What is copyright? It is the “right” to “copy” or reproduce your art, your intellectual or creative property. “Copy” means “copy” in any way, shape, or form. If someone else does this, without your permission, it is copyright infringement and it is against US and international copyright law.
That means that if someone buys your painting they do NOT have the right to “copy” it and reproduce it in any way, shape, or form. Ever watch some of the shows on Bravo? You’ll notice that many of the interior shots have the pictures on the walls blurred out? That’s because Bravo has not purchased the rights to reproduce those images on film.
It is of particular issue when someone uses intellectual property, without permission, for their commercial gain. Case in point:
Recently, a personal stylist that I know proudly sent me a link to her new website. To my horror she had sampled some of Wayne Thiebaud’s images and is using them as the central images on her home page. Wayne Thiebaud for those who don’t know is an American Art icon, equal in art history stature to Andy Warhol. He also happened to be my mentor. So here’s what I wrote.
“I did go to your new site. Very nice. But unless you have a licensing agreement in place, I would highly recommend that you remove Wayne Thiebaud’s images from your site. Otherwise you’re illegally infringing on his copyright.”
Her response:
“Thank you for your comment on copyrights. I was told by a book publisher that if I credited Wayne Thiebaud’s images I’d be o.k. which I did in the web images page but I will look into it.”
“Look into it?” Actually she did NOT credit him and more importantly she’s stealing now! So I responded:
“Not to put too fine a point on this, but I can assure you that if you don’t have written permission from Wayne Thiebaud himself to use his intellectual property, you are in violation of federal and international copyright law.
And because you are using his images for your commercial gain you are putting yourself at particular risk, credit or no credit. If I picked up on this, others may also. And it doesn’t reflect well upon you. I also happen to know Wayne and I know that he wouldn’t appreciate it. Over 50% of my income comes from my intellectual property and I have successfully sued violators, twice.
Just my two cents, out of concern and from my professional perspective as an artist.
Still, she doesn’t get it, because she writes:
“I worked in an art gallery for several years and am very sensitive to artist’s rights. I will not be making any money on his art.“
So. I had to let her have it:
“Gallery representatives are probably the very least informed group about artist’s rights, and that’s probably because it doesn’t serve them. Unfortunately, they’re only second to many artists.
Since you don’t trust my advice I’d like to direct you to the US Copyright website. They are the ultimate authority in these matters.
In fact, you are “making money” on Thiebaud’s intellectual property because you are using it as part of your marketing, which is for your commercial gain.
When the New Yorker magazine uses his work for their cover to help sell magazines, or Alice Waters includes his art in her cookbook to help sell books, they must each pay a licensing fee and get his permission, in writing.
You have no more right to use Thiebaud‘s images without his permission as you would have the right to download music you haven’t licensed to use as part of your commercial jingle.
If violating the law is not a concern, your choice is still very unprofessional and therefore reflects poorly upon you.
And ultimately, I don’t think that this is the image you are trying to convey.”
Bottom line: you can’t “borrow” or take intellectual property, any property, from the owner unless and until you have their permission. And in the case of copyright you must secure permission in writing.
If you do, you have broken a federal copyright law by infringing on another individual’s property.
She has since removed the images from her website.
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Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.
Well, I am a YA author and I always used my own photos to promote my book on my website. But with the new book that I will not actually be selling, but just promoting it through the blog, (some) oil paintings from 19th century would fit great with the book’s theme.
I know that books fall into the public domain after a certain time after the author’s death, but I was not sure if that was the same with painings.
I can not dispense legal advice but I can direct you to the US Copyright Office that defines copyright protection lasting “for the life of the author plus an additional 70 years.”
https://www.copyright.gov/help/faq/faq-duration.html
Just curious. If you are an artist why would you use other artists’ work to sell your “own stuff?”
Hi, Ann. You have a great blog, I am so happy I’ve discovered it. Thank you for all the information you are giving here, I am learning so much!
Can you please tell me if using a painting (on your own website) of an painter who died long time ago would also be considering stealing intellectual property or is that already in public domain? For example, if I would have used a photo of Van Gogh’s paining or Carl Friedrich Koch on my own website that is used to sell my own stuff. Would that be ok or it would be stealing?
Clint, No need to apologize but thank you for taking the time to clarify.
There are precious few “exceptions.” The examples that you site for Wayne Thiebaud fall into this very specific, not vague at all, doctrine of “fair use.” #4 is worth noting as it relates to this specific discussion.
https://www.copyright.gov/fls/fl102.html
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work
Ann,
I sincerely apologize. I did not express my point clearly in my previous comment. It was NOT to defend the person who scraped Thiebaud’s images. Nor would I defend the person who displayed your image next to roasted meat. And I certainly didn’t mean to imply that you, specifically, had a knee-jerk reaction in this case, but, rather, that I’ve seen *other* artists have knee jerk reactions in situations that were actually beneficial to them. Artists certainly DO have the right to demand unauthorized use be stopped and I support that.
So, let me try to clarify.
The one point I WANTED to make follows:
You wrote, “you can’t borrow or take intellectual property, any property, from the owner unless and until you have their permission. And in the case of copyright you must secure permission in writing.”
