Widow and Orphan Works in Art Licenses: A blog about ethics and legalities of being sure that the work you sell is 100% original.
Hi, I’m an artist and a lawyer. I’ve practiced intellectual property law for more than twenty years. Most of my time has been devoted to representing artists—photographers, filmmakers, writers, musicians, illustrators—whose work has been infringed by others. But lately I have also been writing a lot about copyright law as it relates to art.
I am a graphic designer and an artist who has been selling my work on Artsy since December 2015. I love selling my work and helping others sell their work. But I have been reading a lot about the legal issues surrounding Art Licenses, specifically the concerns over who is benefiting from Art Licenses, especially when they involve mass produced artwork.
Dating back to the 1400s, a death of the author perspective has been accepted by our society, which allowed creators to benefit from their own creations for only 150 years under copyright law (and even now, there are many exceptions to copyright law). The idea that the creator doesn’t matter, is not important, or doesn’t deserve credit for their work is very far from what art licensing does and should be.
Although this is not new information, it’s always important to be sure you’re doing everything you can to support your fellow artists. In this blog post, I’m going to explain why I believe it’s important to ensure that all artwork sold through Art Licenses are 100% original and do not include any copyrighted elements.
The licensing options for prints are all over the place. Some are “All Rights Reserved,” some are “All Rights Reserved, Non-Commercial,” some are “All Rights Reserved, No Commercial Use.” Some say you cannot resell the print, or that you cannot resell it at a profit (which could be construed as a resale at a loss). You have to be careful what licenses you choose in order to avoid violating someone else’s copyright.
The reason I’m talking about this is not to warn you away from buying prints with non-commercial licenses. It’s to be sure to understand the risks involved in selling your own work. If you sell art that violates someone else’s copyright, you may have to pay damages and attorneys’ fees–even if the copyright owner doesn’t make a fuss. The risk of accidentally selling something that violates someone else’s copyright is greater when you use a license that allows commercial use of your own work.
This article explains why and how .
The whole point of having ethical standards is to make sure you know where your art comes from, in case you are ever called upon to testify in court as to its origins. A famous artist must be able to prove that the piece he signed is, in fact, his work.
Most people don’t need to worry about such things. But many artists do. For example, if you create a work for your friend who then sells it for profit, you may want proof that the work is yours and that you were paid for it. Or maybe you’ll be asked to make a new piece which will be sold under another name. Or maybe your employer will sell a piece created by one of his employees. These can all be good and legitimate things, but they can also get you into trouble if you don’t know what you are doing.
In these cases, the safest thing to do is this: always get written permission.**
You’re an artist, and you sell your work online via a licensing model. That means you let people use your work in return for a fee. The fee might be a one-time payment or it might be a recurring payment. It might be a percentage of the money they make using your art.
Everything seems fine. You have a few clients, and you’re making some money. Then suddenly, someone reports that they found your art on another site, and it’s not just being used by someone else, it’s being sold there too! Your heart sinks as you realize that the other site is selling it for less than you’re charging, and has already sold more licenses than you have. What do you do?
The beginning of the problem is that no one has a clear definition of what a “work of visual art” is. This makes it difficult to know if an artwork is protected by copyright or not, and to know if you need permission to use it.
The confusion is heightened by the fact that “visual arts” include things like photography and sculpture, which are generally considered mere mechanical reproductions of reality. When photographers get sued for copyright infringement, they often try to defend themselves by saying that their art doesn’t copy the real world so much as reinterpret it. And even when they admit that their images are copies, they sometimes argue that they’re protected by the so-called “fair use” doctrine: That since they are only making a limited number of copies (e.g., in an ad), there isn’t any loss to the copyright holder, who will still be able to sell all the prints he can make from his original negative.
The courts have sometimes agreed with this argument–but only when the image being copied was itself a copy of something else, like a painting or a photo. The case law here is surprisingly complicated; I don’t have room to go into it here.
“The art world and the publishing world are the only two businesses in the United States that can steal your work, and they do it every day. The most successful artists and writers are those who are able to navigate this system of intellectual property theft, who are able to keep their own work from being stolen.”
Hence the importance of copyright, which serves as a legally-enforced protection of intellectual property. But what if you’re an artist or writer? For example, what if you’re a photographer, and you want to sell prints of some of your photographs? Can you do that? Is there any protection for artists and photographers?
Yes, there is. But it’s not very good protection. It’s called “copyright,” but it’s not really the same thing as copyright.
The difference between real copyright and fake copyright is that with real copyright, anyone who uses your work without your permission is violating the law, whereas with fake copyright, they aren’t violating the law — at least not directly.