Copyright protection begins when an artist has fixed his or her work in
a tangible medium of expression. The work may be a painting, drawing,
sculpture or other artistic work. The key factors are tangible and
fixed. There is a famous photograph of Picasso using a flashlight to
draw one of his signature characters in the air. Because the picture
was taken in a darkened room and the lens left open, the image has been
captured. The photograph enjoys a copyright. Picasso's airborne
drawing does not.
Ideas and Expressions
Copyright protects only the expression of ideas, not the ideas
themselves. My painting of a New England seascape at dawn enjoys a
copyright, as it is my expression of the subject matter. My idea to
paint a particular view, at a certain time and atmospheric conditions,
is not subject to copyright. Perhaps the best example of this dichotomy
is a photograph. Two photographers may photograph the identical scene,
from the same vantage point and under virtually identical conditions.
Each has a copyright in their own photograph. Neither has a claim of
We all benefit by this. Monet and Renoir worked side by side in France,
each producing a picture of the same scene, same idea but different
Need for Orginality
To be entitled to copyright protection, a work must have some minimum
amount of originality. Quality is not an issue. The copyright system
does not function as a critic. Tastes change with the times. What was
once unappreciated, or even scorned, is now in vogue. Van Gogh sold
but a single painting during his lifetime. His paintings today command
tens of millions of dollars.
Copyright protection arises at the moment of creation, the instant the
artist fixes his or her work in a tangible medium of expression. Just
as soon as the paintbrush is set down, or the sculptor stores his
chisel, a copyright is born.
Generally (for works created after 1978), an artist enjoys copyright
protection for his or her life, plus 70 years. For joint works, a work
created by two or more artists, who intend to create a unified work, the
term is the life of the surviving artist, plus 70 years. The copyright,
in works for hire, discussed below, is the shorter of 95 years, from
first publication, or 120 years from creation.
A copyright is a bundle of rights. Those rights are the exclusive right
- Reproduce the work;
- Sell and distribute the work;
- Adapt and prepare derivative works;
- Perform the work publicly;
- Display the work publicly.
For the artist, the right to reproduce the work includes the exclusive
right to make reproductions, whether limited editions or posters. No
one can use a copyrighted work of art without the permission of the
Copyright law insures that the copyright holder has the exclusive right
to sell and distribute the work. This does not prevent someone who has
acquired a work of art, from selling it, only from making copies and
selling those copies.
The bundle of rights may be broken up and sold, assigned or licensed
separately. A painter of horses may assign the right to make a limited
number of reproductions to a fine art press. At the same time, he or
she may license the right to reproduce the work in porcelain to a
company like The Bradford Exchange.
The owner of a copyrighted painting does not have the right to make
copies of it, unless he owns the copyright and has a license from the
Who Owns the Copyright?
Generally, the owner of the copyright in work is the person who created
the work. Unless there is a specific written assignment of the
copyright, the purchaser of such a work does not acquire the copyright.
In everyday life, this point is brought home by the unwillingness of
photo shops to copy school portraits, or other professional pictures.
The parents own the print, but the photographer or studio owns the
copyright and the exclusive right to reproduce the pictures.
There are two exceptions to the general rule for works for hire. An
employee, who in the course of his employment creates a work of art, is
not the owner of the copyright in that work. His employer is. The
other "work for hire" exception requires a written agreement providing
for a work for hire and requiring the work to fall within one of the
- Contributions to collective work, like encyclopedias;
- Parts of audio-visual works, such as movies;
- Supplementary works, such as forewords and prologues;
- Instructional texts;
- Tests and answers;
Whether or not someone is an employee is determined by traditional
principles of agency. The U.S. Supreme Court, in the case of Community
for Creative Non-Violence v. Reid, 490 U.S. 730, set forth 13 factors to
be considered. They are:
- The hiring party's right to control the manner and means by which
the product is accomplished;
- The skill required;
- Sources of tools and materials;
- Location of work (i.e. where it was performed);
- Duration of the relationship between the parties;
- Whether the hiring party has the right to assign additional
projects to the hired party;
- The extent of the hired party's discretion over when to work;
- Method of payment;
- The hired party's role in hiring and paying assistants;
- Whether the work is part of the regular business of the hiring
- Whether the hiring party is in business;
- The provision of employee benefits to the hired party;
- Tax treatment of the relationship.
No one factor is determinative.
Because of the uncertainty of the ownership of a copyright, an artist
may be asked to assign the copyright. This is not something that should
be undertaken lightly. If, for instance, the purchaser of a painting
wants to use it for the cover of a catalog or annual report, a license
permitting such use would be preferable to a general assignment of the
A copyright in a painting, print, sculpture or other work of fine art
can be registered with the U.S. Copyright Office. Forms are available
at the copyright website (www.copyright.gov), as is a step-by-step
guide. The filing fee is currently $30.
Registration has a number of benefits, including the following:
- It establishes a public record to the claim.
- It is necessary to prosecute an infringement action in the Courts.
- It is necessary to recover statutory damages. Statutory damages
are available for infringement of works registered within three months
of publication. Publication, in the 1976 Copyright Act, refers to the
offering of, or distribution of multiple copies. It is important to
register fine art prints within the three month period to be entitled to
recover statutory damages. It would not be necessary to register a
single painting. Statutory damages can range, from not less than $200,
to a maximum of $150,000, depending on the nature of the infringement.