While I agree in most cases that is true, and that is always the ethical route for someone to take, that statement may not be 100% legally true.
I wanted to point out that there *are* exceptions. Most exceptions fall under the “fair use” doctrine:
https://www.copyright.gov/fls/fl102.html
And the copyright.gov website even admits the following:
“The distinction between fair use and infringement may be unclear and not easily defined.”
If a copyright case gets in front of a judge it is not always going to be as black and white as we copyright holders would like. While commerical gain is ONE part of the test for fair use, it is not the only one. Another part of it is, “The effect of the use upon the potential market for, or value of, the copyrighted work.” If someone isn’t hurting the market for or value of your artwork, that also plays into fair use.
In fact, I actually found one company that is using a large number of images of Wayne Thiebaud’s paintings definitely for their own commercial gain. I doubt they got prior written permission from him, and I doubt he would want the company to stop using his art. Here are two pages from their website showing the scraped images:
https://bit.ly/a2GAWv
https://bit.ly/dfl9Lp
Having said all of this, I agree substantially with your post and your follow up comment. People SHOULDN’T take artists’ images without permission. People SHOULD get written permission first. I agree with that. The fair use page I linked to even states that, “Acknowledging the source of the copyrighted material does not substitute for obtaining permission.” That’s ALWAYS the safest most ethical route.
But, I feel artists are better served to understand that there *are* exceptions, fair use DOES exist, there are cases where someone COULD take your images and not be violating your copyright, and that while statements like “that’s the law” are fine, understanding that the law *is tricky* sometimes is a good thing to know.
I am not a lawyer and everything I just wrote could be complete rubbish, if you feel your copyrights have been infringed, or you wish to use something under the fair use doctrine, please consult an intellectual property attorney.
Sincerely,
Clint
Hi Clint,
Thank you for taking the time to comment.
I get your point about “Free” by Seth Godin. I’m quite familiar with it.
But when my image was stuck closely next to some randome roasted meat on on a Napa chef’s website, it did not elevate my brand.
Had he asked for my permission I may have granted it and I would have relayed my company’s graphic standards.
So no, I don’t want someone helping themselves to my property, credit and or link, or no credit and or link, without my written permission.
And that’s not a knee-jerk reaction, that’s the law.
Ann
“That means that if someone buys your painting they do NOT have the right to “copy” it and reproduce it in any way, shape, or form” I am not a lawyer and could be wrong, but this may not be a completely true statement. The law allows for “fair use” which is technically using a copy in some “way, shape or form.” If I buy a painting and want to sell giclee prints – we’ll that’s copyright infringement. If I buy a painting and want to post an image on my blog with a story about how great the artist is – that’s probably fair use. Furthermore, putting images online by definition says something. An argument could be made that putting images online is encouraging people to copy them in a way. When I visit an artists’ website, copies of the jpgs are made and downloaded to my hard drive so they can be displayed in my browser. If any use at all was copyright infringment then I guess everyone surfing the web is “stealing” images.
I’m not saying what this person did was right, but I am saying remember that “ideas that spread, win” (Seth Godin) – so if someone is sharing your images with the world AND CREDITING YOU (especially if they link) , it might not be a good idea to stop them.
I’m just pointing out sometimes a knee-jerk reaction is just that and it’s a good idea to think through you’re next action logically.
Disclosure – I used to own an art gallery so I’m probably the “very least informed” person you could possibly listen to….of course, I now run an artist website company so maybe that balances out.
im digging your post. I’ve been surfing the net for more on this related to this. thank you.
Thank you Jonathan.
Please tell us more about filing a “take down notice.
Ann
Well done on sticking up for artist’s rights. I’m glad that she eventually found other images to use, especially since there are so many freely-licensable works out there from artists who would love to have their work for free for that exact purpose. So not only is she hurting Thiebaud, but also newer artists who count on that kind of use and want the chance to be considered.
One point you also could have made is that Thiebaud, or a representative on his behalf, could have filed a takedown notice and effectively closed the site. That would have been free, easy and fast. Plus, with image monitoring as powerful as it is, I can virtually guarantee that he or someone with his authority would have at least been aware of the use in short order.
You did a the right thing and I applaud you. Great job and let me know if there’s anything I can do to help in the future!
Convenient ignorance is to blame. When people get caught they plead ignorance.
Spread the word and guard your property. That’s what we must do.
Well done Ann.
I find it so strange that people who would be appalled at the thought of stealing someone’s car or TV set, think nothing of stealing someone’s intellectual property, and are often if not always aggrieved when confronted with this. Where does this notion that art is a free-for-all start -at school, or are parents to blame?
Thank you Jean!
It is truly amazing how few artists even understand copyright issues. No wonder it is even more difficult to educate consumers. This is especially difficult with textile artwork as so much of the quilting tradition goes way back to quilt block designs from the 1800s and early 1900s that are used freely. The art quilt genre has this issue all the time when artwork is displayed and then viewers are snapping photos quite often with the intent of recreating the work they have just seen. This certainly isn’t the case most of the time with paintings, sculptures, drawings, etc. It is good that you were so persistent, Ann, and you were very diplomatic as well.
THANK YOU finally some one that gets it!