second part of the definition deals with project ownership. A classic case involves Tim Burton’s cult classic The Nightmare Before Christmas. Tim Burton had created many of the character concepts and designs while working as a contract animator for Walt Disney Pictures. Years later, when he returned to the idea of making this project happen, Disney had ownership over Burton’s designs, as he was under their contract when he created them You sit at the Disney desk, signed Disney contract saying you are creating for them, and you don’t get to walk out with the art afterward. Disney produced the film with Burton under their Touchstone production company.

There is a similar case being worked out with Bratz possibly being owned by rival Barbie’s company Mattel.

Another definition:

Copyright is a form of intellectual property that gives the author of an original work exclusive right for a certain time period in relation to that work, including its publication, distribution and adaptation, after which time the work is said to enter the public domain. Copyright applies to any expressible form of an idea or information that is substantive and discrete and fixed in a medium. Some jurisdictions also recognize "moral rights" of the creator of a work, such as the right to be credited for the work. Copyright is described under the umbrella term intellectual property along with patents and trademarks…
…Copyright has been internationally standardized, lasting between fifty to a hundred years from the author's death, or a shorter period for anonymous or corporate authorship. Some jurisdictions have required formalities to establish copyright, but most recognize copyright in any completed work, without formal registration. Generally, copyright is enforced as a civil matter, though some jurisdictions do apply criminal sanctions.

Wikipedia, Oct 11 2009.

Here we have a lengthier definition. First, let’s not get copyright confused with patents and trademarks, but simply recognize that all three are types of intellectual property. To grossly oversimplify, think of patents as having to do with inventions being disclosed to the public, usually for profit, and trademarks as generally being symbols and slogans. Copyright is the artsies’ concern.

You’ll note that Wikipedia includes mention about the reality that works under copyright do not remain so forever and ever. Copyright runs out, often 50 to 100 years of the creator’s death. In some cases it can be passed down. And in the case of something like say, the Sistine Chapel ceiling by Michaelangelo, you must remember that Fuji Film paid for the cleaning, and may have an agreement with the Chapel’s owner’s that no one else may reproduce photos from their efforts for a specified time. That’s not to say you couldn’t copy a portion of the ceiling for say, satirical use in a painting, since Michaelangelo has been dead for more than 100 years. (I haven't thoroughly checked out the Ceiling issue specifically mind you - it's an off-the-cuff example.)

Berne Convention

There are international rules for copyright and protecting the rights of artists. Much of this has been built up from the Berne Convention for the Protection of Literary and Artistic Works, accepted in 1885. The link here is easy to follow, and is cross-referenced with links. There was an update adopted internationally in 1996 for dealing with the internet, called the World Intellectual Property Organization Copyright Treaty.

Ground rules for discussion
Keep this stuff in mind and it’ll make everyone’s discussions a little clearer.

-While a lot of discussion happens in the media about music, that’s not what this series is about. It may be useful to draw parallels to the legalities and practices of the music biz and how consumers treat it, but I think we’re interested in visual art and illustration here.

-Copyright is not whatever knee-jerk opinion you have of it is. It is a complicated legal structure surrounding who owns what idea in which material form. So please let’s not clutter up the comments with what people think it ought to be without backing up their statements with real world issues.

-Copyright is not the same country by country. A lot of what I will talk about is Canadian, so keep that in mind. Mention what country you are speaking about. Don’t assume we’re all American.

-The nature of copyright law is changing rapidly in many countries. Here in Canada, Bill C-61 was dropped in 2008. Orphan Works legislation in the U.S.A. possibly offers new opportunities for corporations and tough times for the individual. We'll deal a bit with these issues soon.

-It is possible to navigate the benefits of showing off your art and dealing with the trade-offs that it may be ripped off some time in the future. It happens to top artists as well as amateurs but you don’t make it to the top by hiding your art in the attic.

This is an introductory post. I’ll start off with a small exercise for people to comment on, shall I?

I live and create the art in Canada. My artwork is uploaded onto Google’s Blogger service, on servers in the U.S. Someone in let’s say, the U.K. accesses the art, and downloads it to their computer. Where was the copyright breach, if there has been one? In which country is the copyright laying? (Hint: not all the info you need is in this example. What important information am I leaving out of this example that can be found in my blog's sidebar?)

Recommended sources
Graphic Artists Guild
Illustrator's Partnership of America
Berne Convention text
World Intellectual Property Organization (WIPO)
Creative Commons


davidmaas said...

Are you referring to the Creative Commons License?

