Last time we discussed (well, I answered, you sat and read) queries regarding copyrights and original artwork. Mainly, what rights you the collector of art have when buying a piece of published artwork. (Short answer: pretty much none, other than displaying it for private purposes or when selling. But there’s over 1350 words more that go into detail.
Now, when it comes to commissions (like the inspiring, impressive and more-than-reasonably priced ones here at the wonderful Wednesday’s Heroes, ahem) [ contact Craig to order one of your own! ], the same applies except this time the artist is the “author” (copyright owner). Even if you, the lovely, discerning, generous and brilliant fan, come up with the concept for the commission, the artist owns the rights to the artwork (ideas cannot be copyrighted; only fixed expressions of them). You are paying the artist for his SERVICE (time and labor) as well as a physical piece of art (even though you don’t pay sales tax on it, though I bet some state bureaucrat somewhere could make a valid argument for it, as was once tried in California years ago). You may display the art in your home or on your personal web site to show your collection, or on another site when you want to advertise it for sale. But you cannot use it commercially in any form or claim ownership. This includes using it as your avatar, on a T-shirt, poster, main graphic on your site, and so on, without the artist’s permission. More on this later.
Technically, you should also ALWAYS give the artist credit for his/her work and ownership of rights. Contrary to popular belief, putting something on or pulling something off of the Internet does NOT make it free. Seriously. You just need to add the line, “Art ©2010 Joe Shlabotnick” (unless it’s on the art and already readable where you use it). The characters, if owned by a company like Marvel or DC, would actually be considered trademarks, which would be labelled as “Stupor Man is ™ BC Comics, Inc.” (See examples below.) A work is automatically given copyright protection when it is “fixed into tangible form”. It can also be registered with the Copyright Office for additional protection and benefits, but the initial copyright protection is automatic.
Quick lesson: Copyrights are for tangible, specific expressions of ideas, artwork, writing, music, performances and such. Trademarks associate a logo, symbol, name or graphic with its source. So a specific illustration of a character is copyrighted, but the character itself is basically a trademark because the consumer associates that character with the owner (company). Got it?
(FYI: To reiterate from last week, the proper form for copyright notices is the word “Copyright”, the abbreviation “Copyr.” or the symbol ©–which is made on a Mac by pressing down the Option key and the letter “G”–, followed by the year of publication [or creation, if unpublished], followed by the author/artist’s name. Trademark is indicated with the character/trademark name, followed by, “is a trademark of” or just “is ™” followed by the owner’s name. [The ™ symbol is made on a Mac by holding the Option key and pressing the number “2”.])
The point is, the artist deserves some respect for his rights from you, the fan/patron, as much as he does from the publisher (whether or not they get it). Could you use the art and not get sued? Probably. Most artists are not Harlan Ellison® (that’s a registered trademark) and not going to go after a fan, especially one who just bought something from them. Most are just too nice, too naive about the law, too lazy or too busy. (Or just can’t afford it.) But does that mean you should do it anyway? Does it mean it’s “no big deal”? Are you really that kind of person?
Hey, you probably wouldn’t get caught taking money out of a tip jar at your local fast food joint on a slow day when the worker isn’t looking. You probably wouldn’t get caught taking money out of a blind guy’s jar on the street. And you probably wouldn’t get caught groping a member of the opposite sex on a packed subway train or other crowded area. But are you THAT kind of person? (Not if you’re one of the fine readers of this blog!) You will find it’s much easier to just ASK the artist if you can use the art or part of it for something first. I guarantee most of us will be more than accommodative. Much more so than if you just use it and we find out about it thru another party later.
I hope that covers most of your questions. Any others, just email me at firstname.lastname@example.org and I’ll do my best to answer or point you in the right direction. No, I am NOT an attorney, so I’m not giving legal advice; just answering general queries based on my own (limited) knowledge and experience, which is based on a decade of attending the copyright seminars at the San Diego Con given by the amazing Michael Lovitz, IP attorney supreme. I also had Michael and his former firm on retainer when I was publishing and had several conversations about the subject, which I first was fascinated by when I took a “Small Business Law” class in high school and then a “Business for the Artist” class in college. I’ve also read numerous books and articles about the subject, and have corresponded with the US Copyright Office a few times regarding my own registrations since the law was revamped in the late 1970s. (I registered my first copyright when I was 14 years old, a fanzine strip called “The Absurdity”, which is probably still on file at the Library of Congress somewhere.)
In fact, I encourage and urge you to visit the Copyright Office’s excellent and helpful web site, www.copyright.gov, and take advantage of all the FREE articles, info and publications for downloading. You will learn a lot and that will make you more informed when dealing with any such issues in the future.
Hopefully this and the previous blog entry will have given you some info you can use. While we’re at it, come and join me and the other nearly 2,000 folks on the Comicart-L list! And the next time some newbie brings up this topic, you’ll be prepared to answer–or just ignore it like I do!