A letter from Catherine Jo Morgan of Georgia, USA, has caused ongoing discussion around here and an appeal to authority. She wrote, “You have said that you don’t date your paintings because they stay fresher that way. ‘When a dealer or a collector turns over a painting and sees an older date on it they sometimes think there must be something wrong with the painting.’ A proper copyright notice includes the date the work was completed. How do you deal with this? Your refraining from dating your works appeals to me very much. I’m just not sure about the copyright implications.”
This is how I answered Catherine: “To be safe make a record of the painting, all your paintings, in some sort of a progressive system. Include the dates. That’s good enough if you have to defend an infringement some time.” Then I started worrying about what I had written her, so I talked to our authority Bob McMurray. Here’s what he said: “Copyright exists for all original works and it behooves the artist to keep enough of a record of creating the work to support their position in any copyright arguments that may arise. This record should also include any reference material, photos, sketches, etc., from which the work was derived and a photo of the work itself.”
“Artists retain the copyright to their images with or without the copyright notifier and/or registration unless contractual arrangements are made to the contrary. In Catherine’s case she can avoid dating and still feel reasonably comfortable if an infringement does occur. In my opinion it is not necessary in most cases for artists to register copyright. For the prolific artist it’s also an expensive process. I have to say though, that copyright laws are diminished or simply do not exist in many countries where copies of an artwork could be produced and sold in volume.”
Copyright is not a magic sign or date that you put on a piece of work, but the act of defending your ownership of a work that has, in your opinion, been transgressed. The idea is to be prepared.
PS: “Your artwork is under copyright protection the moment it is created and fixed in a tangible form so that it is perceptible either directly or with the aid of a machine or device. For example, as soon as you draw or paint a picture on paper or canvas, your artwork receives copyright protection. For artwork created after January 1, 1978, copyright protection will endure for the life of the author plus an additional 70 years.” (Washington, DC, intellectual property attorney Joshua J. Kaufman)
Esoterica: At the same time Kaufman sometimes recommends that a copyright notifier be placed on certain artwork, e.g. a “c” in a circle or the word “Copyright” or “Copr.,” each followed by a date and the artist’s name. The latter can be used with or without having registered the copyright. This notifier “informs the world of your rights to the artwork.” This and registration, according to many attorneys, serves to enhance the protection afforded the artist.
The following are selected responses to the above and other letters. Thanks for writing.
Not against lawyers
I’m not specifically against the legal profession because the odd ones do the odd bit of good. However, the whole thrust of cultural property law is based on greed or a created fear that something may be swiped from its supposed owner. You are quite right Robert when you say there is no magic marker that you can put on a work of art that will hold it free from plagiarism or profiteering. But it’s been my experience that most of the innocent artists who go to the trouble of registering and even hiring lawyers are producing work that is not worth registering or defending in the first place. Lawyers seldom tell them that fact. They are also guilty of talking with forked tongues, as your excellent letter slyly shows. Your advisor Bob McMurray is right too — it can be an expensive business. Artists have got to start using their heads. In artwork generally the only time legal and registered copyrights are needed is in the case of licensing art products with another party or where specific and unique logos or motifs are to be protected.
Copyright not expensive
Raymond St. Arnaud, Victoria, B.C., Canada
Copyright registration need not be an expensive process, especially if you register with the US copyright office. I do group registrations on an annual basis. The work is registered as “My name 2002” or if you are really prolific you could register a group of works as “my name, May 2002.” The fee for group registration is only $30.00 US. I know of editorial photographers that register each job and will do so through the use of contact sheets or digital photos of bunches of slides taken as one photo. These are often burned to a CD. What is critical is that the image be recognizable if proof of registration is required. Personally I use slides as I am not that prolific. There is also a differentiation between “published” work and “unpublished.” For an artist the equivalent is exhibition or posting to a web site.
Canada’s copyright office does not have a group registration procedure. Registration in the US would probably carry a lot of weight in a Canadian court action because both countries are signatories to the various international copyright conventions. The difference between registration and not doing so is the amount of damages that can be collected expands substantially for registered work.
The Kaufman web site that you mention has good info as does the US copyright office site.
Procedure for recording artwork
Grace Cowling, Grimsby, Ontario, Canada
Every time I complete a painting I record it on a growing list of works with a number sequence that tells me the year it is completed and the number within that year. I also note the image size and a description of the image, even jotting possible title ideas. When I have completed six works I take professional quality slides; 6 exposures of each on a roll of 36 exp. Ektachrome Tungsten. Before I number and file the slides into a binder I scan each image on a HP ScanJet 6300C. (This model has the cone device for scanning slides.) I transfer this to my computer inventory document onscreen and in a data box beside each image I insert Title, Image size, Mat/Frame Size, Price, whether it is In or Out of one of three rental programs and when sold I can return to the image and insert the name and address of the collector. I update changes regularly and burn a CD about twice a year, providing my daughter with access should the need arise.
Artist Fights City Hall and Wins
Carol Lyons, Irvington, NY, USA
Copyright infringement is a Federal offense, although different states have different laws. The most protective of artists’ rights are California and New York. I had a copyright infringement case starting in 1992 and ending in 1994. My town reproduced my art, removed the signature and the copyright symbol. Then they used it in their Holiday mailing to the whole business and residential community without my knowledge or permission. They would not apologize or correct that, nor was there any denial. I had not asked for any money. Having registered the copyright was not an issue, although it was registered. Finally I, the artist, won, but it was a very difficult time having to go to Federal Court to get artist’s rights and being up against the very large Hartford Insurance Company lawyer. I credit my husband for handling this. We took a trip to Alaska with the $10,000 award for damages. The town, Chamber of Commerce, had to apologize publicly in the newspapers. After the story came out, the Mayor resigned, sold his house, left his day job, and moved to Vero Beach, Florida. It was good that after this I did not lose any commissions or business in my community and I’m on very good terms with them.
