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Some Thoughts Concerning International Copyright

by Brian Sherwin on 11/30/2012 1:36:20 AM

This article is by Brian Sherwin, regular contributing writer for FineArtViews. Brian Sherwin is an art critic, blogger, curator, artist and writer based near Chicago, Illinois. He has been published in Hi Fructose Magazine, Illinois Times, and other publications, and linked to by publications such as The Huffington Post, The Boston Globe, Juxtapoz Magazine, Deutsche Bank ArtMag, ARTLURKER, Myartspace, Blabbermouth, Milwaukee Journal Sentinel, Conservative Punk, Modern Art Obsession, Citizen LA, Shark Forum, Two Coats of Paint, Vandalog, COMPANY, artnet, WorldNetDaily (WND) and Art Fag City. If you want your blog posts listed in the FineArtViews newsletter with the possibility of being republished to our 22,000+ subscribers, consider blogging with FASO Artist Websites.  Disclaimer: This author's views are entirely his/her own and may not reflect the views of BoldBrush, Inc.. You should submit an article and share your views as a guest author by clicking here.


If you follow my writing on FineArtViews you know that I'm fascinated by the rules and regulations surrounding copyright in the United States (several of those copyright-related articles can be found by clicking here). I often receive questions from artists concerning US copyright law in general. One common question involves the idea that there is some form of 'international copyright' -- artists want to know if their artwork (and images of their artwork online) is protected internationally under US copyright. The short answer is: No. I will explain below.

 

As the US Copyright Office declares... there is no such thing as an 'international copyright' that will automatically protect your artwork throughout the world. The copyright protection that you have in a specific country depends on the national laws that the country adheres to concerning copyright. In other words, one country may acknowledge your US copyright, while another will disregard any claim that you have to authorship -- they won't care if someone uses your images without permission. In fact, some countries have no copyright law to speak of.

 

The above information may be depressing to US based artists who are worried about overseas copyright infringement -- BUT you may still have a chance to protect your artwork if a foreigner impedes on your US copyright by preventing products involving the infringed image(s) from being sold, or viewed online, in the US and abroad. After all, the United States has built some strong copyright relationships with countries throughout the world in the form of international copyright conventions and treaties – notably, the Berne Convention for the Protection of Literary and Artistic Works and the World Intellectual Property Organization (WIPO) Copyright Treaty (implemented in United States law by the Digital Millennium Copyright Act (DMCA)).

 

Don't feel overly secure though. The international agreements, and specific national laws, involving copyright infringement can get rather complicated. Furthermore, just because a country has signed a copyright agreement with the United States (and other countries) does NOT mean that said agreements will be enforced in a meaningful way (China is a perfect example). Additionally, the US Copyright Act applies only to infringement occurring within the United States – overseas infringement is traditionally beyond the reach of US courts... the copyright infringer, if challenged directly at all, will likely end up in a foreign court (DON'T expect to receive damages based on specific US law. DO expect the expense of taking an infringer on in foreign court to be insanely expensive. It most likely wouldn't be worth the expense from a financial standpoint).

 

Remember: The conventions and treaties mentioned earlier mainly help individuals/companies to protect their 'country of origin' market from being 'flooded' by foreign infringement.  

 

Example: A United States artist could stop a foreign company from shipping infringing art reproductions to US stores. Additionally, other countries that have signed the same conventions and treaties with the US may stop the violating company from shipping the infringing art reproductions to stores located in their countries.

 

In closing, 'international copyright', as in a single copyright that protects your artwork throughout the world, technically does not exist. However, international copyright conventions and treaties DO exist. Those international copyright conventions and treaties can be helpful depending on the situation. Note: this topic is extremely complex – far more than I can handle in one article. Consider this the tip of the iceberg.

 

Take care, Stay true,

 

Brian Sherwin



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Topics: advice for artists | Art Business | art law | Brian Sherwin | copyright | FineArtViews | Think Tank 

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 13 Comments

jack white
via faso.com
Brian,

You are absolutely correct. We really have no protection from International crooks.

