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Ann Drysdale 06-21-2014 02:43 AM

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?

W.F. Lantry 06-21-2014 10:23 AM


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.



Jerome Betts 06-21-2014 10:42 AM

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.

Roger Slater 06-21-2014 11:47 AM

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.

W.F. Lantry 06-21-2014 03:48 PM

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

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."



Ann Drysdale 06-21-2014 04:24 PM

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...)

Ann Drysdale 06-22-2014 02:46 AM

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.

Roger Slater 06-22-2014 08:01 AM

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.

Mary Meriam 06-22-2014 08:46 AM

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.

Ann Drysdale 06-22-2014 01:43 PM

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.

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