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What rights do I have after I sell my paintings?

Q: I have been selling my artwork in the form of hiring myself out to paint any surface – cars, motorcycle helmets, instrument cases, laptop cases, etc. I have only recently begun to think about copyright. Obviously, I need to give up the right to display publically, but what about the other rights?

A: The copyright owner’s rights are to make and distribute copies, make derivative works, display or perform a work in public, and to perform a recording by means of a digital transmission. Those that apply to artwork are to make and distribute copies, make derivative works, and to display in public. If you were to assert copyright over your future works, you could claim the rights to make and distribute copies, and to make derivative works. When you sell a painted item, you should (by contract) assign the right to control how it is displayed publically to the purchaser. Whether you keep or assign your other rights is up to you.

Q: I made a great painting, and it was purchased by a local restaurant. Four years later, I discovered a sculptor selling sculptures based exactly on my painting! I picked up the sculptor’s card, but I’m not sure what to do next. Can a sculptor create works based on someone else’s paintings, but without the painter’s permission?

A: If a sculptor re-creates an exact scene from a photograph or painting, their actions can be considered infringing. Changing the format from 2-dimensional to 3-dimensional is not enough to establish originality. This issue was addressed in the court case Rogers v. Koons, in 1992. Rogers, a commercial photographer, took a picture of two people holding several puppies. It was used on greeting cards and similar items. Jeff Koons, a sculptor, saw the photograph and used it as a model for a statue, changing only some very small details. When Rogers sued for copyright infringement, Koons claimed his statues were a parody of the greeting card. The court decided that an exact copy was simply a case of using the image in a different form, and did not count as parody. (Laws.com 2010)

Is creating a collage from clips of other people’s art an infringement?

Q: I enjoy creating collage art. I take pictures from magazines, drawings from friends, photos from web sites, strips of cloth, food labels, and what-have-you and rearrange them until they mean something to me. In recent years I’ve found that other people enjoy my collages, and I’ve been able to sell some of them. But I’m still confused; can I claim copyright on these works?

A: There are two major schools of thought about collage: Some say it is not infringing, and some say that it is. And there are some strong arguments either way. However, consider that one artist’s drawing or photograph is recognizable in one spot in one of your creations. It’s smaller than its original size, but it is clearly recognizable. Remember the rights of the holder of copyright in artwork: are to make and distribute copies, make derivative works, and to display in public. Technically, you are infringing on all four of these rights. However, if you consider Fair Use (Ch. 2), the first factor is the “purpose and character of the use”. You are using the other artist’s work in conjunction with many other images and creating something new. In most circumstances, such a use could be seen as transformational, and therefore more likely to be “fair”.

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Source:  OpenStax, Copyright for the rest of us. OpenStax CNX. Dec 15, 2011 Download for free at http://cnx.org/content/col11385/1.2
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