To my fellow artists I say: Do serious work and protect your serious rights. But I hope you do not have to go to court.
Copyright in titling
Kelly Borsheim, Cedar Creek, Texas, USA
I realize you are not a lawyer, but perhaps this question would be of interest to readers. It is about titling artwork and copyright. Are we allowed (legally) to title a work of visual art using words taken from a line of someone else’s poetry? In my case, the poet is Dylan Thomas, who died in 1953. My sculpture is still in the creating phase.
(RG note) I see no problem with a single work of art. It’s a compliment to the author, promotes creative synergy and draws attention to the poet’s insight. I’ve used titles from Dylan Thomas, W. B. Yeats, Robert Frost, and others. I make a note of the source on the back of the painting and give credit for the title. Other more “legal” artists might have something to say about this.
Practical system for art records
Irene Brady Thomas, Alameda, California, USA
My college art teacher was very practical. One of her suggestions to us was to have a loose-leaf notebook filled with clear plastic pages. Each one of those pages represents a painting, the title marked with a sharpie pen on the plastic. In it I keep any photo references, sketches, notes and even the plastic sheets on which I mixed the paint for the piece. I also keep references to the colors I used in certain mixtures, so that if the painting needs touching up I’ll have that record.
In a separate notebook I keep a plastic page for each month of the year. In it I have my financial records. Income and outgo records are recorded and all receipts are placed in the proper month, along with cancelled checks, etc. This makes it very easy at tax time and if I need to show the tax-man that I’m a working artist, everything is in order. I also keep a tiny little calendar book in this notebook. I record my hours worked every day and mileage to and from the store and shows (also for the tax-man).
I also keep an index card for each piece in alpha order. When I show a piece, the date and place are marked on the card, with dates, prices, dimensions. Inside this metal card file box I keep my calculator and my receipt book. I take this to my Open Studio and shows and fill in each card with the buyer’s name and address. Those that are out in shows, those rented out, and sold pieces all have their own slot. I find it much easier to have index cards rather than the computer, because the record is much more tangible. All this sounds like a lot, but it has been so easy for me and everything I need legally can be found in only two notebooks and an index card file.
Inexpensive copyright registration
Catherine Jo Morgan, Georgia, USA
I’ll stop dating my bowls. I keep careful records anyway. There is an advantage to registering copyright, but in the U.S. it can be done inexpensively by registering whole batches of works together. As I understand it, one can send a set of slides together, color photographs (film or digital,) or a VHS videotape of many works, with one title for the whole collection. A photo CD is acceptable if the viewing software is included on the CD. Some advise against the CD unless it’s accompanied by some kind of print copy, because copyright lasts longer than the estimated life of CDs. My information on acceptable “copies” for registration is from this website: http://www.pdnonline.com/businessresources/copyright.html. Additional information on acceptable formats is available at http://www.peterkrogh.com/copyright/formats.html. You can also call the U.S. copyright office for help at (202) 707-3000.
Method of establishing prior ownership
A method used in the graphics industry: If you have designed a logo or whatever, take down the information and make two copies. Put the information into two separate envelopes, seal them, stamp them, put in the mail, one to yourself and one to the client. When you receive yours in the mail don’t open it. The dated postmark is important. File it… this is a form of a record of what you created, when you created it.
Nothing to be done?
Your authority, Bob McMurray says, “Copyright laws are diminished or simply do not exist in many countries where copies of an artwork could be produced and sold in volume.” This concerns me. Is he saying that the transgression or infringement is subject to the laws (or lack of) of the country that the transgressor lives in? If that’s true then it seems there’s really nothing — even doing all the things the lawyer mentions — an originating Canadian (for example) artist can do for protection? Seems academic in that instance.
It’s been my experience that quality representatives, with their eye on the credibility of their product, rely on letters of provenance, which not only covers copyrights & so forth, but adds a very real dimension of customer “safety,” in that, the letter provides the buyer more of a handle on how, when, and by who the work was produced. In addition, despite the date of completion, or in some cases, a recent date, the age of the piece becomes less material to the enjoyment of the client. I have seen clients question works of mine that have “hung around for a while” in one gallery, but good salespeople overcome those questions. After all, some pieces are sold numerous times in their lifetimes; each pleasing a different buyer for the same or different reasons. How I would love to own any Fredrick Remington oil on canvas, and just knowing something of its history.
Case of disappearing art
Robin Hand, Vancouver, BC, Canada
For two years I was making dynamic and very colorful 9″ x 12″ pieces (about 50 so far) with Tria markers on Canson paper. They are lovely and have gotten raves from everyone I’ve showed them to. There is just one problem. Tria Inks are not lightfast. The people I’ve given pieces to have luckily all lived in basement apartments with not a lot of light so the works have held up okay but I would like to be able to share them with a wider audience and maybe find some way to sell the pieces. I was wondering if you or your readers could offer me advice on what to do. I feel it would be unethical to sell them to people without warning them of the fugitive nature of the pieces, but would people pay good money for art that is essentially disposable? Ideally I would like to find some way to preserve the images.
(RG note) You obviously cannot depend on your future connoisseurs to live in basement apartments. Permanence should be one of the main characteristics of art. I suggest that you make somewhat more permanent Giclee prints out of every one of the fugitive pieces, and offer those to new collectors. At the same time you ought to gradually mail these out gratis to your early supporters as their investments inevitably fade, like Nortel shares, into oblivion.
Me and My Art
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