Great stuff!

Glendon Mellow said...

Hi David!

Yes, the Creative Commons Licence definitely figures into whether or not a copyright was breached in the question...

davidmaas said...

Well, anyone else? I don't want to do all the work here!

Glendon Mellow said...

hahaha, well, it is Thanksgiving weekend here in Canada...perhaps the Canadian contingent is stuffed on Turkey.

I wonder though - copyright is a technical subject, some would say boring,an antithesis to the creative project: anyone should feel free to suggest that these posts be shorter, bite-sized posts with greater frequency if this one is too much.

Weapon of Mass Imagination said...

Glendon- No I think the post says all that needs to be said, and to cut it down would be to water over a very important topic, and or scatter it into pieces. I like the solid all in one place format.

Anyone who finds this "boring" is free to do so. At the same time if they wish to go pro, they ignore this at their own risk I'd say. Despite it being a boring and sometimes overwhelming it is the nature of the "real" world we live in. Once you produce the art, this is how our society is going to view it in terms of legality and ownership.

At the sametime should they ever decide to find out about it all later (or discover suddenly the copyright on their art is an issue) they'll know where to get it!

So awesome work Glendon, just what was needed I'd say!

David and Glendon- Promise I'll weigh in on this later today. It wasn't Thanksgiving down here, but I just got back from an epic camping trip (at midnight last night) and have work in 40 min. So I'll jump into copyright when I get back in tonight.


Glendon Mellow said...

I forgot about your camping! Awesome! Can't wait to read about it at Weapon of Mass Imagination. (I assume?)

And Renaissance Oaf Sean Craven has been away at a writing symposium - lots of blog reading to stay on top of this week!

Peter Bond said...

Happy Thanksgiving to all! As a Canadian, I've been busy eating turkey dinners and driving in and out of town to see family. I'm back now and can finally read the millions of posts people have been busy putting up.

Thank you Glendon for getting into the meat of copyright. It is something I've been fascinated by. I hope you do discuss the differences in law country-to-country.

As for you homework, a big question in IF a crime has occurred is: what did the person in the UK DO with your art after they downloaded it from Google? If they only store it on their hard drive and use it as a desktop background, isn't that the same as hanging a painting on your wall that your friend gave you?

I the person in UK (mabye "UKman" from now) then went on and posted it on his blog, is there a crime? What if he even credited you, Glendon, as the artist, but without asking?

David's point of the use of the Creative Commons Licence is very important and I look forward to your discussion of its ability and application!

Great job on this one, and no it's not too long.

davidmaas said...

One thing that I often encounter is the question of what exactly is being copyrighted... as a 3D artist I often have meshes, mapped images and renders, and each might be viewed as a module or asset. On top of that is the design. In paleoreconstructions I often work off the hard work of other people: the collector, the preparator, the paleologist, the skeletal reconstruction artist. Then I come along, make a visualization and call it my own.
I contacted Scott Hartman of - as I'd used his diplodocus drawings as point of departure - and would like to at least credit him. I'd be very interested in hearing how the rest of you approach this.

Glendon Mellow said...

Peter, indeed you have hit upon the second part of the question. In this case, so long as the image was downloaded onto the UKman's computer and not used for anything, no copyright has been breached.

I will get into Creative Commons in a future post, but it is meant to be easy to understand. Essentially, I make my work freely available to share so long as 1) no one is able to profit without my consent, 2) it is not altered in any way and 3) it is attributed to me.

(Hilarious - my comment word verification right now is "suing".)

Glendon Mellow said...

Hi David,

My two cents.

If I decided to draw Spider-man, most fans or artists wouldn't necessarily credit Steve Ditko for the original design every time. However, inside a Marvel comic, that's what they do every issue (last I checked).

I think my area of feeling comfortable would depend on how heavily I relied on the drawings and artistry of another person - the skeleton's may be interesting to cite, as would the restorers for their diligent and incredible work.

Unless pose, lighting, and many other elements were directly derived from another's work, I would still put myself as the sole artist.

In a space for comments (as on a blog, online gallery, placard, etc.) I would include whatever other artist, restorer or institution I felt had made the piece come together.

Glendon Mellow said...

David, concerning your 3D work, I think the work being copyrighted is simply the image file(s) you have worked on.

Glendon Mellow said...

Before I get to the final answer, here's another little piece of copyright news that we'll have to discuss in an upcoming post.

I saw this on photographer Ben Zvan's Twitter: "Magazine: Contacting photographers is too complicated".


Nima said...

