This is a blog about copyright, art law and artists. I am a lawyer specializing in these areas.
My first post is about the murkiness of U.S. copyright law when it comes to mass-produced art reproductions and artist Thomas Kinkade.
Copyright law is one of the most important legal doctrines that dictates the relationship between artists and the public. It’s also a murky field, full of traps and grey areas.
In this post we’ll take a look at the murkier aspects of copyright law with an eye towards understanding why they are so confusing. We’ll discuss some of the ways in which artists and art buyers can use copyright law to their advantage, but we’ll also examine some of the more ominous aspects of copyright law as well.
A blog about copyright law and artists?
I’m a big fan of Thomas Kinkade , and I believe that his artwork is significantly undervalued due to ignorance about copyright law. In fact, if you’ve ever bought a Thomas Kinkade print or painting, you may have inadvertently broken the law (or at least infringed on Kinkade’s copyrights). This is because a lot of people do not understand U.S. copyright laws regarding reproductions of artwork.
This blog is intended to help clarify some common questions about Thomas Kinkade’s art and the laws surrounding it by offering basic information about U.S. copyright for anyone who is interested in learning more about it. Whether you’re an artist seeking to legally create reproductions or a
This is a post about the murkiness of US copyright law. It’s not legal advice, and if you’re interested in reading more about copyright law, I’ve included some links at the end of this post.
The murkiness of US copyright law is a good example of how the law can be more complicated than it seems from the outside, even for those who are practicing it. For example, people often wonder why it takes so long for lawsuits to make their way through the system. We don’t know what goes on behind closed doors during settlement talks, but we can get a glimpse into why cases take so long by looking at an ongoing case brought by Thomas Kinkade® against two art galleries in Maine.
This case raises interesting questions about how much control artists have over how their work is used, and about what “fair use” means for art.
Distributed Art Publishers (DAP) is a company that generates revenue by licensing the images of artists who have uploaded their work to their websites. It claims ownership of the copyrights in the uploaded artwork and has entered into license agreements with companies like Thomas Kinkade Signature Galleries, Inc. and the Museum of The Bible. These agreements allow Kinkade® to sell prints of copyrighted works for personal use, and for the museum to display them on its website.
In May 2017, DAP sued artist Michael Godrey after he tried to withdraw his images from DAP’s website. Godrey’s complaint alleges that:
(1) the Digital Millennium Copyright Act (DMCA) preempts California’s assertion of personal rights in copyrights;
(2) DAP never obtained his permission to display his art on its website; and
(3) despite providing DAP with over 1000 pieces of his original artwork, he has only received one check for $500 for a piece that was sold at a retail store.
Despite these allegations, DAP moved for dismissal of Godrey’s complaint on the grounds that it failed to state valid claims under federal copyright law. In support of this motion, DAP argued that:
(1) there is no cause
Copyright law is an area of law that has traditionally been less than clear, and there have been conflicts with many artist, whose work has changed as technology has changed. With the invention of computers and the internet, copyright concerns have become even more complicated.
TK’s Law Office is here to help you understand what your rights are and what you can do to protect them. We want to make sure that you know where you stand before you make any decisions regarding your work. That way, you can make sure that your rights are protected while still allowing your creativity to grow and prosper.
So if you have a question about whether posting something online or selling copies of something constitutes copyright infringement, we are the right people to talk to.
Copyright protection is crucial to artists, and fair use is essential to society.
The law has meandered in that direction over history, but the issues are still hotly contested. Fair use has been a part of U.S. copyright law since the first federal copyright act was passed in 1790, but it’s only been applied consistently for about three decades now.
The courts have held that parodies of copyrighted works are fair use; educational uses are also considered fair use; and so are many other things, such as excerpts in a review or criticism, or news reporting on a work. But they’ve said that performance of a work at a church service is not fair use, nor is selling copies of a work online if it was originally intended for sale at retail stores.
One issue that has recently drawn some attention is the use of photographs on merchandise or advertising: take a picture and put it on your shirt to sell more shirts? The courts have generally said no, but they haven’t yet provided much guidance on what exactly is permitted and what isn’t.
I’ve had a number of people ask me about Kinkade’s case, so I’ll briefly explain what’s going on. (Note that this isn’t legal advice and you shouldn’t take it as such. The law is weird and even I don’t understand it all.)
The basic question is whether Kinkade’s work is “original” enough to be protected by copyright. The answer is yes, but there are limits.
Before we get into the specifics, though, let’s talk about why he has a copyright in the first place. In the United States (and most other countries), you have a copyright in anything you “fix in a tangible medium of expression.” That means if it’s written down or recorded or captured in some way, you own the rights to it. If someone takes your work without permission, they’re violating your copyright (and can be sued).
But what if they just copy it directly? That’s not quite so clear. Here’s the important part: the law doesn’t protect any idea, only the specific expression of an idea. So if someone copies your idea, they haven’t violated your copyright, because ideas are not protected. But if they copy your expression, then they violate your copyright — because that’s something you