Copyright law is complex, totemic, and the source of nearly unending litigation. With relative regularity, appropriation artists like Jeff Koons or Richard Prince end up in the headlines due to allegations of improper use of their source material. For artists and those working with the images of artwork, it is crucial to understand what powers are—and are not—granted by the copyright. So below, we’ve compiled a brief overview of the topic.
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The rights around artwork are much less straightforward than one would assume. When it comes to the specific subset of visual works governed by the Visual Artist Rights Act of 1990 (VARA), artists retain certain powers of attribution and disavowal long after the ownership of the actual tangible work of art is in the possession of a collector or institution. As I’ve previously written, VARA affords rights in addition to those afforded by copyright law. While disavowing an artwork through VARA can impact the monetary value of the piece, copyright is much more directly tied to ensuring the economic interest of the artist. Generally speaking, the more “original” a piece is, the stronger the copyright protections.
So what rights are granted to an artist when it comes to copyright? And how can they affect those in possession of a physical work of art? Look no further than Section 106, Copyright Act of 1976, as amended, codified in Title 17 of the U.S. Code. For those in too much of a hurry, I’ll summarize: Copyright gives artists who have created fixed, tangible works a bundle of rights in those works. The rights provide both artistic protection and ensure that artists can profit from what they’ve made. After an artist creates a piece, they have the right to make copies of their work, distribute those copies, perform or display the work publicly, or make works that derive from the original.
Not all of those rights transfer to the collector who goes on to purchase the piece. While many collectors assume that a work’s copyright is transferred when they purchase a painting or a sculpture, that is not the case. Copyright only transfers to the piece’s new owner if its artist evidences that it is his or her intent to transfer it. What does this mean in practice? If you buy a Jeff Koons Balloon Dog, you then have the right to display your specific copy of Balloon Dog. But, unless you’ve received explicit permission from the artist, you do not have the legal right to take pictures of the piece, make postcards, and sell them.
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One cannot copyright ideas, procedures, methods, or concepts, unless they’re written down and recorded. Moreover, the written accoutrement (titles, names, phrases, and slogans) are not subject to copyright.
This is a good thing, otherwise calling your work Untitled would be a violation of copyright. Also not protected are works that change, like freestyle spoken word, or pieces of information that are universally available facts, like calendar dates. Copyright of a type of an art form that is inherently intangible—like a performance—applies to notations of the choreography or documentation of the event, but not to the event or performance itself.
Link to the rest at Artsy