Copyright and Selling Art

Woman at Desk Painting

“Copyright and Selling Art” is written by guest blog writer, Marlo Spieth. Ms. Spieth does outreach and guest blogging for Avvo, a website that offers online legal services.

Being a professional artist isn’t as glamorous as it may sound. On top of the hustle and uncertainty, is the culminating moment where you must let go of your art. It’s not easy to give away something that you’ve nurtured with time and energy, even in exchange for money. There’s a reason that writers refer to editing as “killing your darlings”.

Here’s one truth to help ease the pain: as an artist, you may sell the physical object you’ve created (e.g. a painting), but you are still the sole legal owner of the composition (e.g. that placement of hues). So, the new owner could resell the painting, because they legally bought the physical object. What they didn’t buy was the content of piece. Therefore, they would need your permission, however, to digitally scan the painting and print it on a set of plates. Hence why a musician can sell records without giving away the rights to their music.

This notion that you can own an iteration of an idea is called “intellectual property” . It protects work done by your mind—from artistic pieces to personal branding efforts. Copyrights, patents, and trademarks ensure that others may not use or imitate your work and imply it as their own.

Copyright definition image

How Do You Get a Copyright?

Interestingly, there is an automatic copyright anytime you create something “fixed”– written, recorded, or rendered. If you display your art, you may use the copyright symbol, watermarks, or written notices to emphasize that you are the author and copyright owner. For art that’s inherently not “fixed” (i.e. dance or acting), it must be recorded in order to be copyrighted.

While the copyright existence is straightforward, the enforcement of it is a different matter. This is why folks register their work with the U.S. Copyright Office. If you do so within three months of creating the work, then it is legally protected. Therefore, if anyone uses the work without your permission, either for profit or not, then you can file a civil suit and will be entitled to “damages”(money).

If you have not registered the copyright and someone uses it without your permission, then you would register the copyright after the fact. Keep in mind that it may be more difficult to prove that you’re the author if someone else has access to your work. Once that’s done, you would then file the suit and be entitled to much less money.

Any Exceptions?

The existence of intellectual property law does seem a tad unrealistic when humans have been around for thousands of years. Indeed, human civilization is the transfer of ideas. Therefore, there are several important caveats to be aware of:

  1. The current rule is that copyright lasts for the lifetime of the artist plus 70 years. Also, everything created in the United States before 1923 is now in the public domain.
  2. Copyright is not infringed if you have fundamentally “transformed” the piece. A good test is to ask, “Have I given new meaning, aesthetics, insights, or understanding to the work?” (more on this from Rich Stim at Stanford ). This is why parodies and pastiches, Dumb Starbucks for example, are allowed.
  3. Generally speaking, no one else is going to care about copyright infringement if the author doesn’t care. Legal is time and money, so it takes someone pushing in order to make things happen. To this end, some creators simply choose to celebrate a potential infringement as an extension of their vision. For further reading on the business registration and protecting your work, check out this article, The Artist’s Guide to Starting a Business.

Please note: The views and opinions expressed herein are the author’s alone and do not represent Avvo. Also, please acknowledge that the legal information herein consists of third party data and contributions, that there are certain inherent limitations to the accuracy or currency of such information, that legal and other information may be incomplete, may contain inaccuracies, or may be based on opinion.

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