Copyright question...
 

Some years ago, I bought an original watercolour from an art student. I have in mind to use it as a book cover. May I? Can I? Is is "mine" to use in that way?

Of course, I would contact the artist as a courtesy and hope she'd be pleased. But could she say No? Of course, I'd respect her wishes if she did, but - whose is it, rightswise?

Ann,

That's a really good question. The more I think about it, the more complicated it gets. So maybe it's best to simplify: museums get to say no, even if the artist says yes. So legal physical ownership of the material object seems to trump everything. I've always been shocked that if one owns a famous painting, one can throw it on the bonfire, sans consequence.

On the other hand, you're right, ethical considerations trump legalities here. It's not as if you're depriving the artist of potential future revenue. But she does have an ethical right to be consulted about the use of her image. Some artists might object to having their image associated with erotica or religion.

Still, such an objection, in a case like this, is extremely unlikely. So back to the heart of your question: could she say no? Yes. Could she legally enforce that no? She could try, but she'd lose, and the cost to her would be prohibitive. This isn't popular music or film, where most of these cases occur, this is poetry and art, and there just isn't much money in either. Most likely scenario: she'll be flattered and happy. Maybe she'll even add a line to her vitae.

Best,

Bill

I've run across this when seeking permission to use images to illustrate articles, Ann. As far as I remember the 70 year rule applies, i.e. in the UK copyright remains with the artist's heirs or whoever acquired the rights until 70 years after the artist's death. The copyright may have passed to a publishing company, as I found on one occasion, when asking permission to use book illustrations 68 years after the artist's death despite my owning a copy of the book. Copyright can be sold, of course, but it doesn't sound as if there was a specific agreement about this with the art student. In practice, as WFL says, I would imagine a proper credit and the chance to have work on display to the book-buying public would be more than enough compensation if she still owns the copyright.

There's nothing complicated at all about this, Ann. You do not own the copyright to the painting unless the artist transferred it to you (in the bill of sale, for example). Legal physical ownership does not trump anything. Sorry, Bill.

This rule seems to apply in the UK, as clearly stated here.

Interesting. Roger is entirely correct. So I could legally burn the object, but couldn't legally sell images of it burning?

https://www.writersandartists.co.uk/...aw-for-artists

There's an interesting distinction here, though:

"Galleries and publishers are generally entitled to reproduce an artist’s work in order to help sell it – through advertisements, catalogues, JPEGs for emailing to clients and uploading onto their website – but they are not entitled to profit from reproductions of a work."

Which goes back to the money question: What if nobody's making money on the project?

Anyway, thanks to Roger, today I learned this: "A painting and the copyright in that painting are two entirely separate commercial entities."

Thanks,

Bill

Strange to think that I can buy an original painting and be the only person to have it because there is only one of it and not have the "right" to do anything with it other than own it, when my owning it makes it impossible for anyone else to do anything with it...

But thanks, Roger. Does that mean that (technically) I have to get a licence and pay for the use of it, as I have always done with images I didn't own? Over and above what I paid for the picture in the first place? I suppose it does, and I suppose the artist might ask for more than I can afford; she has quite a reputation now. We shall see.

I couldn't possibly ask her to "give" me the right to use the image now that I know she has the right to put her own price on it. That would feel like begging. I am a bit embarrassed at having assumed that I might own it already.

In practice it may all work out as Bill and Jerome suggest, but I am so glad I asked.

Thank you all.

(And extra thanks to Bill, for the post (above) that I hadn't seen when I submitted mine and went to bed...)

Having slept on it, I see that I have been stupidly naive again. I knew that I owed a courtesy and was happy to pay it, it was just that the thought of further financial consideration took me by surprise. I am, I suppose, a bit ill-at-ease with money, having so little acquaintance with it.

Of course it is right and proper that artists should have the means of making a living from the beauty they produce, the pleasure they give. I have already written a sonnet inspired, in part, by this particular picture. I'm smiling as I recall that I entered it in this year's bake-off and had to withdraw it when I found it on Google. Heigh-ho.

If the matter arises, I shall do the right thing; my conscience and the law are dancing on the head of the same pin. I wonder, though, if the artist (or their agent) gives permission to someone else to use the image, would I as the owner of the "actual" piece need to be consulted? or credited? Probably not. Perhaps it has already appeared all over the place. Would I even know?

And I wonder about their still having it to sell even after parting with the original. I bet that didn't happen in days before photography and digital images.

It's all academic, anyway. I own this painting, even if I don't own the picture, and I love it dearly. It is above my desk as I type. There is a cobweb on the corner of it, quivering in the draught from the computer.

