More Than Meets The Eye

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Copyright law has a narrow and a broad definition for what can be copyrighted. The narrow definition covers “original works of authorship fixed in any tangible medium of expression,” including literary, dramatic, musical, and artistic work. The broad definition includes “any original work of authorship.”

So courts must decide how to interpret the difference between these two definitions when it comes to the question of artwork. When can an artist copyright their work? Can a part of a painting be copyrighted?

Courts have different interpretations on the issue. In order to understand them and the varying decisions, we first need to look at the basic elements that make up a copyright claim.

I’m going to explain how to copyright a painting. I’ll start with the parts that are easy and then move on to the parts that are hard.

There is an easy way and a hard way to copyright a painting. The hard way is just like copyrighting anything else: you register your work with the Copyright Office, they take forever to do it, and if they get around to it eventually they will send you back a certificate that says you own the copyright. The good news about this is that if anyone ever sues you for infringement, you can prove that you had copyrighted it first. The bad news is that there are already millions of paintings copyrighted in America so it’s not clear yours would be noticed by anyone but Google Image Search.

And for most artists, the easy way suffices. You just put your name right on the painting, and if someone copies it without your permission, they’re infringing your copyright. But what if they take just one little part of your painting and use it on their own painting? This can happen when an art dealer puts an artist’s work up on their website or prints it in their catalogs. It also happens when artists paint commissioned portraits or landscapes, or even make T-shirts with their paintings printed on them.

The Copyright Act of 1976 defines a work of visual art as:

“a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author.”

Transcripts of interviews with artists and gallery workers reveal that many believe that no part of an artwork can be copyrighted; many also believe that only a specific portion of a work can be copyrighted. The former belief is false; the latter is true.

The exclusionary language “in a single copy” seems to imply that if an artwork exists in more than one copy, no part of it can be copyrighted. However, “[a]nything under copyright protection—including derivative works and compilations—is automatically protected whether it is registered with the Copyright Office or not.” In other words, an artist can copyright their work whether it exists as one copy or more than one.

In addition to being protected against copying, any original work is automatically protected against derivative use; however this protection does not extend to

As the Supreme Court once noted, our Copyright Act “has not traditionally drawn fine lines” between works that can be copyrighted and those that cannot. But it has drawn some, and Judge Kozinski’s decision that an artist can copyright a part of a work of art may push us across a line to which we are not accustomed.

As the court explained, “[t]he distinction between the idea and its expression is an important one [for copyright law], because protection of the former [*456] but not the latter is the principal purpose of the copyright laws.”*fn10

So what is an idea? According to Kozinski: “An idea is

This is because the legal status of a work depends on what it is, not how it’s made. A sculpture, a painting and a photograph are all subject to copyright. If you have created any kind of work that is representational, or that involves originality in its production, then you have probably got a copyright.

It can be hard to know what is covered by copyright. The law recognizes three different types of work: idea, expression and execution. An idea can’t be copyrighted: it’s just an abstract notion. By contrast, an expression is something concrete that can be communicated. An idea can become an expression through the skill with which it’s put together so as to make it sufficiently communicable (for example, a piece of music). And then there’s the execution, which refers to the way in which ideas and expressions are shaped into material form (for instance, if you write music down rather than play it). This is often where people get confused as to whether their work is protected by copyright.

In order for a piece of art to qualify for copyright protection in the UK, it must contain some originality — i.e., it must go beyond simply copying another artist’s work. Artworks that merely mimic someone else’s style will not qualify

Artists have been fighting to protect their work from theft and plagiarism for centuries. But even today, when it’s harder than ever to copy a piece of art, some artists still run into trouble with copyright infringement.

The law is tricky in this area. Just as there are instances where it’s legal to use copyrighted material, there are also instances where you legally can’t. For example, you may be able to take a copyrighted scene and add your own characters. Or you may be able to take photos of copyrighted artwork in public places and use them in your own art.

Here’s a rundown of the ins and outs of copyright law as they apply to visual artists.

I had a conversation with a colleague about the controversy over whether or not to allow for the protection of “Flash Art”. The rationale was that “Flash Art” was very popular and artists were making a lot of money on it. It was argued that if they allowed the protection of this art form, it would keep people from stealing it.

We brought up the Fair Use doctrine and how it can be used to protect those who use this type of art without permission. I was told that Fair Use was a gray area, which made me wonder: how do you define what is gray? I didn’t see how “gray” could be defined. There are legal definitions for everything in our society and in our language. How could there be something that wasn’t specifically defined in law?

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