Copyright Law, Collages, and Artists’ Rights

The Hampton Roads Region is home to a thriving and diverse population, including artists. Visual artists work with a myriad of mediums, including paints, clay, images, and a vast array of combinations of the same.

A completed piece of artwork often goes beyond the ink on the canvas or the representation of the naked eye. Often, the piece is a culmination of untold hours of work, the interweaving of an artist’s skills and years of experience, and the hand-chosen materials to complete the piece. Selling a piece to a buyer releases it from the direct control of the artist, who may wish to know what exactly they are selling beyond the physical piece itself.  

Artists should be aware that through selling their artwork, they often sell accompanying rights and copyright protections along with the physical piece. However, artists still retain certain residual rights.

The concept of copyright is familiar to artists, but what does it mean? “Copyright is a form of intellectual property that protects original works of authorship.” United States Patent and Trademark Office, Copyright Basics.

The United States has an interest in fostering the creative products of its denizens both explicitly and implicitly. The Constitution holds that “Congress shall have the power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. Art. I, § 8, Cl. 8. In the 1976 Copyright Act, Congress granted copyright protection to “[O]riginal works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. §102 (1976).

The requirements of a valid copyright, in simple terms, include: (1) subject matter requirement, as listed under §102, (2) fixation in a tangible medium of expression for a period of more than transitory duration, as listed in §102 and defined in §101, and (3) an original work of authorship as listed in §102. 17 U.S.C. §101-2.

If a valid copyright is established, an author or creator receives the exclusive right for a period of time to reproduce the work, use the work to prepare derivative works, sell, lease or lend the work, and publicly display the work. 17 U.S.C. §106. The subject matter of a valid copyright will be satisfied if the work falls into any of the following categories: literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and structural works, sound recordings, and architectural works. 17 U.S.C. §102.

Copyright, intended to reward and protect the expression of original works of authorship, does not extend to any “idea, procedure, process, system, method of operation, concept, principle, or discovery.” Id. These excluded articles, sometimes referred to as the building blocks of creation, demonstrate a public policy interest in the continued production of goods and inventions. The reality is that artists and creators often use the building blocks of others in crafting their own contributions to society.

Another consideration in the landscape of copyright is that artists’ rights will be diminished if their work is completed under a contract. At that point, the work is considered “work made for hire,” and the employer or commissioning party owns the copyright. Copyright.gov, What Visual and Graphic Artists Should Know about Copyright .

Does copyright protection transfer when it is sold? If copyright protection of artwork transfers when it is sold, do artists retain any rights or protections over their work?

Unless contracted otherwise, copyright protection transfers with ownership of the artwork.

“The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.” 17 U.S.C. § 201(d)(1).

However, artists do not lose all control over their work. Artists retain what is called ‘moral rights’ over their artwork. The Copyright Act of 1976 casts a relatively broad umbrella of protection as long as the elements of (1) subject matter, (2) fixation, and (3) an original work of authorship are met. However, before becoming signatories to the Berne Convention for the Protection of Literary and Artistic Works in 1988, the United States did not recognize moral rights of visual artists.

The moral rights of artists are explicitly enunciated under the Visual Artists Rights Act of 1990 (“VARA”). VARA was enacted to effectuate the United States’ obligations to implement the Berne Convention for the Protection of Literary and Artistic Works. VARA extends two main protections to authors of visual works, (1) the right of integrity, and (2) the right of attribution or paternity.

Moral rights are noneconomic protections that include the legal recognition of rights held by an artist permitting them control over the use and dissemination of their work. Moral Rights: Diagnosis and Rehabilitation, 46 AMBJL 47, Robert C. Bird, 408. Unlike copyright, moral rights cannot be transferred, only waived. “Moral rights defend personal and reputational value of the work and the artist from abuse long after the artist’s work has been completed.” Id. 

Moral rights include the right of integrity and the right of attribution or paternity.

The right of integrity allows a creator to retain property rights in his work, to halt significant modification of his work, and to prohibit the display of a work in a derogatory manner that is contrary to the intentions of a creator. Id. at 411. “The right of integrity protects the dignity and reputation of artists by prohibiting intentional or neglectful harm that leaves their physical works of art in a state that demeans their creators.” Dead on the Vines: Living and Conceptual Art and VARA, 12 VNJETL 209, 216.

The right of attribution or paternity allows the author an exclusive right to be acknowledged as the creator of a work.

This means that if an artist sells a painting, and later sees their work in another gallery, or perhaps on Facebook or an online database with someone else claiming authorship, the artist has a right to be acknowledged as the creator, regardless of who currently owns the work.