Several years ago I put on our Websites: This art is protected by an International Copyright. Of course it had no power...but I used it to our benefit.

Several times we have found China art factories uploading Mikki and my sites. Then offering copies for a fraction of their worth. In each case I emailed the owner saying I was going to sue for $50,000 per image under the International Copyright Law.

In every case they removed our art. Mine was a bluff, but it worked. To sue International we are talking about $100,000 minimum. You have to use a US Lawyer and one in the country you are suing.Those who deal with such problems charge a lot.

The bigger problem is finding if your image is being stolen. Unless a friend sees the work, we would never know. We don't have time to continually search the Internet.

It's bad and will continue to grow worse.

Jack

Susan Holland
via faso.com
So published art (prints or digitally published) are still perfectly fair game for other countries to "lift" and use! This is one of the things I have sort of "known", but Brian, you put this into words.

How, then, would we think we have any protection for online presentations of our art? Bluffing works now and then, like Jack's bluff. But it seems to me that keeping your work original only (no reproduction rights given ) may be the only way to be sure there are no copies in the world that people could be duped by. In other words, if I were famous and people were wanting prints, it would be clear that any prints of my work would be illegally obtained, and therefore embarrassing to show on anyone's wall. Contraband?

Moot, because I am not famous, but the point is, either an artist can only allow face-to-face viewings of his work, or he has to live with the fact that people will copy his work and put it on their walls.

I don't personally stand to lose by people copying my art...it's not going to make or break me. But people who are dependent on the sales of artwork for livelihood are in a bind.

Is there an answer to this dilemma?

jack white
via faso.com
Susan,

Susan,
The only answer I know of is not to publish your work. I visited an China Knockoff Stdio in Hong Kong that was producing 250,000 "original" oils a month. They had copies of art magazines stacked to the ceiling. Now they have Google and the Internet for images.
If you have a Website and those crooks like your work they will copy what you made.
There are several art galleries that sell nothing but these knock offs. I recall seeing a dozen G. Harvey's in a Scottsdale Knockoff gallery. Signed by a different name.
I have no idea how many of Mikkis images are floating around the world. We have been able to stop all we found with the bluff. But in truth that is nothing we can do if they ignore the bluff.

I have long stopped worrying. It's totally out of our control.

When I did the eBay experiment...a client sent me a website with about two dozen of my alters images. I used the bluff and they removed the art. In my case they were selling them under my alters name.

Don't worry, continue to make great art. If they copy then try the bluff. You must have a website and expose your work so your buyers can find you.

Hugs, jack

Susan Holland
via faso.com
Thanks, Jack. Bottom line is what we need to know out here in "Naivityville."

I have a personal quirk that rails against making prints, giclees, or anything of my paintings. I think you should get the fingerprints of the artist in work you buy. So any prints of my work are definitely not my output, but someone else's. So,that's where I rest, and keep on painting and sharing. I do have my art on various websites, but not in a particularly market-motivated way. This is not the way to get rich, but there's where I'm quirky.

I make better art when money is not an object. Period. It's just true..has been for all my 75 years.

Thanks for answering the question so succinctly. I am happily going off to paint now. :)


Joyce Wynes
via faso.com
Once I started painting full time several years ago, all of a sudden I was getting emails from Chinese websites asking for me to put my portfolio on their sites. I had known about the Chinese habit of copying other artist's work and underselling it to many markets with the artist not having any recourse. So I did not respond to these requests. However, there is nothing stopping them from taking images from your website and copying them directly from there and reproducing them in China.

As a professional illustrator, I had to deal with this all the time, even in the US. I remember having a booth in NYC one year for art directors, creative directors, etc. to view our work, and several illustrators came up to me and said that they loved my work and copied it all the time! The US copyright rule in illustration was that the copier had to change 20 percent of the image to call it theirs!