I have a question about all this copyright stuff, Glendon!

Walters & Kissinger studio has a book on their website which you can look at for free (Kissinger is the author) about how to be a professional paleo-artist and navigate all the crazy legal hurdles for commissions as well as the importance of REGISTERING copyright in the United States.

I know Canadian law is a bit different and automatically guarantees protection of original work, but basically Tess Kissinger says that in the USA, copyright is "automatic" but not enforceable unless it's registered... if you don't register copyright on your works, and someone copies them and sells them without your permission (i.e. copyright infringement) then you CAN'T SUE THEM... because NO LAWYER will take your case unless the copyright is registered and you have documentation of it. This happened to a lot of people according the Kissinger, they got infringed but since they hadn't registered the copyright, they had no legal recourse.

Now that's just what Kissinger says, but from what I know about her, she's got a lot of experience dealing with the legal side of art. I get the impression that in the United States, you need to register copyright to REALLY give it some teeth. Otherwise your work isn't really protected and you can't sue infringers.

Glendon, what is your take on all of this? Have you read the book? If not here is the chapter on registering copyright:

Raptor Lewis said...

These posts are a must! Keep them up!! :)

davidmaas said...

France has the most powerful artist 'union' of any region I've experienced. If you work with a public station there, or have an illustration commission from a publisher based in France, then you must enter the SACD. It costs a small percent of your commission. In turn, the terms of your commission are more or less dictated by the SACD and they are very favorable for the artist. For a television production, for example, you receive down payment as agreed, but also a running percentage as long as the show is active. and should the show (and with it your concept, design, etc) fall dormant for more than two years, all rights return to the artist.
So, its also an about-face in copyright. You register once as an artist and thereafter all your work is defended by the organization. Artists living and working in France are also exempt from taxes. Vive la France!

Glendon Mellow said...

Great questions, Nima!

I'm not familiar with that book, but I'll have to check it out.

As these AE Going Pro posts roll out, I will certainly deal with the different kinds of copyright - likely next post.

And perhaps a list of book and online resources soon as well!

Glendon Mellow said...

David: you said it! Vive la France! That's amazing.

Wait till I get into Orphan Works. It'll make the American AE contingents' blood run cold.

davidmaas said...

Nima, that document just makes me think: no way! American artists seriously need a lobby.
It's also very true. Even if someone completely rips you off, its often not worth the effort (time and financial) to claim your rights.

I feel the best bet is oddly an oxymoron; give it away. The more people there are that know your work, the more likely it is that offenses will be found and reported.
Copyright or copyleft as exercised by the populace, so to speak.

Glendon Mellow said...


"I live and create the art in Canada. My artwork is uploaded onto Google’s Blogger service, on servers in the U.S. Someone in let’s say, the U.K. accesses the art, and downloads it to their computer. Where was the copyright breach, if there has been one? In which country is the copyright laying? (Hint: not all the info you need is in this example. What important information am I leaving out of this example that can be found in my blog's sidebar?)"

Time for the homework answer as I see it:

The question has two parts. Where to who does the copyright belong? and Was a breach from copyright committed?

The copyright belongs to the artist. I tried to sow a touch of confusion by suggesting that since the artist is in Canada and Google's Blogger servers are in the States, it may change the destination of copyright. No one commented on this, so let's assume it was self-evident and everyone gets an A+ on that part. :-)

When reading through Google's Blogger Terms of Service, (there are basically the same terms at Wordpress as well) you see that Google retains copyright of the software, but not the content uploaded using it. It's quite comforting and explicit (from section 6):

"Your Intellectual Property Rights. Google claims no ownership or control over any Content submitted, posted or displayed by you on or through Google services. You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any Content you submit, post or display on or through Google services and you are responsible for protecting those rights, as appropriate." (Their bold).

The second portion which David and Peter correctly surmised, is that for UK reader to merely download a work under copyright is not a breach if the image is under Creative Commons. Interestingly, it *could* be a breach of copyright if the image said nothing at all! However, in this day and age I would hope no one would be so naive as to post something without any protection (a warning notice, disabling right click, etc.).

So in this example, the artist retains copyright, and as indicated by the Creative Commons Licence, there is no violation by merely downloading it onto the computer.

David, Nima, and Peter have brought up a number of interestng issues.

-Creative Commons - what's it for?
-Do you need to register copyright?
-What happens if the downloader puts it on a t-shirt or local band poster?

I will try to deal with each of these in turn in upcoming posts. Next: registered copyright versus moral rights.