Recently an artist on FB asked if making a study/copy of an artist’s work was a breach of copyright and someone else added that you would end up in jail if you did. This generated pages of comments which in some cases labelled every art student a forger and every artist who has been influenced by another’s work as unoriginal. One erstwhile commentator claimed that he was wholly original because he had never looked at another artist’s work but ignoring the fact that he was squarely within the tradition of artists painting on canvas, using principles of composition, colour balance and illusion. All artists use the ideas and work of others and always have done. All art students copy and study the work of others and always have done. The problem is not the copying but on the one hand trying to sell it as the original artist’s work and on the other ‘borrowing’ without permission. There seems to be considerable confusion around this idea.

Let’s begin at the beginning. An artist in any medium is legally protected In Australia [other countries may not have similar protections] and anything produced is automatically the property of the creator. That means that the creator is the only one who can decide how the work is used and permission must be sought to do so. We are all aware of how this works and a list of copyright infringements would include downloading music and movies without paying for them, using music in a public arena without permission, using someone else’s photographs in a blog and using someone’s design, logo or painting in an advertising campaign. It also extends to damaging the reputation of the copyright holder through use that is offensive.

Technically –

Every time someone downloads a web page is, it is breach of copyright

Every time someone copies an image in Google Images it is illegal

Every time music is downloaded without payment it is illegal

Every time Donald Trump uses music without permission at his rallies it is illegal

However, tracing is legal, [as long as the original artist does not object.]

Making fan art is not illegal but selling fan art is illegal.

Making fakes of paintings may not be illegal until they are passed off as originals.

 

Some of this comes under the heading of ‘fair use’. The concept of fair use is widely quoted but difficult to define exactly.

In schools, students make use of all sorts of copyrighted material for assignments and at various times teachers have been able to photocopy sections of copyrighted material in lesson plans. Radio stations play music all day long but do not have permission to do so under the law but if artists want their music heard then radio stations do nothing to seek permission. Students and teachers using copyrighted material is deemed as fair use but the widespread downloading of music and films is not. However, policing all of this is near impossible.

So, what if your copyright is infringed?

You can ask the infringer to stop [it hasn’t stopped Donald Trump]. You can take the infringer to court. However, you may have to go to the country where the infringement took place in that one country’s copyright laws may not be applicable to others. For instance, you can buy pirated films and music in some Asian countries with impunity. Selling pirated copies in certain countries is not illegal but you owning it is illegal. Macdonalds is currently suing Hungry Jacks according to the ads over a similarity in word use but proof that Macdonalds has suffered financially may take years to prove as would its reputation being damaged. But then again, they have a lot of money to throw at what they see as unfair trade practises.

Going to Jail? It has happened. One unfortunate American woman was successfully sued and jailed for having downloaded twelve songs to a mix tape but that is a rarity and the legal fees would have been astronomical. You need a lot of money and clout to sue anyone over breach of copyright so basically only massive conglomerates even bother and it can go either way in court. The recent case involving the song Stairway to Heaven took years to resolve but the result was inconclusive. The same was true of Men At work and the flute solo. There may have been similarities in both cases but proving beyond doubt proved to be impossible. Donald Trump has continued to use music to which he does not have rights and the owners of the copyright might well take exception to being associated with his political views but after the fact there is nowhere to go. The offence has happened but proving a damaged image or reputation as a result of it comes down to a matter of opinion. In the case of the Rolling Stones a lawyer could argue that their reputation was damaged long ago.

Payment for use of music in Australia does not actually amount to much though. A short term licence for music use in Australia costs at little as one hundred dollars give or take and the collected money is distributed by a statutory authority but who is going to police all of those parties in private houses and dance groups where music may be played. I Tunes and other streaming services of course charge for use and take a proportion for themselves. How much of that ends up in the artist’s pocket is open to question.  Once upon a time I asked an American author for permission to use a one-line quote as introduction to a novel I was writing. He wanted $1500 US for the first run and more for further reprints. He was quite entitled to protect his copyright.

So, the answer to the original question is that a reproduction of someone else’s painting is perfectly legal despite the words “copyright” being applied to said reproduction as long as you don’t try to sell it as the artist’s original work. All of those exact copies of the Mona Lisa might have Da Vinci turning in his grave but most of them were painted by his students and have given museum directors palpitations over time. Did those students reach copyright? In today’s terms possibly yes, but in Da Vinci’s time it was standard practice to copy the master.