COPYRIGHT - USING OTHERS WORK AS/FOR YOURS

ALSO SEE THESE PAGES  - PURCHASING AGREEMENT |  COPYRIGHT LABEL

It is not the policy of this website to give legal advice and as such the information on these three pages should not be used as guaranteed information and not be regarded as official legal advice.
 

The labelling as suggested above may not always be practical for many exhibitions or sales situations.

The Agreement and Label are available as an option to those who may wish to take precautions of this kind.

Seek legal advice for further information and read the information below.

 

Compiled by the Art Workers Union of NSW 2015

As an ethical Artist you must create your own original artwork, impressions and ideas.

Copyright infringement occurs if; you copy another artist’s painting without the written permission of the copyright owner.

Copyright infringement occurs if you copy paintings, photographs from the internet, and photographs from books or magazines without the written permission of the copyright owner.

The general rule is that the artist is the owner of copyright regardless of who is in physical possession of the artwork. When a purchaser acquires an art work they do not own copyright. The general rule is that the artist is the owner of copyright unless copyright has been sold to the purchaser of the painting or to a third party.

Copyright infringement occurs if you copy another artist’s work orphotograph without the copyright owners written permission. This means that copying another artist’s work, breaches copyright.

The infringement will occur if the illegal act is done either in relation to the whole of the work or part of the work. This means that copying even small elements of the work will give rise to infringement. Making cosmetic changes will not avoid infringement.

Copyright applies for 70 years after the death of the artist, if copyright for a wok has been sold it becomes the intellectual property of the new owner

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Artists, art teachers, dealers and buyers need to familiarize themselves with the law and procedures. All too often abuse stems from ignorance rather than malice.

You may use your own photographs, unaided drawings and ideas that you have created. If you exhibit and or sell your paintings they should be your own original and unaided work. Paintings done in class or at workshops are for learning purposes only and are not original or unaided works. They should not be exhibited, sold or represented as your own work.

Copying other artist’s works without written permission is not only unethical it is illegal.

The following is more suggested reading regarding photography use as well.

The following information should not be regarded as official legal advice
but is merely an opinion from an Arts Law lawyer 

The following is from an Artslaw (https://www.artslaw.com.au) ALCA lawyer regarding Copyright and Moral Law concerns. There is no guarantee of accuracy in all matters and the lawyer advised his advice is of a general nature. PLEASE REFER TO A LAWYER FOR FURTHER INFORMATION.

 

Using photographic images for reproduction.

 

COPYRIGHT ISSUES:

Review was for a query only:

“Using my own images but going to other photographs for fine detail of feet, feathers’ eyes etc.”

Copyright exists on all photographs, artwork etc.

The Law looks at my work to decide if I have sufficient originality in my work.

If my work is sufficiently like the original photograph I need to have written permission from the photographer to use their image regardless.

 

Copyright means:

  • The right to reproduce my work

  • The right of first publication of my work

  • The right to communicate my work to the public (eg online images of my work is deemed communication)

  • If I do not have permission of use I risk copyright infringement & court would decide how substantially I have copied the image.

Eg Mona Lisa-her eyes are quite identifiable plus her smile could also be easily identified. Even the background in that image is identifiable so % of copy is tricky when it is a famous piece like this.

 

Creative commons website: Is site where artists provide their artistic content for free for artists to refer to for reproducing their own images.

It all comes down to how identifiable it is of someone else’s image to generate infringement issues.

If I can clearly identify that my art represents what is in the photo---get permission!!!

 

MORAL RIGHTS:

Right of “Attribution”: Is me being credited as the artist for my work.

Right of “Against False Attribution”: to prevent others from claiming the work as their own.

Right of “Integrity”: Making sure that my art is not used in a way that is harmful to my work or my reputation.

These laws lasts for the lifetime of the artist plus 70 years past their death.

 

Attached also is a list of links which may add value to understanding copyright compliance.

 

Some examples from ALCA documentation:

“The Copyright Act does not prohibit every unauthorised use of your work. There is a copyright infringement only if a substantial part of material protected by copyright is used without permission, and a defence or exception, such as a fair dealing exception, doesn’t apply.”

“If the work is capable of copyright protection, protection is automatic upon creation, without any need for registration. The moment you express your idea or concept in material form (eg. take a photo, shape it in clay, write it on a napkin with a toothpick dipped in soy sauce), copyright arises and your work will be protected.”

 In order to qualify for protection a creation must meet three requirements:

  1. The work must fit into one of the categories of subject-matters set out in the Copyright Act.

  2. It must be substantial; Single words or titles are usually not enough to warrant copyright protection.

  3. It must be original, i.e. the result of the application of some skill and labour and not copied. The requirement of originality does not apply for subject-matters other than works.”

    Moral rights are personal rights that connect authors to their work. Moral rights arise automatically and last as long as copyright, i.e. 70 years after the death of the author.

They are:

  1. the right of attribution: your right to be identified and named as the author of your work;

  2. the right against false attribution: your right to prevent others to be identified and named as the author of your work; and

  3. the right of integrity: your right to ensure that your work is not subjected to derogatory treatment, i.e. in any manner harmful to your honour or reputation.”

 

“At the heart is the question as to what constitutes originality for the purpose of copyright:-

Originality concerns originality of expression not ideas. The work must be the result of the author's skill, labour or experience and not merely copied. Originality does not, in Australia, involve an assessment of intellectual effort or creative spark. Thus the verbatim report of a public speech taken down in shorthand then transcribed confers copyright on the reporter.”

Below is additional material sent later by the ALCA lawyer:

Please find the below links which may be of assistance.
 

a)  ALCA Info sheets

b)  ALCA Templates

c) Other Sources:

If you wish to receive a specific opinion on your use of the photographs in your works and whether it would likely infringe copyright or moral rights law we recommend that you subscribe to Arts Law. Your subscription will provide you with access to discounted templates and you can also submit documents to our Document Review Service to be reviewed and receive further advice. The details regarding subscription can be found at the following link: https://www.artslaw.com.au/subscriptions/

Finally, the Arts Law website has a number of free information sheets that cover a broad range of issues. If you have any questions this is a great resource that can provide you a lot of general information to help you: https://www.artslaw.com.au/info-hub/