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