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Copyright

Copyright Basic Rights, Licencing & Assigning

Australian Copyright law requires any person who reproduces an artwork to seek the permission
of the person who owns the copyright of that artwork.

Generally copyright law covers an artwork as soon as the artwork is made. It is not necessary to
go through a formal process of registering a work. The artist who makes the work is usually the
first owner of copyright. However, copyright is a form of personal property and it can be formally
transferred or sold to another person, usually through the assignment or licensing of the
copyright. When an artist assigns the copyright of an artwork, someone else becomes the owner
of that copyright. When an artist licences the copyright of an artwork, they still own the copyright
but they allow someone else to use the artwork. An exclusive license gives the rights to use the
work to only one person.

Copyright Licencing & Assigning Conditions

Special conditions often apply when copyright in an artwork is assigned or licensed. These
conditions may control where, when or how the artwork is used. They also often involve payment
for the right to own or use the image. The fees charged to reproduce an artwork can vary
dramatically, from artist to artist or according to how and where the artwork is to be reproduced.
For example, an artist may not charge a fee if their work is being used as part of a not-for-profit
education resource. However, if the work is going to be widely reproduced on a commercial
product a fee is often charged.

The copyright of an artwork is separate from the artwork itself. This means that when an artist
sells a work, they still own the rights of copyright to that artwork. The copyright rights to an
artwork generally last for the life of the artist plus 50 years. After the death of the copyright owner,
the copyright rights, like property, will be transferred to another person under the terms of the will
left by the copyright owner.

Copyright

Copyright Managing

Licensing of popular cartoon or toy images is a big business and a significant

source of revenue for those who own the rights to the image. The copyright of
works for a significant number of Australian artists is managed through
VISCOPY. This agency was established in 1995 with a government grant and
now operates as a not-for-profit copyright collecting agency. It also helps artists
in negotiations and in overseeing quality control when their work is being
reproduced. Galleries who own or exhibit the work of particular artists can also
sometimes assist with copyright enquires.

Copyright Commercial & Non-commercial Uses

Artworks are reproduced and copied for many different reasons. Often artworks
are reproduced for commercial purposes in books, magazines and on TV, as
prints and posters, and on T-shirts and coffee cups. While many artists do not
charge a fee for their work being used in this way, especially when the work is
reproduced for not-for-profit or educational purposes, they are within their rights
to do so.

Copyright

Copyright Auction Catalogue Issue

For the last few years many artists have been fighting to receive payment for their work
when it is reproduced in the sales catalogues published by auction houses. In some
instances, the works of art, which were often originally sold by the artists for relatively
modest sums of money are sold by the auction house for large sums of money. While
artists do not receive any return, regardless of how much their work has increased in value
when their work is sold by someone else (a right that artists have in some countries), they
argue that at least they should receive a fee for their work being reproduced in the auction
catalogue. The auction houses argue that this cost would be prohibitive and that the artists
do ultimately benefit by having their work included because it increases their professional
profile and can indirectly contribute to people being prepared to pay more for artists' work.

Copyright Cullen vs ABC TV Issue

In 2001, the Sydney-based artist, Adam Cullen, lodged a complaint with ABC TV about his
portrait of David Wenham, for which he won the Archibald Prize, being used in an
advertisement for ABC Radio. VISCOPY argued, on Cullen's behalf, that the fee for using
an artwork in this manner was usually $2,250 per second. However, instead of paying the
$67,500 requested, the ABC eventually negotiated a payment of $80 to the artist. Cullen
said that the money was not important but that the complaint related to 'aesthetic and
ethical respect'. Artists also have the right to control how their images are presented when
they are reproduced. In relation to his concerns about the use of his work by the ABC,
Cullen said 'It's artit's not just some random imageit's been cretinised into something
that has nothing to do with the art's original conception, production and eventual context'
(Timms 2001).

Copyright

Copyright Issues of Integrity

There are many other examples of artworks being copied in

ways that can be seen as detracting from the integrity of the
original artwork. Many of these examples are found in
advertisements. It is interesting to consider how the
reproduction of artworks in advertisements influences the way
the artwork is perceived. For example, the frequent use of
some images, such as Leonardo da Vinci's Mona Lisa, which
has been used to advertise a wide range of products including
toothpaste, sanitary products and house paint, can change the
viewers' understanding and appreciation of this work. It is
debateable whether this is necessarily a negative thing.

Copyright Postmodernism & Appropriation

Through history, artists have also often copied the work of other artists.
Traditionally, this has been done to learn more about an artist's work, or as a
form of homage. However, artists have also copied the work of other artists for
other reasons. For example, in contemporary art the practice of borrowing
images or forms from the work of other artists (often called appropriation)
reflects the influence of postmodernism. In postmodern art practice many
artists copy the work of other artists to challenge, critique or parody the values
and ideas associated with the work. Some contemporary artists appropriate the
work of other artists to challenge the idea that an artwork must be entirely
original. In a world saturated by visual images many artists now believe that it
is impossible to create a genuinely original image. Instead of being a creator of
original images, the artist is seen a manipulator of existing images, forms and
styles. This belief has led many contemporary artists to freely borrow and
rework images, forms and styles from art and popular culture often to explore
new ways of working with them or to reveal new ways of understanding them.
The idea that artists use and manipulate images, but do not create them from
nothing and cannot own them, clearly conflicts with copyright law, which is
based on a belief that artists are creators of original images that they have a
right to own.

