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based on purchases of art work, same for pics, what rights?
What rights does the purchaser of art work have once they have purchased that work? I am an artist also and I will do some research. But I think many have misperceptions about the rights that the owner has once they own the image. Even just the physical image not own the usage rights that we all discuss so often. Maybe I am mistaken but I recall that there are certain rights that someone gets once they own a piece of artwork/physical image. This might be different than the TFP/ SFC things for you never actually sell your images, same with even magazine work for you do not SELL the actual image just use of it. I am talking about selling the actual hard copy image to have the owner show on his wall. I guess I should wait till I did the research but I would like to put it out there as I do the search. Jul 11 05 02:23 pm Link Do some more research and talk to an IP attorney if you are confused. When you sell an image as wall art, you should include something on the invoice or other paperwork stating what rights the purchaser has - in this case the right to hang the artwork in thier home or private space. You should also include language that says they cant display this work to the public and that any commercial use or reproduction is not allowed. If the work is to be hung in a public space (a store, etc..) then you modify the language appropriately and be sure you are compensated appropriately for the additional use of the image (being displayed in a public place would cost more than in a private space) Jul 11 05 02:50 pm Link One can always make a contract about almost anything. I am talking about inherent rights. I have bought art from galleries. I did not sign any contract. Jul 11 05 03:00 pm Link Do the research anyway, but understand that COPY RIGHT is just that, the ability to make copies. You own that as the "author" the second you put your idea into a physical form and don't ever give it up unless you sign something saying you did (or you were employeed by someone who had you sign something saying that all work related to your job that was produced while they were paying you belongs to them). Implied usage rights on artwork varies, dependant on whether the work is original or if it was a duplicate. If you make an oil painting and sell it to someone, it's implied that in that medium you're selling the original. The new owner is THE OWNER, period, end of story. The ONLY right you retain is the ability to prevent them from making copies. With photography it's a much, much grayer line. Because, unless you specifically say as much, the medium isn't assumed to be "original" unless you sell it as such. In this case the purchaser only owns the image and not the *image*, if that makes sense. If you can see how confusing this can get just off of that, try and actually read the entire law regarding the matter. When you sell a duplicate you can get away with a lot more than if you sell the original. If you sold a duplicate and someone displays it in a "gallery" of "art" they "own", you probablly have a decent case to get them to remove it (and you MAY even get damages). If you sold someone an original, you'd have a very difficult time getting them to take it down in court (of course hollow threats still work wonders if they aren't willing to back up their rights with legal counsel). Andy Jul 11 05 03:45 pm Link Posted by Jack D Trute: Andy's post covers this pretty well. Jul 11 05 05:37 pm Link Jack, If I understand your question correctly, you are wondering that if I buy a piece of art from you, Can I sell that piece? The Answer is yes. Copyright covers Making copies. If I purchase a Picture then made copies, I am violating copyright. If I buy a picture then sell it to someone else, I am not making copies. Purchase of the images gives me full rights to that image. BUT only that image, not the Creation itself. It is a piece of real property, and I have the right to sell it for whatever value I see fit. I can not sell the rights to duplicate, and the purchaser only acquires the real property, no more. Hope that helps. Jul 11 05 07:48 pm Link Posted by Ty Simone: Steve above I think you are wrong but I guess I will have to prove it. Jul 11 05 08:58 pm Link *cheerfully* Oh, *I* am pretty sure. *less cheerfully* However, while I am an attorney, I may or may not be licensed to practice in your jurisdiction, and this is not legal advice. Under US/Federal copyright law, the copyright to an artistic work is a separate piece of intellectual property (usually considered personal, not real, property, there is a big difference) from the physical creation and/or the storage media upon which it resides (CD-ROM, tape recording, sheet music, etc.) Buying a copy of the artwork, even if it is the ONLY copy, does not grant any rights over the copyright, absent any other agreement to the contrary. See Chapter 2, Section 202 of the Copyright Act, which says this in more exhaustive detail. This is, as I understand it, also the case in most countries that are signatories to the Berne, Paris and/or Madrid protocols and the WIPO Treaty. (Which is darn near any country anybody reading this board is likely to be in.) In fact, there are other rights, known as "moral rights," which attach to artworks in many European countries and are distinct from the copyright and even *harder* to