The right works in reverse as well, to prevent attribution of works that the author did not create. Kelley v. Chi. Park Dist., 635 F.3d 290, 296 (7th Cir. 2011).

If your artwork does not fall into an accepted article, does that mean there is no copyright protection?

Not necessarily. Courts have considered narrow exceptions to articles that have not met the subject matter requirement under the Copyright Act in §102. Compilations or articles that may not otherwise merit copyright protection may be sufficient for a thin copyright. “A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” 17 U.S.C. §101.

Compilations do not provide copyright protection to the specific items within the grouping, but rather to the particular way in which the author arranged them, as long as a sufficient modicum of originality is met.

The go-to case for compilations is Feist Publications. In Feist, Rural Telephone Service Company, Inc. brought a copyright infringement suit against Feist Publications, Inc. for the use of white pages information that Rural had collected. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340 (1991). The Court ruled against Rural, holding that the telephone book was an unoriginal compilation of facts that failed to meet constitutional or statutory requirements for copyright. Id. Facts in and of themselves are not appropriate for copyright protection because the ‘author’ is merely considered to have ‘discovered’ them as opposed to creating them. However, the Court held that a compilation may be copyrightable if facts have been “selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” Id. at 341.

Intrinsic to the compilation exception is that a compilation author uses the fruits of their intellectual labor to choose which facts to include, how to place them, and how to arrange them for effective use, even if the author did not create the facts in and of themselves. Id. at 348. “These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws.” Id. at 348, quoting Nimmer 2.11 [D], 3.03.

Artists may wish to claim that compilations fall under a ‘thin copyright’, but courts will still require a showing that the work as a whole is an original work of authorship.  

What about collages? Can a collage using elements of someone else’s work violate their copyright, and can a collage be protected as a compilation?

A collage is not considered a compilation. Use of images in a collage may violate the original artist’s copyright protections depending on how much of the image is used, and in what manner the images are used.

The distinction between whether a work is a collective work, or a derivative work, matters when considering collages.

Collective works are protected by 17 U.S.C. §201(c). A collective work involves a number of contributions, constituting separate and independent works in themselves, which are assembled into a collective whole. 17 U.S.C. §101.

A derivative work is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. 17 U.S.C. § 101.

The 9th Circuit Court of Appeals discussed collages in Jarvis v. K2 Inc., 486 F.3d 526, 532 (9th Cir. 2007). In Jarvis, a professional photographer under a series of agreements submitted thousands of pictures to K2, a corporation selling outdoor sporting goods. The agreements authorized K2 to publish the images in brochures, print advertisements, trade show display booths, posters, and publish the images on the Internet. All uses of Jarvis’ images required an attribution credit. Id. at 528.

After the relationship between Jarvis and K2 ended, K2 continued to use Jarvis’ images and incorporated twenty-four of them into four collage advertisements which were scanned and displayed on their website.

Jarvis argued that the collage ads were derivative works not protected by 17 U.S.C. §201(c). The Court of Appeals agreed, discussing that the collage ads did not merely compile the slides, but “shrank, expanded, distorted, overlaid and otherwise edited the original images, while also combining them with photos taken by other photographers, additional graphics, the K2 logo and marketing slogans.” Id. at 531.

The Court of Appeals applied an analysis that “[b]y borrowing and mounting the preexisting, copyrighted individual art images, appellant has prepared a derivative work and infringed the subject copyrights.” Id., quoting Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F2d 1341 (9th Cir. 1988).

Where does this leave artists? Importantly, Jarvis’ photographs were not in the public domain and therefore subject to copyright protection. Artists who work with collages should work to use images in the public domain if available.

Additionally, collages can be protected under the collective work analysis. However, the copyright protection will only stretch as far as the artist can prove an original work of authorship and materials contributed by the author.

There is also the concept of “fair use” to consider, which is a defense to copyright infringement. Fair use under 17 U.S.C. §107 applies to the use of copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. The fair use analysis considers: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work. Id. There is some discussion that fair use could be applied to collages, but the courts tend to consider collages as collective works.

Conclusion

Hampton Roads artists can enjoy copyright protection of their artwork if the piece is within the protected articles, is fixated for a period of time, and is an original work of authorship to a certain degree. Copyright is automatically attributed to finished works or works which if finished would qualify for copyright protection.  However, artists must register their copyright for a valid legal claim.

Even if artists sell their work and accompanying copyright protections, artists still maintain moral rights in their artwork.

A “thin copyright” may be applicable for compilations, requiring a modicum of originality. A collage, while not a compilation, may be a collective or a derivative work. A collective work has copyright protection, but a derivative work does not.

Virginia Augello is a Pender & Coward attorney focusing her practice on eminent domain/right of way matters and civil litigation.