Copyright Basics for Visual Artists
What do you know aboutCopyright & Contracts?
Legal issues often come up in the lives of artists. You worry about someone stealing your images when you put them online. You’re excited to receive a contract from a gallery, but don’t understand what it says. Before you call a lawyer for advice, make sure you have a basic framework of information.
To find out what you already know about copyright and contracts begin by taking the following quiz.
Mark each statement “true” or “false.” If you’re not sure, just put “???.”
QUIZ: True False Or???
1. When you create an original work of art, you own the copyright to it.
2. A contract is an agreement that can be legally enforced.
3. When you sell a work of art, you pass on your copyright to the buyer.
4. It is legal for people to use your work for educational purposes without asking your permission.
5. A contract has to be written down to be legal.
6. A good contract with a gallery specifies how much you will be paid when a work is sold, and when you will receive payment.
7. The copyright of your own work of art lasts for your lifetime, plus 70 years.
8. Artists should always sign a gallery’s standard contract.
9. If you watermark your online images it will prevent people from stealing them.
10. The best way for artists to protect their work is to keep it off the Internet
Here are quick answers to the quiz questions.
1. TRUE. Yes, you own the copyright to your work, even if you haven’t marked it with a copyright symbol or registered it with the copyright office. You own copyright to your 2D and 3D work, photographs, paintings, drawings, graphic designs, digital art, etc. You cannot copyright a phrase or an idea.
2. TRUE. Yes, a contract is an agreement that can be legally enforced. While this is true, the devil is in the details of enforcement. A good contract includes a process for resolving disputes.
3. FALSE. Copyright is separate from ownership of a work of art. You retain the copyright when you sell your work. This means that you have the right to make prints or posters, put your images on products or license your work. Your buyer does not have the legal right to use your images for any purpose without your written permission.
4. TRUE. People can use images of your work for educational purposes, without asking your permission. This is called “fair use.” A teacher, a critic, or a writer of a newspaper article is free to incorporate images of your work in their article or presentation. They are expected to credit you as the artist.
5. FALSE. A contract doesn’t have to be written down to be legal.
6. TRUE. A good contract with a gallery is always specific about payment. It spells out the gallery’s commission, and states how soon after a work is sold you will be paid (30 days is standard).
7. TRUE. If you are an artist in the United States, your copyright lasts your lifetime, plus 70 years.
8. FALSE. A gallery’s standard contract can be full of holes, ambiguous language, and confusing legal terminology. The most frequent mistake artists make is to sign a contract without reading it.
9. FALSE. Watermarking images will not prevent their theft. Anyone with bad intentions who has access to a program like Photoshop can remove your watermarks.
10. TRUE BUT IMPRACTICAL. Contemporary artists need to showcase their work online. Keeping your images off the Internet will prevent their theft, but your work will not reach its intended audience.
So, how did you do on the quiz? Here is some additional information about copyright and contracts.
Protecting your copyright
Even though you automatically own copyrightto the works of art you create, there are times when you might want to take additional steps to protect your copyright. If you are highly risk-averse, if you plan to license your work in the future, or if you think your work is especially vulnerable to online theft, you should consider these additional steps.
The first step is to give “copyright notice” on your website. You can include the copyright symbol, with your name and date, in the documentation of individual images or add copyright notice as an overall warning on each page of your website. Also be sure to include an email address on your contact page. When you make yourself easy to reach, you discourage people from using your images without permission.
The second step is to register your copyright with the government copyright office. You can do this online at www.copyright.gov. First download their circular #40, “Copyright registration for Works of the Visual Arts.” You can register a number of similar images through what is called batch or group copyrighting.
If you need to know what to do when your copyright is infringed, contact Volunteer Lawyers for the Arts. They have organizations in most states.
What makes a good contract with a gallery?
A good contract is specific, clear, and represents the interests of both parties. A gallery contract should specify what they will do for you and what is expected from you, the artist. Always ask for time to review a gallery’s contract. Don’t let yourself be pressured to sign before you understand the details. If the language is ambiguous, ask for clarification. You’re not being difficult! You’re being professional.
Be wary if a gallery says they don’t use contracts because the relationship is based on “trust.” Talk about your expectations in a conversation, and then summarize the details in a follow-up email. This is called a letter of agreement, and with this you will have a written record to consult, in case of a misunderstanding.
Here are a few of the questions that a gallery contract should address:
ü Will the relationship be exclusive to a particular region?
ü How long will the contract last?
ü What is the commission percentage and policy on discounting?
ü How soon after a sale will the artist be notified and paid?
ü What are the specific artworks being consigned to the gallery?
ü How will legal disputes be handled?
ü What promotional efforts will the gallery make?
ü What do they expect from YOU, the artist?