separate from the artist. (For instance, the moral right of non-destruction and non-modification of a work of fine art.) However, it is also clearly settled case law that absent moral rights or Lanham Act provisions (which is beyond the scope of this answer) the holder of copyright over an item has no rights in a lawfully purchased *copy,* even if it is the only one. I can buy an artwork from an artist, so long as the transaction is otherwise legal, and then proceed to destroy it, and he cannot do anything about it. I can even buy it with the express *purpose* of destroying it, and so long as I idd not defraud anyone, that is my right. All that being said, laws may vary by jurisdiction. Consult an attorney licensed in the relevant jurisdiction. M Jul 11 05 09:49 pm Link If I understand StMarc correctly, He is saying what I said and expounding on it. The actual "Piece" of art is different than the art itself. I did not want to get into destruction though, because I thought that would be a different issue. So, Since StMarc the resident attorney confirmed it, I think the answer to your question, in the US, is that a person buying a piece of your art can do whatever he wants with the piece, Except copy it, and Use it commercially. That means he can sell it, Show it, Destroy it, Make it a backboard on his basketball hoop, make it a dart board etc..... Jul 11 05 10:06 pm Link Posted by Ty Simone: I'll go along here - except for the "show it" aspect (if you mean show it in public). I think there may be provisions that you can not publicly display copyrighted works without permission to do so. Jul 12 05 01:26 am Link He can put it in a room full of mirrors and make several copies that way. Jul 12 05 01:59 am Link Listen to Str. Marc, but consult a local attorney if you're concerned with this issue. I believe case law holds that you make make copies for personal use. For example, you can copy a CD to a cassette to liten to in your old car stereo, but you can't sell of give that tape away. You can sell or give away the orignally purchased copy. I *think* the same would apply to prints of art work, but again, check with licensed attorney. I'm just a wee legal peon. Jul 12 05 01:59 am Link A few years ago, a photographer shot some interiors of a private home. This was for use in advertising an air freshener. I was the designer on the project and had to explain to everyone that we could not use the paintings on the wall in the ads. I wasn't very popular until I showed them how nice the paintings looked when they were replaced by the shots of flowers the client was using on the packaging and had full rights to use and modify. Jul 12 05 02:05 am Link Posted by StevenNoreyko: Posted by Ty Simone: I'll go along here - except for the "show it" aspect (if you mean show it in public). I think there may be provisions that you can not publicly display copyrighted works without permission to do so. You do not need permission to display a copyrighted work publicly. Even if it is for profit. After all are not all works copyrighted by default. Going by you, I would need permission to drive my car down the street. The design is copyrighted. Jul 12 05 02:17 am Link Posted by XtremeArtists: You may have been able to use the paintings if they were a small amount of the total work. That would fall under "Fair Use" Jul 12 05 02:20 am Link Posted by Mike Cummings: Posted by XtremeArtists: You may have been able to use the paintings if they were a small amount of the total work. That would fall under "Fair Use" Fortune 500 companies get sued everyday for less. Their legal department agreed. The photos worked better for marketing purposes since they visually placed the fragrance in the room and reinforced the branding. Jul 12 05 02:24 am Link Posted by XtremeArtists: Posted by Mike Cummings: Posted by XtremeArtists: You may have been able to use the paintings if they were a small amount of the total work. That would fall under "Fair Use" Fortune 500 companies get sued everyday for less. Their legal department agreed. The photos worked better for marketing purposes since they visually placed the fragrance in the room and reinforced the branding. Sure they could be sued and yes your solution was the best to insure they didn't, and like you said reinforce the brand. Jul 12 05 02:32 am Link Posted by XtremeArtists: Posted by Mike Cummings: Posted by XtremeArtists: You may have been able to use the paintings if they were a small amount of the total work. That would fall under "Fair Use" Fortune 500 companies get sued everyday for less. Their legal department agreed. The photos worked better for marketing purposes since they visually placed the fragrance in the room and reinforced the branding. Posting another thought. What about the furniture, wallpaper, carpet.. etc. All those things are copyrighted too. Jul 12 05 02:35 am Link Posted by Mike Cummings: Posted by XtremeArtists: Posted by Mike Cummings: Posted by XtremeArtists: You may have been able to use the paintings if they were a small amount of the total work. That would fall under "Fair Use" Fortune 500 companies get sued everyday for less. Their legal department agreed. The photos worked better for marketing purposes since they visually placed the fragrance in the room and reinforced the branding. Posting another thought. What about the furniture, wallpaper, carpet.. etc. All those things are copyrighted too. Without getting too