I wouldn't assume that the artist will demand money, or much of it. People give copyright permissions all the time (e.g., translation permission) without requiring a payment, and if the artist understands that this is a book of poetry and not a Coke commercial she may well agree for little more than a promise that you try to keep cobwebs off the original.

Apropos Bill's musing about the right to destroy an artist's work, perhaps you can hold the painting hostage and threaten the artist with a bonfire unless she agrees to let you use the cover?

But seriously, Bill, it is thankfully not always the case that the owner of a work of art is free to destroy it. Check out the Visual Artists Rights Act.

Annie, do you have a digital image of the artwork? If so, you can upload it to Google image search and it will tell you if it's in cyberspace. Let me know if you need my help.

Thanks for a good laugh xo: I am, I suppose, a bit ill-at-ease with money, having so little acquaintance with it.

Thanks, Mary. If I decide to use this image, I'll have a look to see if it's out there anywhere - chiefly to make sure it hasn't been used to endorse anything I'd rather not be associated with. That's highly unlikely, but these things can happen. Then, if it's all clear, I shall ask and offer in accordance with my conscience and the law.

Thanks again to everybody - this has been informative and useful, even if it meant discovering that I do not "own" as much as I thought I did.

Ann, in your position I would contact the art student and simply ask for a one-time permission to use the artwork on any and all publications of your book. The artist might be willing to allow that if his/her name is featured, since that could be an opening to future sales of artwork/book covers. You might get a "no" if the artist imagines he/she is losing money, but wouldn't hurt to ask. But get it in writing.

Copyright laws can differ in different countries. US law is not necessarily the same as in the UK (or EU). You might want to check out:

Copyright law of the United Kingdom http://en.wikipedia.org/wiki/Copyrig...United_Kingdom

Australia http://booksat.scarlettrugers.com/bo...my-book-cover/

You can always get in touch with the official guild/union for UK artists and ask for a copy of the copyright rules. There is no charge for this.

But contracted agreements overrule copyright and if you get a signed agreement from the artist, you are free to use the artwork as your book cover. You have already paid for student art, your request is limited to a single book, the copyright remains with the artist, and (statistically) you will not be making a ton of money on your book.

For these reasons it is not improbable that the art student (or perhaps the artist, no longer student) would regard this as an opportunity to get exposure and possibly a new market niche. Or not. Anyway, it costs nothing to ask.

In a similar vein I'll just add that I recently asked permission to translate work of a Swedish poet, and his estate immediately joined a watchdog organization that guards against unauthorized reproduction of literary works and referred me to them for all future contact. I suppose they had delirious visions of me getting rich on translations of the poems. (I wish.)

This immediately complicated things because I was asking only for permission to translate (which is not just polite but required). I wouldn't dream of paying for the right to translate. As it is, I would be translating for free, though I am accustomed to being paid for commercial translations. In such case, the buyer of my services then owns what I was paid to do.

A translation of a literary work, however, is regarded as a new literary work in its own right. So I'll just move on to some other poet who is willing to allow me to translate their work and get some international exposure.

While copyright law can vary from one country to another, Janice, that's scarcely a relevant observation in the current context given that the link I provided is from the Intellectual Property Office of the UK, which directly and simply answers the question that Ann asked.

Oh dear. I did not notice the underlining so did not click on that wee "here". For all toes inadvertently, irrelevantly and irreverently trod on, I am most abjectly sorry.

Hi Ann,

The artist will, without any doubt whatsoever, enthusiastically endorse your using the picture on a book cover. It's just the way artists roll.

Cultural note: My criteria, if and when asked for art--Do NOT place any print or anything else over the image. And if you use a detail rather than the full image, you must, in the credit, specify "detail". Also, be sure to use a high resolution image of the work, otherwise it will pixilate. It all sounds obvious, except for maybe the first point. I think most artists are averse to copy running over their work.

Excellent idea to use original art that you own on a book cover!

Rick

Toes, Janice? What toes? Mine are fine. It's OK.

And Rick - your reply is the last piece of the "puzzle" - an artist's view. Thank you for that.

Think about it like this...I buy a book of Ann Drysdale poetry. I own this book. I own these poems...or do I? Can I now go out and use the poems on greeting cards? If the artist took a picture of her painting, she does have the right to use it.

It's not always about money. It can be about being able to say no when someone wants to use the art on something they don't want to endorse.

It's not necessary to make a big deal about it. Just contact her and ask - "May I use your art on my book?"
If I were the artist I would be thrilled but I might ask for a few copies and the right to use photos of the book in my own promotions. She may want to be credited or have some say-so about how it's cropped. BUT if it's not complicated enough, the photographers have some copyrights too.

since you did not make the painting it is not your work even though you possess the physical painting. You need to get permission for its use on a cover or in any other print media (maybe even online media) and of course to give credit where credit is due - speaking as both a poet and a painter

Do we say that painters and sculptors "publish" their works?
 

