What Would Happen If I...

All of Van Gogh's art is in the public domain.

Thanks David...is it public domain because he's dead or another reason?

Except under rare circumstances when it passes to the family (read: Elvis), artworks are covered under copyright law for the life of the artist plus 70 years. There are millions of works in the public domain you can use, including ones assigned a free and clear Creative Commons license from current artists.

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Susan Maxwell Schmidt
So-so Board Moderator and
Artist Extraordinaire

I have a Bruce Lee poster that I downloaded from the internet and converted from 2D to 3D stereo. I posted it on my FAA gallery but removed it when I got a complaint from "somebody" that claimed to be associated with Bruce Lee's image. Just saying... Don't assume just because an artist has passed that you're free and clear.

I see plenty of copyright infringements here but most get away with it. For one thing, it would cost more than it's worth to pursue in court.

There are apparently 2 Vincent Van Gogh members here on FAA, still alive and kicking.

I wonder what they have to say

its like 70 years after the death of the artist, or after it was made or something like that, or if it was donated as a gift and the copyright was handed over to the public.

bruce lee would probably still be owned by someone. maybe an image of charlie chaplin would be ok, but just because its old, doesn't mean someone didn't extend the copyright.


---Mike Savad
http://www.MikeSavad.com

It's impossible for Bruce Lee's photographer to have died 70 years ago. The photographer, or the company the photographer worked for, own the copyright.

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Susan Maxwell Schmidt
So-so Board Moderator and
Artist Extraordinaire

I've seen lots of images that are not the work of the person who is selling them posted all over the web, and, even assuming that it's not a copyright issue, really wonder about the people that do this. If I were posting someone else's work under my name, I'd feel dirty. I can understand making a business out of honest reproductions that acknowledge the creator, but I can't count the times I've seen, for example, Starry Night, image by John Doe of Minneapolis, posted somewhere.

So, in my case, converting an image from 2D to 3D stereo also had no bearing on the rights.

Doug is right, but the OP question is an interesting one.

I can't count the times people have asked me to copy Van Gogh's work but the idea and commissions are not interesting to me. I love doing my own work.

The copy of Van Gogh's work, however, is a type of career for some artists. They study every brush stroke and do reproductions by the billions and sell them. Check out You tube on this subject.

A lot of artwork that is considered original is simply 6000 workers in third world countries just doing one stroke of paint all day long to create some famous work and the signature is stenciled in which is then sold in retail chains across the world. None of this type of work is interesting to me personally. But who am I? I'm certainly not a buyer of art in retail chains or anywhere other than art supply shops.

I'm an artist who creates original work even if it's inspired by great works, it does not look, or feel like any art other than Lisa Kaiser art.

Doug,

RE:..." If I were posting someone else's work under my name, I'd feel dirty."

Perhaps that is why it appears that 3 members here, have assumed Vincent Van Gogh's name.

Doug,

RE:..." If I were posting someone else's work under my name, I'd feel dirty."

Perhaps that is why it appears that 3 members here, have assumed Vincent Van Gogh's name.

Interesting, once, not long ago right here on FAA I seen a "photograph" presented by a seller as his work which was a manipulation of a painting by a living artist, who also sells right here on FAA I thought that was pretty ballsy, but just goes to show you never know!

TL Mair

Ok, Chad.

Let's assume, for the sake of argument, that the work by Van Gogh that you decide to copy is in the public domain. If so, under copyright law, you can copy it exactly... or you can make a derivative work. You can sell either one. See www.copyright.gov for the rules on how you figure out whether a work of art is in the public domain, under U.S. copyright law.

I think Van Gogh was French, so U.S. copyright law might not apply. You might need to research French copyright law. That should be good for hours of entertainment. Just like researching U.S. copyright law is good for hours of entertainment.

Now let's talk about types of law other than copyright - U.S. law, because that's what I happen to be familiar with -- also last time I checked you said you were in Colorado, so... U.S. law pretty likely applies to these copies you're considering making.

Fraud.

What, exactly, are you leading your buyer to believe, when you sell him this copy you made?

Is it an exact copy, for example an art print? In that case, you should probably leave the Van Gogh signature on it -- and make sure the buyer knows it's a print, not the original.

It gets a little more complicated if you're selling it as a derivative work. The source is the Van Gogh painting... The derivative work is your work -- you can sign your name to your own work. Then there is crediting sources, and I don't know of any established industry standard for crediting sources for visual arts, so you're on your own RE: figuring out how to do that.