Unfortunately, there are very unethical people out there preying on other people's creativity. The sad part is that it undervalues everyone's work. I try not to worry about something that is so much out of my control. In the US, I would have some recourse but the rest of the world ... just too time consuming, expensive and stressful. I hope that someday there will be stricter controls over creative license and that it will be less expensive to pursue the villains. But the internet is growing at such a rapid pace and is such a vast space that we have very little control over this type of crime. My only suggestion is an international art organization that could begin to create some parameters on usage. But even unethical artists copy other artists work and call it their own and the younger the artist, the more accustomed and comfortable they are using other artist's images as their own. I saw this when I taught illustration at a college, and while I reprimanded the students who did it if I knew, it is difficult to catch it all the time.

Brian Sherwin
via faso.com
Susan -- Sadly, my guess is that people who buy illegal prints, if you will, don't care. They care about the bottom-line -- their bottom-line. And I suspect that most who thought the print was 'legit' (unless it was an expensive print) won't care that it is a 'fake' as long as it was affordable.

Brian Sherwin
via faso.com
Susan -- I don't think removing your online presence is the answer. Look at film and literature... both have long faced these problems -- and there has been a lot of coverage about it. If authors and movie makers stopped promoting online... it would be as if the book or film did not exist. That is where we are at in the world today. You have to be online.

That said, the problems facing art in this context has had nowhere near the exposure that film and literature has had. BUT the US Copyright Office is trying to come up with a way to handle small claims infringement. That won't help with international issues... but it may help stress the importance of acknowledging -- respecting -- authorship in the US.

Most infringement does not involve thousands of dollars... it is currently not worth pursuing realistically -- unless you have money to burn. If a small claims version is adopted... it will be far easier to go after the 'small time' infringers who turn a few bucks.

Brian Sherwin
via faso.com
Susan -- Believe it or not, some artists 'stamp' the back of a print (or original work) with a bloody fingerprint... or a dot of blood that is hidden away in the piece itself. That way authenticity can be discovered if needed. Some may feel that is drastic... but I know others who feel it is brilliant. :)

Others... I know of painters and sculptures... add a unique mix to their medium -- so that, if need be, the original work can be tested in the future to prove authenticity. For example, a painter might add s trace amounts of pepper to his or her paint. There are two problems with that direction though: 1.) chemical reactions. 2.) If someone figures out the secret... forgers WILL duplicate it (assuming the work becomes valued enough to be forged).


DNA may very well become a standard of authenticity in the future.

Brian Sherwin
via faso.com
Joyce -- There is no magic percentage under current copyright law. I've heard people suggest 10 percent, 20 percent... and so on. The truth is that just 1 percent can be considered infringement. I base that on what copyright lawyers have told me over the last 8 years (was it different in the past?). 'Fair Use' is a defense. Nothing more, nothing less.

From the US Copyright Office: "There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances."

It is looked at on a case by case basis. In other words, someone who appropriates 80 percent of an image for his or her own work may be able to prove 'fair use', stating parody... while another appropriator using only 5 percent of an image fails to prove 'fair use' in court.

For example, lets say that Jack has a painting of a cowboy that is known throughout the US -- lets say that it is considered an iconic image among fans of Western art. Now... lets say I take that image, turn it upside down, and write 'There Are No Cowboys' across the image. That may be considered parody under 'fair use'... that would be my defense in court.

If Jack had registered copyright of the work beforehand... proving parody would fall on me -- his registered copyright is all the defense he would need. That said, if he registered copyright after the fact, after my infringement, (he would have to register it in order to file a lawsuit) I would still have to prove that it was parody... BUT he would also have to prove that it is not parody.

I'm straying off topic some... but when in doubt -- register the copyright of your images before placing them online.

Delilah
via faso.com
I have had work copied. I really don't understand if I were that good it would be flying off the walls. Lol

Brian Sherwin
via faso.com
Delilah -- Are you suggesting that copyright protection is overrated? Or do you mean you just don't 'get' how infringers decide which images to use?

ed
via faso.com
the business of business ... ugh .










 

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