There's a simple workaround: take your painting to a public place and snap a photo of it.

http://www.ipo.gov.uk/types/copy/c-o...-exception.htm

"Also, it is not an infringement of the copyright in a work if you draw, take a photograph or make a film of, buildings or sculptures or works of artistic craftsmanship which are located in a public places or in premises open to the public and copyright is not infringed in any material when it is used in legal proceedings."

Personally, I think there should be a distinction between unique works (e.g. paintings and sculptures) as opposed to duplicated ones (e.g. prototypes, books, movies, prints, mass produced figurines, etc.) but, as others have pointed out, there doesn't seem to be.

-o-

That is correct. You could probably take a photo of yourself in your living room and the painting be on the wall, but why deprive the artist of the pleasure and joy? I would be dancing around the room and calling everyone I know if my work was going to be a book cover. This is a huge compliment, especially that you wrote a poem inspired by this work. Spread the joy.

This is not a loophole.

Publishing said photograph is what constitutes the infringement. You can draw or photograph an artwork in any private or public place (unless the museum says otherwise and some do) and show it to friends, but you cannot publish it as a book cover or similar. Unless of course, as I said earlier, you have an agreement (preferably written) with the artist.

You can speak off the top of your head, or you can look it up. In the US, and I suspect this mirrors most other jurisdictions, 17 USC Section 120.

Note that this "photographer's exception," as it's sometimes called, does not apply only to the taking of a photograph, but to the distribution or public display of the photograph, which would allow such things as use on a book cover.

It's a dicier question when it comes to public art, such as a sculpture, and I don't know the answer for sure, but I suspect that the answer is that it's okay if the art is included in the scene you are photographing, but not okay if the photograph is primarily about showing the art work. (I just noticed Wintaka's link, which apparently answers the question, at least for the UK, by indicating that it's not an infringement to draw or photograph public art. The US statute, by contrast, refers only to buildings, not to art. Still, without looking it up and nailing it down, I would be shocked if it were illegal to take and sell a picture of a public square because you can make out on a single corner a small statue that is under copyright, or if there were a billboard in the background with copyrighted advertising text, or someone wrote and owns the copyright to graffiti painted onto the side of a subway car that happens to be passing by.).

If you use the painting to make the cover of your book and as such it helps to sell your book, you are using someone else's work for profit without their permission. If you take a picture of the painting and use it as your Christmas card - just sending it to friends and family - it would not be of much note (though you should still give credit)
The artist owns the work, it is copyrighted even if a copyright was never applied for. You need to contact the artist and get permission. I would bet you any money she/he will be thrilled (unless of course they have gone on to do much more and better work and do not want that painting out there to represent them) Like if someone took an old poem of yours that you had just sent them and never intended to publish but they put it on their blog and attributed it to you but it is so not what you now do and you never intended it to see the light of day.
It's complicated, but bottom line is you need to ask the artist. It's the right thing to do.

Museum's rights
 

I am curious about Bill Lantry's claim early in this thread that "museums get to say no, even if the artist says yes".
This is surely incorrect, unless the artist has specifically transferred copyright to the museum.
Museums and galleries like to maintain they have copyright over their holdings (they make plenty of money from selling reproductions) but they do not. It is important to stand up to them on this issue.
PM

You're right, Philip, that assertion was incorrect. Although I imagine that if a museum owned the only copy of a painting, even though it didn't own the copyright it could legally prevent the artist from having the access needed to make a proper photograph of it. So if the museum owned the only copy and there had never before been a proper photograph of the painting, the museum could "say no" and perhaps have bargaining power as a result.

There was an interesting case a few years ago with the movie 'Basquiat' about the life and work of the eponymous graffiti artist. The director was denied permission by Basquiat's estate to feature any original paintings, even ones that he personally owned!

A recent, relevant case in point:

http://www.telegraph.co.uk/culture/a...-painting.html

I'm not sure how on point that is, Ann, but it's quite interesting. It's weird to think that the value of the painting is almost entirely dependent on whether or not it is accompanied by a legal certificate. It's the exact same painting with or without the certificate, and yet it's worth a fortune with it and almost nothing without it. So any notion that the financial value of the painting inheres in its beauty or craftsmanship flies out the window. Crazy.

Ann,
Having stumbled onto this thread a little late, I just wanted to add something to what Nemo said about high resolution image- a professional artist with some degree of reputation might want to be involved in the proofing, not just for resolution, also for color, and not just involved, but should require right of final approval of the quality of the reproduction.

Nemo?.....

My bad, I was channeling Mr Hill at the time. What can I say I'm in love. I meant Rick.