Copyright regulations are based
upon the French notion of droit
The past tense is copyrighted
article is not written by an intellectual property attorney.
The information presented here is merely drawn from informal
readings on the subject of the copyright of visual art.
opyright of visual art - Under the Berne Convention, each and
every work of art is either a copyrighted work or one in "the
public domain." If the artist is alive or has been dead less
than seventy years, all rights to reproductions of his or her
work reside with the artist or with the artist's estate.
The Fair Use Provision
of the Copyright Act states:
on exclusive rights: Fair Use
Notwithstanding the provisions of sections 106 and 106A, the
fair use of a copyrighted work, including such use by reproduction
in copies or phonorecords or by any other means specified by
that section, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship,
or research, is not an infringement of copyright. In determining
whether the use made of a work in any particular case is a fair
use the factors to be considered shall include -
1. the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational
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.
The fact that a work is unpublished shall not itself bar a finding
of fair use if such finding is made upon consideration of all
the above factors.
Public Domain: When an artist has been
dead more than seventy years, his or her work is in the public
domain. Reproduction rights are then concerned with rights held
by those who have produced photographs of the works (in other
words, if you took a snapshot of a public domain work yourself,
you could do anything you want with it). Normally, museums have
commissioned photographs of their works and thus hold the rights
to these photographs to be used in reproduction. So, a first step
here would be to contact the museum where the work is held.
Visual Artists and Galleries Association,
350 Fifth Avenue Suite 6305
New York, New York 10018
212 736 6666
212 736 6767 Fax
Robert A. Barron is an eminent "arts information consultant"
living in Larchmont, New York. His site has articles on copyright and intellectual
property, art history, museology and criticism, museum and arts
computerization, and much more.
Benedict O'Mahoney's The Copyright Website. O'Mahoney is a copyright
lawyer. This site is full of his opinions (and examples from
case law) that explain the difference between "fair use"
(without the need for permission) of art images and "infringement."
It is a very complete and readable examination of the complex
subject of intellectual property, the internet, and the constituionally
mandated right to public discussion of public entities.
a nonprofit, grassroots organization devoted to fighting recent
changes in copyright law (with a focus on technology). This excellent
site has lots of information about how people can take action
to stop draconian copyright laws.
is a nonprofit organization that promotes the innovative reuse
of all sorts of intellectual works. Its first project is a set
of copyright licenses to help creators tell others that their
copyrighted works are free for copying under certain conditions.
is a public-interest advocacy organization dedicated to fortifying
and defending a vibrant "information commons." This
Washington, D.C. based group speaks in a single voice for a wide
spectrum of stakeholders — libraries, educators, scientists,
artists, musicians, journalists, consumers, software programmers,
civic groups and enlightened businesses.
is a great site that collects "cease and desist" notices
and provides background on the intellectual property issues involved.
Digital Future Coalition (DFC)
was formed in 1995 in response to the Clinton administration's
"White Paper on Intellectual Property and the National Information
Infrastructure," which recommended significantly altering
existing copyright law in ways that would restrict access to
digital information by educators, businesses, libraries, consumers,
and others. The DFC is a collaboration of non-profit educational,
scholarly, library, and consumer groups, together with major
commercial trade associations representing leaders in the consumer
electronics, telecommunications, computer, and network access
industries. DFC members include the American Library Assoc.,
the American Council of Learned Societies, the Assoc. of Research
Libraries, the Modern Language Assoc., and the National Education
A paper by Gary Schwartz: "No fair: long-term prospects for regaining unencumbered
use" outlines a variety of controversial legal strategies
scholars and art historians may be able to invoke to reclaim
their traditional rights to access and publish images of works
of art without obtaining permission and without paying for reproduction
rights. Presented at the Town Meeting on Copyright and Fair Use
offered at the annual meeting of the College Art Assoc., Toronto,
Canada, February 1998.
The best source for licensing rights to
public domain works is Art
Resource. Art Resource is one of the world's largest and
most comprehensive stock photo archives singularly devoted to
fine art. They have access to over 3 million images ranging in
time periods from the prehistoric to the present and from practically
every location around the world.
Bronze Artists for Copyright
is a site about contemporary piracy of sculptures, mostly in
bronze — poor imitations mass produced and sold with or without the original
artists' name, and sometimes with fictitious ones. One allegedly
made-up, nonexistent sculptor is "Italian sculptor, Leonardo
Rossi." Such contemporary piracy seems most often to involve
foundaries in China and Thailand, and their products sold around
the world, often from garden shops, furniture stores and lesser
And now for dessert: Illegal
Art.com offers videos that challenge the limits of copyright
laws. "The laws governing 'intellectual property' have grown
so expansive in recent years that artists need legal experts
to sort them all out. Borrowing from another artwork will now
land you in court. Rooted in the U.S. Constitution, copyright
was originally intended to facilitate the exchange of ideas but
is now being used to stifle it. The Illegal Art Exhibit celebrates
what is rapidly becoming the 'degenerate art' of a corporate
age: art and ideas on the legal fringes of intellectual property.
Some of the pieces in the show have eluded lawyers; others have
had to appear in court. Loaded with gray areas, intellectual
property law inevitably has a silencing effect, discouraging
the creation of new works."
Be sure to read the
"ELECTRONIC END USER LICENSE AGREEMENT . . . . " It's
hilarious. The films and videos present
George W. Bush meets the Teletubbies, Barbie tries a new job,
Pikachu (of Pokemon fame) makes a friend, and more. Watch digitized versions of the films and videos.
Illegal Art's articles on copyright issues.