Anyway, as long as you're not committing fraud (making an intentional mistatement of fact, upon which your buyer relies to his detriment), or to put it in layman's terms, as long as you're not lying or misleading your buyer, you're probably not doing anything that can get you in trouble under fraud-related laws.

If it were me, I would avoid putting signatures on art, or copies of art, that might confuse buyers about who made the art.

Disclaimer: As always, not legal advice.

Thanks for all of your input. A client loves the pencil and asked me to recreate Starry Night. Of course I would give Van Gogh credit in the title as the original.

It's not something I normally do..copy others' work. I am being tested recently though. I had another client that didn't have access to great photos for reference. The ones she did have were professionally taken. So I did find out the photographer with a google search, and she gave me permission to use her photo.

I'm still not sure what I will do about Van Gogh. I told her she could take some drawing classes from me and do it herself. Then I wouldn't have it on my conscience of selling copied work, legal or not.

"Then I wouldn't have it on my conscience of selling copied work, legal or not. "

I'm not sure I see much difference between copying someone else's photo and copying an old masterwork so I really don't understand why one is a dilemma for you and the other isn't. I personally don't copy anything, I only use my own photos for reference. Don't get me wrong, I'm not criticizing, just pointing out what seems to be an inconsistency.

Excellent source about copyright and public domain:

http://copyright.cornell.edu/resources/publicdomain.cfm

Chad.. if you are creating an art work for a client who is not intending on using that image to sell a product.. for example... then you don't need permission from anyone.

--- of course that is just my personal opinion on the subject of art created for personal ownership. Art created for commercial usage is a totally different story.

Chad,
I know you said you're not planning to go through with it, but...
If it's in the public domain, you can copy it in pencil.

Also, since the client asked for the copy, sounds like there aren't any issues with the client not knowing who made the art.
You might want to write something on the back -- maybe in ink so it can't be erased -- along the lines of "Starry Night by Vincent Van Gogh, reproduced in graphite by Chad Kieth."


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Bob,
If the art is in the public domain, you can even use it to sell commercial items. You can copy stuff that's in the public domain and use it for just about anything you want to use it for.

"Where is the public domain?
The public domain is not a place. A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner." FAQ, www.copyright.gov

Disclaimer: As always, not legal advice.

The discussion on concurrent thread suggests that it IS OK to just copy (ie digital copy) an image in the public domain, mark it up and sell it.

https://fineartamerica.com/showmessages.php?messageid=3462275

David,

"I'm not sure I see much difference between copying someone else's photo and copying an old masterwork so I really don't understand why one is a dilemma for you and the other isn't. I personally don't copy anything, I only use my own photos for reference. Don't get me wrong, I'm not criticizing, just pointing out what seems to be an inconsistency."

--The only thing inconsistent is that I cannot ask for the masterwork's permission if he is dead. Yes I prefer to use my own reference photos (I give myself permission). For commissions, and for an infinite amount of different reasons, I mostly use photo's of the client (they give me permission). The newfound case mentioned above I used the pro photographer's photo (she gave me permission). I will never get permission from Van Gogh so it would be on my conscience. That is the dilemma. Legal or not.

Cheryl... yes that is true, but even if it were a copyrighted image... let's say... Mickey Mouse. Chad can create an image for a customer with no issues. He would be selling a unique work of art to a customer who only wants that image to hang on their wall. No permission is required as long as the customer does not use that image to promote a product.

This is an exchange between two people. There is no deception on the artist's part. The customer is not using the image for anything other than hanging it on their wall to look at.

I know that an argument can be made about Chad earning money off of something originally created by Walt Disney, but no... Chad would be making money from his talent of painting, the subject is irrelevant. If that were the case then the only art that could be sold would be of images of nothing but natural objects... trees, clouds, ocean.... No images of any building, vehicle, clothing, furniture, electronic device, newspaper, magazine, book, bridge, dam, billboard, neon sign....

and yes.. the above is my opinion only... not legal advice ;O)

Chad,

I register with the US Copyrights Office all of my alterations to PD work. Every image I have is registered.

Laws vary from country to country. Do not go against the Spanish courts and use a Picasso...oh no no no......the reputation of the Spanish copyrights courts are gruesome.