complicated, it falls into the same category as people and being recognizable. You can also obtain permission for commercial use if it is recognizable. Sometimes they like free advertising. Sometimes it is "fair use" as you stated. Jul 12 05 02:45 am Link BTW: It is also a violation of copyright to make a painting of a photo. Jul 12 05 02:48 am Link Posted by XtremeArtists: I wonder if you had a photo as a small part of the painting would that fall under fair use? Jul 12 05 04:34 am Link Oh my god - another right discussion. If you really are concerned about rights of selled art pics - why sell it in the first place. If I buy a picture - I can actually do what I want with is 'cause I PAID for it... History shows that even photographs of a photo are considered as "new" (e.g. the early Brooke Shields pic). Anyway - is there so much fraud going on? Or is it just an urban myth? I have never met neither I know someone who got pulled over the counter about a copyright issue by making a big amount of money out of using other people pics... And if so - get a lawyer (for germany www.koetzlaw.de) who is specialized in copyright etc... That's what they get paid for... Jul 12 05 04:41 am Link Posted by Hartsoe: Ok I could get a lawyer, but then I would know. If I know then I won't have anything to ponder when I can't sleep. Jul 12 05 05:07 am Link Posted by Mike Cummings: Hehe - Damn I forgot...I'm sorry! Sometimes I don't think too much Jul 12 05 05:33 am Link Posted by theda: Please note that StMarc tries very, very hard to include the phrase "consult an attorney licensed in your jurisdiction" *every* time he makes a legal pronouncement, so if you are listening to him, you're doing that anyway. I believe case law holds that you make make copies for personal use. For example, you can copy a CD to a cassette to liten to in your old car stereo, but you can't sell of give that tape away. Correct. This comes under a generic fair use known as "shifting." It first became a large issue when VCR's became available to the general public in the Sony v. Universal Studios case. Universal complained that people were taping copyrighted movies being broadcast on television to watch later. The court declared that "time-shifting" a broadcast by taping it, so long as you had the right to watch the broadcast in the first place, was not a violation of copyright. Similarly, "format-shifting," making a copy of an audio recording that will play on the desired medium, is all right. However, you can't use both copies at once - you can't let someone play the tape in their car while you listen to the CD at home. And "backup copies" are generally legal under the copyright law (but that doesn't mean that some contractual agreement couldn't forbid them.) You can sell or give away the orignally purchased copy. I *think* the same would apply to prints of art work, but again, check with licensed attorney. I'm just a wee legal peon. I would have no difficulty in asserting that I could make a high-quality photographic copy of a painting or sculpture I owned for various reasons, including documentation in the event of loss. But I couldn't display the photograph without violating the copyright. Jul 12 05 09:37 am Link Posted by Mike Cummings: Mike, Jul 12 05 10:44 am Link Posted by StevenNoreyko: Posted by Mike Cummings: Mike, My stuff in bold. Jul 12 05 12:17 pm Link Posted by Mike Cummings: Posted by StevenNoreyko: Posted by Mike Cummings: Mike, My stuff in bold. Since we're talking about a specific case, I'll explain that this company has to put all kinds of legal disclaimers on products to avoid lawsuits. In this case, we are talking about a company that had a net income of $15 million for the fiscal quarter. Jul 12 05 12:59 pm Link Interesting topic, and would love to see a conclusion of thought about the matter in the end. Jul 12 05 01:05 pm Link Posted by XtremeArtists: I think by what you are saying is it was not so much the "fair use" issue as it was the "not big enough to get sued for" issue. I have seen more than a few lawyers that will tell their client not to fight because it will cost more than to fight. You are right it a lot of cases it is not about what is right it is about what is cheaper. Jul 12 05 01:05 pm Link Posted by Mike Cummings: Posted by XtremeArtists: I think by what you are saying is it was not so much the "fair use" issue as it was the "not big enough to get sued for" issue. I have seen more than a few lawyers that will tell their client not to fight because it will cost more than to fight. You are right it a lot of cases it is not about what is right it is about what is cheaper. Yes. Plus as a designer, I wouldn't want to have my work used as the only images creating ambience in a commercial work without being compensated... Jul 12 05 01:17 pm Link Posted by XtremeArtists: I understand that. You did the change because it was "right" to do. Jul 12 05 01:23 pm Link Posted by Mike Cummings: Posted by XtremeArtists: I understand that. You did the change because it was "right" to do. I think it was right, but honestly I did the change because it was my job. If they said they wanted to go with the paintings in the photo, I would have given them what they wanted. In the end it's often true that the customer is always "right." Jul 12 05 01:32 pm Link |
))) but I still count sheep here (literally) - works fine for me... if not - well - I should give the copyright thinking a try ;o)
