Natasha Harris, Copyright Expert
I am an artist and I’m concerned about protecting my work. How can I copyright it?
The first thing you need to know is that anything you create is automatically covered by copyright. As soon as you create it, it’s covered under the Copyright Act. In essence, that means you don’t have to worry about registering it as such.
Okay, I might be covered automatically, but what does that mean in actuality?
It means that no person, or organisation, can reproduce your work without clearing it with you. As soon as you’ve created it, it becomes your intellectual property and anyone wanting to use it, must get your permission in writing.
What if I have created a work with another person, are we both covered equally?
My advice would be that you really need to work out the details of who owns what before you start. Do you own the concept, and they own the painting? Make sure you really get down to the nitty gritty of the details, as it will save you both potential arguments in the long run. It’s also really important that you have a written agreement between you and the other person about what form (and percentage) the co-ownership model takes.
Are all rights equal? Or are there different kind of rights I should investigate?
Yes, there are different rights. If you’re wanting to commercialise your art, then you really should do some research into what rights are going to work best for you. You can simply have rights in New Zealand if that’s what you want, or if you think there might be commercial advantage to having international rights then you can cover your bases by assigning rights that are ‘all media, in perpetuity and worldwide,’ this means that your work is covered in all types of media (online; tv; print; film) all around the world and for all time, or until it goes out of copyright. When thinking about rights, try to imagine as many scenarios as possible. Don’t be afraid to think big!
Does it cost me anything to have copyright over my work?
Okay, so what steps do I need to take to make sure that my work is properly protected? Should I date stamp it if possible?
If you’re a visual artist, or an urban street artist, you should absolutely sign your work and date it. I would then suggest you photograph your work with the signature and date and keep it filed away in a safe place should you need it. You can take other steps such as having someone photograph you while you’re creating the work. Best practise means keeping all documentation relating to your work, such as design drawings, or concept drawings, dated. This leaves no doubt if it ever comes to a dispute.
If you’re a photographer, always put a watermark on your work. The watermark needs to have your name and company clearly stated on it.
What’s so good about a watermark?
A watermark makes it very difficult for people to rip off your work. It’s a good idea to stay up to date with the different watermarks available. There are apps and software available for this that you can use. It’s also a good idea that your watermark can’t be edited out or covered up.
Okay, so let’s say I’m an urban artist and I’ve painted a wall in the city. Then I see it on a local business’s Instagram feed. Have they broken Copyright law?
This is where things can get a little bit murky. You absolutely own the rights to that art you’ve made. If someone takes a photo of your work in a public place, they own their photo, but they don’t own the work that’s in the photo. If they then use that image for their own promotion or business, or for any commercial opportunity, then they need to clear it with you. Even if it’s just a personal blog, they should clear its use with you.
Okay. I’ve seen an image of my artwork reproduced on a website and it hasn’t been cleared by me. What rights have I got?
You, as the rights holder, have the right to decide whether you’re okay with your work being used in this way. If you’re not happy about it, then I would suggest that, in the first instance, you reach out to the person or organisation using your work, and gently tell them that you are the rights holder. You then have the right to ask them to take the image down, or to attribute it, or even negotiate a fee for its use. My advice is to take a friendly approach first, start off by contacting them yourself, and if you get no joy, get a lawyer involved.
What kind of lawyer should I look for?
There are lawyers who specialise in intellectual property, and you could contact them in the first instance.
Alright. Now, what if I, as an artist, want to use somebody else’s work in my own artwork? What do I need to do?
You need to make best endeavours to find out who owns the rights. It’s no excuse to say, ‘I googled it and couldn’t find any information.’ You need to do everything you can to find out who owns the copyright. It might mean a visit to the library. Let’s say it’s an image of David Bowie you want to use, you might need to contact the record company. It’s super important to get all permissions in writing – it’s never enough just to have a handshake or a verbal agreement, it won’t necessarily protect you.
Again, you need to record everything in writing. Keep your emails, keep records.
What if I can’t find the rights holder? Should I use it anyway and hope for the best?
I would err on the side of caution. You gut instinct is never wrong. If you feel hesitant to use it, then don’t do it.
What if there’s an image that doesn’t seem to have any owner, and lots of other people have used it, is it okay for me to do that too?
This is an easy one, no, it’s not okay. Remember: If you didn’t create it, it’s not yours and you need to seek permission to use it.
What if the original artist is dead?
Never assume you’re good to go. The estate of the artist may still hold the rights. You really need to do due diligence if you’re using other people’s work, even if you’re just using a small part of it.
Okay, but I know that some things run out of copyright. Is it okay to use another artist’s work if they’ve been dead for 100 years?
There are different laws that cover this, but generally if a work is over 75 years old from when it was first published or produced, then it’s out of copyright and that means you can reproduce it. But if in doubt, double check.
So that means I can use any work that’s over 75 years old?
Again, this relates specifically to New Zealand, but generally speaking that’s the law across the board. If you are looking to use American works, they have a very generous creative commons license which means artwork, videos or photos can be used just with attribution and no monetary compensation.
For more information on this, go to https://www.loc.gov/collections/
Why is it important to honour copyright?
You should care because there has been time, love and effort that has gone into creating a work. Imagine seeing your own art on a tee shirt that someone else is taking credit for or selling. It’s not always about the money but it is definitely about respecting other people’s creative talent. At its simplest, using work without attributing credit to the maker of it is disrespectful and it’s ripping people off.
If I don’t seek permission, how big of a deal is it? Are there penalties?
Firstly, it’s not honourable, and secondly, yes, the rights holder could seek damages. If the rights holder happens to be an international rights holder, then there could be big dollars and big headaches involved.
Okay, but I’ve seen artworks and images used on news sites. How come they get to do it?
It comes down to a concept called fair use. Generally, media organisations pay a hefty annual fee to have the right to use images or video – but they’ve negotiated those rights. It also means your work is also covered like this, so you may not receive credit or monies under this fair use policy. The news media can use your images without permission. In a perfect world, it would be great if these organisations would credit the artist – and some of them do – but by law they don’t need to do this. Bear in mind though, fair use only applies to news organisations – it doesn’t apply to other commercial producers or publishers.
What about my personal YouTube Channel – can I share other people’s work or videos there? Do the same rules apply?
Yes, the rules still apply to digital media. You can’t just stick stuff that doesn’t belong to you up on your channel. You might have seen images or artwork or videos on YouTube and think ‘Oh, they must be okay then,” but most of them are illegal. And the rights holder can force you to take it down.
What if someone uses my work on their YouTube channel?
It’s very easy on YouTube and Facebook to issue take downs and you should definitely apply to do this in regard to your own work. You simply need to alert the platforms and they will order a take down notice.