Dave

Have to admit to always listening to Cheryl due to her legal training. She knows of what she speaks, even if not giving legal advice

Bob:

"Cheryl... yes that is true, but even if it were a copyrighted image... let's say... Mickey Mouse. Chad can create an image for a customer with no issues. He would be selling a unique work of art to a customer who only wants that image to hang on their wall. No permission is required as long as the customer does not use that image to promote a product."

That is a common misconception, and it is simply not true.

U.S. copyright law specifically reserves to the copyright holder the right to make derivative works.

Whether an act of copying (or creating a derivative work) constitutes infringement has nothing to do with selling it, or using it to promote a product. The general rule is that copying - including making a derivative work - constitutes infringement.
There are exceptions, such as "fair use."

You don't need to listen to me, you can read the Copyright Act for yourself. www.copyright.gov Or you could create a derivative work based on, let's say... Mickey Mouse, and if Disney Studios finds out, Disney's lawyers might be willing to explain it to you. Or your defense lawyer can explain it to you.

Disclaimer: As always, not legal advice

Well sure, but my example [ I think ;O) ] is related to the "fair use" part of the copyright law. Now this "fair use" part is why we have judges since even the law's definition of "fair use": is pretty fuzzy. But seems to me that producing an art piece for the sole purpose of creating an art piece is covered by "fair use". And I realize that choosing Mickey is maybe an extreme example, but still valid when, as in our example we are creating a new version, not for commercial use. And I am still not clear if selling a unique work of art is commercial use or not.

More Information on Fair Use - https://www.copyright.gov/fair-use/more-info.html

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Index last updated January 2017

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.


Please note that the Copyright Office is unable to provide specific legal advice to individual members of the public about questions of fair use. See 37 C.F.R. 201.2(a)(3).

criticism, comment, news reporting, teaching, scholarship, and research.............

Is Chad going to be using for that? He doesn't say in his top post but, if doing for sale, that is not covered by fair use

Chad said it was a commission - a client asked him to do a pencil copy of Starry Night. My understanding is it would have been a sale, if he had done it. Also, I'm reasonably (but not 100%) sure that Starry Night is in the public domain.

It doesn't fall under any of the general categories of fair uses that I know about. You have to read the case law to understand how the balancing test is usually applied by the courts. There are a number of good articles on the internet on how fair use is applied.

Bob:

They talk about creative expression a lot, and commercial use. That's confusing, because there are certain purposes that are fair uses -- you have to be making the copy or derivative work for a fair use purpose in order to claim fair use.

The two big purposes are:

Educational purposes / academic discussion
Parody
and I'm trying to remember if there are more of them, it seems to me that there are but I can't remember the rest of the list off the top of my head..

Once you have said, "I'm using this to teach my class" or "I'm doing a parody of Mickey Mouse," then the court applies the balancing tests - and looks at a bunch of factors.

The creative content factor is about this sort of thing: Did you copy more than you needed for the fair use - did you copy the whole book of short stories when you really only needed to copy two pages of one of the stories for your class discussion? To put it another way, they're looking at whether you're lying when you said it was for an academic discussion - did you copy only as much of the copyright protected creative content as you needed for the discussion, or did you copy way more than anyone would need for the class discussion?

The commercial were-you-selling it factor is about looking at things like: Were you selling your photocopies of the magazine article to anyone who wanted to buy it, or were you only handing it out to your students? If you're not making money off of it, you're less likely to be lying when you say it was for a fair use -- e.g. you say you were using it for your class discussion.

If you're looking at all the language about creative content and commercial purpose, and getting "it's fair use if I've added creativity" or "it's fair use if it's not being sold" then you need to read it more carefully, and maybe you need to pull some additional articles on fair use off the internet and read them. Fair use is about allowing certain *uses* of copyrighted material.

Fair use does not allow copying or making derivative works -- unless they are made for a fair use purpose. It also does not allow copying or making derivative works that are for personal use or given to your friends as freebies - unless they are made for a fair use purpose. My understand is it doesn't cover making art, just to make art.

Disclaimer: As always, not legal advice.

Thank you all for your insight. The client has decided to take lessons from me instead, and create the work solely for herself. This I think will be more fun and educational for the both of us anyway.

Chad

Chad.. yes I have found that I learn quite a lot from teaching someone to do what I though I knew everything there was to know LOL

All's well that ends well. Sounds like a great solution!