Artists whose appropriation of other artworks has been widely discussed

include: American artists Jeff Koons and Sherrie Levine and Australian artists
Imants Tillers, Juan Davila, Tim Johnson, Lindy Lee, Maria Kozic, Imants
Tillers, Peter Lyssiotis and Anne Zahalka.

+ Copyright Appropriation & Copyright Law

Artists who use images created by other artists to make new

artwork often risk prosecution under the Copyright Act. Even using
a small part of another artwork, if it is an essential or distinctive
part of the work it came from, can be a copyright infringement.
Although the postmodern practice of appropriation has meant that
borrowing images from other artworks to make new artworks is
widespread, prosecutions of artists for copyright infringements
does not appear to be commonplace. This is partly because the
modest earnings of most artists would not make prosecution
worthwhile.

However, there are international precedents that highlight the risks

that artists face in infringing copyright. One notable case involved
the American artist Jeff Koons who based a series of sculptural
works, String of Puppies, on a postcard photograph. In 1992, the
photographer successfully sued Koons for copyright infringement
and damages. The court based its decision on the obvious
similarities between the two works and did not recognise the
arguments that Koons presented in his defence, including those
relating to the value of appropriation as a valid means of creating
new work.

+ Copyright Law in Different Contexts

Copyright law is based on the idea of copyright being personal

property that can be owned and sold. It is interesting to consider
issues associated with this idea in relation to different cultural
situations. For example, in Aboriginal cultures the ownership of
images and the right to use them is often related to cultural and
family traditions and rights. This might include culturally sensitive
material such as sacred images, or designs that according to
cultural tradition should only be used by individuals who have
special rights to use them.

The idea of an artist owning an image and controlling the way it is

used is also problematic within the context of postmodern art
practice, which often involves artists borrowing or appropriating
images freely from the work of other artists or from popular culture.

Copyright Sensitive Images

Images might be sensitive for reasons other than culture. For

example, when creating his work Crush, the artist, Christopher
Langton, approached the Transport Accident Corporation (TAC) for
permission to use images of car accidents, but this was refused.
This highlights the fact that artists often need to consider ethical as
well as legal issues when using sensitive images.

+ Recent Moral Rights Legislation

In December 2000, the federal government passed legislation that awarded

artists moral rights in their work. This legislation gives artists the right to take
action if they are not acknowledged as the creator of their work, or if their work
is falsely attributed to someone else.

Moral rights also include the right to take action if their work is treated in a
derogatory way. This includes treatment that harms the integrity of the work, or
the artist's honour or reputation. Such treatment could include, for example,
destruction, distortion, mutilation and alteration of the work, or exhibiting the
work in a manner or place that is prejudicial to the artist's reputation.

The introduction of moral rights legislation was celebrated as a significant

achievement for creators of all kinds of artistic works, including visual arts.

Moral rights legislation raises many issues for all those involved in the care and
presentation of artworks. An artist's right to have their work correctly attributed
means that artists must always be acknowledged as the creator of work when it
is publicly displayed. While this is standard practice in professionally operated
galleries or museums, it has not always happened when artworks are displayed
in other contexts, such as in the foyers of commercial buildings.

In most cases, moral rights to an artwork last for the life of the artist, plus 50
years. Unlike copyright rights, moral rights cannot be transferred to another
person until the artist's death when the artist's legal representative assumes
responsibility for them.

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Moral Rights Possible Applications

In the period leading up to and including the introduction of moral

rights legislation there were many examples cited in the media of
cases to which moral rights legislation might have applied. Some
of these involved alterations being made to works such as the
colours in a painting being changed to suit home dcor, or the top
of a sculpture being cut off to fit into a building foyer.

Moral Rights The Vault Issue

Some commentators speculated that if the legislation had been in

place in 1978, it might have allowed Ron Robertson-Swan to take
action against the Melbourne City Council for derogatory treatment
of his sculpture, The Vault. After commissioning this work for the
Melbourne City Square, the council moved the sculpture to a
location which, at the time, was effectively not much more than a
building site. Under the current legislation the artist would at least
have had the right to be notified of the council's intention. He
would also have had the opportunity to document the work before
it was moved, and the right to not have his name displayed with
the work in its new location if this was his wish.

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Moral Rights Subdivision Art Issue

Another case that raised issues related to moral rights involved

a group of Australian developers called 'Subdivision Art' who
purchased an original Picasso print for $13,000 and cut it up
into 200 small pieces to be sold separately, at a profit, for $200
each. There was international indignation at the destruction of a
Picasso print for commercial purposes and profit, interestingly
however, this gesture may have been more acceptable if it had
been presented as an artwork. As an artwork, this gesture
could have commented on the commodification of artworks,
especially the commodification of artworks by artists such as
Picasso.

Moral Rights Freedom of Expression Issue

Artists have often challenged accepted conventions and values

to communicate ideas and there has been some concern that
moral rights legislation might hamper freedom of expression. It
is interesting to consider whether there are instances where the
altering or destruction of an artwork is an acceptable way of
creating a new artwork.